NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000829

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE OF J.P.

MORGAN ALTERNATIVE LOAN TRUST 2006-A7,

Plaintiff–Appellee, v. MARK MCMILLAN, INDIVIDUALLY

AND TRUSTEE FOR THE MCMILLAN ESTATE TRUST, AN

IRREVOCABLE TRUST ESTATE DATED MARCH 13, 2011

A.K.A. MARK ALLEN MCMILLAN, TRUSTEE FOR THE

MCMILLAN ESTATE TRUST; Defendant-Appellant,

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS

NOMINEE FOR MORTGAGEIT, INC.; UNITED STATES OF

AMERICA; STATE OF HAWAI#I, DEPARTMENT OF TAXATION;

EDWARD HAUSMAN; LORRAINE SILVA-HAUSMAN; THE

PRINCIPALITY OF ALOHA; CROWN LAND ESTATE OF

KAUIKEAOULI PROBATE ESTATE 2410 A.K.A. THE CROWN

ESTATE OF KING KAUIKEAOULI P-2410, A ROYAL PROBATE

TRUST ESTATE RECEIVED IN ACCOMMODATION BY TRUSTEE,

KAILINAMOIWALE PAIEA; INTERNATIONAL MONETARY FUND;

Defendants-Appellees, and JOHN and MARY DOES 1-20;

DOE PARTNERSHIPS, CORPORATIONS OR OTHER ENTITIES

1–20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 17-1-0387(3))

ORDER GRANTING FEBRUARY 21, 2020 MOTION TO

DISMISS APPEAL FOR LACK OF APPELLATE JURISDICTION

(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

Upon review of (1) the February 21, 2020 motion by

Plaintiff-Appellee HSBC Bank USA, National Association, as

Trustee of J.P. Morgan Alternative Loan Trust 2006-A7 (HSBC Bank

USA), to dismiss appellate court case number CAAP-19-0000829 for

lack of appellate jurisdiction (Motion to Dismiss), (2) the lack

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000829

17-APR-2020

10:35 AM
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of any memorandum by Defendant-Appellant Mark Allen McMillan,

Individually and as Trustee for the McMillan Estate Trust, an

Irrevocable Trust Estate Dated March 13, 2011, aka Mark Allen

McMillan, Trustee for the McMillan Estate Trust (McMillan), selfrepresented, in response to HSBC Bank USA's Motion to Dismiss,

and (3) the record, it appears that we lack appellate

jurisdiction over McMillan's appeal as to the Honorable Joseph E.

Cardoza's October 21, 2019 Judgment on a decree of foreclosure in

Civil No. 17-1-0387-03. McMillan did not file his November 27,

2019 notice of appeal within thirty days after entry of the

October 21, 2019 Judgment, as Rule 4(a)(1) of the Hawai#i Rules

of Appellate Procedure (HRAP) required for a timely appeal.1

The failure to file a timely notice of appeal in a

civil matter is a jurisdictional defect that the parties cannot

waive and the appellate courts cannot disregard in the exercise

of judicial discretion. Bacon v. Karlin, 68 Haw. 648, 650, 727

P.2d 1127, 1128 (1986); HRAP Rule 26(b) ("[N]o court or judge or

justice is authorized to change the jurisdictional requirements

contained in Rule 4 of these rules."); HRAP Rule 26(e) ("The

reviewing court for good cause shown may relieve a party from a

default occasioned by any failure to comply with these rules,

except the failure to give timely notice of appeal.").

Therefore, IT IS HEREBY ORDERED that HSBC Bank USA's

February 21, 2020 motion to dismiss McMillan's appeal is granted,

and appellate court case number CAAP-19-0000829 is dismissed for

lack of appellate jurisdiction.

DATED: Honolulu, Hawai#i, April 17, 2020.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H.M. Chan

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

1 Thirty days after filing of the October 21, 2019 Judgment was

November 20, 2019. We note that McMillan's notice of appeal is dated

November 22, 2019, which date is still untimely.

2