from an order of the Circuit Court for Dane County. (L.C. No.
the defendant-appellant, there were briefs and an oral
argument by Christopher Stroebel and Stroebel Law, LLC,
the plaintiff-respondent, there was a brief and an oral
argument by Thomas C. Dill and BP Peterman Law Group, LLC,
SHIRLEY S. ABRAHAMSON, J.
This appeal comes before the court on certification by the
court of appeals. Cory Thompson, the debtor defendant,
appeals an order of the Dane County Circuit Court, Amy Smith,
Judge, granting Federal 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
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?
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,  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?
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
bringing a subsequent foreclosure action based upon the
borrower's continuing default on the same note.
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).
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.
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
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
default and a different transaction from that presented in
the first foreclosure action.
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.
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 ___.
Accordingly, we affirm the order of the circuit court.
The facts are undisputed for purposes of this review.
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
(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
(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.
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.
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
original wet-ink note (i.e., that BAC Home Loans was the
holder of the note with the right to enforce the note).
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.
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.
Thompson moved to dismiss the December 2014 lawsuit, arguing
that it was barred ...