Central Bank v. Duncan (WI)


Summary: When relying exclusively in an affidavit in support of a motion for summary judgment, personal knowledge must be satisfied to establish a prima facie case for summary judgment.


Central Bank v. Duncan, 2012 AP 551-FT, 2013 WL 2990648 (Wis. Ct. App. 2013).


Facts: Central Bank filed a motion for summary judgment of foreclosure against Duncan and in support of its motion relied exclusively on an affidavit by Joseph Paiement, Central Bank’s litigation attorney. Paiement averred he had reviewed the bank's records and had personal knowledge of the facts and figures in the affidavit. In addition, stated that all of the allegations in Central Bank’s complaint were true and correct according to records he had in his possession. Duncan opposed summary judgment contending Paiement’s affidavit was insufficient for lack of personal knowledge.


The circuit court granted Central Bank’s summary judgment motion relying on the fact that no contrary evidence was provided by Duncan to refute Paiement’s claims in holding there was no actual issue of material fact.


Holding: Reverse and remanded.

On appeal, the court held that Paiement’s affidavit was insufficient to establish a prima facie case for summary judgment, because the affidavit did not establish that Paiement’s averments were derived from his personal knowledge. The court relied on both statute and case law in its decision. Under Wis. Stat § 802.08(3), affidavits supporting summary judgment “shall be made on personal knowledge and [] set forth such evidentiary facts as would be admissible in evidence.” The court stated that “‘personal knowledge’ means the witness perceived the event through one of the five senses and can accurately narrate the memory of those perceptions in court.” The court reasoned that although Paiement averred that he had personal knowledge of the pertinent events, there was no basis in his affidavit concluding so. Paiement’s affidavit cited only his involvement in the current litigation as the sole basis for his knowledge and his knowledge was acquired by post hoc document review.

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By: ATG Underwriting Department | Posted on: Wed, 07/17/2013 - 3:34pm