NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000581

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

U.S. BANK TRUST, N.A., AS TRUSTEE FOR 

LSF9 MASTER PARTICIPATION TRUST, Plaintiff-Appellee, v. 

THOMAS A. MORTON, Defendant-Appellant, and 

RENE D. MORTON aka RENE D. RICHARDS; COUNTY OF HAWAI#I, 

a municipal corporation of the State of Hawaii, 

Defendants-Appellees, and 

DOES 1 THROUGH 20, Inclusive, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

KONA DIVISION

(CASE NO. 3CC18100151K)

SUMMARY DISPOSITION ORDER

(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Thomas A. Morton appeals from the April 12, 2019

Judgment for U.S. Bank Trust, N.A. entered by the Circuit Court

of the Third Circuit.1 We affirm.

U.S. Bank filed a residential mortgage foreclosure

complaint against Morton and others2 on August 3, 2018. Morton

answered the complaint, representing himself. He didn't deny the

complaint's allegations. But he disputed U.S. Bank's "legal

standing to proceed" and claimed that U.S. Bank did not have "THE

ORIGINAL DEED OF TRUST" and could not provide a "PERFECT

1 The Honorable Melvin H. Fujino presided.

2 The others were Rene D. Morton, also known as Rene D. Richards,

and the County of Hawai#i. They are not parties to this appeal.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000581

12-JUN-2024

07:59 AM

Dkt. 69 SO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

INSTRUMENT." U.S. Bank moved for summary judgment (MSJ). Morton

filed an opposition but did not include an affidavit, a

declaration, or documents. On April 12, 2019, the circuit court

entered findings of fact, conclusions of law, and an order

granting summary judgment, and the Judgment. Morton, through

counsel, timely moved for reconsideration. Reconsideration was

denied. This appeal followed.

The points of error section in Morton's opening brief 

does not comply with Hawai#i Rules of Appellate Procedure (HRAP)

Rule 28(b)(4). As best we can discern, the statement of the case

and argument sections raise: (1) U.S. Bank's standing to

foreclose; (2) the attorney affirmation; (3) Morton's request to

conduct discovery; (4) admissibility of evidence supporting the

MSJ; (5) adequacy of the circuit court's findings and

conclusions; (6) statute of limitations; and (7) denial of the

motion for reconsideration.

(1) Morton argues U.S. Bank didn't prove it had

standing to enforce the note when its complaint was filed. See

Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai#i 361, 368, 390 P.3d

1248, 1255 (2017). It did. Attached to the complaint was a

declaration from U.S. Bank's attorney. He stated he reviewed the

original note, kept in his Honolulu office, 14 days before the

complaint was filed. A copy of the note was attached to the

declaration. The original lender was Wells Fargo Home Mortgage

of Hawaii, LLC. The note had a special indorsement by Wells

Fargo Home to Wells Fargo Bank, N.A., and a blank indorsement by

Wells Fargo Bank, N.A. This shows that U.S. Bank had the right

to enforce the note as a holder when its complaint was filed. 

See id. at 367, 390 P.3d at 1254.

(2) A residential mortgage foreclosure complaint must

be accompanied by "an affirmation that the attorney has verified

the accuracy of the documents submitted, under penalty of perjury

and subject to applicable rules of professional conduct." Hawaii

Revised Statutes (HRS) § 667-17 (2016). The statute includes a

form with which the affirmation must substantially comply. An

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Attorney Affirmation was filed with U.S. Bank's complaint. 

Morton argues the attorney did not "claim firsthand personal

knowledge of the content and location of all of the relevant and

material loan documents U.S. Bank is relying on[.]" That isn't

something the statute requires. Morton offers no other argument. 

The Attorney Affirmation substantially complied with HRS § 667-

17.

(3) Morton's opposition to U.S. Bank's MSJ did not ask

for a continuance to conduct discovery. He filed a "Motion for

Discovery" as a "request for reproduction of documents," but it

didn't mention the MSJ or cite Hawai#i Rules of Civil Procedure

(HRCP) Rule 56(f). See Ralston v. Yim, 129 Hawai#i 46, 63, 292

P.3d 1276, 1293 (2013) ("HRCP Rule 56(f) is the appropriate means

by which parties can ensure that they have adequate time to

respond to a motion for summary judgment."). Morton's motion was

an HRCP Rule 34 request for production of documents. Even if

construed as requesting an HRCP 56(f) continuance, the motion did

not explain what material facts the documents might reveal. See

Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116

Hawai#i 277, 308, 172 P.3d 1021, 1052 (2007) (stating that the

party seeking a continuance under HRCP Rule 56(f) "is required to

show what specific facts further discovery might unveil")

(citation omitted). And none of the documents requested would

have been material to the issues presented by the MSJ.

Morton also filed a "Motion to Compel" U.S. Bank "to

produce the original 'wet' document in court physically[.]" 

U.S. Bank's counsel brought the original note to the MSJ hearing. 

Morton acknowledged examining it, although he didn't believe it

was the original note. During the hearing he didn't ask for a

continuance to conduct discovery. The circuit court does not

abuse its discretion by not granting a request that was never

made.

(4) Morton argues U.S. Bank's records supporting its

MSJ were inadmissible under Hawaii Rules of Evidence (HRE)

Rule 803(b)(6). U.S. Bank's documents were authenticated by the

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declaration of Melinda Patterson. The declaration contained the

information held sufficient to authenticate incorporated records

under HRE Rule 803(b)(6) in U.S. Bank Tr., N.A. v. Verhagen, 149

Hawai#i 315, 325-27, 489 P.3d 419, 429-31 (2021).

(5) Morton argues the circuit court's findings of fact

were insufficient to support the grant of summary judgment. His

points of error don't cite or quote any findings, as required by

HRAP Rule 28(b)(4)(C). Points not complying with HRAP

Rule 28(b)(4) will be disregarded. HRAP Rule 28(b)(4). His

brief doesn't explain which findings were insufficient, and why. 

His argument is waived. HRAP Rule 28(b)(7) ("Points not argued

may be deemed waived.").

(6) Morton argues U.S. Bank's claims were barred by

the statute of limitations. He cites no authority other than HRS

§ 657-1(1). He provides no "record references supporting each

statement of fact or mention of court or agency proceedings" as

required by HRAP Rule 28(b)(3). But ultimately, the statute of

limitations is a personal defense that can be waived. Kellberg

v. Yuen, 135 Hawai#i 236, 254, 349 P.3d 343, 361 (2015). Morton

did not assert that defense in his answer or his opposition to

U.S. Bank's motion for summary judgment. He waived it.

(7) Morton's motion for reconsideration argued facts

and law that could and should have been presented in opposition

to U.S. Bank's MSJ. The circuit court did not abuse its

discretion by denying reconsideration. Sousaris v. Miller, 92

Hawai#i 505, 513, 993 P.2d 539, 547 (2000).

For these reasons, the April 12, 2019 Judgment is

affirmed.

DATED: Honolulu, Hawai#i, June 12, 2024.

On the briefs:

/s/ Keith K. Hiraoka

Gary Victor Dubin, Presiding Judge

Frederick J. Arensmeyer,

for Defendant-Appellant. /s/ Clyde J. Wadsworth

Associate Judge

David B. Rosen,

for Plaintiff-Appellee. /s/ Sonja M.P. McCullen

Associate Judge

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