NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-JAN-2025 08:09 AM Dkt. 72 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DEUTSCHE BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-1, MORTGAGE-BACKED NOTES, SERIES 2006-1, also known as "Deutsche Bank National Trust Company, as Indenture Trustee for American Home Mortgage Investment Trust 2006-1," Plaintiff/Counterclaim Defendant-Appellee, v. PHILIP E. KOZMA, Defendant/Counterclaim Plaintiff-Appellant, and E*TRADE BANK, THE ASSOCIATION OF OWNERS OF KAHALA KUA aka KAHALA KUA COMMUNITY ASSOCIATION, Defendants-Appellees, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50 AND DOE GOVERNMENTAL UNITS 1-50, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC101000686)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant/Counterclaim Plaintiff-Appellant Philip E.
Kozma appeals from the Circuit Court of the First Circuit's
March 24, 2021 "Judgment Re: Findings of Fact, Conclusions of
Law and Order Granting Plaintiff/Counterclaim Defendant Deutsche NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Bank National Trust Company as Indenture Trustee for American
Home Mortgage Investment Trust 2006-1, Mortgage-Backed Notes,
Series 2006-1's Motion for [(sic)] (1) for Summary Judgment as
to the Complaint Filed Herein on March 31, 2010, and the Relief
Requested Therein for a Decree of Foreclosure and Order of Sale,
and (2) for Summary Judgment as to All Claims and Parties of the
Counterclaim Filed Herein on December 22, 2020, Filed Herein on
January 8, 2021" (Judgment). Kozma also challenges various
findings of fact (FOF) and conclusions of law (COL) in the
"Findings of Fact, Conclusions of Law and Order Granting
Plaintiff/Counterclaim Defendant['s]" Motion for Summary
Judgment as to the Complaint and the Motion "for Summary
Judgment as to All Claims and Parties of the Counterclaim"
(Order) entered the same day. 1
On appeal, Kozma's points of error 2 primarily challenge
the circuit court's granting of summary judgment in favor of
1 The Honorable Jeffrey P. Crabtree presided. 2 Kozma's five points of error are as follows:
A. "The trial court reversibly erred in the following [FOF] on 24 March 2021 (11 RA 308), per Appendix 2, attached hereto and incorporated herein by reference for the full text thereof";
B. "The trial court erred in making the following [COL] on 24 March 2021 per Appendix 2 attached, which is found in 11 RA No. 308 and incorporated herein by reference";
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Plaintiff/Counterclaim Defendant-Appellee Deutsche Bank National
Trust Company as Indenture Trustee for American Home Mortgage
Investment Trust 2006-1, Mortgage-Backed Notes, Series 2006-1,
also known as "Deutsche Bank National Trust Company, as
Indenture Trustee for American Home Mortgage Investment Trust
2006-1."
As to the granting of summary judgment, Kozma contends
the circuit court erred because (1) Deutsche Bank did not have
standing, (2) the mortgage was not validly assigned, and (3) his
(. . . continued)
C. "The court order granting Plaintiff Deutsche Bank's motion for summary judgment on the complaint and for summary judgment on Kozma's counterclaim is erroneous and found in 11 RA 308 filed 24 March 2021, also in Appendix 2 incorporated herein by reference. Also[,] the court failed to appoint a commissioner, so this is void";
D. "The trial court erred in filing the judgment on 24 March 2021 in Appendix 1, which is found in 11 RA 310"; and
E. "The trial court erred [in] denying Kozma's 31 March 2021 stay motion."
(Emphases omitted.) Regarding Points A and B, Kozma challenges various FOF and COL but provides no specific analysis to show the findings were clearly erroneous and the conclusions were wrong. Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7). Thus, these points are waived.
We construe Points C and D as challenging the granting of summary judgment and address these two points in this summary disposition order.
Regarding Point E, Kozma did not appeal from the circuit court's May 7, 2021 order denying his motion to stay and states: "[t]his [i]ssue to be argued in a separate stay motion in this Court on appeal." HRAP Rule 3(c)(2). No motion for stay has been filed with this court. Thus, we do not reach this issue.
Finally, we note that the various subsections in Kozma's arguments section do not correspond with his points of error. Points not raised in compliance with HRAP Rule 28(b)(4) are deemed waived.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
liability was discharged in bankruptcy court. We review an
award of summary judgment de novo. Bank of New York Mellon as
Tr. for Certificate Holders of CWABS, Inc., Asset-Backed
Certificates Series 2006-15 v. Larrua, 150 Hawaiʻi 429, 438, 504
P.3d 1017, 1026 (App. 2022).
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) Kozma claims Deutsche Bank did not have standing
to foreclose because it was not the trustee of "any existing
trust suing in a representative capacity."
The foreclosing party "must establish that it was the
'person entitled to enforce [the note]' as defined by [Hawaiʻi
Revised Statutes (HRS)] § 490:3-301 at the time of the filing of
the foreclosure complaint." U.S. Bank N.A. v. Mattos, 140
Hawaiʻi 26, 33, 398 P.3d 615, 622 (2017) (citing Bank of Am.,
N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 369-70, 390 P.3d 1248,
1256-57 (2017)). Thus, "where . . . standing is based on
possession of a Note indorsed in blank, the admissible evidence
must also show that the blank indorsement occurred before the
initiation of the suit." U.S. Bank Tr., N.A. as Tr. for LSF9
Master Participation Tr. v. Verhagen, 149 Hawaiʻi 315, 328 n.11,
489 P.3d 419, 432 n.11 (2021). A "[p]erson entitled to enforce
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
an instrument" is defined in relevant part as, "the holder of
the instrument[.]" HRS § 490:3-301 (2008). When a note is
indorsed in blank, it "becomes payable to bearer and may be
negotiated by transfer or possession alone until specially
indorsed." Reyes-Toledo, 139 Hawaiʻi at 370, 390 P.3d at 1257;
HRS § 490:3-205(b) (2008). "The burden to prove entitlement to
enforce the note overlaps with the requirements of standing in
foreclosure actions." Wells Fargo Bank, N.A. v. Behrendt, 142
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-JAN-2025 08:09 AM Dkt. 72 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DEUTSCHE BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-1, MORTGAGE-BACKED NOTES, SERIES 2006-1, also known as "Deutsche Bank National Trust Company, as Indenture Trustee for American Home Mortgage Investment Trust 2006-1," Plaintiff/Counterclaim Defendant-Appellee, v. PHILIP E. KOZMA, Defendant/Counterclaim Plaintiff-Appellant, and E*TRADE BANK, THE ASSOCIATION OF OWNERS OF KAHALA KUA aka KAHALA KUA COMMUNITY ASSOCIATION, Defendants-Appellees, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50 AND DOE GOVERNMENTAL UNITS 1-50, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC101000686)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant/Counterclaim Plaintiff-Appellant Philip E.
Kozma appeals from the Circuit Court of the First Circuit's
March 24, 2021 "Judgment Re: Findings of Fact, Conclusions of
Law and Order Granting Plaintiff/Counterclaim Defendant Deutsche NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Bank National Trust Company as Indenture Trustee for American
Home Mortgage Investment Trust 2006-1, Mortgage-Backed Notes,
Series 2006-1's Motion for [(sic)] (1) for Summary Judgment as
to the Complaint Filed Herein on March 31, 2010, and the Relief
Requested Therein for a Decree of Foreclosure and Order of Sale,
and (2) for Summary Judgment as to All Claims and Parties of the
Counterclaim Filed Herein on December 22, 2020, Filed Herein on
January 8, 2021" (Judgment). Kozma also challenges various
findings of fact (FOF) and conclusions of law (COL) in the
"Findings of Fact, Conclusions of Law and Order Granting
Plaintiff/Counterclaim Defendant['s]" Motion for Summary
Judgment as to the Complaint and the Motion "for Summary
Judgment as to All Claims and Parties of the Counterclaim"
(Order) entered the same day. 1
On appeal, Kozma's points of error 2 primarily challenge
the circuit court's granting of summary judgment in favor of
1 The Honorable Jeffrey P. Crabtree presided. 2 Kozma's five points of error are as follows:
A. "The trial court reversibly erred in the following [FOF] on 24 March 2021 (11 RA 308), per Appendix 2, attached hereto and incorporated herein by reference for the full text thereof";
B. "The trial court erred in making the following [COL] on 24 March 2021 per Appendix 2 attached, which is found in 11 RA No. 308 and incorporated herein by reference";
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Plaintiff/Counterclaim Defendant-Appellee Deutsche Bank National
Trust Company as Indenture Trustee for American Home Mortgage
Investment Trust 2006-1, Mortgage-Backed Notes, Series 2006-1,
also known as "Deutsche Bank National Trust Company, as
Indenture Trustee for American Home Mortgage Investment Trust
2006-1."
As to the granting of summary judgment, Kozma contends
the circuit court erred because (1) Deutsche Bank did not have
standing, (2) the mortgage was not validly assigned, and (3) his
(. . . continued)
C. "The court order granting Plaintiff Deutsche Bank's motion for summary judgment on the complaint and for summary judgment on Kozma's counterclaim is erroneous and found in 11 RA 308 filed 24 March 2021, also in Appendix 2 incorporated herein by reference. Also[,] the court failed to appoint a commissioner, so this is void";
D. "The trial court erred in filing the judgment on 24 March 2021 in Appendix 1, which is found in 11 RA 310"; and
E. "The trial court erred [in] denying Kozma's 31 March 2021 stay motion."
(Emphases omitted.) Regarding Points A and B, Kozma challenges various FOF and COL but provides no specific analysis to show the findings were clearly erroneous and the conclusions were wrong. Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7). Thus, these points are waived.
We construe Points C and D as challenging the granting of summary judgment and address these two points in this summary disposition order.
Regarding Point E, Kozma did not appeal from the circuit court's May 7, 2021 order denying his motion to stay and states: "[t]his [i]ssue to be argued in a separate stay motion in this Court on appeal." HRAP Rule 3(c)(2). No motion for stay has been filed with this court. Thus, we do not reach this issue.
Finally, we note that the various subsections in Kozma's arguments section do not correspond with his points of error. Points not raised in compliance with HRAP Rule 28(b)(4) are deemed waived.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
liability was discharged in bankruptcy court. We review an
award of summary judgment de novo. Bank of New York Mellon as
Tr. for Certificate Holders of CWABS, Inc., Asset-Backed
Certificates Series 2006-15 v. Larrua, 150 Hawaiʻi 429, 438, 504
P.3d 1017, 1026 (App. 2022).
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) Kozma claims Deutsche Bank did not have standing
to foreclose because it was not the trustee of "any existing
trust suing in a representative capacity."
The foreclosing party "must establish that it was the
'person entitled to enforce [the note]' as defined by [Hawaiʻi
Revised Statutes (HRS)] § 490:3-301 at the time of the filing of
the foreclosure complaint." U.S. Bank N.A. v. Mattos, 140
Hawaiʻi 26, 33, 398 P.3d 615, 622 (2017) (citing Bank of Am.,
N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 369-70, 390 P.3d 1248,
1256-57 (2017)). Thus, "where . . . standing is based on
possession of a Note indorsed in blank, the admissible evidence
must also show that the blank indorsement occurred before the
initiation of the suit." U.S. Bank Tr., N.A. as Tr. for LSF9
Master Participation Tr. v. Verhagen, 149 Hawaiʻi 315, 328 n.11,
489 P.3d 419, 432 n.11 (2021). A "[p]erson entitled to enforce
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
an instrument" is defined in relevant part as, "the holder of
the instrument[.]" HRS § 490:3-301 (2008). When a note is
indorsed in blank, it "becomes payable to bearer and may be
negotiated by transfer or possession alone until specially
indorsed." Reyes-Toledo, 139 Hawaiʻi at 370, 390 P.3d at 1257;
HRS § 490:3-205(b) (2008). "The burden to prove entitlement to
enforce the note overlaps with the requirements of standing in
foreclosure actions." Wells Fargo Bank, N.A. v. Behrendt, 142
Hawaiʻi 37, 41, 414 P.3d 89, 93 (2018) (citations and internal
quotation marks omitted).
Here, Deutsche Bank established it had standing.
Deutsche Bank produced a declaration from Ronaldo Reyes, Vice
President of Deutsche Bank and custodian of records for the
American Home Mortgage Investment Trust 2006-1 (the Trust) and
its indenture trustee Deutsche Bank, while the underlying case
was pending in circuit court. Reyes testified the Note and
Mortgage originated before the complaint was filed, the Note was
indorsed in blank, and the Note and Mortgage were "delivered and
deposited with" Deutsche Bank on or before March 29, 2006
pursuant to a Mortgage Loan Purchase Agreement, which identified
Deutsche Bank as the indenture trustee. Deutsche Bank submitted
corresponding documents supporting Reyes's testimony.
Deutsche Bank also provided a declaration from Derrick
Raleigh, Senior Loan Analyst of Ocwen Financial Corporation,
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
"whose indirect subsidiary" was the Trust's current loan
servicer, PHH Mortgage Corporation (PHH). Raleigh testified
that PHH received and incorporated into its records: (1) a copy
of the original Note indorsed in blank; (2) a copy of the
recorded Mortgage; and (3) a chain of Mortgage assignments from
the original loan servicer to Deutsche Bank that occurred before
the complaint was filed, indicating Deutsche Bank possessed the
Note and Mortgage before the lawsuit was initiated.
In sum, Deutsche Bank established it had standing to
enforce the Note. HRS § 490:9-203(g) (2008) ("[t]he attachment
of a security interest in a right to payment or performance
secured by a security interest or other lien on personal or real
property is also attachment of a security interest in the
security interest, mortgage, or other lien"); see Reyes-Toledo,
139 Hawaiʻi at 371 n.17, 390 P.3d at 1258 n.17 (noting "the
security follows the debt").
(2) Kozma also claims the mortgage was not validly
assigned because American Home was in "Chapter 11" bankruptcy as
of 2007.
Kozma however did not present evidence indicating the
Note and Mortgage were part of the bankruptcy estate. See Wells
Fargo Bank, N.A. v. Pasion, 135 Hawai‘i 409, 353 P.3d 412,
No. CAAP-12-00000657, 2015 WL 4067259, at *3 n.3, *4 (App.
June 30, 2015) (SDO) (holding even if the court assumed the
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
bankruptcy involved the originating lender, nothing supported
the arguments that the stay affected the originating lender or
its nominee, or that the mortgagor's note and mortgage were
included in the bankruptcy estate).
(3) Finally, Kozma claims his 2016 personal
bankruptcy discharged his liability on the Note and deprived
Deutsche Bank of standing to foreclose.
But Kozma's bankruptcy had no effect on Deutsche
Bank's ability to foreclose. The bankruptcy order of discharge
provided "a creditor with a lien may enforce a claim against the
debtors' property subject to that lien unless the lien was
avoided or eliminated[,]" and "[f]or example, a creditor may
have the right to foreclose a home mortgage or repossess an
automobile."
Based on the foregoing, we affirm the circuit court's
March 24, 2021 Judgment and Order.
DATED: Honolulu, Hawai‘i, January 30, 2025.
On the briefs: /s/ Keith K. Hiraoka Presiding Judge R. Steven Geshell, for Defendant/Counterclaim /s/ Karen T. Nakasone Plaintiff-Appellant. Associate Judge
Jade Lynne Ching, /s/ Sonja M.P. McCullen David A. Nakashima, Associate Judge Ryan B. Kasten, (Nakashima Ching), for Plaintiff/Counterclaim Defendant-Appellee.