	U.S. Bank, N.A., as Trustee for the Pooling and Servicing Agreement Dated as of September 1, 2005 Home Equity Mortgage Asset Backed Pass-Through Certificates Series 2005-EMX3, �� Plaintiff-Appellant, �� v. Brenda Landa a/k/a Brenda Best, �� Defendant, Meadowland Villa Condominium Owners Association, Inc., �� Defendant-Respondent.

Opinion Filed:		August 17, 2011
Submitted on Briefs:�		July 7, 2011
Oral Argument:�

JUDGES:		Brown, C.J., Reilly and Vergeront, JJ.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:		On behalf of the plaintiff-appellant, the cause was submitted on the briefs of David M. Potteiger of Bass & Moglowsky, S.C., Milwaukee.�

Respondent
ATTORNEYS:		On behalf of the defendant-respondent, the cause was submitted on the brief of Nicholas J. Infusino of Madrigrano, Aiello and Santarelli, LLC, Kenosha.�

COURT OF APPEALS

DECISION

DATED AND FILED

August 17, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2010AP3036	Cir. Ct. No.� 2008CV2179
STATE OF WISCONSIN�			IN COURT OF APPEALS



U.S. Bank, N.A., as Trustee for the Pooling and Servicing Agreement Dated as of September 1, 2005 Home Equity Mortgage Asset Backed Pass-Through Certificates Series 2005-EMX3, �� Plaintiff-Appellant, �� v. Brenda Landa a/k/a Brenda Best, �� Defendant, Meadowland Villa Condominium Owners Association, Inc., �� Defendant-Respondent.

�� APPEAL from an order of the circuit court for Kenosha County:�
S. Michael wilk, Judge.� Reversed and cause remanded with directions.

�� Before Brown, C.J., Reilly and Vergeront, JJ.

�1�� REILLY, J.�� This action involves the relationship of condominium liens and their priority to mortgages recorded before the assessment of condominium liens.� Wisconsin Stat. � 703.165(5) (2009-10)[1] provides that a condominium lien has priority over all other liens, aside from five exceptions.� One of those exceptions is �a first mortgage recorded prior to� a condominium lien.� Sec. 703.165(5)(b).� Meadowland Villa Condominium Owners Association, Inc. argues that its condominium lien against Brenda Landa is superior to U.S. Bank�s first mortgage with Landa, as the register of deeds recorded U.S. Bank�s mortgage after it recorded Landa�s second mortgage.� Therefore, Meadowland argues, the second mortgage became the first mortgage for purposes of � 703.165(5).� We disagree and reverse.�

FACTS

�2�� In December 2005, Landa purchased a home for $210,000.� Landa financed the entire purchase by taking out two loans from Mortgage Lenders Network USA, Inc. in the amount of $168,000 and $42,000 respectively.� Each loan was secured by a real estate mortgage on the property.[2]� The $168,000 mortgage consists of fifteen pages of terms and conditions, and the bottom of the first page says �WISCONSIN�Single Family�Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH MERS Form 3050 1/01.�� The $42,000 mortgage, by contrast, is only four pages long, and the bottom of the first page says �WISCONSIN � SECOND MORTGAGE � 1/80 � FNMA/FHLMC UNIFORM INSTRUMENT WITH MERS.�� Furthermore, Mortgage Lenders instructed its title company that the $168,000 mortgage was to have the first lien position and the $42,000 mortgage was to have the second lien position.� For reasons unstated, however, the $42,000 mortgage was recorded on January 23, 2006, and the $168,000 mortgage was recorded on February 14, 2006.�

�3�� In June 2008, Meadowland filed a condominium lien against Landa for unpaid fines.� Five months later, Meadowland filed a second condominium lien against Landa, this time for unpaid assessments and fines.� Shortly thereafter, Mortgage Lenders assigned the $168,000 mortgage to U.S. Bank.� By September 2009, Landa had defaulted on her loan payments and U.S. Bank commenced a foreclosure action.� U.S. Bank alleged that Meadowland�s condo liens were junior and subordinate to the $168,000 U.S. Bank mortgage.� Meadowland answered and denied that its liens were junior to the $168,000 U.S. Bank mortgage.� The parties disagreed over the interpretation of Wis. Stat. � 703.165(5)(b), which provides that a condominium lien is prior to all other liens except �[a]ll sums unpaid on a first mortgage recorded prior to the making of the assessment.�� Meadowland argued that it did not matter that Mortgage Lenders intended the $168,000 mortgage to be the first mortgage.� According to Meadowland, all that mattered was that the $42,000 mortgage was recorded first, and therefore only the $42,000 mortgage�and not U.S. Bank�s $168,000 mortgage�was entitled to priority over Meadowland�s liens. �U.S. Bank responded that the facts in the record established that the $168,000 mortgage was clearly the first mortgage.

�4�� The circuit court concluded that Meadowland�s condo liens were �prior, senior and superior� to U.S. Bank�s $168,000 mortgage.� As the $42,000 mortgage was recorded first, the circuit court ruled that it assumed the �first mortgage� position under Wis. Stat. � 703.165(5)(b).� The circuit court therefore determined that the $42,000 mortgage was in the first lien position, followed by Meadowland�s condo liens, then U.S. Bank�s $168,000 mortgage.� U.S. Bank appeals.

STANDARD OF REVIEW

�5�� This appeal requires us to interpret Wis. Stat. � 703.165(5)(b).� The interpretation of a statute is a question of law subject to de novo review.� West v. Department of Commerce, 230 Wis. 2d 71, 74, 601 N.W.2d 307 (Ct. App. 1999).�

DISCUSSION

�6�� Wisconsin Stat. � 703.165(5)(b) provides that a condominium lien is prior to all other liens except �[a]ll sums unpaid on a first mortgage recorded prior to the making of the assessment.�[3]� U.S. Bank argues that its $168,000 mortgage is the �first mortgage.�� In support, it cites to Black�s Law Dictionary 1032 (8th ed. 2004), which defines a first mortgage as �[a] mortgage that is senior to all other mortgages on the same property.�� It also argues that as the $42,000 mortgage says that it is a �SECOND MORTGAGE,� the $168,000 mortgage was clearly intended to be the first mortgage.� Meadowland responds that as the $42,000 mortgage was recorded first, it must be given priority over the $168,000 mortgage under � 703.165(5)(b).[4]

�7�� We agree with U.S. Bank that the $168,000 mortgage is the first mortgage and thus must be given priority over the $42,000 mortgage under Wis. Stat. � 703.165(5)(b).� The first page of the $42,000 mortgage explicitly states that it is a �SECOND MORTGAGE.�� Furthermore, Mortgage Lenders� loan closing instructions indicated that the $42,000 mortgage was to have the second lien position.

�8�� Meadowland asks us to read Wis. Stat. � 703.165(5)(b) to mean that the first mortgage recorded is the only mortgage lien superior to a condominium lien, even if the terms of the first recorded mortgage clearly state that it is subordinate to another mortgage.� Meadowland�s theory fails as both the $168,000 mortgage and the $42,000 mortgage were recorded prior to Meadowland�s condominium liens.� Section 703.165(5)(b) states that �a first mortgage� recorded prior to a condominium assessment is the only mortgage lien superior to a condominium lien.� (Emphasis added.)� The statute does not say �the first mortgage� recorded prior to a condominium assessment is the only mortgage lien that is superior to a condominium lien.� We may not ignore the plain meaning of a statute.� See State ex rel. Kalal v. Circuit Court, 2004 WI 58, �46, 271
Wis. 2d 633, 681 N.W.2d 110.� The mortgages on their face reflect that the $168,000 U.S. Bank mortgage is superior to the $42,000 mortgage.� The fact that the $42,000 mortgage was recorded prior to the $168,000 mortgage�with both mortgages being recorded before Meadowland�s condominium liens were filed�does not alter the $168,000 mortgage�s contractual status as the first mortgage.�

CONCLUSION

�9�� The order of the circuit court is reversed, and the case is remanded with directions that the $168,000 mortgage is superior to Meadowland�s condominium liens, and the $42,000 mortgage is junior to Meadowland�s condominium liens.

�� By the Court.�Order reversed and cause remanded with directions.

��

[1] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2] The two loans constituted an 80/20 mortgage loan transaction, with the $168,000 mortgage equaling 80% of the purchase price and the $42,000 mortgage constituting the remaining 20%.�

[3] Wisconsin Stat. � 703.165(5) also lists four other exceptions.�

[4] Meadowland argues that the $42,000 mortgage is the first mortgage because it won the �race� to be recorded first.� This argument misses the real issue, which is:� what is �a first mortgage� for purposes of Wis. Stat. � 703.165(5)(b).

Case No.:	2010AP3036
Complete Title of Case: