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NO. CAAP-19-0000593 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE 

FOR THE CERTIFICATEHOLDERS CWABS, INC. ASSET-BACKED 

CERTIFICATES, SERIES 2004-12, Plaintiff-Appellee, v. 

CHRISTIAN EDWARD DUNCAN; FATIMA DUNCAN, Defendants-Appellants, 

COUNTRYWIDE HOME LOANS, INC.; MORTGAGE ELECTRONIC REGISTRATION 

SYSTEMS, INC., AS NOMINEE FOR COUNTRYWIDE HOME LOANS, INC., 

Defendants-Appellees, JOHN DOES 1-20; JANE DOES 1-20; 

DOE CORPORATIONS 1-20; DOE ENTITIES 1-20; 

AND DOE GOVERNMENTAL UNITS 1-20, Defendants. 

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT 

(CIVIL NO. 16-1-0532(3)) 

MEMORANDUM OPINION 

(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.) 

Defendants-Appellants Christian Edward Duncan and 

Fatima Duncan (Duncans) appeal from the Circuit Court of the 

Second Circuit's July 26, 2019 (1) "Findings of Fact, 

Conclusions of Law and Order Granting [Plaintiff-Appellee Bank 

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000593

05-JUN-2023

08:04 AM

Dkt. 62 MO
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of New York Mellon's (Bank of New York)1] Motion for Summary 

Judgment Against All Defendants and for Interlocutory Decree of 

Foreclosure," and (2) Judgment entered in favor of Bank of New 

York and against the Duncans.2

On appeal, the Duncans argue that the circuit court 

erred in granting summary judgment because (1) Bank of New York

did not establish it had standing when it commenced the action,

(2) Bank of New York did not establish foundation for the 

business records, and (3) Bank of New York's witness was not 

qualified to verify prior servicers' incorporation of records. 

The standing issue is dispositive; we vacate and remand.

I. BACKGROUND

On October 10, 2016, Bank of New York filed a 

complaint (Complaint), seeking to foreclose on the Duncans' real 

property in Lahaina, Maui (Property). In the Complaint, Bank of 

New York averred that it "is the current holder of the Note with 

standing to prosecute the instant action and the right to 

foreclose the subject Mortgage" and Bank of New York's 

"foreclosure counsel is currently in rightful possession of the 

endorsed Note[.]" Bank of New York did not include an original 

or photocopy of the Note with the Complaint.

1 Bank of New York's title is Bank of New York Mellon FKA the Bank of 

New York as Trustee for the Certificateholders CWABS, Inc. Asset-Backed 

Certificates, Series 2004-12.

2 The Honorable Joseph E. Cardoza presided.
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Over two years later, in January 2019, Bank of New 

York moved for summary judgment, averring that "no genuine issue 

of material fact exists and that [it] is entitled to judgment as 

a matter of law[.]" In its memorandum supporting its motion, 

Bank of New York stated that "[a] true and correct copy of the 

Note is attached as Exhibit '1.'" Bank of New York also stated 

that Exhibit 2 was "[a] true and correct copy of the bailee 

letter reflecting possession of the original Note, indorsed in 

blank, by [its] attorneys as of the filing date of the 

Complaint." Bank of New York claimed that when the Complaint 

was filed on October 10, 2016, it "was entitled to enforce the 

Note, indorsed in blank, with standing to bring and prosecute 

this action."

Attached to the motion was a declaration executed on 

November 27, 2018, by Elizabeth Gonzales (Gonzales), an

"authorized signer of Carrington Mortgage Services, LLC, 

('Carrington'), which is [Bank of New York's] servicing agent 

and attorney-in-fact for the subject loan . . ." (Gonzales 

Declaration). Gonzales stated that Bank of New York "has 

possession of the Note with standing to prosecute the instant 

action and the right to foreclose the subject Mortgage. The 

original Note has been indorsed in blank." Gonzales further

stated that Bank of New York "caused the original Note, indorsed 
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in blank, to be delivered to [its] attorneys, TMLF Hawaii LLLC, 

as agent for the" Bank of New York.

Gonzales then stated that "Carrington's records 

indicate that [Bank of New York], by and through counsel, had 

possession of the original Note, indorsed in blank, prior to 

10/10/2016, the date of the filing of the Complaint for Mortgage 

Foreclosure in this matter." Gonzales relied on the bailee 

letter, claiming it "reflect[s] possession of the original Note, 

indorsed in blank, by [Bank of New York's] attorneys" and noted 

it was attached as Exhibit 2.

Exhibit 1 is a photocopy of the Note naming Full 

Spectrum Lending as the lender, with an indorsement from Full 

Spectrum Lending to Countrywide Home Loans and a blank 

indorsement from Countrywide Home Loans. These indorsements are 

not dated.

Exhibit 2 is the bailee letter from the Bank of New 

York's attorney to Ditech Financial LLC dated April 15, 2016, 

which was approximately six months prior to the filing of the 

Complaint. The bailee letter stated, "We request the release of 

the following Collateral Documents checked below for the purpose 

of pursuing a foreclosure or legal action . . ." and the box for

"Original . . . Note/Allonge(s) and POA as applicable" was 

checked.
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During the hearing on Bank of New York's motion for 

summary judgment, counsel briefly discussed the bailee letter, 

but gave no specific explanation regarding how the bailee letter 

showed that Bank of New York possessed the original Note. As to 

the Duncans' standing argument, Bank of New York did not respond 

except to rest on its pleadings.

The circuit court granted Bank of New York's motion 

for summary judgment and interlocutory decree of foreclosure, 

and entered findings of fact and conclusions of law. The 

Duncans timely appealed. 

II. STANDARD OF REVIEW 

"We review a trial court's grant of summary judgment 

de novo." State ex. rel. Shikada v. Bristol-Myers Squibb Co., 

152 Hawai‘i 418, 439, 526 P.3d 395, 416 (2023) (citation 

omitted). "To prevail, the moving party must demonstrate that 

there's no genuine dispute about the material facts and the 

'undisputed facts' show the court should grant summary judgment 

as a matter of law." Id. at 442, 526 P.3d at 419. "A court 

must consider the evidence in the light most favorable to the 

non-moving party at summary judgment." Id. (citation and 

internal quotation marks omitted). 
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III. DISCUSSION 

Again, the Duncans argue, inter alia, that Bank of New 

York did not establish it had standing when it commenced this 

action. 

"A foreclosing plaintiff's burden to prove entitlement 

to enforce the note overlaps with the requirements of standing 

in foreclosure actions as standing is concerned with whether the 

parties have the right to bring suit." Bank of Am., N.A. v. 

Reyes-Toledo, 139 Hawai‘i 361, 367, 390 P.3d 1248, 1254 (2017) 

(cleaned up and citations omitted). "Accordingly, in 

establishing standing, a foreclosing plaintiff must necessarily 

prove its entitlement to enforce the note as it is the default 

on the note that gives rise to the action." Id. at 368, 390 

P.3d at 1255 (citing Hawaii Revised Statutes § 490:9-601 (2008)) 

(providing for a secured party's rights after default)). Thus, 

"a foreclosing plaintiff must establish its standing to bring a 

lawsuit at the commencement of the proceeding, not merely at the 

summary judgment stage." Deutsche Bank Nat'l Tr. Co. v. Yata, 

152 Hawai‘i 322, 335, 526 P.3d 299, 312 (2023) (citations 

omitted). 

In its motion for summary judgment, Bank of New York 

claimed that it possessed the Note at the time the Complaint was 

filed and submitted the following to support its claim: (1) the 
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Gonzales Declaration; (2) a photocopy of the Note; and (3) the 

bailee letter.

The Gonzales Declaration stated that Bank of New York, 

through its counsel, possessed the Note "prior to 10/10/2016, 

the date of the filing of the Complaint . . . ." Gonzales 

relied on the bailee letter stating, "A true and correct copy of 

the bailee letter reflecting possession of the original Note, 

indorsed in blank, by [Bank of New York's] attorneys is attached 

as Exhibit '2' . . . ."

The bailee letter, however, did not establish that 

Bank of New York was in possession of the Note when the 

Complaint was filed. Assuming, without deciding, that the 

bailee letter was admissible as evidence, it merely requested 

that the Note be sent to Bank of New York's attorney. There was 

no language in the bailee letter confirming Bank of New York's 

attorney received, or was in possession of, the Note. And 

although Bank of New York provided a photocopy of the Note, the 

blank indorsement was undated and the Note alone provided no 

indication that Bank of New York possessed it at the time the 

Complaint was filed.

In short, Bank of New York did not establish that it 

was entitled to judgment as a matter of law. To the contrary, 

in viewing this evidence in the light most favorable to the 

Duncans, there was a genuine issue as to whether Bank of New 
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York possessed the Note at the time the Complaint was filed. 

The circuit court, therefore, erred in granting Bank of New 

York's motion for summary judgment. Accordingly, we need not 

address the Duncans' remaining issues. 

IV. CONCLUSION

Based on the foregoing, we vacate the circuit court's 

July 26, 2019 "Findings of Fact, Conclusions of Law and Order 

Granting [Bank of New York's] Motion for Summary Judgment 

Against All Defendants and for Interlocutory Decree of 

Foreclosure" and Judgment, and remand this case for further 

proceedings.

DATED: Honolulu, Hawai‘i, June 5, 2023.

On the briefs:

Matthew K. Yoshida,

for Defendants-Appellants.

Charles R. Prather,

Robin Miller,

Sun Young Park,

Peter T. Stone,

for Plaintiff-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Karen T. Nakasone,

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge