NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-MAY-2025 07:44 AM Dkt. 61 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC. ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2003-AR3, UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1, 2003, Plaintiff/Counterclaim Defendant-Appellee, vs. GORDON KELIIKIPI CHARLES MOORE, also known as GORDON K.C. MOORE; MARGARET K. MOORE, TRUSTEE OF THE MOORE FAMILY IRREVOCABLE TRUST UNDER THAT CERTAIN UNRECORDED TRUST AGREEMENT DATED AUGUST 1, 2005, Defendants/Counterclaimants/ Cross-Claim Defendants-Appellants, and IMELDA PESTA; JACQUELINE ASING; WAILUNA RECREATION ASSOCIATION, Defendants/Cross-Claim Defendants-Appellees, and AOAO OF THE CREST AT WAILUNA, Defendant/Counterclaimant/ Cross-Claim Plaintiff-Appellee, and WAILUNA RECREATIONAL ASSOCIATION, Defendant/Counterclaim/Cross-Claim Plaintiff-Appellee, 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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC151000227) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, McCullen, and Guidry, JJ.)
Defendants/Counterclaimants-Appellants Gordon Keliikipi
Charles Moore, aka Gordon K.C. Moore, and Margaret K. Moore, as
Trustee of the Moore Family Irrevocable Trust Under that Certain
Unrecorded Trust Agreement Dated August 1, 2005 (Moores), appeal
from the April 21, 2022 Judgment (Judgment) entered by the
Circuit Court of the First Circuit (Circuit Court).1 The Moores
also challenge, inter alia, the Circuit Court's April 21, 2022 Findings of Fact [(FOFs)], Conclusions of Law [(COLs)], and Order
Granting Plaintiff's Motion for (1) Summary Judgment Against All
Defendants and Interlocutory Decree of Foreclosure; (2) Summary
Judgment on All Claims Asserted in Defendant Gordon Keliikipi
Charles Moore's Amended Counterclaim Filed September 4, 2018; and
(3) Summary Judgment on All Claims Asserted In Defendant Margaret
K. Moore, Trustee of The Moore Family Irrevocable Trust Under
that Certain Unrecorded Trust Agreement Dated August 1, 2005's
Counterclaim Filed March 26, 2020, Filed January 28, 2022
(Foreclosure Decree).
The Moores raise six points of error on appeal,
contending that the Circuit Court erred in: (1) denying the
Moores' motion to compel discovery; (2) entering the Foreclosure
Decree, specifically including FOFs 1, 7, 9-15, 17-18, 20-26, 29-
32, 34-41, 43-45, 47, and 49;2 (3) entering COLs 1-24 in the
Foreclosure Decree; (4 & 5) entering the Foreclosure Decree and
1 The Honorable John M. Tonaki presided. 2 The Moores assert that FOF 14 is irrelevant on standing.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Judgment based on the foregoing errors; and (6) denying the
Moore's May 5, 2022 stay motion.
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 resolve the
Moores' points of error as follows:
(1) The Moores argue that the Circuit Court abused its
discretion when it entered the April 20, 2022 Order Denying [the
Moores'] Motion to Compel Discovery from the Plaintiff and for an
Order that the Requests for Admissions are Deemed Admitted (Order
Denying Motion to Compel). The Moores argue, generically, that
they "were seeking by appropriate discovery requests necessary
information about standing so they could defend this action."
The Moores do not identify any specific discovery request that
should have been compelled. Nor did they provide record
citations or specific argument supporting a conclusion that the
Circuit Court abused its discretion. It appears from the record
that Plaintiff/Counterclaim Defendant-Appellee Deutsche Bank
National Trust Company, as Trustee for Ameriquest Mortgage
Securities Inc., Asset-Backed Pass-Through Certificates, Series
2003-AR3, Under the Pooling and Servicing Agreement Dated June 1,
2003 (Deutsche Bank) argued that it had responded to each of the
Moore's 18 separate discovery requests – requests for productions
of documents, requests for answers to interrogatories, requests
for admission, and perhaps others that this court was unable to
glean upon its own review – except for one request for an
admission concerning a corporate merger, where Deutsche Bank
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
purportedly made a "reasonable inquiry" concerning the matter and
was unable to admit or deny. Without further cognizable
argument, we cannot conclude that the Circuit Court abused its
discretion in entering the Order Denying Motion to Compel.
(2-5) The gravamen of the Moores' arguments is that
Deutsche Bank did not establish that it had standing to sue for
foreclosure. To establish standing, the "plaintiff must
necessarily prove its entitlement to enforce the note as it is
the default on the note that gives rise to the action." Bank of
Am., N.A. v. Reyes-Toledo, 139 Hawai#i 361, 368, 390 P.3d 1248,
1255 (2017). "Whether a party is entitled to enforce a
promissory note is determined by application of HRS § 490:3-301."
Id. at 369, 390 P.3d at 1256. HRS § 490:3-301 (2008) states in
relevant part: §490:3-301 Person entitled to enforce instrument. "Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 490:3-309 or 490:3-418(d).
As a promissory note is a negotiable instrument, a
lender is entitled to enforce the note if it is the holder. Bank
of Am., N.A. v. Hill, CAAP-XX-XXXXXXX, 2015 WL 6739087, at *5
(Haw. App. Oct. 30, 2015) (mem. op.). "A person can become
holder of an instrument when the instrument is issued to that
person." HRS § 490:3-201 (2008) cmt. 1. Reyes-Toledo further
provides that a special indorsement [of an instrument] occurs if the indorsement is made by the holder of an instrument and the indorsement identifies a person to whom it makes the instrument payable. HRS § 490:3-205(a). When an instrument is specially indorsed, it becomes payable
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to the identified person and may be negotiated only by the indorsement of that person.
139 Hawai#i at 370, 390 P.3d at 1257.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-MAY-2025 07:44 AM Dkt. 61 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC. ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2003-AR3, UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1, 2003, Plaintiff/Counterclaim Defendant-Appellee, vs. GORDON KELIIKIPI CHARLES MOORE, also known as GORDON K.C. MOORE; MARGARET K. MOORE, TRUSTEE OF THE MOORE FAMILY IRREVOCABLE TRUST UNDER THAT CERTAIN UNRECORDED TRUST AGREEMENT DATED AUGUST 1, 2005, Defendants/Counterclaimants/ Cross-Claim Defendants-Appellants, and IMELDA PESTA; JACQUELINE ASING; WAILUNA RECREATION ASSOCIATION, Defendants/Cross-Claim Defendants-Appellees, and AOAO OF THE CREST AT WAILUNA, Defendant/Counterclaimant/ Cross-Claim Plaintiff-Appellee, and WAILUNA RECREATIONAL ASSOCIATION, Defendant/Counterclaim/Cross-Claim Plaintiff-Appellee, 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 (CIVIL NO. 1CC151000227) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, McCullen, and Guidry, JJ.)
Defendants/Counterclaimants-Appellants Gordon Keliikipi
Charles Moore, aka Gordon K.C. Moore, and Margaret K. Moore, as
Trustee of the Moore Family Irrevocable Trust Under that Certain
Unrecorded Trust Agreement Dated August 1, 2005 (Moores), appeal
from the April 21, 2022 Judgment (Judgment) entered by the
Circuit Court of the First Circuit (Circuit Court).1 The Moores
also challenge, inter alia, the Circuit Court's April 21, 2022 Findings of Fact [(FOFs)], Conclusions of Law [(COLs)], and Order
Granting Plaintiff's Motion for (1) Summary Judgment Against All
Defendants and Interlocutory Decree of Foreclosure; (2) Summary
Judgment on All Claims Asserted in Defendant Gordon Keliikipi
Charles Moore's Amended Counterclaim Filed September 4, 2018; and
(3) Summary Judgment on All Claims Asserted In Defendant Margaret
K. Moore, Trustee of The Moore Family Irrevocable Trust Under
that Certain Unrecorded Trust Agreement Dated August 1, 2005's
Counterclaim Filed March 26, 2020, Filed January 28, 2022
(Foreclosure Decree).
The Moores raise six points of error on appeal,
contending that the Circuit Court erred in: (1) denying the
Moores' motion to compel discovery; (2) entering the Foreclosure
Decree, specifically including FOFs 1, 7, 9-15, 17-18, 20-26, 29-
32, 34-41, 43-45, 47, and 49;2 (3) entering COLs 1-24 in the
Foreclosure Decree; (4 & 5) entering the Foreclosure Decree and
1 The Honorable John M. Tonaki presided. 2 The Moores assert that FOF 14 is irrelevant on standing.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Judgment based on the foregoing errors; and (6) denying the
Moore's May 5, 2022 stay motion.
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 resolve the
Moores' points of error as follows:
(1) The Moores argue that the Circuit Court abused its
discretion when it entered the April 20, 2022 Order Denying [the
Moores'] Motion to Compel Discovery from the Plaintiff and for an
Order that the Requests for Admissions are Deemed Admitted (Order
Denying Motion to Compel). The Moores argue, generically, that
they "were seeking by appropriate discovery requests necessary
information about standing so they could defend this action."
The Moores do not identify any specific discovery request that
should have been compelled. Nor did they provide record
citations or specific argument supporting a conclusion that the
Circuit Court abused its discretion. It appears from the record
that Plaintiff/Counterclaim Defendant-Appellee Deutsche Bank
National Trust Company, as Trustee for Ameriquest Mortgage
Securities Inc., Asset-Backed Pass-Through Certificates, Series
2003-AR3, Under the Pooling and Servicing Agreement Dated June 1,
2003 (Deutsche Bank) argued that it had responded to each of the
Moore's 18 separate discovery requests – requests for productions
of documents, requests for answers to interrogatories, requests
for admission, and perhaps others that this court was unable to
glean upon its own review – except for one request for an
admission concerning a corporate merger, where Deutsche Bank
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
purportedly made a "reasonable inquiry" concerning the matter and
was unable to admit or deny. Without further cognizable
argument, we cannot conclude that the Circuit Court abused its
discretion in entering the Order Denying Motion to Compel.
(2-5) The gravamen of the Moores' arguments is that
Deutsche Bank did not establish that it had standing to sue for
foreclosure. To establish standing, the "plaintiff must
necessarily prove its entitlement to enforce the note as it is
the default on the note that gives rise to the action." Bank of
Am., N.A. v. Reyes-Toledo, 139 Hawai#i 361, 368, 390 P.3d 1248,
1255 (2017). "Whether a party is entitled to enforce a
promissory note is determined by application of HRS § 490:3-301."
Id. at 369, 390 P.3d at 1256. HRS § 490:3-301 (2008) states in
relevant part: §490:3-301 Person entitled to enforce instrument. "Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 490:3-309 or 490:3-418(d).
As a promissory note is a negotiable instrument, a
lender is entitled to enforce the note if it is the holder. Bank
of Am., N.A. v. Hill, CAAP-XX-XXXXXXX, 2015 WL 6739087, at *5
(Haw. App. Oct. 30, 2015) (mem. op.). "A person can become
holder of an instrument when the instrument is issued to that
person." HRS § 490:3-201 (2008) cmt. 1. Reyes-Toledo further
provides that a special indorsement [of an instrument] occurs if the indorsement is made by the holder of an instrument and the indorsement identifies a person to whom it makes the instrument payable. HRS § 490:3-205(a). When an instrument is specially indorsed, it becomes payable
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to the identified person and may be negotiated only by the indorsement of that person.
139 Hawai#i at 370, 390 P.3d at 1257. A blank indorsement [of an instrument] occurs when an indorsement is made by the holder of an instrument and is not a special indorsement; in other words, a blank indorsement is not payable to an identified person. [HRS] § 490:3-205(b). When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer or possession alone until specially indorsed.
Id. (Emphasis added).
Thus, when a lender forecloses on a mortgage secured by
a promissory note, the lender may establish standing via proof it
physically possessed the blank-indorsed note at the time it filed
the complaint. Id.
Here, the record indicates the subject note (Note) was
originally made payable, or issued, to Argent Mortgage Company
LLC (Argent). The Note contains a special endorsement, signed by
Argent, making the Note payable to Ameriquest Mortgage Company.
The Note contains a further "blank" indorsement, signed by
Ameriquest Mortgage Company. The blank indorsement is not dated.
However, two declarants testified that the Note was indorsed in
blank by Ameriquest Mortgage Company when Deutsche Bank's
attorneys received it on October 29, 2014, and the Note remained
in counsel's physical possession through February 10, 2015, when
the complaint was filed. See U.S. Bank Tr., N.A. as Tr. for LSF9
Master Participation Tr. v. Verhagen, 149 Hawai#i 315, 328 n.11,
489 P.3d 419, 432 n.11 (2021) ("[When] 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."). Thus, we conclude there is admissible
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
evidence in the record sufficient to support the Circuit Court's
conclusion that the Note had been indorsed in blank and was in
the possession of Deutsche Bank, through its agent, at the time
the complaint was filed. See Deutsche Bank & Tr. Co. Ams. as Tr.
for Am. Home Mortgage Inv. Tr. 2006-2 , Mortgage-Backed Notes,
Series 2006-2 v. Scilla, Nos. CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX, 2024 WL 4275584, at *1 (Haw. App. Sept. 24,
2024) (SDO) (concluding that testimonial evidence of the date the
lender received the original blank-indorsed note was "sufficient
for the Circuit Court to conclude the Note was indorsed in blank
when [the lender] took possession of it, prior to filing the
Complaint"); Verhagen, 149 Hawai#i at 327-28, 489 P.3d at 431-32
(noting that a foreclosing party may establish it is the holder
of a note by showing that its agent physically possessed it). We
conclude that Deutsche Bank satisfied the requirements to prove
standing to enforce the Note under Hawai#i law.
The Moores raise various other arguments concerning
Deutsche Bank's standing including, inter alia, that certain
initials on the Note are forgeries. The Moores point to no
evidence in the record and raise no cognizable argument supporting their assertion of forgery.
The Moores argue that Deutsche Bank failed "to plead
and prove" that it is the current trustee of the Asset-Backed
Pass-Through Certificates, Series 2003-AR3, Under the Pooling and
Servicing Agreement Dated June 1, 2003 (the Trust) identified in
the caption, and related arguments. However, the authorities
relied on by the Moores do not support their arguments.
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Moreover, even if Deutsche Bank were required to prove its
capacity as trustee, its declarant introduced and authenticated,
inter alia, a Pooling and Servicing Agreement Dated as of June 1,
2003, which named Deutsche Bank as the trustee of the Trust. The
Moores presented no evidence contradicting these documents and
testimony, nor did they challenge the admissibility of the
Pooling and Servicing Agreement.
We have carefully reviewed each of the Moores' many and
various challenges to Deutsche Bank's standing and conclude that
they are without merit. The Circuit Court did not err in
entering the Foreclosure Decree based on a failure to establish
standing.
(6) The Moores filed a motion for stay on May 5, 2022,
after entry of the Judgment. The Circuit Court orally denied the
motion for stay on June 9, 2022, but no written denial order
appears in the record. Because the stay motion was not filed or
decided until after the Judgment was entered, it is a post-
judgment proceeding. Under Hawai#i Rules of Appellate Procedure
(HRAP) Rule 4(a)(3), "[t]he notice of appeal shall be deemed to
appeal the disposition of all post-judgment motions that are
timely filed after entry of the judgment or order." Hawai#i
Rules of Civil Procedure (HRCP) Rule 62 governs stays of
proceedings to enforce a judgment, and it has no prescribed time
limit for filing a stay motion. Cf. HRCP Rules 54(d)(2)(B),
59(e). Therefore, the motion for stay could not be considered a
"timely filed" post-judgment under HRAP Rule 4(a)(3).
7 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Accordingly, the appeal from the April 21, 2022 Judgment does not
bring up for review the denial of the motion for stay.3
For these reasons, the Circuit Court's April 21, 2022
Judgment is affirmed.
DATED: Honolulu, Hawai#i, May 28, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge R. Steven Geshell, for Defendants/Counterclaimants- /s/ Sonja M.P. McCullen Appellants. Associate Judge
Jade Lynne Ching, /s/ Kimberly T. Guidry David A. Nakashima, Associate Judge Ryan B. Kasten, (Nakashima Ching), for Plaintiff/Counterclaim Defendant-Appellee.
3 This Summary Disposition Order should not be construed as addressing whether the Moores could otherwise properly appeal from a written order denying the motion for stay.