Avudria v. McGlone Mortgage Co.

2011 WI App 95, 802 N.W.2d 524, 334 Wis. 2d 480, 2011 Wisc. App. LEXIS 374
CourtCourt of Appeals of Wisconsin
DecidedMay 17, 2011
DocketNo. 2010AP2032
StatusPublished
Cited by5 cases

This text of 2011 WI App 95 (Avudria v. McGlone Mortgage Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avudria v. McGlone Mortgage Co., 2011 WI App 95, 802 N.W.2d 524, 334 Wis. 2d 480, 2011 Wisc. App. LEXIS 374 (Wis. Ct. App. 2011).

Opinion

BRENNAN, J.

¶ 1. John J. Avudria appeals the circuit court's decision dismissing his complaint on summary judgment. Avudria contends that the circuit court erred in concluding, as a matter of law, that Avudria was not a "person who [wa]s aggrieved" under Wis. Stat. § 224.80(2) (2007-08),1 when McGlone Mortgage Company, Inc. failed to use the forms drafted by the Wisconsin Department of Financial Institutions, Division of Banking ("DFI") in conjunction with Avudria's residential mortgage loan. Because we conclude that Avudria was not "aggrieved," we affirm.

Background

¶ 2. In late 2006, Avudria contacted McGlone, a Wisconsin-licensed mortgage broker, to assist Avudria in obtaining a mortgage loan to purchase a residential property. Obtaining a mortgage loan for Avudria was difficult, in large part because Avudria had filed for bankruptcy in the last seven years. In an attempt to obtain a mortgage loan for the full amount of the purchase price, McGlone initially split the mortgage application into two and began searching for a first mortgage loan from one lender, and a second mortgage loan from a different lender. In connection with that attempt, McGlone provided Avudria with a number of documents, which Avudria signed in December 2006, including a Mortgage Loan Origination Agreement. The Agreement was a one-page document setting forth: McGlone's name, address, and phone number; an explanation of the relationship between Avudria and McGlone; and an explanation of McGlone's compensation.

[484]*484¶ 3. McGlone was ultimately able to obtain an adjustable rate first mortgage loan from Wells Fargo Bank for the full amount of the purchase price, $144,000, at an initial interest rate of 9.375%. Avudria closed on the loan in January 2007, at which time he signed numerous additional documents, including a Final Statement. The Final Statement stated, among other things, that Avudria understood that he was paying McGlone a $2160 loan originating fee and a $500 processing fee, and that Wells Fargo was paying Mc-Glone a $1440 loan originating fee.

¶ 4. All of the documents Avudria signed were provided to McGlone by Calyx Software, a company founded "to provide accessible, affordable, and reliable software for all mortgage professionals." McGlone began using the Calyx's mortgage broker forms when it opened for business in 1999. McGlone continued to use the forms in Wisconsin until July 2008, when it learned that Wisconsin had begun requiring mortgage brokers to use forms prepared by the DFI, effective July 2005.

¶ 5. Avudria admits that he was fully aware, before he closed on the mortgage loan, of the fees he was paying to McGlone, and that he never voiced any objection to those fees. In fact, Avudria stated during his deposition testimony that he was "pleased" with the services he received from McGlone.

¶ 6. In February 2009, more than two years after the closing, Avudria filed this action against McGlone, alleging that McGlone failed to provide him with the Mortgage Broker Agreement and Consumer Disclosure Statement drafted by the DFI as required by Wis. Stat. § 224.79(1), (2), and Wis. Stat. § 224.77(1).

¶ 7. Thereafter, McGlone filed a motion for a declaratory ruling, seeking an order declaring that a person must demonstrate that he or she is "aggrieved," [485]*485to wit, that he or she sustained actual damages or injury in order to state a cause of action under Wis. Stat. § 224.80(2), the provision permitting a private cause of action for a violation of Wis. Stat. ch. 224. The circuit court granted the motion, ordering that:

for a person to be "aggrieved" under section 224.80(2), Wis. Stats., the person must sustain actual injury or damages as a result of a mortgage broker's failure to use the consumer mortgage broker agreement and the consumer disclosure statement in the forms prescribed by the [DFI.2]

¶ 8. In February 2010, McGlone filed a motion for summary judgment on the grounds that Avudria was not an "aggrieved" person under Wis. Stat. § 224.80(2). The circuit court agreed and granted the motion, dismissing Avudria's complaint.

¶ 9. The trial court entered judgment, dismissing the case and awarding taxable costs to McGlone in the sum of $1652.75. The parties subsequently entered into a Stipulated Satisfaction of Judgment, which was filed with the circuit court in August 2010, providing that "[t]he Judgment... is hereby acknowledged to be fully satisfied." Avudria appeals.

Discussion

¶ 10. First we must address McGlone's argument that we lack subject matter jurisdiction over this appeal because Avudria waived his right to appeal when he entered into the Stipulated Satisfaction of Judgment [486]*486with McGlone. For the reasons set forth below, we conclude that Avudria did not waive his right to appeal.

¶ 11. Then, we address Avudria's argument that the circuit court erred in concluding that: (1) "for a person to be 'aggrieved' under [Wis. Stat. §] 224.80(2)... the person must sustain actual injury or damages as a result of a mortgage broker's failure to use the consumer mortgage broker agreement and the consumer disclosure statement in the forms prescribed by [DFI]"; and (2) Avudria was not a person aggrieved. For the reasons set forth below, we affirm.

I. Subject Matter Jurisdiction

¶ 12. McGlone argues that we lack subject matter jurisdiction over Avudria's appeal because the parties entered into a Stipulated Satisfaction of Judgment, which states as follows:

1. On August 11, 2010[,] Judgment was entered in this case in favor of the defendant, McGlone Mortgage Company, Inc., and against the plaintiff, John J. Avudria, in the sum of $1,652.75.
2. The defendant, McGlone Mortgage Company, Inc., hereby waives its right to seek court review, pursuant to section 814.10(4), Wis. Stats., of the items of costs requested by the defendant, McGlone Mortgage Company, Inc., but disallowed by the Judgment Clerk.
3. The plaintiff, John J. Avudria, has fully paid the amount of the Judgment to the defendant, Mc-Glone Mortgage Company, Inc.
4. The Judgment entered on August 11, 2010 is hereby acknowledged to be fully satisfied.

[487]*487¶ 13. First, when interpreting a contract, we look for the intent of the parties in the plain language of the contract. Dieter v. Chrysler Corp., 2000 WI 45, ¶ 15, 234 Wis. 2d 670, 610 N.W.2d 832. Doing so here, we conclude that the stipulation cannot reasonably be construed to waive Avudria's right to appeal because by the plain language of the stipulation, while McGlone agreed to "waive [] its rights to seek court review ... of the items of costs requested by. .. McGlone," Avudria did not expressly waive his right to court review of the underlying judgment. (Emphasis added.)

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Bluebook (online)
2011 WI App 95, 802 N.W.2d 524, 334 Wis. 2d 480, 2011 Wisc. App. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avudria-v-mcglone-mortgage-co-wisctapp-2011.