SUMMARY DISPOSITION ORDER
Laura Taguiped appeals from the foreclosure Judgment entered by the Circuit Court of the Second Circuit on December 14, 2018.
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She challenges the “Findings of Fact, Conclusions of Law and Order Granting Plaintiffs Motion for Summary Judgment Against All Defendants and for Interlocutory Decree of Foreclosure” entered on December 14, 2018. We vacate and remand.
Bank of America, N.A. filed the complaint below on April 25, 2012. Representing herself, Taguiped answered the complaint on July 22, 2014, and served Bank of Americas counsel. The circuit court erroneously entered Taguipeds default on September 2, 2014. Wilmington Savings Fund Society, FSB substituted as the plaintiff on March 21, 2018. Wilmington moved for summary judgment and a decree of foreclosure on September 25, 2018. The court entered the Order and the Judgment on December 14, 2018. This appeal followed.
Taguiped argues that her liability on her promissory note was discharged in bankruptcy. Her discharge protects her from personal liability under the note, but it doesnt prevent Wilmington from foreclosing on her mortgage. Johnson v. Home State Bank, 501 U.S. 78, 82-83 (1991).
Taguiped argues that Wilmington didnt prove Bank of Americas standing to enforce her note when it filed the complaint, as required by Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai‘i 361, 390 P.3d 1248 (2017). A copy of the note wasnt attached to the complaint. Wilmingtons motion for summary judgment included a copy of the note, authenticated by a declaration of Joanna Dyer. The note was payable to Countrywide Bank, FSB. It was indorsed in blank by Countrywide. There is no date on the indorsement. The note does not show when Bank of America became the holder.
Dyer was “an authorized signer of ․ [Wilmington]s servicing agent[,]” Fay Servicing LLC. The information in her declaration was “taken from Fays business records.” Fay became Wilmingtons loan servicer on March 7, 2017. BSI Financial Services and Bank of America serviced the loan before Fay. Dyer stated:
37. According to [BSI and Bank of America]s records, [Bank of America] was in possession of the original Note, indorsed in blank, prior to 04/25/2012, the date of the filing of the Complaint.
According to Dyer, “Fay did review and determine [BSI and Bank of America]s business records were trustworthy otherwise it would not have incorporated it into its own records.” But Dyers declaration didnt show circumstances indicating trustworthiness of the incorporated records, as required under Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai‘i 37, 45-46, 414 P.3d 89, 97-98 (2018). Compare U.S. Bank Tr., N.A. v. Verhagen, 149 Hawai‘i 315, 325-26, 489 P.3d 419, 429-30 (2021) (discussing “scant” and “nebulously described” circumstances indicating trustworthiness of incorporated records), with Deutsche Bank Natl Tr. Co. v. Yata, 152 Hawai‘i 322, 334-35, 526 P.3d 299, 311-12 (2023) (noting that third Behrendt requirement wasnt satisfied). Dyers declaration didnt specify how Fay determined that the incorporated records were trustworthy. The declaration didnt establish admissibility of the note or other incorporated records under Hawaii Rules of Evidence Rule 803(b)(6). Wilmington did not show that Bank of America had standing to enforce the note when it filed the foreclosure complaint. The circuit court erred by granting Wilmingtons motion for summary judgment.
Taguipeds other arguments are without merit. The “Findings of Fact, Conclusions of Law and Order Granting Plaintiffs Motion for Summary Judgment Against All Defendants and for Interlocutory Decree of Foreclosure” and the “Judgment,” both entered on December 14, 2018, are vacated, and this case is remanded to the circuit court for further proceedings consistent with this summary disposition order.
Keith K. Hiraoka Presiding Judge
Karen T. Nakasone Associate Judge
Sonja M.P. McCullen Associate Judge
FOOTNOTES
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. The Honorable Rhonda I.L. Loo presided.