COURT OF APPEALS

DECISION

DATED AND FILED

March 28, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1596 Cir. Ct. No. 2021CV166

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

BANK OF NEW YORK MELLON,

 PLAINTIFF-RESPONDENT,

 V.

DIANE G. CANO AND MARIO A. CANO,

 DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Jefferson County: 

BENNETT J. BRANTMEIER, Judge. Reversed. 

Before Graham, Nashold, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Diane Cano and Mario Cano, by counsel, appeal a 

summary judgment of foreclosure entered by the circuit court in favor of Bank of 
No. 2022AP1596

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New York Mellon (the Bank). On appeal, the Canos argue that the Bank’s 

submissions in support of summary judgment do not establish a prima facie case 

for summary judgment. We agree. Specifically, we conclude that there are 

disputed, genuine issues of material fact regarding the authenticity of the 

promissory note, a copy of which was attached to the foreclosure complaint, and 

those disputes of fact preclude the entry of summary judgment in the Bank’s favor. 

Accordingly, we reverse. 

BACKGROUND

¶2 This is a foreclosure action on the Canos’ home, which was initiated 

by the Bank, in care of Specialized Loan Servicing, LLC. Specialized Loan 

Servicing, LLC is the mortgage loan servicer for the Canos’ account. 

¶3 The Bank attached several documents to the foreclosure complaint, 

including copies of a promissory note and mortgage purportedly executed by 

Diane Cano on or about July 27, 2006. The lender named on the promissory note 

and mortgage is S&L Investment Lending, Inc. According to the complaint, the 

Bank is the current holder of the promissory note, the mortgage was assigned to 

the Bank through a chain of events not directly relevant to the issues we address 

on appeal, and the Bank recorded an assignment of mortgage with the Jefferson 

County register of deeds. The Bank alleges that the Canos failed to comply with 

the terms of the note and mortgage by failing to make a payment due on March 1, 

2018, and failing to make monthly payments thereafter. 

¶4 The Bank moved for summary judgment and filed, along with the 

motion, a supporting affidavit sworn to by Steven Ross, second assistant vice 

president of Specialized Loan Servicing, LLC. The Canos filed an objection to the 

motion for summary judgment. In support of the objection, Diane Cano filed an 
No. 2022AP1596

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affidavit in which she averred that, on May 26, 2022, she inspected a file 

“purporting to contain the original Note and Mortgage,” which had been produced 

for her by the Bank at her request. Cano averred that “[t]his Note purports to 

contain my signature. I dispute that the signature on the note is my signature and 

deny that I signed the document.” 

¶5 The circuit court held a hearing on the motion at which it heard 

arguments from the parties’ attorneys. At the close of the hearing, the circuit court 

granted summary judgment in favor of the Bank, finding that there were no 

genuine issues of material fact in dispute between the parties. The Canos appeal. 

STANDARD OF REVIEW

¶6 “In reviewing the grant or denial of a summary judgment, we apply 

the same methodology as the circuit court and review de novo whether the circuit 

court properly granted or denied summary judgment.” Kaitlin Woods Condo. 

Ass’n, Inc. v. North Shore Bank, FSB, 2013 WI App 146, ¶9, 352 Wis. 2d 1, 841 

N.W.2d 562. Summary judgment is appropriate only if there is no genuine issue 

of material fact and the moving party is entitled to judgment as a matter of law. 

Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. 

App. 1984). 

DISCUSSION

¶7 The Canos argue that the circuit court erred in granting the Bank’s 

summary judgment motion because the materials submitted in support of the 

motion fail to establish a prima facie case for summary judgment. We agree. We 

focus our discussion on the promissory note because we conclude that there are 

disputed, genuine issues of material fact as to the authenticity of the note. 
No. 2022AP1596

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¶8 The Canos dispute the authenticity of the promissory note attached 

to the complaint and argue that the Bank has failed to establish that it is in 

possession of the original note. Diane Cano maintains on appeal that she disputes 

the signature that appears on the note. The Canos argue that the Ross affidavit is 

insufficient to authenticate the note because Ross does not aver that he has 

personal knowledge of the Canos’ actions in 2006 when the note purportedly was 

signed. The Canos argue that, therefore, the Ross affidavit does not comply with 

the requirement under WIS. STAT. § 802.08(3) (2021-22)1that affidavits in support 

of summary judgment “shall be made on personal knowledge and shall set forth 

such evidentiary facts as would be admissible in evidence.” See also Palisades 

Collection LLC v. Kalal, 2010 WI App 38, ¶15, 324 Wis. 2d 180, 781 N.W.2d 

503. 

¶9 The Bank asserts that it possesses the original note and that the 

Canos were permitted to inspect it at the office of the Bank’s attorney. The Bank 

argues that, as the holder of the note, it has the right to enforce the note. See WIS.

STAT. § 403.301. Pursuant to WIS. STAT. § 401.201(2)(km)1., a “holder” is 

defined as “[t]he person in possession of a negotiable instrument that is payable 

either to bearer or to an identified person that is the person in possession.” 

Possession of the original note by the loan servicer or counsel, in their capacity as 

legal representative of a bank, does not impair the bank’s status as holder. 

Deutsche Bank Nat’l Trust Co. v. Wuensch, 2018 WI 35, ¶28, 380 Wis. 2d 727, 

911 N.W.2d 1. 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP1596

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¶10 For purposes of this decision, we assume without deciding that, if

the Bank is the holder of the original note, it has the legal right to enforce it.

However, as we now explain, there remains a factual dispute as to whether Diane 

Cano signed the note that the Bank allegedly holds. 

¶11 Pursuant to WIS. STAT. § 403.104(1), the note is a negotiable 

instrument. WISCONSIN STAT. § 403.308(1) provides the following regarding the 

authenticity of a negotiable instrument: “In an action with respect to an 

instrument, the authenticity of, and authority to make, each signature on the 

instrument is admitted unless specifically denied in the pleadings.” Here, the 

Bank alleged in the complaint that a true and correct copy of the note was attached 

as Exhibit A. In the answer, the Canos specifically denied that allegation. In her 

affidavit submitted in opposition to summary judgment, Diane Cano denied that 

she signed the note that the Bank provided for inspection, which was represented 

to be the original note. Diane Cano continues to dispute the signature on appeal. 

The Bank does not address in its respondent’s brief the issue of the disputed 

signature. Therefore, the authenticity of the note and, specifically, Diane Cano’s 

signature are genuine issues of material fact. We will reverse a decision granting 

summary judgment where, as here, material facts are in dispute. See Official

Comm. of Unsecured Creditors of Great Lakes Quick Lube LP v. Theisen, 2018 

WI App 70, ¶25, 384 Wis. 2d 580, 920 N.W.2d 356. 

¶12 The Canos also argue that the assignment of mortgage, a copy of 

which was attached to the Ross affidavit as Exhibit C, is not properly 

authenticated by the affidavit or other means and, therefore, is not admissible 

evidence. The Bank counters that the assignment of mortgage, as well as all of the 

other documents appended to the Ross affidavit, are admissible under an exception 

to the hearsay rule as “records of regularly conducted activity.” See WIS. STAT.
No. 2022AP1596

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§ 908.03(6). Because we reverse on other grounds, we need not address this issue. 

State v. Mark A., 177 Wis. 2d 551, 554 n.1, 503 N.W.2d 275 (Ct. App. 1993); see 

also State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (“An appellate 

court should decide cases on the narrowest possible grounds.”).

In conclusion, we reverse the summary judgment of foreclosure because 

there are disputed, genuine issues of material fact regarding the authenticity of the 

promissory note. 

By the Court.—Judgment reversed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.