NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 04-JUN-2025 07:56 AM Dkt. 77 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BNC MORTGAGE LOAN TRUST 2007-1 MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2007-1, A NATIONAL ASSOCIATION, Plaintiff/Counterclaim Defendant-Appellee, v. CARROL E. HALL; Defendant/Counterclaimant-Appellant, PIILANI HOMEOWNERS ASSOCIATION; DAVID J. HIGHT; THOMAS GILLIGAN; SHARON GILLIGAN; STATE OF HAWAIʻI – DEPARTMENT OF TAXATION; Defendants-Appellees, and DOES 1 through 20, Inclusive, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CC171000419(2))
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)
Defendant/Counterclaimant-Appellant Carrol E. Hall
appeals from the Circuit Court of the Second Circuit's 1 June 23,
2022 Judgment entered on an interlocutory decree of foreclosure
in favor of Plaintiff/Counterclaim Defendant-Appellee U.S. Bank
National Association, as Trustee for BNC Mortgage Loan Trust
1 The Honorable Peter T. Cahill presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
2007-1 Mortgage Passthrough Certificates, Series 2007-1, a
National Association (U.S. Bank).
After Hall purportedly failed to make payments due
under the Note and Mortgage, U.S. Bank gave notice in 2009 that
it intended to foreclose on the Mortgage and filed a foreclosure
complaint in 2013. That complaint was dismissed, but final
judgment was ultimately set aside.
In 2015, U.S. Bank sent Hall a notice of default (2015
Default Notice). In 2017, U.S. Bank filed a new foreclosure
complaint, creating the underlying case.
In 2018, U.S. Bank moved for summary judgment, which
the circuit court granted in part, finding that U.S. Bank
established that Hall received a loan in exchange for executing
the Note and Mortgage, Hall was in default under the Note and
Mortgage, U.S. Bank "elected to treat the entire amount as
immediately due and payable[,]" and U.S. Bank "qualifie[d] as
the holder of the Note with standing to prosecute" because it
was in possession of the blank-indorsed Note when it filed the
complaint.
The circuit court also denied in part the motion for
summary judgment, finding that U.S. Bank failed to establish
"that the amounts set forth" in its notice of acceleration "were
accurate[,]" and that the declarant who attempted to
authenticate the acceleration notice "had sufficient knowledge
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
to attest to the accuracy of the amounts[.]" The circuit court
explained it would reconsider the partial denial upon U.S.
Bank's submission of "additional admissible evidence[.]"
In 2020, U.S. Bank sent Hall a notice of default and
de-acceleration, informing Hall she was in default but U.S. Bank
had "de-accelerat[ed]" the loan, and that if she cured the
default by paying the past-due amounts within 33 days of the
date of the notice, U.S. Bank would dismiss the foreclosure
action (2020 Default and De-acceleration Notice). (Emphasis
omitted.) After the circuit court granted it leave to file an
amended complaint, U.S. Bank filed a first amended complaint,
seeking a foreclosure but not a deficiency judgment.
U.S. Bank again moved for summary judgment; the
circuit court granted the motion and entered an interlocutory
decree of foreclosure with a corresponding judgment. On appeal,
Hall raises four points of error challenging the foreclosure
decree.
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) First, Hall contends the circuit court erred in
determining U.S. Bank provided proper notice. Hall argues the
2015 Default Notice did not comply with the Mortgage's terms
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
because it did not inform her of her "right to bring a court
action" to challenge the foreclosure. (Emphasis omitted.)
"In order to prove entitlement to foreclose, the
foreclosing party 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." Bank of Am., N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 367,
390 P.3d 1248, 1254 (2017).
Section 22 of the Mortgage required the lender to
inform Hall that she had a "right to bring a court action to
assert the non-existence of a default or any other defense of
Borrower to acceleration and sale"; the 2015 Default Notice
noted she "ha[d] the right to assert in court the non-existence
of a default or any other defense to acceleration and
foreclosure." (Formatting altered.) Assuming arguendo the 2015
Default Notice failed to comply with Section 22, U.S. Bank
nonetheless cured any notice defect by sending the 2020 Default
and De-acceleration Notice, and thereafter filing the amended
complaint. See generally Hanalei, BRC Inc. v. Porter, 7 Haw.
App. 304, 310, 760 P.2d 676, 680 (1988) (indicating a
mortgagee's premature filing of a complaint may be cured by
filing an amended complaint when its cause of action accrues).
(2) Hall also contends the six-year statute of
limitations barred U.S. Bank's claim. This court has previously
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
determined that the twenty-year statute of limitations applies
to an action to foreclose on a mortgage, regardless of the
limitations period applicable to an action to recover on a debt
based on a corresponding promissory note. See Bank of New York
Mellon as Tr. for Certificateholders of CWABS, Inc. Asset-Backed
Certs., Series 2006-11 v. White, 155 Hawai‘i 255, 562 P.3d 176,
No. CAAP-XX-XXXXXXX, 2024 WL 5245129, at *1 (App. Dec. 30, 2024)
(SDO), cert. granted, No. SCWC-XX-XXXXXXX, 2025 WL 1412448 (Haw.
May 15, 2025). U.S. Bank's foreclosure claim was not time-
barred.
(3) Hall further contends the circuit court abused
its discretion in (a) striking the report of William J. Paatalo
(Paatalo) and (b) denying her request for a continuance.
(a) Hall argues that "Mr. Paatalo's knowledge, skill,
experience, training, and education were set forth extensively
in his report, and his report was offered in accordance with"
Hawai‘i Rules of Evidence (HRE) Rule 702. (Footnote omitted.)
HRE Rule 702 allows the admission of expert testimony
to assist the trier of fact:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 04-JUN-2025 07:56 AM Dkt. 77 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BNC MORTGAGE LOAN TRUST 2007-1 MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2007-1, A NATIONAL ASSOCIATION, Plaintiff/Counterclaim Defendant-Appellee, v. CARROL E. HALL; Defendant/Counterclaimant-Appellant, PIILANI HOMEOWNERS ASSOCIATION; DAVID J. HIGHT; THOMAS GILLIGAN; SHARON GILLIGAN; STATE OF HAWAIʻI – DEPARTMENT OF TAXATION; Defendants-Appellees, and DOES 1 through 20, Inclusive, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CC171000419(2))
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)
Defendant/Counterclaimant-Appellant Carrol E. Hall
appeals from the Circuit Court of the Second Circuit's 1 June 23,
2022 Judgment entered on an interlocutory decree of foreclosure
in favor of Plaintiff/Counterclaim Defendant-Appellee U.S. Bank
National Association, as Trustee for BNC Mortgage Loan Trust
1 The Honorable Peter T. Cahill presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
2007-1 Mortgage Passthrough Certificates, Series 2007-1, a
National Association (U.S. Bank).
After Hall purportedly failed to make payments due
under the Note and Mortgage, U.S. Bank gave notice in 2009 that
it intended to foreclose on the Mortgage and filed a foreclosure
complaint in 2013. That complaint was dismissed, but final
judgment was ultimately set aside.
In 2015, U.S. Bank sent Hall a notice of default (2015
Default Notice). In 2017, U.S. Bank filed a new foreclosure
complaint, creating the underlying case.
In 2018, U.S. Bank moved for summary judgment, which
the circuit court granted in part, finding that U.S. Bank
established that Hall received a loan in exchange for executing
the Note and Mortgage, Hall was in default under the Note and
Mortgage, U.S. Bank "elected to treat the entire amount as
immediately due and payable[,]" and U.S. Bank "qualifie[d] as
the holder of the Note with standing to prosecute" because it
was in possession of the blank-indorsed Note when it filed the
complaint.
The circuit court also denied in part the motion for
summary judgment, finding that U.S. Bank failed to establish
"that the amounts set forth" in its notice of acceleration "were
accurate[,]" and that the declarant who attempted to
authenticate the acceleration notice "had sufficient knowledge
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
to attest to the accuracy of the amounts[.]" The circuit court
explained it would reconsider the partial denial upon U.S.
Bank's submission of "additional admissible evidence[.]"
In 2020, U.S. Bank sent Hall a notice of default and
de-acceleration, informing Hall she was in default but U.S. Bank
had "de-accelerat[ed]" the loan, and that if she cured the
default by paying the past-due amounts within 33 days of the
date of the notice, U.S. Bank would dismiss the foreclosure
action (2020 Default and De-acceleration Notice). (Emphasis
omitted.) After the circuit court granted it leave to file an
amended complaint, U.S. Bank filed a first amended complaint,
seeking a foreclosure but not a deficiency judgment.
U.S. Bank again moved for summary judgment; the
circuit court granted the motion and entered an interlocutory
decree of foreclosure with a corresponding judgment. On appeal,
Hall raises four points of error challenging the foreclosure
decree.
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) First, Hall contends the circuit court erred in
determining U.S. Bank provided proper notice. Hall argues the
2015 Default Notice did not comply with the Mortgage's terms
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
because it did not inform her of her "right to bring a court
action" to challenge the foreclosure. (Emphasis omitted.)
"In order to prove entitlement to foreclose, the
foreclosing party 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." Bank of Am., N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 367,
390 P.3d 1248, 1254 (2017).
Section 22 of the Mortgage required the lender to
inform Hall that she had a "right to bring a court action to
assert the non-existence of a default or any other defense of
Borrower to acceleration and sale"; the 2015 Default Notice
noted she "ha[d] the right to assert in court the non-existence
of a default or any other defense to acceleration and
foreclosure." (Formatting altered.) Assuming arguendo the 2015
Default Notice failed to comply with Section 22, U.S. Bank
nonetheless cured any notice defect by sending the 2020 Default
and De-acceleration Notice, and thereafter filing the amended
complaint. See generally Hanalei, BRC Inc. v. Porter, 7 Haw.
App. 304, 310, 760 P.2d 676, 680 (1988) (indicating a
mortgagee's premature filing of a complaint may be cured by
filing an amended complaint when its cause of action accrues).
(2) Hall also contends the six-year statute of
limitations barred U.S. Bank's claim. This court has previously
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
determined that the twenty-year statute of limitations applies
to an action to foreclose on a mortgage, regardless of the
limitations period applicable to an action to recover on a debt
based on a corresponding promissory note. See Bank of New York
Mellon as Tr. for Certificateholders of CWABS, Inc. Asset-Backed
Certs., Series 2006-11 v. White, 155 Hawai‘i 255, 562 P.3d 176,
No. CAAP-XX-XXXXXXX, 2024 WL 5245129, at *1 (App. Dec. 30, 2024)
(SDO), cert. granted, No. SCWC-XX-XXXXXXX, 2025 WL 1412448 (Haw.
May 15, 2025). U.S. Bank's foreclosure claim was not time-
barred.
(3) Hall further contends the circuit court abused
its discretion in (a) striking the report of William J. Paatalo
(Paatalo) and (b) denying her request for a continuance.
(a) Hall argues that "Mr. Paatalo's knowledge, skill,
experience, training, and education were set forth extensively
in his report, and his report was offered in accordance with"
Hawai‘i Rules of Evidence (HRE) Rule 702. (Footnote omitted.)
HRE Rule 702 allows the admission of expert testimony
to assist the trier of fact:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
However, when expert reports simply consist of conclusory
opinions or legal conclusions, they provide "no assistance to
the [fact finder], and therefore should not be admitted"
pursuant to HRE Rule 702. Exotics Hawaii-Kona, Inc. v. E.I. Du
Pont De Nemours & Co., 116 Hawaiʻi 277, 305 n.14, 172 P.3d 1021,
1049 n.14 (2007) (citation omitted).
Paatalo's report did not identify any verifiable
"scientific technique or mode of analysis" Paatalo employed in
reaching his conclusions. Rather, it assessed credibility, and
provided conclusory opinions and legal conclusions as to whether
U.S. Bank established standing to foreclose. Thus, the circuit
court did not abuse its discretion in striking Paatalo's report.
(b) Hall argues the circuit court should have granted
her a continuance pursuant to Hawai‘i Rules of Civil Procedure
(HRCP) Rule 56(f) to seek discovery.
Under HRCP Rule 56(f), the circuit court may order a
continuance to permit discovery:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
In opposing U.S. Bank's second summary judgment
motion, Hall argued Paatalo identified "a number of genuine
issues of material fact relating to" U.S. Bank's standing to
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
foreclose which warranted further discovery. However, the
record indicates the circuit court decided that U.S. Bank
established standing to foreclose in a previous order, and Hall
did not seek reconsideration of that order. Thus, the circuit
court did not abuse its discretion in declining to grant an HRCP
Rule 56(f) continuance.
(4) Finally, Hall contends the circuit court erred in
relying on the law of the case doctrine to preclude it from
revisiting prior rulings.
The supreme court explained in PennyMac Corp. v.
Godinez that the law of the case doctrine may be invoked with
respect to the trial court's own rulings:
A fundamental precept of common-law adjudication is that an issue once determined by a competent court is conclusive. . . . This general principle of finality and repose is embodied in the law of the case doctrine, which provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. . . . Accordingly, the circuit court was within its discretion to leave an issue it had already decided undisturbed.
We have previously addressed the law of the case doctrine only as applied by lower courts on remand after an appeal. . . . The doctrine can also be invoked by a trial court with respect to its own rulings, and in that instance, the doctrine is discretionary and operates as a presumption against reconsideration.
148 Hawaiʻi 323, 331, 474 P.3d 264, 272 (2020) (cleaned up and
emphasis added).
At the hearing on the 2022 summary judgment motion,
Hall sought to revisit the issue of U.S. Bank's standing to
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
foreclose, which the circuit court previously decided in U.S.
Bank's favor in its 2019 summary judgment order. The circuit
court declined to revisit whether U.S. Bank held the note when
the foreclosure action was filed because U.S. Bank satisfied its
burden. Therefore, the circuit court did not abuse its
discretion.
Based on the foregoing, we affirm the circuit court's
June 23, 2022 Judgment.
DATED: Honolulu, Hawai‘i, June 4, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Frederick J. Arensmeyer, for Defendant-Appellant. /s/ Clyde J. Wadsworth Associate Judge David B. Rosen, for Plaintiff-Appellee. /s/ Sonja M.P. McCullen Associate Judge