NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 03-JUN-2025 08:10 AM Dkt. 247 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC. ALTERNATIVE LOAN TRUST 2006-12CB, MORTGAGE PASS-THRU CERTIFICATES SERIES 2006-12CB, Plaintiff-Appellee, v. GABI K. COLLINS, Defendant-Appellant, and ASSOCIATION OF APARTMENT OWNERS OF KEMOO BY THE LAKE; DONALD COURTNEY BROWN; JOHN DOES 1-20; JANE DOES 1-20; DOE CORPORATIONS 1-20; DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC161001062)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)
Self-represented Defendant-Appellant Gabi Kim Collins
appeals from the Circuit Court of the First Circuit's March 10,
2022 judgment entered on an interlocutory decree of foreclosure
(Judgment). 1 On appeal, Collins raises five points of error
(POE) challenging the foreclosure decree in favor of Plaintiff-
1 The Honorable Gary W.B. Chang presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Appellee The Bank of New York Mellon fka the Bank of New York,
as Trustee for the Certificateholders of CWALT, Inc. Alternative
Loan Trust 2006-12CB, Mortgage Pass-Thru Certificates Series
2006-12CB (BONY). 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 the
points of error as discussed below, and affirm.
(1) Collins first contends the circuit "court gravely
erred when it determined that [BONY] had satisfied the
requirements of standing at inception, in regards to both BONY
and the purported servicers" (POE 1). 3 (Formatting altered.)
Collins thus argues that summary judgment "was in error due to
failure to prove standing." (Formatting altered.)
A person is entitled to enforce an instrument when the
person is "the holder of the instrument." Hawaiʻi Revised
2 However, we deem POE 2 waived as no argument on this point was presented in the argument section of Collins's opening brief. Hawai‘i Rules of Appellate Procedure Rule 28(b)(7) ("Points not argued may be deemed waived."). In POE 2, Collins contends the circuit "court gravely erred when it failed to view the factual evidence for [summary judgment] in light most favorable to the person opposing the motion, which was [Collins]." (Formatting altered.)
3 Collins also challenges standing by asserting the assignment of mortgage was void as Countrywide "was out of business"; "the Note reveals alterations and endorsement fraud"; "BONY took opposing positions in two different courts"; "BONY's acceptance of $8.5B settlement barred its claims"; "power of attorneys invalid and failed to grant authority to servicer"; and "servicer's counterfeit loan numbers rejected[.]" (Formatting altered.) After review, we determine these assertions did not raise genuine issues of material fact as to BONY's standing to foreclose.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Statutes (HRS) § 490:3-301 (2008). A promissory note is a
negotiable instrument, and a lender is entitled to enforce the
note if it is the holder. See Bank of Am., N.A. v. Reyes-
Toledo, 139 Hawai‘i 361, 369, 369 n.14, 370-71, 390 P.3d 1248,
1256, 1256 n.14, 1257-58 (2017). The foreclosing party may
establish it is the holder of a note by showing that its agent
physically possessed the note. See generally U.S. Bank Tr.,
N.A. as Tr. for LSF9 Master Participation Tr. v. Verhagen, 149
Hawaiʻi 315, 317, 327-28, 489 P.3d 419, 421, 431-32 (2021). We
review the grant of summary judgment de novo. U.S. Bank N.A. v.
Mattos, 140 Hawaiʻi 26, 30, 398 P.3d 615, 619 (2017).
To establish it possessed the promissory note (Note)
when it filed the complaint, BONY attached the following to its
second motion for summary judgment:
1. An Affidavit of Bank of America, N.A. (BANA) as Master
Servicer, in which the declarant, Assistant Vice
President Nichole Renee Williams, testified that
BANA's records confirm that BANA transmitted the
original blank-indorsed Note to BONY's counsel, The
Mortgage Law Firm (TMLF), at their California office
on or about June 5, 2012. The testimony was supported
by a "Transmittal Report" and "Instance Summary[,]"
confirming the transfer.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
2. A declaration of Sylvia Meregillano (Meregillano),
custodian of records for TMLF. Meregillano testified
that TMLF received the original blank-indorsed Note on
June 28, 2012, before the complaint was filed, and
that TMLF was still in possession of the Note on
April 21, 2017, after the complaint was filed. An
April 21, 2017 "Bailee Letter - Updated" from TMLF,
acknowledging TMLF's possession of the original blank-
indorsed Note on that date, supported the testimony.
3. A declaration of Document Coordinator Sandra Burgess,
an employee of Bayview Loan Servicing, LLC (Bayview),
the sub-servicer of the subject mortgage (Mortgage),
testifying that Bayview's records indicated TMLF had
possession of the original blank-indorsed Note on
June 1, 2016, the date the complaint was filed. A
June 5, 2012 Document Transmittal Report, confirming
TMLF's possession of the Note on June 5, 2012,
supported the testimony.
4. A declaration of Document Coordinator Keli Smith,
another Bayview employee, testifying that a "Complaint
Checklist prepared and executed by Bayview on
April 12, 2016," two months before the complaint was
filed, confirms that "the original Note for this loan
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
was in" TMLF's possession at that time. The Complaint
Checklist was also attached as an exhibit.
This evidence supported a finding that BONY's counsel
physically possessed the blank-indorsed Note when BONY filed the
June 1, 2016 foreclosure complaint. In other words, BONY
established it had standing to file the complaint.
Thus, the circuit court did not err in granting BONY's
motion for summary judgment.
(2) Related to standing, Collins contends the circuit
"court gravely erred when it granted a foreclosure to an
Imposter who lacked standing and authority, after eliminating
the trial on the merits, the [summary judgment] hearing" (POE
3). (Formatting altered.) Collins argues her right to "fair
process" was prejudiced when the Honorable Jeanette Castagnetti
was replaced by the Honorable Gary Chang, who "cancelled the
trial and then cancelled the [summary judgment] hearing[.]"
"The requirements of due process are flexible and
depend on many factors, but there are certain fundamentals of
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 03-JUN-2025 08:10 AM Dkt. 247 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC. ALTERNATIVE LOAN TRUST 2006-12CB, MORTGAGE PASS-THRU CERTIFICATES SERIES 2006-12CB, Plaintiff-Appellee, v. GABI K. COLLINS, Defendant-Appellant, and ASSOCIATION OF APARTMENT OWNERS OF KEMOO BY THE LAKE; DONALD COURTNEY BROWN; JOHN DOES 1-20; JANE DOES 1-20; DOE CORPORATIONS 1-20; DOE ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20, Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC161001062)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)
Self-represented Defendant-Appellant Gabi Kim Collins
appeals from the Circuit Court of the First Circuit's March 10,
2022 judgment entered on an interlocutory decree of foreclosure
(Judgment). 1 On appeal, Collins raises five points of error
(POE) challenging the foreclosure decree in favor of Plaintiff-
1 The Honorable Gary W.B. Chang presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Appellee The Bank of New York Mellon fka the Bank of New York,
as Trustee for the Certificateholders of CWALT, Inc. Alternative
Loan Trust 2006-12CB, Mortgage Pass-Thru Certificates Series
2006-12CB (BONY). 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 the
points of error as discussed below, and affirm.
(1) Collins first contends the circuit "court gravely
erred when it determined that [BONY] had satisfied the
requirements of standing at inception, in regards to both BONY
and the purported servicers" (POE 1). 3 (Formatting altered.)
Collins thus argues that summary judgment "was in error due to
failure to prove standing." (Formatting altered.)
A person is entitled to enforce an instrument when the
person is "the holder of the instrument." Hawaiʻi Revised
2 However, we deem POE 2 waived as no argument on this point was presented in the argument section of Collins's opening brief. Hawai‘i Rules of Appellate Procedure Rule 28(b)(7) ("Points not argued may be deemed waived."). In POE 2, Collins contends the circuit "court gravely erred when it failed to view the factual evidence for [summary judgment] in light most favorable to the person opposing the motion, which was [Collins]." (Formatting altered.)
3 Collins also challenges standing by asserting the assignment of mortgage was void as Countrywide "was out of business"; "the Note reveals alterations and endorsement fraud"; "BONY took opposing positions in two different courts"; "BONY's acceptance of $8.5B settlement barred its claims"; "power of attorneys invalid and failed to grant authority to servicer"; and "servicer's counterfeit loan numbers rejected[.]" (Formatting altered.) After review, we determine these assertions did not raise genuine issues of material fact as to BONY's standing to foreclose.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Statutes (HRS) § 490:3-301 (2008). A promissory note is a
negotiable instrument, and a lender is entitled to enforce the
note if it is the holder. See Bank of Am., N.A. v. Reyes-
Toledo, 139 Hawai‘i 361, 369, 369 n.14, 370-71, 390 P.3d 1248,
1256, 1256 n.14, 1257-58 (2017). The foreclosing party may
establish it is the holder of a note by showing that its agent
physically possessed the note. See generally U.S. Bank Tr.,
N.A. as Tr. for LSF9 Master Participation Tr. v. Verhagen, 149
Hawaiʻi 315, 317, 327-28, 489 P.3d 419, 421, 431-32 (2021). We
review the grant of summary judgment de novo. U.S. Bank N.A. v.
Mattos, 140 Hawaiʻi 26, 30, 398 P.3d 615, 619 (2017).
To establish it possessed the promissory note (Note)
when it filed the complaint, BONY attached the following to its
second motion for summary judgment:
1. An Affidavit of Bank of America, N.A. (BANA) as Master
Servicer, in which the declarant, Assistant Vice
President Nichole Renee Williams, testified that
BANA's records confirm that BANA transmitted the
original blank-indorsed Note to BONY's counsel, The
Mortgage Law Firm (TMLF), at their California office
on or about June 5, 2012. The testimony was supported
by a "Transmittal Report" and "Instance Summary[,]"
confirming the transfer.
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
2. A declaration of Sylvia Meregillano (Meregillano),
custodian of records for TMLF. Meregillano testified
that TMLF received the original blank-indorsed Note on
June 28, 2012, before the complaint was filed, and
that TMLF was still in possession of the Note on
April 21, 2017, after the complaint was filed. An
April 21, 2017 "Bailee Letter - Updated" from TMLF,
acknowledging TMLF's possession of the original blank-
indorsed Note on that date, supported the testimony.
3. A declaration of Document Coordinator Sandra Burgess,
an employee of Bayview Loan Servicing, LLC (Bayview),
the sub-servicer of the subject mortgage (Mortgage),
testifying that Bayview's records indicated TMLF had
possession of the original blank-indorsed Note on
June 1, 2016, the date the complaint was filed. A
June 5, 2012 Document Transmittal Report, confirming
TMLF's possession of the Note on June 5, 2012,
supported the testimony.
4. A declaration of Document Coordinator Keli Smith,
another Bayview employee, testifying that a "Complaint
Checklist prepared and executed by Bayview on
April 12, 2016," two months before the complaint was
filed, confirms that "the original Note for this loan
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
was in" TMLF's possession at that time. The Complaint
Checklist was also attached as an exhibit.
This evidence supported a finding that BONY's counsel
physically possessed the blank-indorsed Note when BONY filed the
June 1, 2016 foreclosure complaint. In other words, BONY
established it had standing to file the complaint.
Thus, the circuit court did not err in granting BONY's
motion for summary judgment.
(2) Related to standing, Collins contends the circuit
"court gravely erred when it granted a foreclosure to an
Imposter who lacked standing and authority, after eliminating
the trial on the merits, the [summary judgment] hearing" (POE
3). (Formatting altered.) Collins argues her right to "fair
process" was prejudiced when the Honorable Jeanette Castagnetti
was replaced by the Honorable Gary Chang, who "cancelled the
trial and then cancelled the [summary judgment] hearing[.]"
"The requirements of due process are flexible and
depend on many factors, but there are certain fundamentals of
just procedure which are the same for every type of tribunal and
every type of proceeding." Peak Capital Grp., LLC v. Perez, 141
Hawaiʻi 160, 178, 407 P.3d 116, 134 (2017) (citation omitted).
"The basic elements of procedural due process are notice and an
opportunity to be heard at a meaningful time and in a meaningful
manner." Id. (citation omitted). Questions concerning
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
procedural due process are reviewed de novo. Bank of Hawaii v.
Kunimoto, 91 Hawaiʻi 372, 387, 984 P.2d 1198, 1213 (1999).
Collins filed a memorandum in opposition to BONY's
motion for summary judgment. Collins also had notice of, and
presented argument at, the initial hearing on the motion for
summary judgment. The hearing was continued, but before the
hearing took place, the circuit court converted the motion to a
non-hearing motion pursuant to the authority the supreme court
granted in response to the COVID-19 pandemic.
And, as discussed above, BONY demonstrated there was
no genuine issue as to whether it had standing to file the
complaint. Because BONY demonstrated it had standing to file
the complaint and Collins's memorandum in opposition and
argument did not show a genuine issue of material fact existed,
the circuit court properly determined trial was no longer
necessary. See generally Mattos, 140 Hawaiʻi at 30, 398 P.3d at
619. Collins moreover does not identify the evidence or assert
the argument(s) she intended to raise at the hearing to defeat
the summary judgment motion.
Thus, the circuit court did not violate Collins's
right to due process.
(3) Collins next contends the circuit "court gravely
erred when it sanctioned [her] regarding the meet and confer,
which was a harsh and unreasonable penalty, which allowed [BONY]
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
to escape having to prove standing" (POE 4). (Formatting
altered.)
Hawai‘i Rules of Civil Procedure (HRCP) Rule 37(a)(2)
provides that a motion compelling discovery "must include a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make the
discovery in an effort to secure the information or material
without court action." To obtain an order compelling discovery
under HRCP Rule 37(a)(2), which may subject the non-movant to
penalties for non-compliance, the movant must first show that an
effort was made to secure the information or material without
court action. See HRCP Rule 37(a)(2), (b). We review a trial
court's ruling on a motion to compel discovery for an abuse of
discretion. Bank of New York Mellon v. Lemay, 137 Hawaiʻi 30,
33, 364 P.3d 928, 931 (App. 2015).
Collins moved to compel discovery from BONY, which the
circuit court denied without prejudice because Collins failed to
"establish a satisfactory record" that she had met and conferred
with BONY regarding the requested discovery before filing the
motion. A month and a half after the circuit court denied her
first motion to compel, Collins again moved to compel discovery
from BONY, which the circuit court denied, this time with
prejudice, because Collins "did not contact opposing counsel for
plaintiff to confer or attempt to confer" regarding the
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
requested discovery before filing the motion and the discovery
cutoff had closed.
Under these circumstances, the circuit court did not
abuse its discretion.
(4) Finally, Collins contends the circuit "court
gravely erred by failing to apply the 6 year" statute of
limitation (POE 5). (Formatting altered.) Collins argues her
"debt expired six years after acceleration" of the loan.
(Formatting altered.)
The application of the statute of limitations is
reviewed de novo. See generally Est. of Roxas v. Marcos, 121
Hawaiʻi 59, 66, 214 P.3d 598, 605 (2009). In Bowler v.
Christiana Trust, a Division of Wilmington Savings Fund Society,
FSB, 143 Hawai‘i 235, 426 P.3d 459, No. CAAP-XX-XXXXXXX, 2018 WL
4659562, at *8 (App. Sept. 28, 2018) (mem. op.), this court held
that the "statute of limitations on actions 'to recover
possession of any lands, or make any entry thereon,' under HRS
§ 657-31 [is] most analogous to a foreclosure action, as opposed
to an action to recover a debt," thus, "a mortgagee may
foreclose on the mortgage after the [six-year] statute of
limitations has run on an action to recover on the underlying
note, except that the mortgagee is not entitled to a deficiency
judgment against the debtor."
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
The "limitation period under HRS § 657-31 (2016) is
twenty years." Bank of New York Mellon v. White, 155 Hawai‘i
255, 562 P.3d 176, No. CAAP-XX-XXXXXXX, 2024 WL 5245129, at *1
(App. Dec. 30, 2024) (SDO) (ruling on similar issue where
Collins was also a party), cert. granted, No. SCWC-XX-XXXXXXX.
Thus, the circuit court did not err in applying the
twenty-year statute of limitation.
Based on the foregoing, we affirm the circuit court's
March 10, 2022 Judgment.
DATED: Honolulu, Hawai‘i, June 3, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Gabi Kim Collins, Defendant-Appellant, pro se. /s/ Sonja M.P. McCullen Associate Judge Charles R. Prather, Robin Miller, /s/ Kimberly T. Guidry Sun Young Park, Associate Judge Peter T. Stone, for Plaintiff-Appellee.