Federal National Mortgage Association v. Cory Thompson , 381 Wis. 2d 609 ( 2018 )


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    2018 WI 57
    SUPREME COURT                 OF   WISCONSIN
    CASE NO.:               2016AP1496
    COMPLETE TITLE:         Federal National Mortgage Association,
    Plaintiff-Respondent,
    v.
    Cory Thompson,
    Defendant-Appellant,
    Unknown Spouse of Cory Thompson,
    Defendant.
    ON CERTIFICATOIN FROM THE COURT OF APPEALS
    OPINION FILED:          May 24, 2018
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:          February 19, 2018
    SOURCE OF APPEAL:
    COURT:               Circuit
    COUNTY:              Dane
    JUDGE:               Amy Smith
    JUSTICES:
    CONCURRED:
    DISSENTED:
    NOT PARTICIPATING:
    ATTORNEYS:
    For the defendant-appellant, there were briefs and an oral
    argument by Christopher Stroebel and Stroebel Law, LLC, Madison.
    For the plaintiff-respondent, there was a brief and an oral
    argument      by    Thomas    C.   Dill   and   BP   Peterman   Law   Group,   LLC,
    Brookfield.
    
    2018 WI 57
                                                                       NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.       2016AP1496
    (L.C. No.    2014CV3377)
    STATE OF WISCONSIN                               :            IN SUPREME COURT
    Federal National Mortgage Association,
    Plaintiff-Respondent,
    v.
    FILED
    Cory Thompson,
    MAY 24, 2018
    Defendant-Appellant,
    Sheila T. Reiff
    Unknown Spouse of Cory Thompson,                                   Clerk of Supreme Court
    Defendant.
    APPEAL from an order of the Circuit Court for Dane County.
    Affirmed.
    ¶1      SHIRLEY S. ABRAHAMSON, J.              This appeal comes before
    the   court    on   certification     by   the   court      of    appeals.1         Cory
    Thompson, the debtor defendant, appeals an order of the Dane
    County      Circuit    Court,   Amy    Smith,        Judge,      granting      Federal
    1
    Fed. Nat'l Mortg. Ass'n v. Thompson, No. 2016AP1496,
    unpublished certification (Wis. Ct. App. June 29, 2017).
    No.     2016AP1496
    National    Mortgage        Association        a     foreclosure          judgment       and     a
    monetary    judgment       of    $152,355.98,            plus    any     amounts       held     in
    escrow, interest after August 16, 2012, and costs incurred by
    Federal National Mortgage Association.2
    ¶2     The     issue        certified         is      as    follows:              Where     a
    foreclosure action brought on a borrower's default on a note has
    been dismissed, is the lender barred by claim preclusion from
    bringing     a     second        foreclosure         action        on     the        borrower's
    continuing default on the same note?
    ¶3     Essentially, we must answer the following question:
    When a foreclosure action brought on the borrower's default on
    the note has been dismissed with prejudice,3 and the lender had
    not validly accelerated payment of the amount due under the
    note,    does    claim     preclusion      bar       the       lender    from        bringing    a
    second foreclosure action based upon the borrower's continuing
    default on the same note?
    ¶4     We     conclude       that    when       a     lender       does    not     validly
    accelerate       payment    of    the    amount          due    under    the     note     and    a
    foreclosure       action    brought       on       the    borrower's       default       on     an
    installment       payment       under    the       note    has    been     dismissed        with
    prejudice,       claim     preclusion      does          not     bar    the     lender      from
    2
    Federal National Mortgage Association replaced Bank of
    America as the plaintiff in the instant case in December 2015.
    3
    For a summary of the facts and decision in the previous
    action in 2010, see BAC Home Loans Servicing LP v. Thompson, No.
    2013AP210, unpublished slip op. (Wis. Ct. App. Dec. 19, 2013).
    2
    No.     2016AP1496
    bringing      a     subsequent          foreclosure              action    based       upon     the
    borrower's continuing default on the same note.
    ¶5     For an earlier action to bar a subsequent action under
    the doctrine of claim preclusion, there must be, among other
    elements, "an identity of causes of action in the two suits[.]"
    N.   States       Power     Co.     v    Bugher,           
    189 Wis. 2d 541
    ,        551,     
    525 N.W.2d 723
    (1995).
    ¶6     There      is    no     identity          of    causes        of   action     in   the
    instant case and in the earlier lawsuit.                            The matters that were
    litigated or might have been litigated in the earlier lawsuit
    are not the same as those in the instant case.                                 A different set
    of   operative       facts        predicated           upon       separate       and     distinct
    defaults on the note is alleged in each lawsuit.
    ¶7     Upon      dismissal         of    the       first       lawsuit,      the     parties
    continued     the     same        contractual          relationship            with    the     same
    continuing obligations they had before the commencement of the
    first   lawsuit.            The    borrower's           default       resulting        from    the
    borrower's        failure    to    make      an       installment         payment      due    after
    dismissal of the first lawsuit was not and could not have been
    litigated     in    the     first       lawsuit.            Thus,    the       failure    of    the
    borrower to pay an installment after the termination of the
    first lawsuit created a new set of operative facts upon which
    the lender could base a subsequent foreclosure action.
    ¶8     After the first lawsuit, the lender gave new notice of
    intent to accelerate payment.                         The second lawsuit alleged a
    different date of default than was alleged in the first lawsuit.
    These constitute new facts giving rise to a new and subsequent
    3
    No.   2016AP1496
    default and a different transaction from that presented in the
    first foreclosure action.
    ¶9      Additionally,    the   parties     raised    and    addressed   the
    issues of whether the circuit court erred at trial by admitting
    a copy of the promissory note into evidence and whether Federal
    National Mortgage Association proved that it had possession of
    the original wet-ink promissory note.4
    ¶10     We conclude that these additional issues are governed
    by our decision in Deutsche Bank National Trust Co. v. Wuensch,
    
    2018 WI 35
    , ___ Wis. 2d ___, ___ N.W.2d ___.
    ¶11     Accordingly, we affirm the order of the circuit court.
    I
    ¶12     The facts are undisputed for purposes of this review.
    ¶13     In November 2004, Cory Thompson executed a promissory
    note       payable   to   America's   Wholesale    Lender    for    $162,800.00,
    secured by a mortgage on real property.               The note was endorsed
    in blank by America's Wholesale Lender.               The note contained an
    acceleration clause stating that the holder of the note may
    require Thompson to pay the full amount of unpaid principal plus
    interest immediately under the following conditions:
    4
    When this court grants direct review upon certification,
    it acquires jurisdiction over all issues, not merely the issues
    certified or the issue for which the court accepts the
    certification.     Wis. Const. art. VII, § 3(3); Wis. Stat.
    §§ 808.05(2), 809.61; State v. Stoehr, 
    134 Wis. 2d 66
    , 70, 
    396 N.W.2d 177
    (1986).
    4
    No.        2016AP1496
    (1)     Thompson      must     have   defaulted          by    failing       to    make   a
    monthly payment on the date that it was due;
    (2)     the holder of the note must have sent written notice
    to       Thompson     stating       that     it       may    accelerate         the
    payments under the note if Thompson fails to cure the
    default by a given date; and
    (3)     the amount of time in which Thompson is afforded the
    opportunity to cure his default must not be less than
    30 days after the date on which the notice is mailed
    or otherwise delivered to Thompson.
    ¶14     In       November     2010,    BAC    Home        Loans      Servicing,         LP,
    (formerly Countrywide Home Loans Servicing, LP) filed a lawsuit
    against Thompson.         The complaint alleged that Thompson failed to
    make required payments on the note as of April 2009.                                    In its
    complaint,     BAC     Home     Loans   purported       to     accelerate        the     debt,
    which   made     the    principal       balance    of     $153,202.53        immediately
    payable in full.         BAC Home Loans sought a money judgment in the
    full amount owed under the note and sought to foreclose on the
    property securing the note.
    ¶15     At a court trial held on August 16, 2012, the circuit
    court   determined        that     BAC     Home        Loans      failed     to        present
    sufficient evidence to prevail in its foreclosure action and
    dismissed      the     lawsuit     with    prejudice.              The    circuit        court
    reasoned that BAC Home Loans failed to present evidence of the
    original notice of intent to accelerate full payment and failed
    to present evidence that BAC Home Loans was in possession of the
    5
    No.    2016AP1496
    original wet-ink note (i.e., that BAC Home Loans was the holder
    of the note with the right to enforce the note).
    ¶16   In    March   2014,    Bank   of   America,     N.A.,    (the     entity
    servicing Thompson's loan beginning in 2011), sent Thompson a
    notice of intent to accelerate payment of the note.                     The notice
    of intent to accelerate payment informed Thompson of the amount
    due to cure his default ($89,586.63), when payment was due (on
    or before May 4, 2014), and where to remit payment.                       Thompson
    did not cure his default on or before May 4, 2014.
    ¶17   In December 2014, Bank of America filed a complaint
    initiating   the    instant    lawsuit.      The   complaint      alleged     that
    Thompson had failed to make payments on the note as of September
    2009 and that because Bank of America had accelerated the debt,
    the principal balance of $152,355.98 was immediately payable in
    full.
    ¶18   Thompson moved to dismiss the December 2014 lawsuit,
    arguing that it was barred by the doctrine of claim preclusion.
    ¶19   The circuit court reasoned that the 2010 lawsuit and
    the instant 2014 lawsuit involved the same parties, the same
    note and mortgage, the same "essential" allegations of default,
    and the same remedy.         According to the circuit court, the only
    difference between the 2010 and 2014 lawsuits was the different
    default period.      The 2010 lawsuit was based on a default as of
    April 2009, and the 2014 lawsuit was based on a default as of
    September 2009.
    ¶20   The      circuit    court   concluded    that    claim        preclusion
    barred the portion of Bank of America's default claim that was
    6
    No.     2016AP1496
    alleged to have occurred between April 2009 and August 16, 2012,
    the date of the trial in the 2010 lawsuit.                            The circuit court
    further    concluded         that    any    default       claim       alleged     to    have
    occurred after August 16, 2012, "remain[ed] viable."
    ¶21     The        circuit      court    explained         that     applying        claim
    preclusion       to    any    default       alleged      to    have     occurred        after
    judgment was entered in the 2010 lawsuit would "be analogous to
    parties    in    a    contract      litigating      to    conclusion      one     contract
    violation,       and       then   being     forever       barred       from     litigating
    subsequent      contract      violations.          Surely,      the     policies       behind
    claim or issue preclusion do not contemplate such a result."
    ¶22     Accordingly, Bank of America amended its complaint to
    allege a date of default occurring after the trial in the 2010
    lawsuit.     The amended complaint alleged that Thompson had failed
    to make payments on the note as of September 2012 and that on
    acceleration of the debt due, Thompson owed a principal balance
    of $152,141.69.
    ¶23     A court trial was held on May 12, 2016.                               Prior to
    calling    any    witnesses,        Federal       National     moved     to     admit    into
    evidence a purported copy of the note.                          Counsel for Federal
    National presented the copy of the note, along with a document
    purporting to be the original wet-ink note.                        Thompson objected,
    stating    that       he    was   unable     to    tell       whether    the     purported
    original wet-ink note was in fact the original wet-ink note or
    whether either document was identical to the original document
    that he signed in November 2004.
    7
    No.     2016AP1496
    ¶24    The circuit court visually compared the copy of the
    note with the document that Federal National's counsel presented
    to the court as the original wet-ink note.                            The circuit court
    observed that the document presented by counsel as the original
    note appeared to be the original wet-ink note.                                 The circuit
    court admitted the copy of the original wet-ink note based on
    the    court's      visual    comparison           of   the    original   and     copy     and
    because       the        circuit     court         viewed       the   copy       as    self-
    authenticating.
    ¶25    The circuit court granted Federal National a monetary
    judgment of $152,355.98——plus any amounts held in escrow, costs,
    and interest after August 16, 2012——along with a judgment of
    foreclosure         to     satisfy    the      monetary         judgment.          Thompson
    appealed.
    ¶26    The court of appeals certified the issue as follows:
    Where a foreclosure action brought on a borrower's default on a
    note    has     been      dismissed,      is        the    lender     barred     by    claim
    preclusion      from      bringing    a   second          foreclosure     action      on   the
    borrower's continuing default on the same note?
    II
    ¶27    We    begin    by    setting         forth      the   standard     of   review
    applicable to the certified issue.
    ¶28    The certified issue involves the application of the
    doctrine of claim preclusion to undisputed facts.                          "The question
    of    whether       claim    preclusion        applies        under   a   given       factual
    scenario is a question of law that this court reviews de novo."
    N. States Power 
    Co., 189 Wis. 2d at 551
    (citing DePratt v. West
    8
    No.        2016AP1496
    Bend       Mut.     Ins.     Co.,      
    113 Wis. 2d 306
    ,              310,       
    334 N.W.2d 883
    (1983)).
    III
    ¶29       We address whether the doctrine of claim preclusion
    applies to the undisputed facts in the instant action.
    ¶30       Under     the    doctrine        of     claim          preclusion,           "a     final
    judgment is conclusive in all subsequent actions between the
    same parties [or their privies] as to all matters which were
    litigated         or   which      might      have      been    litigated           in     the      former
    proceedings."            N. States Power 
    Co., 189 Wis. 2d at 550
    (brackets
    in     original);          Lindas      v.     Oday,      
    183 Wis. 2d 547
    ,                 558,     
    515 N.W.2d 458
             (1994);       
    DePratt, 113 Wis. 2d at 310
    .            "Claim
    preclusion         thus      provides        an   effective             and    useful         means    to
    establish and fix the rights of individuals, to relieve parties
    of   the     cost      and    vexation       of     multiple        lawsuits,            to    conserve
    judicial resources, to prevent inconsistent decisions, and to
    encourage         reliance       on   adjudication."                Kruckenberg           v.       Harvey,
    
    2005 WI 43
    , ¶20, 
    279 Wis. 2d 520
    , 
    694 N.W.2d 879
    .5
    ¶31       Three elements must be present for an earlier action
    to   bar     a     subsequent         action:          "(1)    an       identity         between      the
    parties or their privies in the prior and present suits; (2) an
    identity between the causes of action in the two suits; and, (3)
    a    final        judgment       on    the    merits      in        a    court       of       competent
    5
    For further discussion of the public policies underlying
    the doctrine of claim preclusion, see Kruckenberg v. Harvey,
    
    2005 WI 43
    , ¶¶19-22, 
    279 Wis. 2d 520
    , 
    694 N.W.2d 879
    , and
    accompanying footnotes.
    9
    No.   2016AP1496
    jurisdiction."          N.   States     Power      
    Co., 189 Wis. 2d at 551
    ;
    
    DePratt, 113 Wis. 2d at 311
    .
    ¶32      The parties do not dispute, and we agree, that only
    the second factor of claim preclusion, that is, identity between
    causes of action in the two lawsuits, is at issue in the present
    case.
    ¶33      In    determining    whether         there   is     identity    between
    causes   of    action    for   purposes       of   applying      claim   preclusion,
    Wisconsin courts apply the "transactional approach" as described
    in   Restatement        (Second)   of     Judgements.             Kruckenberg,     
    279 Wis. 2d 520
    , ¶25; N. States Power 
    Co., 189 Wis. 2d at 553-54
    ;
    
    DePratt, 113 Wis. 2d at 311
    -12.
    ¶34      The    Restatement      explains        that       the   transactional
    approach views a claim in factual terms and coterminous with the
    transaction, rather than in terms of legal theories:
    The present trend is to see a claim in factual terms
    and to make it coterminous with the transaction
    regardless of the number of substantive theories, or
    variant forms of relief flowing from those theories,
    that may be available to the plaintiff; regardless of
    the number of primary rights that may have been
    invaded; and regardless of the variations in the
    evidence needed to support the theories or rights.
    The transaction is the basis of the litigative unit or
    entity which may not be split.
    Restatement (Second) of Judgments § 24 cmt. a (1982); 
    DePratt, 113 Wis. 2d at 311
    .
    ¶35      Section 24(2) of the Restatement (Second) of Judgments
    describes the "transactional approach" in terms of the facts as
    follows:
    10
    No.    2016AP1496
    What factual grouping constitutes a "transaction", and
    what groupings constitute a "series", are to be
    determined   pragmatically,  giving  weight   to  such
    considerations as whether the facts are related in
    time, space, origin, or motivation, whether they form
    a convenient trial unit, and whether their treatment
    as a unit conforms to the parties' expectations or
    business understanding or usage.
    Restatement     (Second)       of    Judgments    § 24(2)         (1982);      N.   States
    Power 
    Co., 189 Wis. 2d at 553-54
    .
    ¶36     "The   transactional           approach        to    claim       preclusion
    reflects      'the   expectation        that     parties      who    are       given   the
    capacity to present their "entire controversies" shall in fact
    do    so.'"      Kruckenberg,         
    279 Wis. 2d 520
    ,         ¶27    (quoting      the
    Restatement (Second) of Judgments § 24 cmt. a (1982)).                           In other
    words, "[t]he concept of a transaction connotes a common nucleus
    of operative facts."          Kruckenberg, 
    279 Wis. 2d 520
    , ¶26.
    ¶37     Whether    a     common       nucleus     of    operative        facts   is
    involved in the two actions at issue is determined pragmatically
    by "look[ing] to see if the claim asserted in the second action
    should have been presented for decision in the earlier action,
    taking into account practical considerations relating mainly to
    trial convenience and fairness."                 Kruckenberg, 
    279 Wis. 2d 520
    ,
    ¶27 (quoting Robert C. Casad & Kevin M. Clermont, Res Judicata:
    A Handbook on its Theory, Doctrine, and Practice 66 (2001)).
    ¶38     The 2010 lawsuit and the instant case do not share "a
    common nucleus of operative facts."                   Each lawsuit relates to a
    set of operative facts that occurred at a different time.                               In
    the   2010    lawsuit,       the    claim    asserted    was      that   Thompson      had
    defaulted on the note as of April 2009.                       In the instant case,
    11
    No.    2016AP1496
    the amended complaint6 asserts that Thompson defaulted on the
    note as of September 2012 (i.e., after judgment was entered in
    the 2010 lawsuit).
    ¶39     Thompson's brief assumes that an identity of claims
    exists between the 2010 lawsuit and the claims in the instant
    case because the same total amount, namely the entire balance on
    the   note,    was    the   remedy    sought    in    both    lawsuits.          This
    assumption rests on another assumption, namely that an effective
    acceleration of payments occurred in the 2010 lawsuit.                     Thompson
    conceded at oral argument, however, that payment of the note was
    not effectively accelerated in the 2010 lawsuit.
    ¶40     Nevertheless, Thompson continues to assert that the
    instant case is barred by claim preclusion.                  In support of his
    claim preclusion argument, Thompson relies on Johnson v. Samson
    Construction       Corp.,   
    704 A.2d 866
        (Me.    1997),      and    U.S.   Bank
    National Ass'n v. Gullotta, 
    899 N.E.2d 987
    (Ohio 2008).7
    ¶41     In each of these cases, in ruling that the lender was
    forever barred from placing the entire balance of the note at
    issue once again in a second proceeding, the state supreme court
    assumed     that     full   payment   of     the     note    had    been    validly
    6
    The operative allegations in the instant case are in the
    amended complaint filed by Bank of America on August 14, 2015.
    7
    The certification memorandum filed by the court of appeals
    explains that state courts have taken varied approaches to the
    question of the application of the doctrine of claim preclusion
    to a subsequent foreclosure action after a prior foreclosure
    action is dismissed.
    12
    No.   2016AP1496
    accelerated and the entire balance of the note was the subject
    of the first lawsuit, which was dismissed with prejudice.
    ¶42   The Maine Supreme Court summarized its reasoning in
    Johnson that a lawsuit based on default of an accelerated debt
    barred a second lawsuit on the debt as follows:
    The promissory note between Johnson and Samson
    required 240 equal monthly payments of principal and
    interest.    However, the note's acceleration clause
    provided that "[i]f any default be made in any payment
    under this Note, and if such default is not made good
    within thirty (30) days after written notice of same,
    the entire unpaid principal and accrued interest shall
    become immediately due and payable without further
    demand." Johnson's first cause of action alleged that
    Samson "defaulted on its obligations to the Plaintiff
    under the Note" and demanded payment of the entire
    unpaid principal balance. This suit was an action for
    the accelerated debt.     Once Johnson triggered the
    acceleration clause of the note and the entire debt
    became due, the contract became indivisible.       The
    obligations to pay each installment merged into one
    obligation to pay the entire balance on the note.
    Johnson, 
    704 A.2d 866
    , ¶8.
    ¶43   The Ohio Supreme Court also relied on a purportedly
    valid acceleration of the balance due on default in reaching its
    decision that a subsequent lawsuit on the note was barred.      It
    explained in Gullotta the distinction between the consequences
    for a second lawsuit of an initial action for recovery of an
    installment payment and of an initial action for recovery of the
    entire debt as follows:
    The key here is that the whole note became due upon
    Gullotta's breach, not just the installment he missed.
    There is a distinction between an action for recovery
    of installment payments under an installment note
    where the entire principal is accelerated, and an
    13
    No.    2016AP1496
    action to recover for nonpayment under an installment
    note where only the amount of the principal to date,
    and no future amount, is sought.    The general rule
    that each missed payment in an installment loan gives
    rise to a separate cause of action does not hold true
    when there is an acceleration clause in the loan
    agreement[.]
    Gullotta, 
    899 N.E.2d 987
    , ¶29.
    ¶44    Neither    Thompson's          arguments      nor       these    cases      upon
    which Thompson relies are persuasive in deciding the instant
    case in Thompson's favor.               Why?      Because in the instant case,
    unlike in the cases described above, no valid acceleration of
    the debt occurred in the 2010 lawsuit.
    ¶45    Generally, and in the instant case, there cannot be a
    valid    acceleration      of     the     debt     without        a    default       by    the
    borrower.       That     is,     the    borrower's       default        is    a    condition
    precedent to the lender's right to accelerate the debt.
    ¶46    After a lawsuit based on the debtor's failure to make
    one or more payments is dismissed with prejudice but payment of
    the note was not validly accelerated because it was never proved
    that    the   borrower     was    actually        in   default,        the     parties     are
    simply    placed    back    into       the    position      they       held    before     the
    commencement       of    the      lawsuit,        with      the        same        continuing
    obligations.        See,    e.g.,       Singleton      v.    Greymar          Assocs.,     
    882 So. 2d 1004
    (Fla. 2004); Afolabi v. Atlantic Mortg. & Invest.
    Corp., 
    849 N.E.2d 1170
    (Ind. App. 2006).
    ¶47    In the instant case, when the 2010 lawsuit against
    Thompson was dismissed with prejudice, it had the legal effect
    of conclusively establishing that Thompson was not in default
    for having missed installment payments due on the note up until
    14
    No.    2016AP1496
    the date of trial in the 2010 lawsuit (i.e., August 16, 2012).
    Thus,     because    it   was    never   proved    in   the    2010    lawsuit      that
    Thompson was in default, the entire balance of the note was
    never validly accelerated.               In such circumstances, the parties
    are     placed    back    into     the    position      they    held     before     the
    commencement of the lawsuit.              Thompson was obligated to continue
    making     installment     payments      after    the   dismissal      of     the   2010
    lawsuit, and claim preclusion does not prevent Federal National
    from suing Thompson for failing to make those payments.8
    ¶48    Accordingly,        we   conclude     that   the    instant       lawsuit
    alleging a default as of September 2012 is not barred by the
    doctrine of claim preclusion.
    ¶49    In     the   instant     case,      the    debt    was     not    validly
    accelerated in the 2010 lawsuit.                  Claim preclusion should not
    bar the mortgagee from challenging a subsequent default payment
    solely because the mortgagee failed to prove in a prior action
    an earlier alleged default.               Preventing a mortgagee from suing
    to collect a subsequent default even after the earlier claimed
    default could not be established would essentially insulate the
    mortgagor from future mortgage foreclosure actions on the note
    merely because the mortgagor prevailed in the first action.
    8
    We note that the 2010 lawsuit was dismissed with prejudice
    based on insufficient evidence.        We do not address the
    application of claim preclusion to a situation in which the
    prior lawsuit was dismissed due to a defect in substantive
    enforceability of the note.
    15
    No.    2016AP1496
    ¶50    The subject of the instant case is an alleged default
    in September 2012.        In the prior lawsuit between the parties,
    the default was alleged to have occurred in April 2009.                The
    instant lawsuit arises out of a different set of operative facts
    than those addressed in the prior lawsuit.           The default alleged
    in the instant case could not have been litigated in the prior
    lawsuit.      There is no identity of claims between the instant
    lawsuit and the prior lawsuit.           Accordingly, we conclude that
    the instant lawsuit alleging a default as of September 2012 is
    not barred by the doctrine of claim preclusion.
    IV
    ¶51    Before we end this opinion, we briefly address the
    following two additional issues the parties raised:
    (1)    whether the circuit court erred at trial by admitting
    a copy of the note into evidence; and
    (2)    whether Federal National proved that it had possession
    of the original wet-ink note.
    ¶52 These two issues are presented in and are governed by
    our decision in Deutsche Bank National Trust Co. v. Wuensch,
    
    2018 WI 35
    , ___ Wis. 2d ___, ___ N.W.2d ___.            With respect to
    these   two     issues,    the   facts    of   the   instant    case   are
    substantially the same in all material respects to the facts
    presented in Deutsche Bank.
    ¶53    In Deutsche Bank, we concluded that a promissory note
    endorsed   in   blank     constitutes    self-authenticating    commercial
    paper that may be enforced by the holder of the note.             Deutsche
    Bank, ___ Wis. 2d ___, ¶¶23-24.          We further concluded that the
    16
    No.     2016AP1496
    circuit court did not err by admitting into evidence a copy of
    the promissory note that was endorsed in blank, noting that the
    copy of the note was compared side-by-side to the original and
    that generally speaking, a duplicate of a document is admissible
    to    the    same    extent        as    the    original.             Deutsche         Bank,    ___
    Wis. 2d ___, ¶23.
    ¶54    We also concluded that because Deutsche Bank's counsel
    physically possessed the original note on his client's behalf at
    trial,      Deutsche     Bank      proved       that      it   had     possession         of    the
    original promissory note and could bring the lawsuit.                                    Deutsche
    Bank, ___ Wis. 2d ___, ¶24.
    ¶55    In the instant case, counsel presented the original
    wet-ink note to the circuit court along with a copy of the note.
    The circuit court in the instant case, sitting as the finder of
    fact, determined that the purported original appeared to be the
    original wet-ink note.              Upon comparing the original wet-ink note
    to the copy of the note, the circuit court admitted the copy
    into evidence.
    ¶56    Consistent          with    our    decision        in    Deutsche         Bank,    we
    conclude      that   Federal        National         proved     that    it       possessed      the
    original wet-ink note, that it could bring the lawsuit, and that
    the   circuit       court    did        not    err   in    admitting         a    copy    of    the
    original wet-ink note at trial.
    V
    ¶57    As to the certified issue, we conclude that when a
    lender does not validly accelerate payment of the amount due
    under       the   note      and     a    foreclosure           action    brought          on    the
    17
    No.     2016AP1496
    borrower's default on an installment payment under the note has
    been dismissed with prejudice, claim preclusion does not bar the
    lender from bringing a subsequent foreclosure action based upon
    the borrower's continuing default on the same note.
    ¶58   As to the additional issues raised by the parties, we
    conclude    that   Federal    National     proved   that   it       possessed     the
    original wet-ink note, that it could bring the lawsuit, and that
    the   circuit   court   did    not   err   in   admitting       a    copy    of   the
    original wet-ink note at trial.
    By the Court.—The order of the circuit court is affirmed.
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    No.   2016AP1496
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