Wilmington Savings Fund Society, FSB v. Taguiped

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 09-APR-2024 07:52 AM Dkt. 86 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I WILMINGTON SAVINGS FUND SOCIETY, FSB, doing business as CHRISTIANA TRUST, Not Individually but as Trustee for HILLDALE TRUST, Plaintiff-Appellee, v. LAURA TAGUIPED, Defendant-Appellant; CITIBANK (SOUTH DAKOTA), N.A.; ASSOCIATION OF APARTMENT OWNERS OF KELLY CONDOMINIUM; STATE OF HAWAI#I, DEPARTMENT OF TAXATION, Defendants-Appellees, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE GOVERNMENTAL UNITS 2-50, Defendants APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CC121000432) SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.) Laura Taguiped appeals from the foreclosure Judgment entered by the Circuit Court of the Second Circuit on December 14, 2018.1 She challenges the "Findings of Fact, Conclusions of Law and Order Granting Plaintiff's Motion for Summary Judgment Against All Defendants and for Interlocutory Decree of Foreclosure" entered on December 14, 2018. We vacate and remand. 1 The Honorable Rhonda I.L. Loo presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Bank of America, N.A. filed the complaint below on April 25, 2012. Representing herself, Taguiped answered the complaint on July 22, 2014, and served Bank of America's counsel. The circuit court erroneously entered Taguiped's default on September 2, 2014. Wilmington Savings Fund Society, FSB substituted as the plaintiff on March 21, 2018. Wilmington moved for summary judgment and a decree of foreclosure on September 25, 2018. The court entered the Order and the Judgment on December 14, 2018. This appeal followed. Taguiped argues that her liability on her promissory note was discharged in bankruptcy. Her discharge protects her from personal liability under the note, but it doesn't prevent Wilmington from foreclosing on her mortgage. Johnson v. Home State Bank, 501 U.S. 78, 82-83 (1991). Taguiped argues that Wilmington didn't prove Bank of America's standing to enforce her note when it filed the complaint, as required by Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai#i 361, 390 P.3d 1248 (2017). A copy of the note wasn't attached to the complaint. Wilmington's motion for summary judgment included a copy of the note, authenticated by a declaration of Joanna Dyer. The note was payable to Countrywide Bank, FSB. It was indorsed in blank by Countrywide. There is no date on the indorsement. The note does not show when Bank of America became the holder. Dyer was "an authorized signer of . . . [Wilmington]'s servicing agent[,]" Fay Servicing LLC. The information in her declaration was "taken from Fay's business records." Fay became Wilmington's loan servicer on March 7, 2017. BSI Financial Services and Bank of America serviced the loan before Fay. Dyer stated: 37. According to [BSI and Bank of America]'s records, [Bank of America] was in possession of the original Note, indorsed in blank, prior to 04/25/2012, the date of the filing of the Complaint. According to Dyer, "Fay did review and determine [BSI and Bank of America]'s business records were trustworthy 2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER otherwise it would not have incorporated it into its own records." But Dyer's declaration didn't show circumstances indicating trustworthiness of the incorporated records, as required under Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai#i 37, 45-46, 414 P.3d 89, 97-98 (2018). Compare U.S. Bank Tr., N.A. v. Verhagen, 149 Hawai#i 315, 325-26, 489 P.3d 419, 429-30 (2021) (discussing "scant" and "nebulously described" circumstances indicating trustworthiness of incorporated records), with Deutsche Bank Nat'l Tr. Co. v. Yata, 152 Hawai#i 322, 334-35, 526 P.3d 299, 311-12 (2023) (noting that third Behrendt requirement wasn't satisfied). Dyer's declaration didn't specify how Fay determined that the incorporated records were trustworthy. The declaration didn't establish admissibility of the note or other incorporated records under Hawaii Rules of Evidence Rule 803(b)(6). Wilmington did not show that Bank of America had standing to enforce the note when it filed the foreclosure complaint. The circuit court erred by granting Wilmington's motion for summary judgment. Taguiped's other arguments are without merit. The "Findings of Fact, Conclusions of Law and Order Granting Plaintiff's Motion for Summary Judgment Against All Defendants and for Interlocutory Decree of Foreclosure" and the "Judgment," both entered on December 14, 2018, are vacated, and this case is remanded to the circuit court for further proceedings consistent with this summary disposition order. DATED: Honolulu, Hawai#i, April 9, 2024. On the briefs: /s/ Keith K. Hiraoka R. Steven Geshell, Presiding Judge for Defendant-Appellant Laura Taguiped. /s/ Karen T. Nakasone Associate Judge Charles R. Prather, Sun Young Park, /s/ Sonja M.P. McCullen Peter T. Stone, Associate Judge for Plaintiff-Appellee. 3