Bank of America, N.A. v. Min, Jr.

• Court: Hawaii Intermediate Court of Appeals
• Decided: June 17, 2026
• Docket: CAAP-24-0000415
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 17-JUN-2026 08:27 AM Dkt. 78 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

BANK OF AMERICA, N.A., Plaintiff-Appellee, v. JOHN NICHOLAS MIN, JR.; LISA SUNABE MIN, Defendants-Appellants, and BANK OF HAWAII; DIRECTOR, DEPARTMENT OF TAXATION, STATE OF HAWAIʻI; OCEAN POINTE RESIDENTIAL COMMUNITY ASSOCIATION, INC.; KE ʻAINA KAI COMMUNITY ASSOCIATION, INC., Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOE GOVERNMENTAL UNITS 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC171000930)

SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Wadsworth and McCullen, JJ.)

Defendants-Appellants John Nicholas Min, Jr., and Lisa

Sunabe Min (the Mins) appeal from the Circuit Court of the First

Circuit's May 14, 2024 "Findings of Fact [(FOF)], Conclusions of

Law [(COL)] and Order Granting Plaintiff's Motion for Summary

Judgment and Decree of Foreclosure Against All Defendants on NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Complaint Filed June 9, 2017" (Summary Judgment Order) and

May 14, 2024 Judgment. 1

On appeal, the Mins challenge the granting of summary

judgment and, to that end, the Mins challenge FOFs 1 and 5 and

COL 2.

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, we resolve this

appeal as discussed below and affirm.

(1) The Mins contend the circuit court erred in

granting Plaintiff-Appellee Bank of America, N.A.'s (BANA)

motion for summary judgment because BANA failed to establish

standing to enforce the Mins' note (Note).

We review the grant or denial of summary judgment de

novo. Nationstar Mortg. LLC v. Kanahele, 144 Hawaiʻi 394, 401,

443 P.3d 86, 93 (2019).

To establish standing, "a foreclosing plaintiff must

establish entitlement to enforce the note at the time the action

was commenced." Bank of Am., N.A. v. Reyes-Toledo, 139 Hawaiʻi

361, 368, 390 P.3d 1248, 1255 (2017). When a note is indorsed

in blank, it "becomes payable to bearer and may be negotiated by

transfer or possession alone." Id. at 370, 390 P.3d at 1257

1 The Honorable Lisa W. Cataldo presided.

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

(citing Hawaiʻi Revised Statutes (HRS) § 490:3-205(b) (2008)).

Thus, a plaintiff seeking to foreclose on a mortgage secured by

a blank-indorsed note must establish it held the note at the

time it filed the complaint. Id.

Here, BANA attached to its motion for summary judgment

a declaration from Tramelle Martise Thomas (Thomas), a BANA

assistant vice president; a declaration of Maria S. Garner

(Garner), a BANA senior operations project consultant and former

custodian of records for ReconTrust Company, N.A. (ReconTrust);

and records from BANA and ReconTrust. In combination, the

Garner and Thomas declarations state that BANA's document

custodian, ReconTrust, had physical possession of the original

Note, indorsed in blank, in its Texas vault on the June 9, 2017

complaint filing date.

The Mins, however, challenge the admissibility of

BANA's business records based on supposed contradictions in

them. They point to an entry on a loan routing history attached

as Exhibit 14 to the motion for summary judgment showing the

original Note was shipped from Wells Fargo Bank to BANA on

October 6, 2017, and conclude that the Note could have left

BANA's or ReconTrust's possession sometime between March 16,

2016, and when BANA filed the June 9, 2017 complaint. However,

according to the Garner declaration, Exhibit 18, a log from

ReconTrust's emBTRUST collateral tracking system, shows that the

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Note was held on behalf of BANA from March 25, 2016, to

August 24, 2017.

The Mins also argue that a business record submitted

in support of BANA's first summary judgment motion shows the

Note was with an "[u]nknown" custodian one week before BANA

filed suit. However, the relevant entry for that business

record refers to "Foreclosure" document(s) located with BANA's

foreclosure counsel and not to the Note.

The Mins further argue that BANA failed to prove

ReconTrust was an operating subsidiary of BANA in 2017. The

Mins did not present this argument below, and therefore this

argument is waived. Ass'n of Apartment Owners of Wailea Elua v.

Wailea Resort Co., 100 Hawaiʻi 97, 107, 58 P.3d 608, 618 (2002)

("Legal issues not raised in the trial court are ordinarily

deemed waived on appeal.").

In sum, BANA satisfied its initial burden on summary

judgment. See French v. Hawaii Pizza Hut, Inc., 105 Hawaiʻi 462,

470, 99 P.3d 1046, 1054 (2004). Thomas and Garner were

qualified to authenticate BANA's and ReconTrust's business

records, respectively, and laid adequate foundations for the

circuit court to admit the records under Hawaiʻi Rules of

Evidence (HRE) Rule 803(b)(6). The Garner declaration further

satisfies the foundational requirements for ReconTrust's data

pertaining to the Mins' loan to the extent those documents have

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

been incorporated into BANA's business records. See HRE

Rule 803(b)(6). As a ReconTrust employee at the time BANA filed

the complaint, and as custodian of documents for ReconTrust,

Garner was present at the creation of the documents to which she

attests - a strong indication of trustworthiness. See id.

The Mins failed to counter "with evidence setting

forth 'specific facts showing that there is a genuine issue' as

to whether the plaintiff actually possessed the subject note at

the time it filed suit." U.S. Bank Tr., N.A. as Tr. for LSF9

Master Participation Tr. v. Verhagen, 149 Hawaiʻi 315, 328, 489

P.3d 419, 432 (2021) (quoting Hawaiʻi Rules of Civil Procedure

Rule 56(e)).

(2) Based on their contention that the circuit court

erred in granting summary judgment, the Mins challenge the

following FOFs and COL:

FOF 1: "Plaintiff is now and has been at all times since

before the filing of the Complaint herein on

June 9, 2017[,] the holder in possession of the

Note and is entitled to enforce it pursuant to

HRS § 490:3-301."

FOF 5: "By reason of the above facts, Plaintiff is

entitled to the foreclosure of the Mortgage and

to the sale of the property."

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COL 2: "Plaintiff has established its standing to enforce

the Note as required by [Reyes-Toledo] and

thereby to prosecute this foreclosure action."

As discussed above, BANA established standing to bring

its foreclosure action and, thus, the circuit court did not

clearly err in making the challenged FOFs and COL.

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

May 14, 2024 Summary Judgment Order and Judgment.

DATED: Honolulu, Hawaiʻi, June 17, 2026.

On the briefs: /s/ Karen T. Nakasone Chief Judge Keith M. Kiuchi, for Defendants-Appellants. /s/ Clyde J. Wadsworth Associate Judge Zachary K. Kondo (Clay Iwamura Pulice & /s/ Sonja M.P. McCullen Nervell), Associate Judge Elizabeth Z. Timmermans (McGuireWoods), for Plaintiff-Appellee Bank of America, N.A.

Caroline S. Otani, Lisa Strandtman, (Rush Moore), for Defendant-Appellee Bank of Hawaiʻi.