NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

NOS. CAAP-20-0000355 AND CAAP-22-0000411 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

DEUTSCHE BANK AND TRUST COMPANY AMERICAS AS INDENTURE 

TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT 

TRUST 2006-2, MORTGAGE-BACKED NOTES, SERIES 2006-2, 

Plaintiff-Appellee, 

v. 

JAMES ANTHONY SCILLA, Defendant-Appellant, 

and 

AMERICAN HOME MORTGAGE; STATE OF HAWAI‘I - DEPARTMENT 

OF TAXATION; ASSOCIATION OF APARTMENT OWNERS OF 

KO OLINA FAIRWAYS, 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 1-50, Defendants 

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT 

(CIVIL NO. 1CC141000861) 

SUMMARY DISPOSITION ORDER 

(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.) 

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000355

24-SEP-2024

08:00 AM

Dkt. 119 SO
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2 

 In this consolidated appeal, Defendant-Appellant James 

Anthony Scilla (Scilla) appeals from the Circuit Court of the 

First Circuit's (Circuit Court)1 April 13, 2020 Judgment entered 

on a decree of foreclosure and its March 24, 2022 Judgment 

entered on an order confirming the subsequent foreclosure sale. 

Scilla raises ten points of error in which he contends the 

Circuit Court erred in granting a foreclosure decree in favor of 

Plaintiff/Counterclaim Defendant-Appellee Deutsche Bank and 

Trust Company Americas as Indenture Trustee for American Home 

Mortgage Investment Trust 2006-2, Mortgage-Backed Notes, Series 

2006-2 (DB), and in confirming the subsequent foreclosure sale, 

because DB failed to prove (1) that it had standing to foreclose 

in its capacity as trustee or (2) that it was validly assigned 

the subject mortgage (Mortgage).2 

 Upon careful review of the record and the briefs 

submitted, and having given due consideration to the arguments 

advanced and the issues raised by the parties, we resolve 

Scilla's arguments as follows, and affirm. 

 We review the grant of summary judgment de novo. U.S. 

Bank N.A. v. Mattos, 140 Hawai‘i 26, 30, 398 P.3d 615, 619 

(2017). To establish standing to foreclose, the "plaintiff must 

necessarily prove its entitlement to enforce the [promissory] 

note." Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai‘i 361, 368, 

390 P.3d 1248, 1255 (2017) (citation omitted). "Whether a party 

is entitled to enforce a promissory note is determined by 

application of [Hawaii Revised Statutes (HRS)] § 490:3-301 

1 The Honorable Jeffrey P. Crabtree presided.

2 For clarity, we have consolidated the seven points raised in 

CAAP-20-0000355, the foreclosure appeal, with the three points raised in 

CAAP-22-0000411, the appeal from the order confirming the sale, into two main 

contentions upon which all of Scilla's points rest. 
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3 

. . . ." Id. at 369, 390 P.3d at 1256. HRS § 490:3-301 (2008) 

provides that: "'Person entitled to enforce' an instrument 

means (i) the holder of the instrument." When a note is 

indorsed in blank, it "becomes payable to bearer and may be 

negotiated by transfer or possession alone." Reyes-Toledo, 

139 Hawai‘i at 370, 390 P.3d at 1257 (citation omitted). Thus, 

when a lender forecloses on a mortgage secured by a blankindorsed note, the lender must establish that it held the note 

at the time it filed the complaint. Id. 

 Here, the record shows that DB established standing to 

foreclose. Notably, Scilla does not dispute that the subject 

promissory note (Note) is indorsed in blank or that DB 

physically possessed it at the time it filed the April 7, 2014 

foreclosure complaint, but only argues that the indorsement is 

not dated. See U.S. Bank Tr., N.A. as Tr. for LSF9 Master 

Participation Tr. v. Verhagen, 149 Hawai‘i 315, 328 n.11, 

489 P.3d 419, 432 n.11 (2021) ("[When] standing is based on 

possession of a Note indorsed in blank, the admissible evidence 

must also show that the blank indorsement occurred before the 

initiation of the suit.") (citation omitted). DB produced 

testimony in the form of a declaration by Sony Prudent 

(Prudent), an employee of Ocwen Financial Corporation, "whose 

indirect subsidiary" is the current loan servicer. Prudent 

testified that, in June 2006, the subject loan was securitized 

and transferred to the trust identified in the caption pursuant 

to the terms of a mortgage loan purchase agreement, and as part 

of the securitization, the original Note, indorsed in blank, was 

"deliver[ed] to, and deposit[ed] with" DB as trustee. Scilla 

fails to demonstrate that such testimony is inadmissible.3 Thus, 

3 Scilla's argument, that a foreclosing lender must also plead and 

prove its capacity to act as trustee to establish standing to foreclose a 
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4 

the record is sufficient for the Circuit Court to conclude the 

Note was indorsed in blank when DB took possession of it, prior 

to filing the Complaint. Cf. Reyes-Toledo, 139 Hawai‘i at 370, 

390 P.3d at 1257 (observing a genuine issue of fact as to 

standing because the blank-indorsed promissory note was not 

dated and the declaration supporting the summary judgment motion 

failed to "indicate when the indorsement occurred"). Therefore, 

the Circuit Court did not err in concluding DB has standing to 

foreclose as the holder of the Note under HRS § 490:3-301(i). 

 As to Scilla's argument that DB was not validly 

assigned the Mortgage, the Circuit Court correctly concluded 

that Scilla is barred from relitigating the validity of the 

assignment of Mortgage to DB under principles of res judicata 

and/or collateral estoppel, as that issue was already decided by 

the United States District Court for the District of Hawai‘i in 

Scilla v. Deutsche Bank Tr. Co. Americas, Civ. No. 11-00061 BMK. 

Further, DB's possession of the blank-indorsed Note demonstrates 

it is entitled to foreclose on the Mortgage, as the transfer of 

a blank-indorsed promissory note also transfers the right to 

enforce the mortgage. See HRS § 490:9-203(g) (2008)("The 

attachment of a security interest in a right to payment or 

performance secured by a security interest or other lien on 

personal or real property is also attachment of a security 

interest in the security interest, mortgage, or other lien."); 

Reyes-Toledo, 139 Hawai‘i at 371 n.17, 390 P.3d at 1258 n.17 

(stating that "the security follows the debt") (citations 

Mortgage and Note held in trust, lacks merit. None of the cases Scilla cites 

stand for that proposition. Rather, each case turned on whether the 

foreclosing lender established standing by proving it was the note holder 

when the complaint was filed, or that it had authority to act on behalf of 

the holder or party to whom the note was specially indorsed. 
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5 

omitted); Agard v. Deutsche Bank Nat. Tr. Co., No. 

CAAP-13-0002872, 2015 WL 337254, at *1 (Haw. App. Jan. 26, 2015) 

(holding that the mortgage was automatically transferred with 

the underlying note). 

 For these reasons, we affirm the April 13, 2020 

Judgment and March 24, 2022 Judgment, both entered by the 

Circuit Court of the First Circuit. 

 DATED: Honolulu, Hawai‘i, September 24, 2024. 

On the briefs:

R. Steven Geshell, 

for Defendant-Appellant 

Jade Lynne Ching, 

for Plaintiff-Appellee 

/s/ Katherine G. Leonard 

Acting Chief Judge 

/s/ Keith K. Hiraoka 

Associate Judge 

/s/ Karen T. Nakasone 

Associate Judge