from an order of the circuit court for Sawyer County, No.
2015CV45 JOHN M. YACKEL, Judge. Reversed and cause
remanded for further proceedings.
Stark, P.J., Hruz and Seidl, JJ.
Leroy and Roger Jones (collectively, Jones) appeal an order
granting summary judgment to Gemini Capital Group, LLC.
Gemini filed the instant lawsuit in attempt to recover a
deficiency judgment against Jones. Jones argues the circuit
court improperly granted summary judgment in Gemini's
favor because: (1) Gemini failed to establish its ownership
of the debt; (2) Gemini failed to prove the collateral at
issue was sold in a commercially reasonable manner, as
required by WIS . STAT . § 425.209(1)
(2015-16); and (3) a material issue of fact exists as
to whether Gemini's complaint was timely filed, pursuant
to the applicable statute of limitations.
We conclude Gemini failed to make a prima facie case for
summary judgment with respect to the first two issues raised
by Jones, and a genuine issue of material fact exists
regarding the third issue. We therefore reverse the order
granting summary judgment to Gemini and remand for further
In July 2007, Jones purchased a 2004 Ford Ranger from Timber
Ford Mercury of Hayward, Inc. To finance the purchase, Jones
entered into a "Motor Vehicle Consumer Simple Interest
Installment Sale and Security Agreement" with Timber
Ford Mercury. It is undisputed that Jones made some of the
payments due under this agreement, but he eventually stopped
making payments. In March 2009, HSBC Auto Finance, Inc.,
filed a small claims lawsuit against Jones in Sawyer County,
seeking to repossess the vehicle. That lawsuit resulted in a
default judgment against Jones, and the vehicle was
subsequently repossessed and sold.
On March 23, 2015, Gemini filed the present lawsuit in
attempt to recover a deficiency judgment against Jones. In
its complaint, Gemini alleged it had "purchased the
deficiency amount owed on the [Motor Vehicle Consumer Simple
Interest Installment Sale and Security Agreement]" and
was "the successor-in-interest for the HSBC Serv Auto
Gemini ultimately moved for summary judgment. As relevant to
this appeal, Gemini relied on an affidavit of Roger Neustadt
to establish its ownership of Jones' debt. In his
affidavit, Neustadt averred:
I am a custodian of records for [Gemini] and the facts
recited herein are based upon my personal knowledge of the
electronic business records of the account in question, which
are part of [Gemini's] regular business records. These
records are kept by [Gemini] in the regular course of
business, and it was the regular course of business of
[Gemini] or its predecessor in interest for an employee or
representative of [Gemini] or its predecessor in interest,
with knowledge of the act or event recorded, to make the
record or to transmit information thereof to be included in
such record, and the record was made at or near the time or
reasonably soon thereafter.
Neustadt averred that Jones entered into a Motor Vehicle
Consumer Simple Interest Installment Sale and Security
Agreement with Timber Ford Mercury on or around July 12,
2007, and, "[a]s indicated on the contract, "
Timber Ford Mercury assigned Jones' debt to
"HSBC." Neustadt further averred that, on or about
November 9, 2009, HSBC "transferred the contract and the
rights therein to Santander Consumer USA Inc." Neustadt
next averred that, on or about September 7, 2012, Santander
"sold the contract and the rights therein to Main Street
Acquisition Corp." Finally, Neustadt averred that, on or
about July 16, 2014, Main Street "sold the contract and
the rights therein" to Gemini. Neustadt averred Gemini
is "the current holder and owner of [Jones']
contract and the rights therein." Various documents were
attached to Neustadt's affidavit in support of these
Jones filed a brief and affidavits in opposition to
Gemini's summary judgment motion, but he did not submit
any evidence disputing Gemini's claim that it was the
current owner of Jones' debt. Instead, Jones argued the
evidence Gemini submitted was insufficient to make a prima
facie showing regarding Gemini's ownership.
The circuit court granted summary judgment in Gemini's
favor. Addressing Jones' argument that Gemini had failed
to establish its ownership of the debt, the court stated
Gemini had presented a "logical … step by step
… from the point the vehicle was purchased, was
financed by HSBC all the way up to Gemini." The court
observed that, while Jones was critical of Neustadt's
affidavit, he had "not necessarily challenged the
affidavit with any counter affidavits."
The circuit court also rejected Jones' argument that
Gemini was not entitled to summary judgment because it had
failed to show that the vehicle was disposed of in a
commercially reasonable manner, as required by Wis.Stat.
§ 425.209(1). The court reasoned further proceedings
were not necessary on that issue because Jones had never
alleged or presented any evidence to indicate that the sale
of the vehicle was not commercially reasonable. Stated
differently, the court concluded Jones had failed to show the
existence of a genuine issue of material fact regarding the
reasonableness of the sale.
Finally, the circuit court concluded there was no
"issue" regarding the statute of limitations. The
court explained, "[T]he deficiency became due in mid
2009 and [Gemini] began this action in early 2015 under the
six-year statute of limitations, so that does not forego or
prohibit the action."
Jones now appeals, arguing the circuit court erred by
granting Gemini summary judgment.
We independently review a grant of summary judgment, using
the same methodology as the circuit court. Hardy v.
Hoefferle, 2007 WI.App. 264, ¶6, 306 Wis.2d 513,
743 N.W.2d 843. "Under that methodology, the court,
trial or appellate, first examines the pleadings to determine
whether claims have been stated and a material factual issue
is presented." Preloznik v. City of Madison,
113 Wis.2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If so,
we then examine the moving party's submissions to
determine whether they establish a prima facie case for
summary judgment. Id. If the moving party has made a
prima facie showing, we examine the opposing party's
affidavits to determine whether a genuine issue exists as to
any material fact. Id.
In this case, it is undisputed that Gemini's complaint
stated a claim for a deficiency judgment, and that Jones'
answer raised several material factual issues. The
parties' arguments instead pertain to whether Gemini made
a prima facie case for summary judgment and, if so, ...