NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000386 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee, 

v. 

JON S. VAN CLEAVE; JVC PARTNERS-II, A LIMITED LIABILITY 

PARTNERSHIP, Defendants-Appellants, 

and 

LISA ANNE RACITI; JAY MARTINEZ; ALLIANCE BANCORP; 

BANK ONE NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND 

SERVICING AGREEMENT DATED AS OF NOVEMBER 1, 2002 FOR SACO 1 

TRUST 2002-1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-1; 

JOHN AND MARY DOES 1-20; DOE PARTNERSHIPS, CORPORATIONS OR OTHER 

ENTITIES 1-20, Defendants-Appellees 

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT 

(CASE NO. 13-1-0278) 

SUMMARY DISPOSITION ORDER 

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

 Defendants-Appellants Jon S. Van Cleave (Van Cleave) 

and JVC Partners-II, a Limited Liability Partnership (JVC) 

(collectively, Appellants), appeal from the: (1) March 9, 2018 

"Findings of Fact and Conclusions of Law; Order Granting 

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000386

05-APR-2024

08:36 AM

Dkt. 110 SO
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

2 

Plaintiff's Motion for Summary Judgment and for Interlocutory 

Decree of Foreclosure Filed October 12, 2017" (Foreclosure 

Decree); (2) March 9, 2018 Judgment; and (3) April 20, 2018 

"Order Denying Defendants Jon S. Van Cleave and JVC Partners-II, 

a Limited Partnership's Non-Hearing Motion for Reconsideration 

of March 9, 2018 Order Granting Plaintiff's Motion for Summary 

Judgment and for Interlocutory Decree of Foreclosure and the 

Judgment Thereon, Filed on March 19, 2018" (Order Denying 

Reconsideration), all filed and entered by the Circuit Court of 

the Fifth Circuit (Circuit Court).1

 On appeal, Appellants challenge the Foreclosure 

Decree, arguing that Plaintiff-Appellee JPMorgan Chase Bank, 

National Association (JPMorgan) failed to prove it "had standing 

to file and to prosecute a foreclosure action" and "never proved 

that they had ownership of the underlying promissory note and 

mortgage . . . ."2

 Upon careful review of the record and the briefs 

submitted by the parties, and having given due consideration to 

the arguments advanced and the issues raised, we affirm. 

On September 26, 2013, JPMorgan filed a "Complaint to 

Foreclose Mortgage" (Complaint) on the property located on 

Kukuna Road, Anahola, HI 96745 (Property) due to DefendantAppellee Lisa Anne Raciti's (Raciti) default under the terms of 

the note, and Raciti and Defendant-Appellee Jay Martinez's 

(Martinez) default under the terms of the mortgage. The 

1 The Honorable Randal G.B. Valenciano presided.

2 While Appellants appeal from the Order Denying Reconsideration, 

they do not raise any point of error or present any argument challenging the 

Order Denying Reconsideration, and such challenge is waived. See Hawai‘i 

Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not argued may be 

deemed waived."). We address Appellants' point of error challenging the 

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

3

Complaint named the following defendants: Raciti; Martinez; 

Alliance Bancorp; Bank One National Association, as Trustee 

under the Pooling and Servicing Agreement dated as of November 

1, 2002 for SACO 1 Trust 2002-1 Mortgage Pass-Through 

Certificates, Series 2002-1; the County of Kaua‘i; Van Cleave; 

and JVC. The Complaint alleged, inter alia, that Raciti 

executed and delivered a March 27, 2007 promissory note (Note) 

to Washington Mutual Bank, FA, a federal savings bank; the Note 

was secured by a March 27, 2007 mortgage on the Property 

(Mortgage) executed by Raciti and Martinez; JPMorgan is the 

current holder of the Mortgage and Note; due to Raciti's default 

on the Note, Martinez is in default under the terms of the 

Mortgage; and JPMorgan is entitled to foreclose on the Property. 

The other parties were named as defendants because of their 

possible interests in the Property. Regarding Appellants, the 

Complaint alleged that Appellants "may have an interest in the 

Property by virtue of a First Amended Notice of Pendency of 

Action" (NOPA) filed in the Circuit Court on July 27, 2009, and 

recorded against the Property that referenced a pending action 

in another case; and that Appellants' "interest may no longer be 

valid" as the other case "was dismissed on August 8, 2012 per 

order of the Circuit Court . . . ." The Complaint requested 

that: 

any interest or lien claimed by any Defendants herein named 

and all persons claiming any interest in the Property 

through or under said Defendants, . . . be forever barred 

and foreclosed of and from all right, title and interest 

and claims at law or in equity in and to said Property and 

every part hereof; and that these interests or liens be 

adjudicated subordinate to the lien of [JPMorgan]'s 

Mortgage[.] 

On January 31, 2017, the clerk entered default against 

Raciti and Martinez for failing to answer the Complaint.
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

4

On October 12, 2017, JPMorgan filed a Motion for 

Summary Judgment and for Interlocutory Decree of Foreclosure 

(MSJ). 

On November 8, 2017, Appellants filed an opposition to 

the MSJ, arguing that in August 2005, JVC, the previous owner of 

the Property,3 executed a note and mortgage in favor of SFG 

Income Fund VI, LLC (SFG), and on August 3, 2006, SFG commenced 

a foreclosure action against Appellants. Appellants claimed 

that to avoid foreclosure, on January 26, 2007, they entered 

into a real estate purchase contract with Raciti and Martinez 

for the sale of the Property. Van Cleave alleged he "signed the 

closing documents under extreme duress" to avoid foreclosure; 

Van Cleave has "an equitable interest in the Property based on 

the fraudulent activities associated with the conveyance of the 

Property in 2007"; "Raciti and Martinez obtained title to the 

Property through fraudulent means"; and their "suspect" title 

creates a genuine issue of material fact, which precludes 

summary judgment.4

On January 8, 2018, JPMorgan filed its reply, arguing 

that Appellants "lack[ed] standing" to challenge the MSJ because 

Appellants: (1) have not had a legal interest in the Property 

for over ten years "since title to the Property was transferred 

from JVC to RACITI and MARTINEZ in 2006"; (2) are not parties to 

the Note or Mortgage at issue; (3) failed to successfully assert 

a claim against any party to "theor[etically] give them an 

3 Van Cleave declared that he purchased the Property in 2000, and 

conveyed it in 2003 to JVC.

4 In their MSJ opposition below, Appellants did not raise the 

argument they now make on appeal that JPMorgan lacked standing to bring the 

foreclosure action. The MSJ opposition also did not contain Appellants' 

argument that JPMorgan failed to prove "ownership of the underlying 

promissory note and mortgage."
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

5 

interest in the Property"; and (4) are time-barred from 

asserting any such claim. 

At the January 9, 2018 MSJ hearing, the Circuit Court 

orally granted the MSJ. 

On March 9, 2018, the Circuit Court entered the 

Foreclosure Decree and Judgment. 

On March 19, 2018, Appellants filed a non-hearing 

Motion for Reconsideration arguing that the Circuit Court's 

grant of the MSJ should be set aside because JPMorgan lacked 

standing to foreclose. 

On March 29, 2018, JPMorgan filed an opposition to the 

Motion for Reconsideration, arguing that it had standing to 

foreclose on the Property; it was improper for Appellants to 

assert their standing argument for the first time in their 

Motion for Reconsideration; and under the recent Behrendt 

opinion cited by Appellants, that Appellants, and not JPMorgan, 

lacked standing to challenge the foreclosure because Appellants 

"have no legal interest in the subject property, and . . . have 

admitted that they have not had an interest in the subject 

property for over 10 years." 

On April 20, 2018, the Circuit Court entered its Order 

Denying Reconsideration.

Appellants waived the arguments they raise on appeal 

challenging the Foreclosure Decree and Judgment. 

The record reflects that Appellants' arguments on 

appeal were raised for the first time in their Motion for 

Reconsideration and not in their MSJ opposition. Appellants 

argued in their Motion for Reconsideration that JPMorgan did not 

establish its standing to foreclose under Wells Fargo Bank, N.A. 

v. Behrendt, 142 Hawai‘i 37, 414 P.3d 89 (2018), Bank of America, 

N.A. v. Reyes-Toledo, 139 Hawai‘i 361, 390 P.3d 1248 (2017), and 
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

6 

U.S. Bank, N.A. v. Mattos, 140 Hawai‘i 26, 398 P.3d 615 (2017) 

because "evidence of a foreclosing plaintiff's ownership of the 

underlying promissory note" and "detailed personal knowledge to 

the authenticity of the loan documents" are required to have 

standing in a foreclosure action. None of these arguments and 

cases raised in Appellants' 254-page Motion for Reconsideration 

were raised in Appellants' opposition to the MSJ. 

"The purpose of a motion for reconsideration is to 

allow the parties to present new evidence and/or arguments that 

could not have been presented during the earlier adjudicated 

motion[.]" Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 

85, 114, 839 P.2d 10, 27 (1992) (citation omitted). "[A] motion 

for reconsideration is not the time to relitigate old matters." 

Briggs v. Hotel Corp. of the Pac., Inc., 73 Haw. 276, 287 n.7, 

831 P.2d 1335, 1342 n.7 (1992). While subject matter 

jurisdiction may be raised at any time, "standing is not an 

issue of subject matter jurisdiction" and may be waived. Tax 

Found. of Haw. v. State, 144 Hawai‘i 175, 192, 439 P.3d 127, 144 

(2019). With the sole exception of the argument regarding the 

Behrendt case, which was issued March 15, 2018 after the Circuit 

Court's entry of the March 9, 2018 Foreclosure Decree, 

Appellants' arguments should have been presented in their 

opposition to the previously adjudicated MSJ. See Amfac, Inc., 

74 Haw. at 114, 839 P.2d at 27. These arguments are waived. 

See id. 

Even without waiver, Appellants nonetheless lack 

standing to challenge the Foreclosure Decree. 

JPMorgan argues on appeal that Appellants lack 

standing to challenge the Foreclosure Decree because they 

transferred their interest in the Property more than ten years 

prior to Raciti and Martinez; and that Appellants "set forth no 
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

7 

law" to support that they met the requirement of standing. 

Appellants respond that they were named as defendants in the 

foreclosure action below; they "had possession of the [P]roperty 

for nearly ten years"; and they "claim an equitable reversionary 

interest following being defrauded."

 "[T]he injury prong of the standing inquiry requires 

an assertion of a judicially-cognizable injury, that is, a harm 

to some legally-protected interest." Sierra Club v. Dep't of 

Transp., 115 Hawai‘i 299, 321, 167 P.3d 292, 314 (2007) 

(citations omitted). In Behrendt, 142 Hawai‘i at 41, 414 P.3d at 

93, the Hawai‘i Supreme Court held that a subsequent purchaser 

who was not a party to the mortgage and note at issue could 

challenge the foreclosure decree. The supreme court explained 

that because a subsequent purchaser "obtains an interest in 

[the] property," the subsequent purchaser had the right to 

"'defend against the taking of a bona fide interest in the 

property through a foreclosure sale.'" Id. at 42-43, 414 P.3d 

at 94-95 (citation omitted) (emphasis added). Behrendt 

clarified that in the foreclosure context, standing to defend 

against, or to challenge, a foreclosure is dependent upon 

whether one has an interest in the property that may be harmed 

by foreclosure. See id.; Sierra Club, 115 Hawai‘i at 321, 

167 P.3d at 314. 

Here, based on the parties' MSJ submissions, the 

Circuit Court appears to have determined that any interest 

Appellants had or may have had from the NOPA filed in a 2007 

breach of contract lawsuit, "Civil No. 09-4-0220" [sic], was no 

longer legally "valid" because the 2007 breach of contract 

lawsuit was dismissed on August 8, 2012. We also take judicial 

notice that the pending action the above-referenced NOPA refers 

to, a breach of contract lawsuit against Raciti and Martinez in 
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

8 

the Fifth Circuit Court in Civil No. 09-1-0200, was dismissed on 

August 8, 2012, as noted in the Foreclosure Decree. Because the 

record reflects that Appellants have no interest in the 

Property, Appellants have no standing to challenge the 

Foreclosure Decree in this appeal. See Behrendt, 142 Hawai‘i at 

42-43, 414 P.3d at 94-95. 

For the foregoing reasons, the (1) March 9, 2018 

"Findings of Fact and Conclusions of Law; Order Granting 

Plaintiff's Motion for Summary Judgment and for Interlocutory 

Decree of Foreclosure Filed October 12, 2017"; (2) March 9, 2018 

Judgment; and (3) April 20, 2018 "Order Denying Defendants Jon 

S. Van Cleave and JVC Partners-II, a Limited Partnership's NonHearing Motion for Reconsideration of March 9, 2018 Order 

Granting Plaintiff's Motion for Summary Judgment and for 

Interlocutory Decree of Foreclosure and the Judgment Thereon, 

Filed on March 19, 2018," all filed and entered by the Circuit 

Court of the Fifth Circuit, are affirmed. 

 DATED: Honolulu, Hawai‘i, April 5, 2024. 

On the briefs:

Gary Victor Dubin, 

for Defendants-Appellants. 

Adrian L. Lavarias, 

for Plaintiff-Appellee. 

/s/ Clyde J. Wadsworth 

Presiding Judge 

/s/ Karen T. Nakasone 

Associate Judge 

/s/ Sonja M.P. McCullen 

Associate Judge