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NO. CAAP-20-0000696

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

HSBC BANK USA, NATIONAL ASSOCIATION FOR THE BENEFIT OF ACE 

SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-NC3,

ASSET BACKED PASS-THROUGH CERTIFICATES, Plaintiff-Appellee, v.

MARK CORBA also known as MARK ALAN CORBA also known as

MARK-ALLAN: CORBA also known as MARK-ALLAN: CORBA;

MARK-ALLAN: CORBA, AS TRUSTEE OF THE MARK CORBA TRUST,

A PRIVATE CONSTRUCTIVE IRREVOCABLE TRUST

DATED OCTOBER 14, 2010; Defendant-Appellant,

USAA FEDERAL SAVINGS BANK; DESIGN & BUILD SERVICES, INC.;

CHUTIPA SRIJAN; Defendants-Appellees, and

JOHN AND MARY DOES 1-20; DOE PARTNERSHIPS,

CORPORATIONS OR ENTITIES 1-20, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CASE NO. 2CC171000508(1))

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Wadsworth and McCullen, JJ.)

Defendant-Appellant Mark Corba1 appeals from the 

Circuit Court of the Second Circuit's October 6, 2020 Judgment 

1 The caption reads: "Mark Corba a.k.a Mark Alan Corba a.k.a MarkAllan: Corba a.k.a. Mark-Allan: Corba; Mark-Allan: Corba, as Trustee of the 

Mark Corba Trust, a private constructive Irrevocable Trust dated October 14, 

2010[.]" (Formatting altered.)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000696

16-NOV-2023

09:06 AM

Dkt. 70 SO
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and "Findings of Fact; Conclusions of Law; Order Granting 

Plaintiff's Motion for Summary Judgment, and for Interlocutory 

Decree of Foreclosure Against All Parties Filed January 14, 

2020."2

On appeal, Corba asserts that the circuit court erred

by granting Plaintiff-Appellee HSBC Bank USA, National 

Association for the Benefit of Ace Securities Corp. Home Equity 

Loan Trust, Series 2006-NC3, Asset Backed Pass-Through 

Certificates' (HSBC) January 14, 2020 Motion for Summary 

Judgment, and for Interlocutory Decree of Foreclosure Against 

All Parties.3

Specifically, Corba contends that HSBC failed to 

establish standing, admissibility of its business 

records, adequate cancellation notice, and Select Portfolio 

Servicing's (SPS) Document Control Officer Mark Syphus (Syphus)

as a qualified witness. Corba also contends the circuit court 

erred in declining to allow him to withdraw his automatic 

admissions.

2 The Honorable Rhonda I.L. Loo presided.

3 Corba did not preserve for appeal his arguments concerning New 

Century's bankruptcy, when Select Portfolio Servicing (SPS) obtained 

possession of the loan records, and the date the Note was indorsed. See

Cnty. of Hawaiʻi v. C & J Coupe Fam. Ltd. P'ship, 119 Hawaiʻi 352, 373, 198 

P.3d 615, 636 (2008) (explaining that "if a party does not raise an argument 

at trial, that argument will be deemed to have been waived on appeal"). 
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Upon careful review of the record and the briefs 

submitted by the parties, and having given due consideration to 

the issues raised and the arguments advanced by the parties, we 

resolve Corba's contentions as follows, and vacate and remand.

Regarding his challenge to HSBC's standing to 

foreclose, Corba argues that the entity that allegedly had

physical possession of the Note at the time the complaint was 

filed, Deutsche Bank, was unrelated to HSBC, and HSBC provides 

no proof of a custodial-agency relationship between HSBC and 

Deutsche Bank.

At the outset, we emphasize that "[i]n order to prove 

entitlement to foreclose, the foreclosing party must demonstrate 

that all conditions precedent to foreclose under the note and 

mortgage are satisfied and that all steps required by statute 

have been strictly complied with." Bank of Am., N.A. v. ReyesToledo, 139 Hawaiʻi 361, 367, 390 P.3d 1248, 1254 (2017). Thus, 

the foreclosing party must "prove the existence of an agreement, 

the terms of the agreement, a default by the mortgagor under the 

terms of the agreement, and giving of the cancellation notice." 

Id.

To establish standing to foreclose, a "plaintiff must 

necessarily prove its entitlement to enforce the note[.]" 

Reyes-Toledo, 139 Hawai‘i at 368, 390 P.3d at 1255. When a note 

is indorsed in blank, it becomes payable to the bearer and may 
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be negotiated by transfer or possession alone. Id. at 370, 390 

P.3d at 1257. Thus, when a lender forecloses on a mortgage 

secured by a blank-indorsed note, the lender must establish that 

it held the note at the time it filed the complaint. See id. 

A foreclosing party may establish it is the holder of 

a note by showing that its agent physically possesses it. See

e.g., U.S. Bank Tr., N.A. as Tr. for LSF9 Master Participation 

Tr. v. Verhagen, 149 Hawai‘i 315, 327-28, 489 P.3d 419, 431-32 

(2021). There must be evidence connecting the custodial agent 

with the principal. Cf., e.g., Bank of New York Mellon as Tr. 

for Certificate-Holders CWABS Asset-Backed Notes Tr. 2006-SD4 v. 

Bautista, 153 Hawai‘i 280, 534 P.3d 544, No. CAAP-17-0000621, 

2023 WL 4546454 at *8 (App. July 14, 2023) (am. mem. op.) 

(concluding that bailee letter from law office to third-party 

was insufficient to establish possession of note by the lender's 

agent in absence of any supporting evidence connecting the 

bailee or third-party to the lender, servicer, or lender's 

counsel).

In his declaration, Syphus stated that he is an

officer of SPS, HSBC's servicer for the subject loan. Syphus 

further stated, "According to SPS's business records, [HSBC], 

through its custodian Deutsche Bank, has possession of the note 

in this instant action . . . and was in possession of the Note 

at the time of the filing of the complaint."
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Syphus then stated, "A true and correct copy of the 

documentation supporting note possession at the time of the 

filing of the complaint is attached as Exhibit '4' . . . ." 

Exhibit 4 appears to contain an entry prepared by "Jaren French,

[SPS]" indicating that Deutsche Bank "[i]s the custodian in 

possession of the [N]ote" and that the Note was physically 

located in Santa Ana, California.

However, there is nothing in Exhibit 4 to show that 

Deutsche Bank possessed the Note as the custodial agent for HSBC

or to otherwise show a connection between HSBC, Deutsche Bank, 

and the Note. And HSBC does not point to any other evidence in 

the record to support Syphus' assertion. 

The two words - "its custodian" - in Syphus' 

declaration, "standing alone and uncorroborated by documentary 

evidence," were insufficient to show there was no genuine issue 

as to whether Deutsche Bank was HSBC's custodial agent and that

HSBC was entitled to a judgment as a matter of law. See

Verhagen, 149 Hawai‘i at 327, 489 P.3d at 431 (explaining that 

the declarant testified "U.S. Bank had actual or constructive 

possession of the Note at the time it filed the complaint," and 

that "[s]uch testimony, standing alone and uncorroborated by 

documentary evidence, would be insufficient to establish U.S. 

Bank possessed the Note when it filed the complaint"). Thus, 

the circuit court erred in granting HSBC's motion for summary 
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judgment. U.S. Bank N.A. v. Mattos, 140 Hawaiʻi 26, 30, 398 P.3d 

615, 619 (2017) (reviewing the granting of summary judgment de 

novo).

Based on the foregoing, this court need not reach 

Corba's remaining contentions. We vacate the circuit court's 

October 6, 2020 Judgment, and remand for further proceedings 

consistent with this summary disposition order.

DATED: Honolulu, Hawaiʻi, November 16, 2023.

On the briefs:

Keith M. Kiuchi,

for Defendant-Appellant.

Patricia J. McHenry,

Lisa K. Swartzfager,

(Cades Schutte),

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge