NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-JUN-2025 08:08 AM Dkt. 72 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT, Plaintiff/Counterclaim Defendant-Appellee, v. GERALD GOLDSTEIN, Defendant/Cross-claim Defendant-Appellant, TRINITY FINANCIAL SERVICES, LLC, Defendant/Counterclaimant/Cross-claimant-Appellee, CLAIRE LEVINE; ASSOCIATION OF APARTMENT OWNERS OF WAILEA BEACH VILLAS; WAILEA COMMUNITY ASSOCIATION; WAILEA BEACH VILLAS ASSOCIATION OF APARTMENT OWNERS; HAR-BRONSON DIVERSIFIED, LLC; and PACIFIC WESTERN BANK, Defendants/Cross-claim Defendants-Appellees, and DOES 1 THROUGH 20, INCLUSIVE, Defendants/Cross-claim Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CC191000246)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)
Defendant/Cross-claim Defendant-Appellant Gerald
Goldstein (Goldstein) appeals from the Findings of Fact (FOFs) NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
and Conclusions of Law (COLs); Order Granting Plaintiff/
Counterclaim Defendant-Appellee U.S. Bank National Association,
Not in Its Individual Capacity but Solely as Trustee for the
RMAC Trust, Series 2016-CTT's (U.S. Bank) Motion for Summary
Judgment and for Interlocutory Decree of Foreclosure, Filed
August 16, 2022 (Order), and Judgment, both entered on October
11, 2022 by the Circuit Court of the Second Circuit (circuit
court).1
Goldstein raises four points of error on appeal,
contending that the circuit court erred in granting summary
judgment and an interlocutory decree of foreclosure because: (1)
there were genuine issues of material fact concerning the
principal balance owed under the promissory note (Note); (2) the
evidence used to prove the principal, interest, costs, tax, and
other amounts due were not admissible under the hearsay
exception in Hawaii Rules of Evidence (HRE) Rule 803(b)(6); (3)
U.S. Bank failed to provide adequate notice of the assignments
of the subject mortgage (Mortgage), the deferred interest
charges, and acceleration of the loan; and (4) all claims under
the Note are barred by the six-year statute of limitations
(SOL).
1 The Honorable Kelsey T. Kawano presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Upon careful review of the record, briefs, and
relevant legal authorities, and having given due consideration
to the arguments advanced and the issues raised by the parties,
we resolve Goldstein's points of error as follows:
(1) Goldstein contends that U.S. Bank failed to prove
that no genuine issue of material fact existed as to the
principal balance due under the Note because: (1) the Note was
executed on January 19, 2007, with the "principal amount of
$4,991,000 and the initial rate of 8.625% per annum"; (2) U.S.
Bank represented that the principal balance as of May 1, 2022
was $5,408,940.13; and (3) there is no showing or proof of how
the $5,408,940.13 principal balance was calculated.
We review the circuit court's grant of summary
judgment de novo. Kanahele v. State, 154 Hawai‘i 190, 201, 549
P.3d 275, 286 (2024). Pursuant to Hawai‘i Rules of Civil
Procedure Rule 56(c), summary judgment shall be granted,
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Foreclosing parties must "demonstrate that all conditions
precedent to foreclosure under the note and mortgage are
satisfied and that all steps required by statute have been
strictly complied with." Wells Fargo Bank, N.A. v. Behrendt,
142 Hawai‘i 37, 41, 414 P.3d 89, 93 (2018) (citation omitted).
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Typically, this requires that the plaintiff prove: (1) "the
existence of an agreement"; (2) "the terms of the agreement";
(3) "a default by the mortgagor under the terms of the
agreement" -- i.e., failure to make payments; and (4) "giving of
the cancellation notice." Bank of Am., N.A. v. Reyes-Toledo,
139 Hawai‘i 361, 367, 390 P.3d 1248, 1254 (2017) (citation
omitted).
The summary judgment record reflects that U.S. Bank
produced no evidence to establish how the $5,408,940.13
principal balance was calculated.2 The circuit court's adoption
of this figure as the principal balance does not, however,
provide a basis for setting aside the circuit court's grant of
summary judgment. Goldstein does not dispute that a default
occurred, and a discrepancy in the amount of the principal
balance due does not merit vacating the foreclosure decree. See
Bank of Honolulu, N.A. v. Anderson, 3 Haw. App. 545, 549, 654
P.2d 1370, 1374 (App. 1982) (determining that Hawaii Revised
Statutes (HRS) § 667-1.5 (2016) "does not require the
determination of a sum certain before foreclosure is decreed
2 U.S. Bank's motion for summary judgment attached the declaration of Alicia Stewart (Stewart), an employee of U.S. Bank's authorized loan servicing agent Rushmore Loan Management Services, LLC. Stewart's declaration states that the Note was executed with the "principal amount of $4,991,000.00, plus interest at the initial rate of 8.625% per annum." It further states that the principal balance at the time of the motion for summary judgment totaled $5,408,940.13, and that interest of over $2.7 million was due at "various rates," yet there is no showing or proof of how the $5,408,940.13 principal balance was calculated.
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
since a deficiency judgment is rendered only after the sale of
the mortgaged property") (citation omitted).
We therefore vacate FOF 19, which finds the principal
balance to be $5,408,940.13. We further vacate COL 1, and
paragraph 2 of the Order, to the extent that the circuit court
calculated the total amount of $9,443,572.54 "due and owing" to
U.S. Bank based on the $5,408,940.13 principal balance. We
otherwise affirm the circuit court's FOFs, COLs, and Order
granting an interlocutory decree of foreclosure in favor of U.S.
Bank.
(2) Goldstein contends that the circuit court
erroneously relied on "inadmissible hearsay . . . in determining
the date of default . . . , the principal amount of the loan,
interest due, and other costs allegedly incurred" because U.S.
Bank's supporting declaration failed to establish familiarity
with the record-keeping system of a prior loan servicer, and
thus, it did not meet the requirements for introducing business
records under HRE Rule 803(b)(6), and U.S. Bank N.A. v. Mattos,
140 Hawai‘i 26, 32, 398 P.3d 615, 621 (2017). Goldstein failed
to raise this argument below, and it is therefore waived. See
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-JUN-2025 08:08 AM Dkt. 72 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT, Plaintiff/Counterclaim Defendant-Appellee, v. GERALD GOLDSTEIN, Defendant/Cross-claim Defendant-Appellant, TRINITY FINANCIAL SERVICES, LLC, Defendant/Counterclaimant/Cross-claimant-Appellee, CLAIRE LEVINE; ASSOCIATION OF APARTMENT OWNERS OF WAILEA BEACH VILLAS; WAILEA COMMUNITY ASSOCIATION; WAILEA BEACH VILLAS ASSOCIATION OF APARTMENT OWNERS; HAR-BRONSON DIVERSIFIED, LLC; and PACIFIC WESTERN BANK, Defendants/Cross-claim Defendants-Appellees, and DOES 1 THROUGH 20, INCLUSIVE, Defendants/Cross-claim Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CC191000246)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)
Defendant/Cross-claim Defendant-Appellant Gerald
Goldstein (Goldstein) appeals from the Findings of Fact (FOFs) NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
and Conclusions of Law (COLs); Order Granting Plaintiff/
Counterclaim Defendant-Appellee U.S. Bank National Association,
Not in Its Individual Capacity but Solely as Trustee for the
RMAC Trust, Series 2016-CTT's (U.S. Bank) Motion for Summary
Judgment and for Interlocutory Decree of Foreclosure, Filed
August 16, 2022 (Order), and Judgment, both entered on October
11, 2022 by the Circuit Court of the Second Circuit (circuit
court).1
Goldstein raises four points of error on appeal,
contending that the circuit court erred in granting summary
judgment and an interlocutory decree of foreclosure because: (1)
there were genuine issues of material fact concerning the
principal balance owed under the promissory note (Note); (2) the
evidence used to prove the principal, interest, costs, tax, and
other amounts due were not admissible under the hearsay
exception in Hawaii Rules of Evidence (HRE) Rule 803(b)(6); (3)
U.S. Bank failed to provide adequate notice of the assignments
of the subject mortgage (Mortgage), the deferred interest
charges, and acceleration of the loan; and (4) all claims under
the Note are barred by the six-year statute of limitations
(SOL).
1 The Honorable Kelsey T. Kawano presided.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Upon careful review of the record, briefs, and
relevant legal authorities, and having given due consideration
to the arguments advanced and the issues raised by the parties,
we resolve Goldstein's points of error as follows:
(1) Goldstein contends that U.S. Bank failed to prove
that no genuine issue of material fact existed as to the
principal balance due under the Note because: (1) the Note was
executed on January 19, 2007, with the "principal amount of
$4,991,000 and the initial rate of 8.625% per annum"; (2) U.S.
Bank represented that the principal balance as of May 1, 2022
was $5,408,940.13; and (3) there is no showing or proof of how
the $5,408,940.13 principal balance was calculated.
We review the circuit court's grant of summary
judgment de novo. Kanahele v. State, 154 Hawai‘i 190, 201, 549
P.3d 275, 286 (2024). Pursuant to Hawai‘i Rules of Civil
Procedure Rule 56(c), summary judgment shall be granted,
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Foreclosing parties must "demonstrate that all conditions
precedent to foreclosure under the note and mortgage are
satisfied and that all steps required by statute have been
strictly complied with." Wells Fargo Bank, N.A. v. Behrendt,
142 Hawai‘i 37, 41, 414 P.3d 89, 93 (2018) (citation omitted).
3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Typically, this requires that the plaintiff prove: (1) "the
existence of an agreement"; (2) "the terms of the agreement";
(3) "a default by the mortgagor under the terms of the
agreement" -- i.e., failure to make payments; and (4) "giving of
the cancellation notice." Bank of Am., N.A. v. Reyes-Toledo,
139 Hawai‘i 361, 367, 390 P.3d 1248, 1254 (2017) (citation
omitted).
The summary judgment record reflects that U.S. Bank
produced no evidence to establish how the $5,408,940.13
principal balance was calculated.2 The circuit court's adoption
of this figure as the principal balance does not, however,
provide a basis for setting aside the circuit court's grant of
summary judgment. Goldstein does not dispute that a default
occurred, and a discrepancy in the amount of the principal
balance due does not merit vacating the foreclosure decree. See
Bank of Honolulu, N.A. v. Anderson, 3 Haw. App. 545, 549, 654
P.2d 1370, 1374 (App. 1982) (determining that Hawaii Revised
Statutes (HRS) § 667-1.5 (2016) "does not require the
determination of a sum certain before foreclosure is decreed
2 U.S. Bank's motion for summary judgment attached the declaration of Alicia Stewart (Stewart), an employee of U.S. Bank's authorized loan servicing agent Rushmore Loan Management Services, LLC. Stewart's declaration states that the Note was executed with the "principal amount of $4,991,000.00, plus interest at the initial rate of 8.625% per annum." It further states that the principal balance at the time of the motion for summary judgment totaled $5,408,940.13, and that interest of over $2.7 million was due at "various rates," yet there is no showing or proof of how the $5,408,940.13 principal balance was calculated.
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
since a deficiency judgment is rendered only after the sale of
the mortgaged property") (citation omitted).
We therefore vacate FOF 19, which finds the principal
balance to be $5,408,940.13. We further vacate COL 1, and
paragraph 2 of the Order, to the extent that the circuit court
calculated the total amount of $9,443,572.54 "due and owing" to
U.S. Bank based on the $5,408,940.13 principal balance. We
otherwise affirm the circuit court's FOFs, COLs, and Order
granting an interlocutory decree of foreclosure in favor of U.S.
Bank.
(2) Goldstein contends that the circuit court
erroneously relied on "inadmissible hearsay . . . in determining
the date of default . . . , the principal amount of the loan,
interest due, and other costs allegedly incurred" because U.S.
Bank's supporting declaration failed to establish familiarity
with the record-keeping system of a prior loan servicer, and
thus, it did not meet the requirements for introducing business
records under HRE Rule 803(b)(6), and U.S. Bank N.A. v. Mattos,
140 Hawai‘i 26, 32, 398 P.3d 615, 621 (2017). Goldstein failed
to raise this argument below, and it is therefore waived. See
Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort Co.,
100 Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not
raised in the trial court are ordinarily deemed waived on
appeal.") (citations omitted).
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(3) Goldstein contends that U.S. Bank failed to
provide adequate notice of the assignments of the Mortgage and
of the "[d]eferred [i]nterest" charges under the Note, and that
U.S. Bank's notice of "acceleration" failed to adequately inform
Goldstein of his right to bring a court action to challenge the
default as required under the Mortgage terms.
Goldstein did not argue below that U.S. Bank's notice
of default failed to comply with the Mortgage terms, or that he
was not given notice of the deferred interest charges. Those
arguments are therefore waived.
Goldstein cites HRS § 454M-5(b)(1) (2013) to support
his argument that a lender is required to provide notice of the
assignments of the Mortgage. HRS § 454M-5(b)(1) requires loan
servicers to disclose to borrowers "[a]ny notice required by [12
C.F.R. § 1024.33 (2019)]." 12 C.F.R. § 1024.33 sets forth the
duty of a loan servicer to notify the borrower of a change in
servicer. Relevant here, 12 C.F.R. § 1024.33 does not require
loan servicers to notify a borrower of an assignment of the
mortgage. Goldstein therefore fails to identify any authority
supporting his contention of error.
(4) Goldstein contends that the six-year SOL under HRS
§ 657-1 (2016) bars enforcement of the Note because the cause of
action accrued upon default, which occurred on April 1, 2009,
and U.S. Bank's complaint was filed on July 31, 2019.
6 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
We review the circuit court's application of an SOL de
novo. See Est. of Roxas v. Marcos, 121 Hawai‘i 59, 66, 214 P.3d
598, 605 (2009). HRS § 490:3-118(a) (2008) governs enforcement
of a promissory note, and provides, in relevant part, that "an
action to enforce the obligation of a party to pay a note
payable at a definite time must be commenced within six years
after the due date or dates stated in the note or, if a due date
is accelerated, within six years after the accelerated due
date." "[I]n order for [a lender] to effectively exercise its
option to accelerate the maturity dates of the [promissory
note], the [lender is] required to communicate its exercise of
the option to [the borrower] by some affirmative act when it did
so," and the "initiation of a suit for the whole debt
constitutes a sufficient affirmative act to communicate to the
[borrower] that he or she has chosen to exercise his or her
option to accelerate." Bank of Haw. v. Kunimoto, 91 Hawai‘i 427,
436, 984 P.2d 1253, 1262 (App. 1997) (citations omitted). It
appears that the loan was accelerated upon the filing of the
complaint, as Goldstein fails to identify any evidence of an
earlier acceleration date. We thus conclude that the claim was
commenced within the six-year SOL.
For the foregoing reasons, we vacate FOF 19, COL 1,
and paragraph 2 of the Order, as discussed above, but otherwise
7 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
affirm the circuit court's October 11, 2022 FOFs, COLs, Order,
and Judgment.
DATED: Honolulu, Hawaiʻi, June 23, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Dennis E.W. O'Connor Jr., for Defendant/Cross-claim /s/ Clyde J. Wadsworth Defendant-Appellant Associate Judge
David B. Rosen, /s/ Kimberly T. Guidry for Plaintiff/Counterclaim Associate Judge Defendant-Appellee