NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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