Ditech Fin., LLC v. Estate of Stacey

2018 WI App 18, 909 N.W.2d 180, 380 Wis. 2d 447
CourtCourt of Appeals of Wisconsin
DecidedFebruary 15, 2018
DocketAppeal No. 2016AP2371
StatusPublished

This text of 2018 WI App 18 (Ditech Fin., LLC v. Estate of Stacey) 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
Ditech Fin., LLC v. Estate of Stacey, 2018 WI App 18, 909 N.W.2d 180, 380 Wis. 2d 447 (Wis. Ct. App. 2018).

Opinion

PER CURIAM.

*448*181¶ 1 Michael Stacey, personal representative of the Estate of James G. Stacey, seeks review of a circuit court order affirming a sheriff's sale of real property owned by the estate. The notice of appeal filed on behalf of the estate was signed by Michael Stacey, who does not appear to be an attorney licensed to practice law in the State of Wisconsin. We hold that a nonlawyer personal representative of an estate may not represent the interests of the estate in a mortgage foreclosure proceeding or an appeal therefrom before a Wisconsin court. Accordingly, the notice of appeal filed by Michael Stacey was ineffective to initiate a valid appeal on behalf of the estate, and we dismiss the appeal for lack of jurisdiction.

*449BACKGROUND

¶ 2 The decedent, James G. Stacey, signed a promissory note secured by a mortgage on his residence at W3502 Hagedorn Road in Jefferson, Wisconsin (the "Property"). Ditech Financial LLC is the holder of the note and mortgage.

¶ 3 On December 16, 2015, Ditech filed a complaint against the Estate of James G. Stacey, alleging a delinquency in payments and seeking to foreclose the mortgage on the Property. Michael Stacey was personally served with the Summons and Complaint as the personal representative of the Estate of James G. Stacey. The estate did not file an answer or other responsive pleading, and Ditech filed a motion for default judgment. After the estate failed to respond to the motion for default judgment or appear at the motion hearing, the circuit court entered judgment in favor of Ditech on April 14, 2016, setting a three-month redemption period.

¶ 4 A sheriff's sale was held after the redemption period expired, resulting in the sale of the Property to a third party. Michael Stacey submitted a letter to the circuit court judge, objecting to confirmation of the sale. The court held a hearing on the confirmation motion, and Michael Stacey appeared as personal representative of the estate. The circuit court granted Ditech's motion to confirm the sale, and entered an order confirming the sale on October 18, 2016. Michael Stacey then filed a notice of appeal.

DISCUSSION

¶ 5 Stacey raises several issues for appellate review on behalf of the estate. However, an issue of *450preliminary importance is whether this appeal is properly before us. This issue was not raised by the parties. However, it is the duty of this court to take notice of its jurisdiction, notwithstanding the fact that no party has raised the issue. See McConley v. T.C. Visions, Inc. , 2016 WI App 74, ¶ 4, 371 Wis. 2d 658, 885 N.W.2d 816 ; see also Taylor v. State , 59 Wis. 2d 134, 137, 207 N.W.2d 651 (1973) (court may, sua sponte, raise and determine the issue of whether it has jurisdiction).

¶ 6 To invoke this court's jurisdiction, the notice of appeal must be correctly prepared. See Jadair Inc. v. United States Fire Ins. Co. , 209 Wis. 2d 187, 211, 562 N.W.2d 401 (1997). In this case, the notice of appeal was signed and filed by Michael Stacey on behalf of the Estate of James G. Stacey. Both the appellant's brief and the reply brief also were signed by Stacey and indicate his status as "pro se." Black's Law Dictionary defines "pro se" as follows: "For oneself; on one's own behalf; without a lawyer[.]" Black's Law Dictionary 1416 (10th ed. 2014). Here, Stacey is not appearing for himself in his personal capacity, however, but on behalf of the estate. Nothing in the briefs or the record indicates that Stacey is a lawyer.

¶ 7 Previous cases in this court and in the Wisconsin Supreme Court have examined *182the issue of whether a nonlawyer may represent the interests of a separate legal entity in the courts of this state. In State ex rel. Baker v. County Court of Rock County , 29 Wis. 2d 1, 4, 10-11, 138 N.W.2d 162 (1965), a nonlawyer executor of an estate submitted probate matters to the county court on behalf of the estate for adjudication. The judge refused to act upon the submissions, concluding that the executor was engaged in the unauthorized practice of law. Id. at 10-11, 138 N.W.2d 162. The supreme *451court upheld the ruling of the county court judge, stating that it viewed the prohibition against the unauthorized practice of law as a reasonable regulation in the public interest of orderly judicial administration. Id. at 11, 138 N.W.2d 162.

¶ 8 The supreme court cited Baker in Jadair Inc. , in which the supreme court considered the question of whether a notice of appeal is fatally defective when it is signed and filed by a nonlawyer on behalf of a corporation. Jadair , 209 Wis. 2d at 205-07, 562 N.W.2d 401. The court answered the question in the affirmative, reasoning that permitting a nonlawyer to sign and file a notice of appeal on behalf of a corporation would violate statutory prohibitions against the unauthorized practice of law. Id.

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Related

Taylor v. State
207 N.W.2d 651 (Wisconsin Supreme Court, 1973)
Brown v. MR GROUP, LLC
2004 WI App 122 (Court of Appeals of Wisconsin, 2004)
Life Science Church v. Shawano County
585 N.W.2d 625 (Court of Appeals of Wisconsin, 1998)
State Ex Rel. Baker v. County Court of Rock County
138 N.W.2d 162 (Wisconsin Supreme Court, 1965)
Jadair Inc. v. United States Fire Insurance
562 N.W.2d 401 (Wisconsin Supreme Court, 1997)
McConley v. T. C. Visions, Inc.
2016 WI App 74 (Court of Appeals of Wisconsin, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
2018 WI App 18, 909 N.W.2d 180, 380 Wis. 2d 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ditech-fin-llc-v-estate-of-stacey-wisctapp-2018.