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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 09-OCT-2025 07:59 AM Dkt. 63 SO
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CAAP-XX-XXXXXXX
WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, Plaintiff-Appellee, v. BROOKE JULIET CARLINA RIOPTA; AMBER MEGAN RIOPTA; CASIE ANN RIOPTA, Defendants-Appellants, COUNTY OF KAUAI-WASTEWATER MANAGEMENT, Defendant-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 and
CAAP-XX-XXXXXXX WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, Plaintiff-Appellee, v. BROOKE JULIET CARLINA RIOPTA; AMBER MEGAN RIOPTA; CASIE ANN RIOPTA, Defendants-Appellants, COUNTY OF KAUAI-WASTEWATER MANAGEMENT, Defendant-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APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CC111000358) NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
These consolidated appeals, case nos. CAAP-XX-XXXXXXX
and CAAP-XX-XXXXXXX, arise out of a foreclosure action filed by
Citimortgage, Inc. (Citimortgage) against Defendants-Appellants
Brooke Juliet Carlina Riopta (Brooke), Amber Megan Riopta
(Amber), and Casie Ann Riopta (collectively, the Rioptas) in the
Circuit Court of the Fifth Circuit (circuit court).1
In case no. CAAP-XX-XXXXXXX (2022 Appeal), the Rioptas
appeal from the (1) "Findings of Fact [(FOFs)], Conclusions of
Law [(COLs),] and Order Granting Plaintiff[-Appellee Wilmington
Savings Fund Society, FSB, Doing Business as Christiana Trust,
not in its Individual Capacity, but Solely as Trustee for
Pretium Mortgage Acquisition Trust's (Wilmington)] Motion for
Summary Judgment Against All Defendants and for Interlocutory
Decree of Foreclosure" (Foreclosure Order), and (2) Judgment
regarding the Foreclosure Order (Foreclosure Judgment), both of
which were filed on March 23, 2022 in the circuit court. The
Rioptas raise five points of error, contending that the circuit
court erred: (1) when it ruled, in determining whether
Wilmington had possession of the Note, that the applicable date
was the date of the "First Amended Complaint for Mortgage
Foreclosure" (Amended Complaint), and not the date of the
1 The Honorable Kathleen N.A. Watanabe presided.
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complaint filed by Citimortgage in 2011 (2011 Complaint); (2)
when it granted Wilmington's January 2022 motion for summary
judgment (2022 MSJ); (3) in making FOFs 4 and 6;2 (4) in making
COLs 4 and 8; and (5) when it granted Wilmington's motion for
leave to file its Amended Complaint.
In case no. CAAP-XX-XXXXXXX (2023 Appeal), the Rioptas
appeal from the (1) "Order Confirming Foreclosure Sale,
Approving Commissioner's Report, Allowance of Commissioner's
Fees, Attorney's Fees, Costs, Directing Conveyance and for Writ
of Ejectment" (Confirmation Order), and (2) Judgment regarding
the Confirmation Order (Confirmation Judgment), both of which
were filed on February 10, 2023 in the circuit court. The
Rioptas raise two points of error, contending that the circuit
court erred in finding that: (1) the sale was legally made,
fairly conducted, and the highest price obtained under the
circumstances; and (2) no objections were filed or made to the
Commissioner's Report because the Rioptas did object to the
Commissioner's Report.
Upon careful review of the record and relevant legal
authorities, and having given due consideration to the arguments
2 We note that a circuit court deciding a motion for summary judgment does not make FOFs. We therefore apply the summary judgment standard herein and, where appropriate, we consider the circuit court's FOFs to be statements of the uncontroverted facts.
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advanced and the issues raised by the parties, we resolve the
Rioptas' points of error as follows3:
I. The Rioptas' 2022 Appeal
(1) The Rioptas contend that the circuit court erred
in granting leave for Wilmington to file an amended complaint
because: (1) Wilmington gave conflicting and false reasons for
requesting leave to amend its complaint; and (2) the circuit
court granted the motion before the Rioptas could obtain new
counsel.
The Rioptas did not file an opposition to Wilmington's
motion for leave to amend the complaint or request an extension
to file their opposition. "Legal issues not raised in the trial
court are ordinarily deemed waived on appeal." Ass'n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi
97, 107, 58 P.3d 608, 618 (2002) (citations omitted). We
therefore decline to address this contention.4
(2) The Rioptas contend that the circuit court erred
in granting Wilmington's 2022 MSJ because Wilmington established
3 For purposes of our analysis, we consolidate and renumber the Rioptas' points of error and arguments herein to the extent it makes sense to do so.
4 The Rioptas, moreover, do not explain how the circuit court erred in granting the motion before the Rioptas could obtain new counsel. See Exotics Haw.-Kona, Inc. v. E.I. du Pont de Nemours & Co., 116 Hawaiʻi 277, 288, 172 P.3d 1021, 1032 (2007) (noting that the appellate courts are "not obliged to address matters for which the appellants have failed to present discernible arguments") (citations omitted).
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it had standing at the time the Amended Complaint was filed,
rather than at the time the 2011 Complaint was filed. We review
the circuit court's grant of summary judgment de novo and apply
the following standard:
[S]ummary judgment is appropriate 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 judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.
Ralston v. Yim, 129 Hawaiʻi 46, 55-56, 292 P.3d 1276, 1285-86
(2013) (citation omitted).
A foreclosing plaintiff must establish standing at the
commencement of the foreclosure action. Bank of Am., N.A. v.
Reyes-Toledo, 139 Hawaiʻi 361, 368, 390 P.3d 1248, 1255 (2017).
"[A]n action cannot be maintained if it is prematurely commenced
before the accrual of the cause of action which is sought to be
enforced." Hanalei, BRC Inc. v. Porter, 7 Haw. App. 304, 310,
760 P.2d 676, 680 (App. 1988). "However, the error or defect of
premature commencement may be cured by filing an amended or
supplemental complaint after the cause of action has accrued,
unless the amended complaint states a different cause of
action." Id. (cleaned up); see also US Bank Nat'l Ass'n v.
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Swink, No. CAAP-XX-XXXXXXX, 2025 WL 2093151, at *2 (Haw. App.
July 25, 2025) (SDO).
We therefore conclude that the circuit court was not
wrong in allowing Wilmington to establish that it had standing
at the time of the Amended Complaint.
(3) The Rioptas contend that there is a genuine issue
of material fact as to the authenticity of the Note.5 Wilmington
asserts it submitted a copy of the Note and Note Allonge
pursuant to Hawaii Rules of Evidence (HRE) Rule 901(b)(1).
"[C]opies of [a n]ote . . . are not self-
authenticating commercial paper," but they are still admissible
"if there is evidence sufficient to support a finding that they
are what [the proponent of the note] claims [them to be]." U.S.
Bank Tr., N.A. v. Verhagen, 149 Hawaiʻi 315, 325, 489 P.3d 419,
429 (2021) (cleaned up). "Testimony of a witness with personal
5 The Rioptas also contend the circuit court erred because neither Wilmington nor Citimortgage had possession of the Note when the 2011 Complaint was filed, and, therefore, Wilmington did not have standing. The Rioptas further contend that because the Note was endorsed after the 2011 Complaint was filed, Wilmington has not established that it "held" the Note at the time of filing. Because we concluded supra that Wilmington can establish standing at the time the Amended Complaint was filed, we need not address these contentions.
We also decline to address the Rioptas' contention that the original mortgagee, ABN AMRO Mortgage Group, Inc. (ABN AMRO), violated the Truth in Lending Act when it failed to provide the Rioptas with "completed" copies of the Notice of Right to Cancel. The Rioptas did not raise this issue in their opposition to Wilmington's 2022 MSJ, and therefore this contention is waived. See Ass'n of Apartment Owners of Wailea Elua, 100 Hawaiʻi at 107, 58 P.3d at 618.
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knowledge of a document may establish the foundation necessary
for its admission." Id. (citing HRE Rule 901(b)(1)).
The "Declaration of Indebtedness and on Prior Business
Records" (Declaration), by Watson Dixon (Dixon), established an
adequate foundation to admit a copy of the Note and Note
Allonge. Dixon declared under penalty of perjury that a true
and correct copy of the Note and Note Allonge, which he had
reviewed, were attached to the 2022 MSJ.6 Therefore, the Note
6 The Declaration states, in relevant part:
1. I am authorized to sign this Declaration on behalf of [Wilmington] as an authorized signer of Selene Finance LP [(Selene)], which is [Wilmington's] servicing agent for the subject loan ("the loan").
. . . .
4. The information in this Declaration is taken from Selene's business records. I have personal knowledge of Selene's procedures for creating these records. They are: (a) made at or near the time of the occurrence of the matters recorded by persons with knowledge of the information in the business record, or from information transmitted by persons with knowledge; (b) kept in the course of Selene's regularly conducted business activities; and (c) created by Selene as a regular practice.
5. On or about 03/05/2007, [Brooke and Amber], for value received, duly made and executed a Note ("Note") in the amount of $367,500.00. A true and correct copy of the Note, which I have reviewed, is attached as Exhibit "1" and is incorporated herein by reference. [Wilmington], by and through its counsel, has possession of the Note with standing to prosecute the instant action and the right to foreclose the subject Mortgage. The original Note has been specially indorsed to [Wilmington].
6. The Note contains a Note Allonge ("Allonge") by which the Note is specially indorsed to [Wilmington]. The original Allonge was executed, affixed to the original Note, and has been made a part of the original Note. A true and correct copy of the Allonge, which I have
(continued . . .)
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and Note Allonge were admissible as copies of a promissory note
pursuant to HRE Rule 901(b)(1). See Verhagen, 149 Hawaiʻi at
325, 489 P.3d at 429.
Next, the Rioptas contend that there is a question as
to the authenticity of the Note and Note Allonge because the
"original" Note was the note attached to the 2011 Complaint,
which "had no endorsement and thus had no allonge."
Hawaii Revised Statutes (HRS) § 490:3-308 (2008)
states, in relevant part, that:
In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized[.]
(Emphasis added.)
The Rioptas specifically denied the authenticity of
"any signature on any Note" in their answer to the Amended
Complaint. The record reflects that there were two different
versions of the Note that were submitted. The Note attached to
the 2011 Complaint and Citimortgage's 2012 motion for summary
judgment did not include any indorsements. The Note attached to
6(. . .continued)
reviewed, is attached as the last page of Exhibit "1" and is incorporated herein by reference.
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Wilmington's 2016 motion for summary judgment and 2022 MSJ
included an indorsement from ABN AMRO to Pretium Mortgage Credit
Partners I Loan Acquisition, LP (Pretium Mortgage), and a Note
Allonge with an indorsement to Wilmington.
The Rioptas, however, did not introduce any evidence
that would support their contention that the indorsements to
Pretium Mortgage and Wilmington were not authentic.
"[S]ignature[s] [are] presumed to be authentic and
authorized[.]" HRS § 490:3-308(a); see HRS § 490:1-206 (2008)
("Whenever this chapter . . . provides that a fact is
'presumed', the trier of fact shall find the existence of the
fact unless evidence is introduced that supports a finding of
its nonexistence.")
Therefore, the Rioptas have not demonstrated that
there is a genuine issue of material fact as to the authenticity
of the Note on this basis. See Hawaiʻi Rules of Civil Procedure
Rule 56(e) ("[A]n adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but the
adverse party's response . . . must set forth specific facts
showing that there is a genuine issue for trial.")
Finally, the Rioptas contend that Wilmington did not
prove that the Note Allonge was "affixed" to the Note. "Whether
a separate, unattached indorsement page can constitute a proper
indorsement of a negotiable instrument is a question of state
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law." Adams v. Madison Realty & Dev., Inc., 853 F.2d 163, 165-
66 (3d Cir. 1988). HRS § 490:3-204(a) (2008) defines
"[i]ndorsement" and provides that:
"Indorsement" means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring indorser's liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an indorsement unless the accompanying words, the terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than indorsement. For the purpose of determining whether a signature is made on an instrument, a paper affixed[7] to the instrument is a part of the instrument.
Here, the indorsement to Wilmington was made on an
allonge, which is "a slip of paper sometimes attached to a
negotiable instrument for the purpose of receiving further
indorsements when the original paper is filled with
indorsements."8 U.S. Bank N.A. v. Mattos, 140 Hawaiʻi 26, 29
n.4, 398 P.3d 615, 618 n.4 (2017) (citation omitted). The Note
Allonge correctly identifies Brooke and Amber as the borrowers,
and accurately states the property address and the loan amount.
See Marts v. U.S. Bank Nat'l Ass'n, 166 F.Supp.3d 1204, 1210
7 The plain language of the statute does not expressly state how to determine whether a paper is "affixed" to an instrument, thereby making it a part of the instrument. See HRS § 490:3-204(a). HRS Chapter 490 does not define "affix" or "affixed." See HRS §§ 490:1-201 (2008), 490:3-103 (2008).
8 "[A]n allonge is part of the instrument, and is valid even if the instrument has enough space to hold additional endorsements." Thompson v. Bank of Am., N.A., 773 F.3d 741, 747 n.1 (6th Cir. 2014) (internal quotation marks omitted).
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(W.D. Wash. 2016) (noting that other jurisdictions have found
"that evidence of intent to affix the allonge to the note is
sufficient to establish a valid endorsement") (cleaned up).
Moreover, the Note Allonge states that "[f]or the
purpose of endorsement of the attached Note, this [Note] Allonge
is affixed and becomes a permanent part of said Note." See Wane
v. Loan Corp., 552 F. App'x 908, 914 (11th Cir. 2014) (noting
that the record did not support the contention that the allonge
was not properly affixed to the promissory note where "[t]he
allonge itself purported to be affixed to the note, such that it
became a part of it").
The Rioptas did not set forth specific facts to
support their contention that the Note Allonge was not affixed
to the Note. See Ralston, 129 Hawaiʻi at 56-57, 292 P.3d at
1286-87 ("[W]hen the moving party satisfies its initial burden
of production[,] . . . the burden shift[s] to the nonmoving
party to respond to the motion for summary judgment and
demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial.") (citation
omitted). Based on the evidence presented by Wilmington, and
absent circumstances suggesting otherwise, the circuit court did
not err in treating the Note Allonge as a valid indorsement.
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For the foregoing reasons, we conclude the circuit
court was not wrong in granting summary judgment in favor of
Wilmington.
(4) The Rioptas contend that the circuit court erred
in finding that ABN AMRO merged with Citimortgage because this
court previously stated, in its June 12, 2018 Summary
Disposition Order (2018 SDO), that there was no admissible
evidence establishing "that Citimortgage was entitled to
foreclose because it had merged with ABN AMRO . . . or any
alternative basis for Citimortgage's right to foreclose under
the Note when the [2011] Complaint was filed."9
Wilmington's 2022 MSJ included Citimortgage's
"Petition for Order Regarding Merger" and "Certificate of Merger
of [ABN AMRO] into Citimortgage." The Rioptas did not challenge
the admissibility of these documents during the 2022 MSJ
proceedings. Moreover, the Rioptas do not explain how this
evidence was not admissible. Therefore, we determine, on this
record, that the Rioptas' contention lacks merit.
9 It appears that the court, in its 2018 SDO, concluded that there was no admissible evidence establishing Citimortgage's right to foreclose, and not necessarily that there was no admissible evidence establishing ABN AMRO's merger with Citimortgage. See Wilmington Sav. Fund Soc'y, FSB v. Riopta, No. CAAP-XX-XXXXXXX, 2018 WL 2928182, at *2 (Haw. App. June 12, 2018) (SDO).
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II. The Rioptas' 2023 Appeal
(1) The Rioptas contend that the appropriate standard
for the circuit court to apply when evaluating the foreclosure
sale price is "whether the sale price is fair and reasonable,"
or whether "fair and reasonable means" were used to obtain the
best sale price. (Internal quotation marks omitted.) The "fair
and reasonable" standard applies to non-judicial foreclosures.
See Hungate v. Law Off. of David B. Rosen, 139 Hawaiʻi 394, 408-
09, 391 P.3d 1, 15-16 (2017), abrogated on other grounds by,
State ex rel. Shikada v. Bristol-Myers Squibb Co., 152 Hawaiʻi
418, 526 P.3d 395 (2023). Therefore, this contention lacks
merit.
The Rioptas further contend that the circuit court
erred in confirming the sale and finding that the sale of the
subject property was the highest price that could be obtained
under the circumstances. We review the circuit court's decision
to confirm a judicial sale for abuse of discretion. Hoge v.
Kane, 4 Haw. App. 533, 540, 670 P.2d 36, 40 (App. 1983).
The circuit court is expected to "act in the interest
of fairness and prudence and with just regard for the rights of
all concerned and the stability of judicial sales." Id.
(citation omitted). The circuit court must not confirm the sale
"[i]f the highest bid is so grossly inadequate as to shock the
conscience." Id. (emphasis added) (citation omitted); see also
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HawaiiUSA Fed. Credit Union v. Monalim, 147 Hawaiʻi 33, 45, 464
P.3d 821, 833 (2020) (observing that "the price obtained at a
foreclosure sale is often far below the fair market value of the
property as a result of the forced nature of a foreclosure
sale") (citations omitted).
The record reflects that the Rioptas, Wilmington, and
the Commissioner signed a "Stipulation to Sell Property Without
Open Houses," in which the Rioptas acknowledged that "the sale
of the [subject p]roperty without open houses may result in a
lower sale price at the public or private sale." The
Commissioner's Report reflects that Wilmington was the only
bidder, and Wilmington bid $590,000. The Commissioner
acknowledged that the sale price was "a touch low in a moving
market," but that "it [was] likely a fair one given the market
direction [was] downward."10
We therefore conclude, on this record, that the
circuit court did not abuse its discretion in confirming the
sale of the subject property at the price obtained.
10 The Rioptas also contend that Wilmington "bid over $100,000 below what they were owed" and that "[t]he court[] should not allow the lender to play games like this, unless the lender affirmatively states that they will not seek a deficiency judgment." However, Wilmington's Amended Complaint states that, under the amended claim, "it is not entitled to a deficiency judgment in the event the foreclosure sale proceeds are insufficient to fully discharge and satisfy [Wilmington's] total debt."
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in determining that "no objections have been filed or made to
the Commissioner's Report." The record reflects that the
Rioptas did not file a separate objection to the Commissioner's
Report. Therefore, the Rioptas' contention lacks merit.
For the foregoing reasons, we affirm the Foreclosure
Order, Foreclosure Judgment, Confirmation Order, and
Confirmation Judgment.
DATED: Honolulu, Hawaiʻi, October 9, 2025.
On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Keith M. Kiuchi, for Defendants-Appellants. /s/ Sonja M.P. McCullen Associate Judge Charles R. Prather, for Plaintiff-Appellee. /s/ Kimberly T. Guidry Associate Judge