COURT OF APPEALS 

DECISION 

DATED AND FILED

June 27, 2019 

Sheila T. Reiff 

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. 2018AP508 Cir. Ct. No. 2016CV2806

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT IV 

WILMINGTON SAVINGS FUND SOCIETY FSB, 

 PLAINTIFF-RESPONDENT, 

 V. 

ALISHA B. AYRES AND WILLIAM R. AYRES, JR., 

 DEFENDANTS-APPELLANTS. 

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

FRANK D. REMINGTON, Judge. Affirmed. 

 Before Lundsten, P.J., Kloppenburg and Fitzpatrick, JJ. 

¶1 KLOPPENBURG, J. This case arises from a foreclosure action 

filed by Wilmington Savings Fund Society FSB against Alisha and William Ayres. 

At issue on appeal are counterclaims asserted by the Ayreses against Wilmington, 

which are premised on Wilmington’s handling of the Ayreses’ application for a 
No. 2018AP508 

2 

loan modification prior to the commencement of the foreclosure action. The 

Ayreses assert that Wilmington’s handling of their loan modification application 

breached Wilmington’s contractual duty of good faith and fair dealing. In 

addition, the Ayreses assert that Wilmington also violated the Real Estate 

Settlement Procedures Act (RESPA), 12 U.S.C. § 2601-17 (2012),1 in handling the 

loan modification application. Both the duty of good faith and fair dealing claim 

and the RESPA claim were tried to a jury. 

¶2 The questions presented on appeal are: (1) whether the circuit court 

erred by overturning the jury’s verdict awarding the Ayreses damages for 

Wilmington’s breach of the duty of good faith and fair dealing; (2) whether the 

court erred by declining to change the jury’s negative answer to a special verdict 

question asking whether Wilmington violated RESPA in its handling of the

Ayreses’ loan modification appeal; and (3) whether the court erred by allowing 

Wilmington’s corporate representative to testify based on notes he had prepared 

for trial summarizing Wilmington’s business records without also producing those 

records. 

¶3 As to the first issue, we conclude that the circuit court properly 

overturned the jury’s verdict on the duty of good faith and fair dealing claim. In 

doing so, we explain that the Ayreses have not shown that a contract existed 

between them and Wilmington under which Wilmington had a duty of good faith 

and fair dealing with respect to the Ayreses’ loan modification application. As to 

the second issue, we conclude that the court correctly declined to change the jury’s 

special verdict answer concerning the loan modification appeal because credible 

 

1

 All references to the United States Code are to the 2012 version unless otherwise noted. 
No. 2018AP508 

3 

evidence supports the jury’s verdict. Finally, as to the third issue, we assume 

without deciding that the court erred by permitting Wilmington’s representative to 

testify based on his notes of Wilmington’s business records without producing 

those records, but we conclude that the error was harmless. Accordingly, we 

affirm. 

BACKGROUND2

¶4 The Ayreses purchased a house in Sun Prairie, Wisconsin in 1999. 

In 2006, the Ayreses refinanced and executed a Note and Mortgage secured by the 

house, which were subsequently transferred to Wells Fargo Bank. In 2010, the 

Ayreses executed a loan modification agreement with Wells Fargo. The Note, 

Mortgage, and 2010 modification together have governed the Ayreses’ loan at all 

times pertinent to this appeal, and we will refer to these items collectively as “the 

loan.” Wells Fargo sold the loan to Wilmington on February 19, 2016, and two 

different servicers serviced the loan for Wilmington thereafter.3 

 

2

 In their brief-in-chief, the Ayreses with few exceptions cite to their appendix and do 

not provide citations to the record. This is a violation of an important statutory requirement. On 

appeal, a party must include appropriate factual references to the record in its briefing. WIS.

STAT. RULE 809.19(1)(d)–(e). The appendix is not the record. United Rentals, Inc. v. City of 

Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322. This is no minor matter. 

An appendix is a helpful tool when panel judges conduct an initial review of the briefs and, 

therefore, parties typically provide appendix cites, as the Ayreses do here. But, when the case is 

assigned for drafting, we look directly to the record to verify factual assertions in a brief. The 

absence of record cites forces us to look to the appendix to determine where to look in the record. 

We warn counsel that future violations of the Rules of Appellate Procedure may result in 

sanctions. See WIS. STAT. RULE 809.83(2). 

3

 According to the testimony at trial, a loan “servicer” is responsible for managing 

disbursements and payments, escrow, tax, and insurance for the loan, as well as for assisting 

clients through “loss mitigation attempts.” The parties do not dispute that Wilmington is legally 

responsible for the actions of the servicers at issue in this case. The parties generally refer to 

Wilmington when discussing the actions taken by the servicers with respect to the loan after 

February 19, 2016, and we do the same. 
No. 2018AP508 

4 

¶5 The Ayreses stopped making the monthly payments required under 

the terms of the loan in June 2015. The Ayreses applied for a loan modification in 

2016. In response to the Ayreses’ loan modification application, Wilmington 

offered a “Trial Modification Plan,” which provided that if the Ayreses made four 

specified monthly payments and complied with certain other conditions, 

Wilmington would consider a permanent loan modification. Shortly after

receiving the Trial Modification Plan, the Ayreses sent Wilmington an appeal 

form stating that they could not afford the monthly payments proposed in the Trial 

Modification Plan. Wilmington ultimately rejected the Ayreses’ loan modification 

application and appeal in August 2016. We review pertinent details relating to the 

Ayreses’ loan modification application and appeal in the discussion section that 

follows. 

¶6 Wilmington filed the present foreclosure action in October 2016. 

The Ayreses asserted multiple defenses to the foreclosure and multiple 

counterclaims. Relevant to this appeal, the Ayreses’ counterclaims alleged that 

Wilmington’s handling of the Ayreses’ loan modification application and appeal 

violated both RESPA and Wilmington’s contractual duty of good faith and fair 

dealing. 

¶7 The circuit court entered a judgment of foreclosure in favor of 

Wilmington. The court held a jury trial on the counterclaims, and the jury 

returned the following special verdict:4

QUESTION NO. 1: Did Wilmington fail to exercise 

reasonable diligence in obtaining documents and 

information from the Ayres[es] to complete their 

 

4

 Question Nos. 1 through 4 relate to violations under RESPA. 
No. 2018AP508 

5 

application for loan modification in and after February 

2016? 

 Answer: Yes 

QUESTION NO. 2: Did Wilmington fail to provide 

prompt notice to the Ayres[es] that their application was 

incomplete? 

 Answer: No 

QUESTION NO. 3: Did Wilmington, within 30 days of the 

application being complete, fail to review the Ayres[es’] 

application and notify them of any loss mitigation option 

they would be offered? 

 Answer: No 

QUESTION NO. 4: Did Wilmington fail to process the 

Ayres[es’] appeal according to the applicable provisions of 

RESPA? 

 Answer: No 

.... 

QUESTION NO. 7: Did Wilmington breach its duty of 

good faith and fair dealing with respect to the Ayres[es]? 

 

 Answer: Yes 

The jury awarded $15,000 in damages for Wilmington’s failure to diligently 

obtain documents and information (Question No. 1) and awarded $75,000 in 

damages on the claim of breach of the duty of good faith and fair dealing 

(Question No. 7). 

¶8 In ruling on the parties’ various post-verdict motions, the circuit 

court overturned the jury’s verdict determining that Wilmington breached its duty 

of good faith and fair dealing, and left unchanged the jury’s answers to the 

remaining special verdict questions. The Ayreses appeal. 
No. 2018AP508 

6 

DISCUSSION 

¶9 The Ayreses raise three issues on appeal. We address and reject 

each of the Ayreses’ arguments in turn. 

I. Breach of the Duty of Good Faith and Fair Dealing 

¶10 The Ayreses argue that Wilmington breached its contractual duty of 

good faith and fair dealing (which we will refer to as the duty of good faith) in its 

handling of the Ayreses’ loan modification application by: (1) making conflicting 

and repetitive requests regarding documentation to support their loan modification 

application; (2) offering unaffordable Trial Modification Plan terms in response to 

their application; and (3) giving the Ayreses only three days to accept the Trial 

Modification Plan terms.5 As we explain, the Ayreses’ argument fails because 

they do not establish a prerequisite for their breach of the duty of good faith claim, 

namely, a contract from which that duty arises. 

¶11 We first summarize the applicable legal principles and standard of 

review. We then explain that the Ayreses have failed to show that Wilmington 

had a contractual duty to exercise good faith in handling the Ayreses’ loan 

modification application, and we conclude that the circuit court properly 

 

5

 The Ayreses also appear to assert that Wilmington breached its duty of good faith by 

refusing to accept payments from the Ayreses while the loan modification application was 

ongoing. However, the Ayreses do not develop a supporting argument as to why this action 

breached Wilmington’s duty of good faith, nor do they in their reply brief respond to 

Wilmington’s counterargument that the terms of the loan explicitly permitted Wilmington to 

“accelerate” the loan and refuse to accept monthly payments if the Ayreses fell behind on their 

monthly payments. Accordingly, we do not consider this assertion further. See Fischer v. 

Wisconsin Patients Comp. Fund, 2002 WI App 192, ¶1 n.1, 256 Wis. 2d 848, 650 N.W.2d 75 

(“An argument asserted by a respondent on appeal and not disputed by the appellant in the reply 

brief is taken as admitted.”). 
No. 2018AP508 

7 

overturned the jury’s verdict on the Ayreses’ breach of the duty of good faith 

claim.

A. Applicable Law and Standard of Review 

¶12 The duty of good faith is not amenable to precise definition, but 

previous Wisconsin courts have summarized it thus: 

Parties to a contract have a duty of good faith to each 

other.... [I]t may be said that contracts impose on the 

parties thereto a duty to do everything necessary to carry 

them out.... Moreover, there is an implied undertaking in 

every contract on the part of each party that he [or she] will 

not intentionally and purposely do anything to prevent the 

other party from carrying out his [or her] part of the 

agreement, or do anything which will have the effect of 

destroying or injuring the right of the other party to receive 

the fruits of the contract. 

Metropolitan Ventures, LLC v. GEA Assocs., 2006 WI 71, ¶35, 291 Wis. 2d 393, 

717 N.W.2d 58, opinion clarified on denial of reconsideration, 2007 WI 23, 299 

Wis. 2d 174, 727 N.W.2d 502 (citations and quoted source omitted). 

 ¶13 In order to assert that Wilmington breached its contractual duty of 

good faith, the Ayreses must establish the existence of a contract between them 

and Wilmington from which Wilmington’s obligation to process the Ayreses’ loan 

modification application in good faith arose; in other words, the contractual duty 

of good faith cannot be breached in the absence of a valid contract between the 

parties. See id., ¶¶35-36 (“[C]ontracts impose on the parties” a duty of good faith, 

and “[t]he duty of good faith arises because parties to a contract, once executed, 

have entered into a cooperative relationship.”); see also Beidel v. Sideline 

Software, Inc., 2013 WI 56, ¶27, 348 Wis. 2d 360, 842 N.W.2d 240 (“Every 

contract implies good faith and fair dealing between the parties to it.” (quoting 

Chayka v. Santini, 47 Wis. 2d 102, 107 n.7, 176 N.W.2d 561 (1970))); Hauer v. 
No. 2018AP508 

8 

Union State Bank of Wautoma, 192 Wis. 2d 576, 596-97, 532 N.W.2d 456 (Ct. 

App. 1995) (statute requiring good faith “applies only to the performance or 

enforcement of a contract, it does not impose a duty of good faith in the 

negotiation and formation of contracts”). The party claiming breach of a 

contractual duty “must establish the existence of the contract” from which the duty 

arises. VanHierden v. Swelstad, 2010 WI App 16, ¶11, 323 Wis. 2d 267, 779 

N.W.2d 441. 

¶14 As elaborated below, the Ayreses argue that a contract existed 

between them and Wilmington from which Wilmington had a duty to process their 

loan modification application in good faith. In evaluating this argument, our 

standard of review is twofold. We will not overturn a jury’s answer to a special 

verdict question based on an error of fact if any credible evidence supports the 

verdict. State v. Abbott Labs., 2012 WI 62, ¶27, 341 Wis. 2d 510, 816 N.W.2d 

145. Thus, in the first part of our analysis, we review whether the facts that the 

Ayreses assert gave rise to the purported contract are supported by any credible 

evidence, and we explain why they do not. 

¶15 We then proceed to the second part of our analysis, to fully respond 

to the parties’ arguments, and we examine whether the facts asserted by the 

Ayreses, even if supported by credible evidence, are sufficient to show the 

existence of a contract. This presents a question of law that we review de novo. 

See Piaskoski & Assocs. v. Ricciardi, 2004 WI App 152, ¶7, 275 Wis. 2d 650, 686 

N.W.2d 675 (“Where the material facts are undisputed, ... the existence ... of a 

contract [is] a question of law which we decide de novo.”). We explain why we 

reject the Ayreses’ argument that we should answer this question in the 

affirmative. 
No. 2018AP508 

9 

B. Whether Wilmington Had a Duty of Good Faith 

¶16 Here, the Ayreses concede that Wilmington had no obligation under 

the terms of the contract comprising the loan to process the loan modification 

application in any particular way. Instead, they argue that the trial evidence 

supported a jury finding that Wilmington had a contractual duty to process their 

loan modification application in good faith because “Wilmington suggested [that] 

they submit [a loan modification application]” and “the Ayreses took 

[Wilmington] up on the proposition.” That is, according to the Ayreses, these two 

events—the solicitation to apply, and the attempt to apply—created the contract 

from which the duty of good faith arose. 

¶17 There are two problems with the Ayreses’ argument. The first 

problem is evidentiary. Nowhere do the Ayreses cite to trial evidence supporting a 

finding that Wilmington “suggested” that the Ayreses apply for a modification, or 

that Wilmington in any way initiated a loan modification process. This lack of 

supporting citations to trial evidence alone defeats the Ayreses’ argument. See

Jensen v. McPherson, 2004 WI App 145, ¶6 n.4, 275 Wis. 2d 604, 685 N.W.2d 

603 (“It is not this court’s responsibility to sift and glean the record in extenso to 

find facts supporting [the party’s] argument.”); State v. McMorris, 2007 WI App 

231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322 (court of appeals may “choose not to 

consider ... arguments that lack proper citations to the record”). 

¶18 Moreover, apart from the Ayreses’ failure to point to trial evidence, 

our review of the trial record reveals no evidence indicating that Wilmington 

“suggested” or otherwise solicited the Ayreses to apply for a loan modification. 

Alisha Ayres testified only that she believed Wilmington acquired the loan in 

February 2016, and that after Wilmington had acquired the loan, the Ayreses 
No. 2018AP508 

10 

“appl[ied] for a new loan modification with Wilmington.” Neither Alisha Ayres’s 

testimony, nor any of the other trial testimony or exhibits, indicate that 

Wilmington solicited the Ayreses to apply for a loan modification. Indeed, to the 

extent the trial evidence provides any insight, it suggests that it was the Ayreses, 

not Wilmington, who initiated discussion of the loan modification. For instance, 

the earliest correspondence from Wilmington to the Ayreses that was admitted 

into evidence was a letter that Alisha Ayres testified she received in late March, 

2016, which stated that Wilmington was “follow[ing] up ... on [the Ayreses’] 

recent request for loan assistance.” Alisha Ayres testified that she received the 

letter “after submitting the documents for loan modification.” A reasonable 

inference from this evidence is that the Ayreses applied for a loan modification, 

and Wilmington responded. Thus, the Ayreses fail to establish the factual basis 

for the premise of their contractual duty of good faith argument. 

¶19 While our analysis could stop here, in light of the parties’ extensive 

briefing on the issue and for the sake of thoroughness, we briefly address the 

second problem with the Ayreses’ argument, which is that they do not cite any 

Wisconsin authorities that support their argument that the two alleged events—

Wilmington’s solicitation to apply for a loan modification, and the Ayreses’ 

subsequent attempt to apply—create a contract. 

¶20 As an initial point, we note that the Ayreses have not developed any 

argument that the two events they rely on satisfy the elements of contract 

formation. See, e.g., Piaskoski & Assocs., 275 Wis. 2d 650, ¶7 (“A valid contract 

requires an offer, acceptance and consideration.”). As explained above, in the 

absence of a valid contract between the Ayreses and Wilmington, Wilmington 

could have no duty of good faith to process the Ayreses’ loan modification 

application in any particular way. See, e.g., Metropolitan Ventures, 291 Wis. 2d 
No. 2018AP508 

11 

393, ¶¶35-36 (“contracts impose on the parties” a duty of good faith (emphasis 

added)). Thus, because the Ayreses have not explained how the two events they 

rely on establish a contract under the relevant standard, they have failed off the bat 

to show that Wilmington had any duty of good faith with respect to their loan 

modification application. 

¶21 The Ayreses attempt to circumvent this defect in their argument by 

citing numerous cases which, they assert, support their argument that the duty of 

good faith “applies to [loan] modification efforts.” However, with one exception, 

the cases cited by the Ayreses are all lower federal court decisions, most of which 

are unpublished. Thus, they do not alter the analysis of the Wisconsin law 

discussed above, which, as we have explained, requires the Ayreses to show the 

existence of a contract with Wilmington in order to claim that Wilmington 

breached its duty of good faith. See City of Weyauwega v. Wisconsin Cent. Ltd., 

2018 WI App 65, ¶12 n.4, 384 Wis. 2d 382, 919 N.W.2d 609 (federal district and 

circuit court decisions do not bind us). In any event, none of the cases support the 

specific proposition, essential to the Ayreses’ argument, that the twin events of a 

solicitation to apply for a loan modification and a subsequent attempt to apply 

create a contract. 

¶22 The sole Wisconsin authority cited by the Ayreses is Wisconsin Nat. 

Gas Co. v. Gabe’s Constr. Co., 220 Wis. 2d 14, 582 N.W.2d 118 (Ct. App. 1998). 

In that case, Wisconsin Natural Gas was deemed to have breached its contractual 

duty of good faith when it failed to timely alert Gabe’s Construction that it 

intended to make a claim under the indemnification clause of the contract between 

the two companies. Id. at 16-19. We held that, although the contract terms did 

not explicitly require Wisconsin Natural Gas to give notice of the claim, because 

Wisconsin Natural Gas had on previous occasions done so, and because it had in 
No. 2018AP508 

12 

fact assured Gabe’s Construction that it did not intend to make a claim in the case 

at hand, it had breached its duty of good faith by failing to give timely notice. Id.

at 21-24. 

¶23 Wisconsin Natural Gas does not help the Ayreses for at least two 

reasons. First, in that case, the duty of good faith arose from the original contract 

between the parties, and was not the product of a new contract formed during the 

modification process. See id. at 24 (analyzing whether duty of good faith was 

breached under the “indemnification clause of the contract”). In contrast, the 

Ayreses have conceded that the original contract here does not impose a duty of 

good faith on Wilmington with respect to the loan modification application. 

Second, Wisconsin Natural Gas says nothing about whether a contract may be 

formed by a solicitation to apply for a contract modification coupled with an 

attempt to modify the contract. It thus does not support the Ayreses’ premise that 

a new contract was formed during the modification application process here. 

¶24 Because the Ayreses have not provided any legal authority 

supporting the proposition that a solicitation to apply for a loan modification 

coupled with an attempt to apply create a contract, we do not consider their 

argument to that effect any further. 

¶25 In sum, the Ayreses’ argument that a new contract was formed when 

Wilmington “suggested” that the Ayreses apply for a loan modification and they 

subsequently attempted to apply for a loan modification fails. It follows that the 

circuit court properly overturned the jury’s answer to the good faith and fair 

dealing question. 
No. 2018AP508 

13 

II. Special Verdict Question Number Four

¶26 The Ayreses next argue that the circuit court erred by declining to 

change the jury’s answer to special verdict question number four. The standard to 

be applied is whether any credible evidence supports the jury’s verdict. See 

Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 787, 541 N.W.2d 203 (Ct. 

App. 1995) (any-credible-evidence standard applies to motions to change the 

jury’s answer to a special verdict question). Moreover, where, as here, the circuit 

court has approved the jury’s verdict on motions after the verdict, we give even 

greater deference to the verdict and will not overturn it unless “there is such a 

complete failure of proof that the verdict must be based on speculation.” 

Kuklinski v. Rodriguez, 203 Wis. 2d 324, 331, 552 N.W.2d 869 (Ct. App. 1996). 

¶27 Special Verdict Question No. 4 asked the jury to answer whether 

Wilmington failed “to process the Ayres[es]’ appeal according to the applicable 

provisions of RESPA.” RESPA generally provides that borrowers have a right to 

appeal a “determination to deny a ... loss mitigation application.” 12 C.F.R. 

§ 1024.41(h) (2019);6see also 12 C.F.R. § 1024.1 (implementing RESPA). 

RESPA also imposes certain obligations on lenders in handling such an appeal. 

See 12 C.F.R. § 1024.41(h)(3)–(4). We need not decide whether these RESPA 

requirements were met in this circumstance because we conclude that the RESPA 

requirements do not apply to the Ayreses’ appeal. 

¶28 The parties agree that the RESPA requirements would not apply if 

the Ayreses appealed the terms of the Trial Modification Plan, because the Trial 

 

6

 All references to the Code of Federal Regulations are to the 2019 version unless 

otherwise noted. 
No. 2018AP508 

14 

Modification Plan was not a “determination to deny” the Ayreses’ application, but 

was instead an approval of the Ayreses’ application, albeit on terms the Ayreses 

considered too stringent. See 12 C.F.R. § 1024.41(h). On the other hand, the 

parties also agree that these RESPA requirements would apply if the Ayreses 

appealed a different determination from Wilmington, which we will refer to as 

“the HAMP denial” and which informed the Ayreses that Wilmington had denied 

them a “HAMP modification,” because that was a “determination to deny” the 

Ayreses’ application. 

¶29 The narrow question presented, therefore, is whether the Ayreses 

appealed the terms of the Trial Modification Plan or the HAMP denial. 

Accordingly, we review the trial evidence to determine if any credible evidence 

supports a finding that the Ayreses appealed the terms of the Trial Modification 

Plan. 

¶30 The trial evidence provides the following relevant background. 

Wilmington sent the Ayreses two separate correspondences dated August 1, 2016. 

The first correspondence stated that Wilmington had approved the Ayreses for a 

“Standard Modification” of the loan, but had denied the Ayreses a “HAMP 

Modification.” This HAMP denial informed the Ayreses that they had a right to 

appeal the decision and attached a form entitled “Loan Modification Appeal 

Form.” The second correspondence was the Trial Modification Plan, mentioned 

above, which, to repeat, provided that Wilmington would consider the Ayreses for 

a permanent loan modification if they made four monthly payments and met other 

requirements. 

¶31 The Ayreses sent Wilmington a completed Loan Modification 

Appeal Form dated August 11, 2016. On the appeal form, the Ayreses wrote that 
No. 2018AP508 

15 

they were “writing to appeal the loan modification plan that is attached to this 

letter” and that they believed they would not be able to afford the monthly 

payments proposed in the Trial Modification Plan. The Ayreses attached only the 

Trial Modification Plan to the Appeal Form. In a letter dated August 30, 2016, 

Wilmington informed the Ayreses that it did not approve their “request for loan 

assistance” because they had “refused [the] Modification Terms Offered.” 

¶32 We conclude that there is ample evidence in the trial record to 

support a finding that the Ayreses appealed only the terms of the Trial 

Modification Plan. For instance, as stated above, the appeal form submitted by the 

Ayreses stated that they were “writing to appeal the loan modification plan that is 

attached to this letter” and that they believed they would not be able to afford the 

monthly payments proposed in the Trial Modification Plan. The Ayreses attached 

the Trial Modification Plan, not the HAMP denial, to that appeal form. This alone 

suffices to establish the any-credible-evidence required to sustain the jury’s 

verdict. 

¶33 The Ayreses appear to make two arguments to the contrary, both of 

which we reject. First, the Ayreses point to other evidence in the record, such as 

Alisha Ayres’s trial testimony, which the Ayreses assert establishes that they 

believed they were appealing the HAMP denial. However, whatever the merits or 

relative weight of this evidence, it does not alter our conclusion that there was 

credible evidence to sustain the jury’s verdict. Thus, the Ayreses’ reliance on 

other trial evidence fails. See McGowan v. Story, 70 Wis. 2d 189, 203, 234 

N.W.2d 325 (1975) (“If there is any credible evidence to support a jury’s verdict, 

irrespective of the weight of evidence to the contrary, it is the obligation of this 

court to sustain the jury’s finding.”). 
No. 2018AP508 

16 

¶34 Second, the Ayreses cite to a string of authorities, including Catalan 

v. GMAC Mortg. Corp., 629 F.3d 676 (7th Cir. 2011), and Medrano v. Flagstar 

Bank, FSB, 704 F.3d 661 (9th Cir. 2012), suggesting that RESPA should be 

construed broadly in favor of borrowers. The Ayreses assert that the evidence 

shows they intended to appeal the HAMP denial, and that requiring them to 

specifically state that they were appealing the HAMP denial therefore “runs 

counter to the purposes” of RESPA. This argument again fails to come to grips 

with our standard of review. Credible evidence supports a finding that the Ayreses 

intended to appeal only the monthly payment amount of the Trial Modification 

Plan. For example, there is the language of the written application form itself, 

which suggests the Ayreses intended only to appeal the monthly payment amount 

of the Trial Modification Plan. There is also Alisha Ayres’s own testimony, in 

which she stated, “I appealed the ... loan trial modification plan.” Although 

Alisha Ayres later testified that she was appealing “everything,” her testimony as a 

whole permits an inference that the Ayreses did not intend to appeal the HAMP 

denial at all. Thus, regardless of the asserted RESPA policy favoring borrowers, 

there is credible evidence here suggesting that the Ayreses did not intend to appeal 

the HAMP denial. 

¶35 In sum, there is credible evidence to sustain the jury’s answer to 

special verdict question number four. 

III. Testimony by Wilmington’s Corporate Representative

¶36 Finally, the Ayreses argue that the circuit court erred by permitting 

Peter Joslyn, Wilmington’s corporate representative, to testify based on notes he 

had prepared for trial summarizing Wilmington’s business records without 
No. 2018AP508 

17 

producing those records.7 The pertinent background to this argument is as 

follows. 

¶37 Joslyn testified that he reviewed all of Wilmington’s records of the 

Ayreses’ loan prior to trial, including the records of all written and telephone 

correspondence. In preparation for trial, he prepared a “scratch sheet” of notes 

from those records, which he created to help him remember the dates, times, and 

contents of different communications. Wilmington provided the Ayreses with a 

copy of Joslyn’s notes. During the trial, Joslyn used the notes to refresh his 

memory and answer questions. 

¶38 The Ayreses objected on the grounds that Joslyn was not testifying 

from personal knowledge and that his testimony was hearsay. Additionally, the 

Ayreses argued that they were entitled to view the documents Joslyn had used to 

prepare the notes under WIS. STAT. § 906.12 (2017-18),8 which provides, “If a 

witness uses a writing to refresh the witness’s memory for the purpose of 

testifying, ... an adverse party is entitled to have it produced at the hearing, to 

inspect it, to cross-examine the witness thereon, and to introduce in evidence those 

portions which relate to the testimony of the witness.” The circuit court declined 

to order Wilmington to produce the records Joslyn had used to prepare his notes. 

¶39 On appeal, the Ayreses renew their argument that Wilmington was 

required to produce the records under WIS. STAT. § 906.12, and argue that the 

 

7

 While Joslyn was an employee of Wilmington’s loan servicer, the parties treat his 

testimony and the records on which he relied as relating to Wilmington, and we follow their lead. 

8

 All references to the Wisconsin statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2018AP508 

18 

circuit court’s failure to order production means we should remand for a new trial 

on the counterclaims. 

¶40 We assume, without deciding, that the circuit court erred by not 

ordering Wilmington to produce the records Joslyn used to prepare the notes. 

However, we agree with Wilmington that the error was harmless. 

¶41 “[A]n erroneous exercise of discretion in admitting or excluding 

evidence does not necessarily lead to a new trial. The appellate court must 

conduct a harmless error analysis to determine whether the error ‘affected the 

substantial rights of the party.’ If the error did not affect the substantial rights of 

the party, the error is considered harmless.” Martindale v. Ripp, 2001 WI 113, 

¶30, 246 Wis. 2d 67, 629 N.W.2d 698 (quoted source omitted); see also WIS.

STAT. § 805.18(2) (“No ... new trial [shall be] granted in any action or proceeding 

on the ground of ... the improper admission of evidence ... unless ... the error 

complained of has affected the substantial rights of the party seeking to ... secure 

a new trial.”); see also WIS. STAT. § 901.03(1) (error may not be predicated upon a 

ruling which admits or excludes evidence unless a substantial right of the party is 

affected). An error does not “affect the substantial rights” of a party unless there 

is a “reasonable possibility” that the error contributed to the outcome of the 

proceeding at issue. Martindale, 246 Wis. 2d 67, ¶32. 

¶42 Here, the Ayreses do not clearly identify the individual records they 

believe should have been produced pursuant to WIS. STAT. § 906.12. However, 

the Ayreses identify portions of Joslyn’s testimony that they believe were based on 

his review of Wilmington’s records and were detrimental to their trial arguments, 

and we interpret their argument to be that Wilmington should have produced the 

records underlying those portions of testimony. Accordingly, we direct our 
No. 2018AP508 

19 

harmless error analysis at the circuit court’s failure to order production of the 

records underlying the portions of Joslyn’s testimony identified by the Ayreses. 

¶43 As far as we can glean from the briefing, the records the Ayreses 

assert should have been produced fall into three categories. We address each. 

¶44 The first category of records the Ayreses assert should have been 

produced relates to the process by which Wilmington arrived at the terms of the 

Trial Modification Plan. For instance, the Ayreses point to Joslyn’s testimony 

related to how the proposal’s first payment date was decided. As stated, we 

interpret their argument to be that the records underlying this testimony should 

have been produced. 

¶45 However, the terms of the Trial Modification Plan are not relevant to 

any of the claims on which the Ayreses did not prevail. That is, the terms of the 

proposal—including the date of the first payment due under it—are not relevant to 

the determination of any of the special verdict questions which the jury answered 

“no.” Therefore, failure to produce records related to the creation of those terms 

had no bearing on the outcome of the Ayreses’ claims. 

¶46 The second category of records the Ayreses assert should have been 

produced relates to the documentation Wilmington received from the Ayreses. 

The Ayreses point to a portion of Joslyn’s testimony in which he stated that the 

Ayreses had sent proof of homeowners’ insurance in June 2016. Additionally, the 

Ayreses point to testimony concerning Wilmington’s internal communications 

related to the documents Wilmington had received from them. The Ayreses argue 

that the records on which this testimony was based “would have helped establish 

exactly what documents were received, and when.” 
No. 2018AP508 

20 

¶47 However, the only claim to which this testimony was relevant is the 

claim that Wilmington failed to diligently obtain documents from the Ayreses—a 

claim on which the Ayreses won. Thus, the failure to produce the documents on 

which Joslyn based this testimony did not affect the outcome of the Ayreses’ 

claims. 

¶48 The final category of records the Ayreses assert should have been 

produced relates to certain phone calls between the Ayreses and Wilmington in 

August 2016. Specifically, the Ayreses point to Joslyn’s testimony that a 

Wilmington employee had called the Ayreses on August 4, August 15, and August 

29 to discuss the Trial Modification Plan. Joslyn testified that, during these phone 

calls, the Ayreses expressed concern about the affordability of the plan. Further, 

he testified that in the phone call of August 29, a Wilmington employee advised 

the Ayreses that they could not appeal the plan. 

¶49 The Ayreses imply that Wilmington’s advice in the August 29 phone

call is relevant to the determination of special verdict question number four—

which asks whether Wilmington handled the Ayreses’ appeal in accordance with 

RESPA. However, Joslyn testified that nowhere in the records of the phone calls 

did the Ayreses state that they intended to appeal the HAMP denial, and the 

Ayreses point to no evidence suggesting otherwise. There is therefore no basis to 

suppose that the records of the August 29 phone call would have revealed an intent 

from the Ayreses to appeal the HAMP denial, as opposed to the Trial Modification 

Plan. As a result, the records would have shed no additional light on the question 

of whether Wilmington properly processed the Ayreses’ appeal, and the failure to 

produce those records is harmless. 
No. 2018AP508 

21 

¶50 In sum, any error by the circuit court in failing to order production of

the documents on which Joslyn based his testimony was harmless. 

CONCLUSION 

¶51 We conclude that the circuit court properly overturned the jury’s 

verdict on the Ayreses’ duty of good faith and fair dealing claim because the 

Ayreses have not shown the existence of a contract under which Wilmington had a 

duty to process their loan modification application in good faith. We also 

conclude that because credible evidence supports the jury’s verdict concerning the 

loan modification appeal, the court properly declined to change the jury’s verdict. 

Finally, we conclude that any error by the court in failing to order the production 

of Wilmington’s business records was harmless. 

¶52 Therefore, we affirm. 

By the Court.—Judgment affirmed. 

 Not recommended for publication in the official reports.