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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-AUG-2026
11:55 AM
Dkt. 13 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---UMB BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY,
BUT SOLELY AS LEGAL TITLE TRUSTEE FOR LVS TITLE TRUST XIII,
Respondent/Plaintiff-Appellee,
vs.
SA TUPULUA; GLADYS ULU TUPULUA,
Petitioners/Defendants-Appellants,
and
CITI BANK (SOUTH DAKOTA), N.A.; NOHOKAI AT SEA COUNTRY,
Respondents/Defendants-Appellees.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1CC151000083)
AUGUST 24, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ.,
AND CIRCUIT JUDGE CATALDO, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY DEVENS, C.J.
I. INTRODUCTION
This appeal raises the question of whether standing was
established by a mortgagee to foreclose on a mortgage.
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Wells Fargo Bank, N.A. (Wells Fargo) filed suit against
Petitioners/Defendants-Appellants Sa and Gladys Ulu Tupulua
(Petitioners) and others to foreclose on a mortgage on their
property in Waiʻanae. Respondent/Plaintiff-Appellee UMB Bank,
National Association (UMB) was later substituted as the real
party in interest after Wells Fargo assigned the mortgage to
UMB.
At the summary judgment stage of the case, UMB asserted
that Wells Fargo possessed the original promissory note (Note)
on the date suit was filed and that it thus had standing to
foreclose. Relevant to the standing issue, UMB submitted
declarations from two Wells Fargo employees and business records
pertaining to the holder of the Note. The Circuit Court of the
First Circuit (circuit court) determined that UMB satisfied its
burden of proving Wells Fargo’s possession of the Note, thereby
establishing standing to foreclose.
Following the circuit court’s summary judgment ruling but
prior to trial, the parties stipulated that Wells Fargo (1) had
possession of the Note prior to initiating this lawsuit and (2)
was the current holder of the Note (i.e., as of the date of the
stipulation). The written stipulation did not specify that
Wells Fargo was the holder of the Note at the time it filed
suit.
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The circuit court later granted an interlocutory decree of
foreclosure in favor of UMB.
On appeal to the Intermediate Court of Appeals (ICA),
Petitioners challenged the circuit court’s determination that
UMB had standing to foreclose. Holding that the terms of the
parties’ stipulation should be enforced, the ICA affirmed the
circuit court.
We respectfully disagree. First, the ICA did not address
whether the circuit court, at the summary judgment stage, was
correct in concluding that Wells Fargo possessed the Note at the
time it commenced this action. Based on this record, there is a
genuine issue of material fact with respect to Wells Fargo’s
possession of the Note. UMB submitted Wells Fargo’s business
records purportedly establishing that Wells Fargo held the Note
when it filed suit. Those records, however, contain numerous
undefined and ambiguous terms, with UMB failing to adequately
explain how to parse that information. Absent any such
explanation, the records present genuine issues of material fact
as to UMB’s standing.
Second, the parties’ stipulation did not separately and
independently establish UMB’s standing. The stipulation was
nonspecific as to how long Wells Fargo possessed the Note before
commencing the action and did not expressly state that Wells
Fargo possessed the Note at the time of its filing. Further,
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because the parties filed the stipulation after the circuit
court’s erroneous summary judgment standing ruling, it was
inequitable for the ICA to enforce the stipulation as
establishing UMB’s standing. At that point in the litigation,
the circuit court had already decided the standing issue, thus
binding the parties to the court’s summary judgment ruling.
Based on the foregoing, we vacate and remand to the circuit
court for proceedings consistent with this opinion.
II. BACKGROUND
A. Mortgage
Petitioners initially executed the Note in favor of DHI
Mortgage Electronic Registrations System, Inc. which was
recorded on March 31, 2008 (Mortgage). The Mortgage was
assigned to Wells Fargo on February 25, 2010, and thereafter
Wells Fargo endorsed the Note in blank. The Mortgage was
assigned to UMB on August 19, 2021.
B. Relevant Circuit Court Proceedings
On January 20, 2015, Wells Fargo filed a complaint
(Complaint) seeking foreclosure of the Mortgage. 1 Wells Fargo
and UMB (as Wells Fargo’s successor in interest) subsequently
moved for summary judgment five times; two of those motions are
relevant to this appeal.
1 The Honorable Jeannette H. Castagnetti presided.
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1. Wells Fargo’s Renewed Motion for Summary Judgment
On September 9, 2019, Wells Fargo filed a “renewed” motion
for summary judgment (Renewed MSJ), arguing that it possessed
the Note when the Complaint was filed and therefore had standing
to foreclose on the Mortgage. To establish possession, Wells
Fargo relied on a certification of possession signed by Yang
Thao (Thao), a Wells Fargo Vice President of Loan Documentation
(Thao Declaration). Thao certified that Wells Fargo had
possession of the Note as of October 22, 2013.
On October 14, 2019, the circuit court entered a minute
order denying the Renewed MSJ and holding that Wells Fargo
“failed to establish through admissible evidence its standing to
foreclose at the time the complaint was filed.” (Capitalization
altered.) The court reasoned that “possession of the original
note on October 22, 2013, does not establish possession of the
same when the complaint was filed on January 20, 2015.”
(Capitalization altered and citations omitted.)
2. UMB’s Third Renewed Motion for Summary Judgment
On September 6, 2022, UMB filed a “third renewed” motion
for summary judgment (Third Renewed MSJ). 2 UMB again argued that
it had standing to foreclose because Wells Fargo had possession
2 The Honorable James H. Ashford presided. UMB was substituted as the plaintiff in place of Wells Fargo on December 3, 2021.
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of the Note on the day the Complaint was filed. This time, UMB
included a Certification of Possession of Original Promissory
Note signed by Joanne Thoma-Ball (Thoma-Ball), a Wells Fargo
Business Initiatives Consultant (Thoma-Ball Declaration).
Thoma-Ball declared that, based on her review of Wells
Fargo’s records, Wells Fargo was in possession of the Note at
the time the Complaint was filed. Her declaration attested that
a copy of Wells Fargo’s business records (Spreadsheet)
“regarding the location of the original Note setting forth these
facts” was attached and incorporated. (Emphasis added.) In
other words, Thoma-Ball attested that the Spreadsheet was the
basis for her statement that Wells Fargo possessed the Note when
the Complaint was filed. She explained that between October 23,
2013 and August 26, 2019, Wells Fargo “had physical possession
of the original Note[.]” The Thao Declaration was also included
with her declaration.
In opposition, Petitioners argued that the Thoma-Ball
Declaration should be disregarded as conclusory and
inadmissible.
The circuit court’s January 17, 2023 minute order denied
the Third Renewed MSJ (on grounds unrelated to this appeal).
However, the circuit court determined that UMB “carried the
burden of showing it had standing” by establishing Wells Fargo’s
possession of the Note on the date the Complaint was filed.
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3. Circuit Court’s Findings of Fact and Conclusions of
Law; Order Granting Interlocutory Decree of
Foreclosure
On December 28, 2023, the circuit court held a one-day
bench trial to decide whether Petitioners were provided with
notice of, and an opportunity to cure, their default.
Petitioners do not claim any trial error, nor is the substance
of the trial relevant to this appeal.
Instead, what is relevant to this appeal is a joint
stipulation relating to the established facts for trial that the
parties signed and submitted before the bench trial. Relevant
here is Paragraph 6 of the stipulation that stated:
6. Prior to the commencement of this foreclosure
action, the Note was indorsed “in blank” and the original
of the Note (with the indorsement “in blank”) was delivered
to and held by Wells Fargo Bank, N.A., which was the
Plaintiff at the time this foreclosure action was
commenced. [UMB] is the current holder of the Note, which
is secured by the Mortgage.
(Emphasis in original.) Six days after trial, the parties
signed and submitted an amended stipulation (Stipulation) with
no changes made to Paragraph 6.
On March 28, 2024, the circuit court entered findings of
fact (FOFs), conclusions of law (COLs), and an order granting
interlocutory decree of foreclosure in favor of UMB.
Relevantly, the circuit court made the following FOFs:
7. On January 20, 2015, the Note had been indorsed
“in blank”, which thereby converted the Note into a bearer
negotiable instrument, and the original of the Note (with
the indorsement “in blank”) had been delivered to and was
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held by [Wells Fargo], which was the Plaintiff at the time
this foreclosure action was commenced.[3]
24. By reason of the facts hereinbefore set forth
and alleged, [UMB] is entitled to the foreclosure of its
Mortgage and the sale of the Mortgaged Property.
(Cleaned up.)
C. ICA’s Summary Disposition Order
The ICA affirmed the circuit court’s judgment and explained
that it would be inequitable not to enforce the Stipulation as
establishing Wells Fargo’s possession of the Note when the
Complaint was filed.
We accepted Petitioners’ certiorari application.
III. STANDARDS OF REVIEW
A. Standing
The issue of standing is reviewed de novo on appeal. Tax
Found. of Hawai‘i v. State, 144 Hawai‘i 175, 185, 439 P.3d 127,
137 (2019) (citation omitted).
3 Specifically, [Wells Fargo] received the original indorsed
Note in 2008 and retained it in its exclusive possession
through 2019. In the [Thoma-Ball Declaration], Thoma-Ball
authenticated the business records of her employer, [Wells
Fargo], and explained how said records evidenced that: (i)
on January 30, 2009, the original Note was reviewed and
imaged by [Wells Fargo]; (ii) [Wells Fargo] directly or
through its subsidiary Wells Fargo Home Mortgage, Inc.,
retained and was in possession of the original Note during
the entire period of time between April 10, 2008 until
August 29, 2019, at which time the original Note was sent
to [UMB’s] current counsel of record herein; and (iii)
thus, [Wells Fargo] was in possession of the original note
when this foreclosure action was commenced.
(Emphasis added.) (Cleaned up.)
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B. Summary Judgment
We review a grant of summary judgment de novo. Nozawa v.
Operating Engineers Local Union No. 3, 142 Hawaiʻi 331, 338, 418
P.3d 1187, 1194 (2018) (citation omitted). Summary 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 a
judgment as a matter of law.” Hawaiʻi Rules of Civil Procedure
(HRCP) Rule 56(c) (eff. 2000).
C. Findings of Fact and Conclusions of Law
“We review a circuit court’s findings of fact under a
‘clearly erroneous standard,’ and we review its conclusions of
law de novo.” State v. Rodrigues, 145 Hawai‘i 487, 494, 454 P.3d
428, 435 (2019) (citing Mikelson v. United Servs. Auto. Ass’n,
107 Hawai‘i 192, 197, 111 P.3d 601, 606 (2005)).
A finding of fact is clearly erroneous when the record
lacks substantial evidence to support the finding. Birano v.
State, 143 Hawai‘i 163, 181, 426 P.3d 387, 405 (2018) (citation
omitted). This court has defined “substantial evidence” as
credible evidence of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion.
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Leslie v. Estate of Tavares, 91 Hawaiʻi 394, 399, 984 P.2d 1220,
1225 (1999) (citations omitted).
D. Admissibility of Evidence
Where admissibility of evidence is determined by
application of the hearsay rule, there can only be one
correct result, and the appropriate standard for appellate
review is the right/wrong standard. . . . However, when
the trial court bases its ruling of admissibility on the
“judgment call” of whether the sources of information or
other circumstances related to the records indicate a lack
of trustworthiness, we review for abuse of discretion.
Nationstar Mortg. LLC v. Kanahele, 144 Hawai‘i 394, 402, 443 P.3d
86, 94 (2019) (cleaned up).
IV. DISCUSSION
This appeal turns on whether UMB established that Wells
Fargo, UMB’s predecessor in interest, possessed the Note when
the Complaint was filed.
The foreclosing plaintiff must establish standing at the
time the foreclosure complaint is filed. Bank of Am., N.A. v.
Reyes-Toledo, 139 Hawaiʻi 361, 368-69, 390 P.3d 1248, 1255-56
(2017). In the mortgage foreclosure context, “the requirement
of standing overlaps with a plaintiff’s burden of proving its
entitlement to enforce the subject promissory note.” U.S. Bank
Tr., N.A. v. Verhagen, 149 Hawai‘i 315, 327, 489 P.3d 419, 431
(2021) (citing Reyes-Toledo, 139 Hawai‘i at 367, 390 P.3d at
1254).
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The “holder of the instrument” is entitled to enforce it.
HRS § 490:3-301 (2008). The holder is the person in possession
of an instrument “payable either to bearer or to an identified
person that is the person in possession[.]” HRS § 490:1-201
(2008). And “[w]hen indorsed in blank, an instrument becomes
payable to bearer and may be negotiated by transfer of
possession alone unless specially indorsed.” HRS § 490:3-205
(2008).
UMB maintains that it had standing to foreclose because
Wells Fargo held the indorsed-in-blank Note when it filed suit.
However, at summary judgment, there was a genuine issue of
material fact as to whether Wells Fargo possessed the Note at
the time it initiated this action. Furthermore, the circuit
court clearly erred in issuing FOF 7 and incorrectly issued FOF
24.
A. UMB’s evidence did not establish standing to foreclose.
UMB argues that it established Wells Fargo’s possession of
the Note via the Thoma-Ball Declaration (which included the
Spreadsheet) and the Thao Declaration submitted with its Third
Renewed MSJ.
Petitioners counter that the two declarations should be
disregarded as “conclusory” and that the Spreadsheet is
inadmissible. Although we find these contentions unsupported,
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we also find there is a genuine issue as to whether Wells Fargo
possessed the Note on the day it filed the Complaint.
1. The Thao Declaration and Thoma-Ball Declaration need
not be disregarded and the Spreadsheet is admissible.
A declaration in support of a summary judgment motion must
be based on personal knowledge, set forth such facts as would be
admissible in evidence, and show affirmatively that the
declarant is competent to testify to the matters contained
within the declaration. See HRCP Rule 56(e) (eff. 2000).
The Thao Declaration stated, in relevant part, the
following: (1) Thao is “Vice President Loan Documentation of
[Wells Fargo]”; (2) Thao “personally reviewed the original
promissory note (‘Note’) . . . on 10/22/2013 at 2:19:33 [p.m.]”;
and (3) Wells Fargo “has possession of the Note.”
(Capitalization altered.) The Thao Declaration was undated.
Credence cannot be given to Thao’s third statement, which
generally provided Wells Fargo had possession of the Note. His
declaration was undated and his statement failed to specify the
timeframe of possession. However, Thao’s remaining statements
had proper foundation, as they were made on personal knowledge,
set forth facts that would be admissible in evidence, and showed
that Thao was competent to testify to his review of the Note on
October 22, 2013. We may therefore consider statements (1) and
(2) from the Thao Declaration.
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Next, Thoma-Ball laid proper and relevant foundation for
her representations. The Thoma-Ball Declaration, signed on
February 18, 2020 (i.e., prior to Wells Fargo’s assignment of
the Mortgage to UMB), reads in pertinent part as follows:
1. I, Joanne M Thoma-Ball, am employed by [Wells Fargo]
as Business Initiatives Consultant. In such capacity, I am
authorized to make this declaration regarding the
[Mortgage]. . . .
2. I have access to and am familiar with [Wells Fargo’s]
books and records regarding the [Mortgage], including
[Wells Fargo’s] servicing records and copies of the
applicable loan documents. I am familiar with the manner
in which [Wells Fargo] maintains its books and records,
including computer records relating to the servicing of the
[Mortgage]. [Wells Fargo’s] records are made at or near
the time of the occurrence of the matters set forth in such
records, by an employee or representative with knowledge of
the acts or events recorded. Such records are obtained,
kept and maintained by [Wells Fargo] in the regular course
of [Wells Fargo’s] business. [Wells Fargo] relies on such
records in the ordinary course of its business. I am
authorized as custodian of [Wells Fargo’s] electronic
records for the [Mortgage].
4. At the time the Complaint was filed on January 20,
2015, [Wells Fargo] was in possession of the original
[Note] and entitled to enforce the Note. My personal
knowledge of this statement . . . is based on my review of
[Wells Fargo’s] records for the [Mortgage].”
5. A true and correct copy of the original Note imaged
by [Wells Fargo] on January 30, 2009, is attached hereto as
[Exhibit 1] and incorporated herein by reference. . . .
6. [Wells Fargo’s] [r]ecords for the [Mortgage] show the
following: (1) On April 10, 2008, [Wells Fargo] first
received physical possession of the original Note; (2) From
April 10, 2008 to on or about January 23, 2009, [Wells
Fargo] was in physical possession of the original Note; (3)
On or about January 23, 2009, [Wells Fargo] released the
original Note to Wells Fargo Home Mortgage, Inc.,(Wells
Fargo Home Mortgage, Inc. is a subsidiary of [Wells
Fargo]); (4) On June 9, 2009, the original Note was
returned to [Wells Fargo]; (5) From June 9, 2009, until on
or about October 22, 2013, [Wells Fargo] was in physical
possession of the original Note; (6) On or about October
22, 2013, the original Note was sent to Wells Fargo Home
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Mortgage, Inc.; (7) On October 22, 2013, Wells Fargo Home
Mortgage, Inc. received the original Note and a
representative of [Wells Fargo], Yang Thao, reviewed the
original Note, and executed a CERTIFICATION OF POSSESSION
OF ORIGINAL PROMISSORY NOTE [(Thao Declaration)]; (8) On
October 22, 2013, Wells Fargo Home Mortgage, Inc. shipped
the original Note to [Wells Fargo]; (9) On October 23,
2013, [Wells Fargo] confirmed possession of the original
Note; (10) From October 23, 2013 to August 26, 2019 [Wells
Fargo] had physical possession of the original Note and
therefore [Wells Fargo] was in possession of the original
Note and entitled to enforce the Note on January 20, 2015
. . . . A true and correct copy of [Wells Fargo’s]
business records [(i.e., the Spreadsheet)] regarding the
location of the original Note setting forth these facts are
attached hereto as [Exhibit 2] and incorporated herein by
reference. . . . A true and correct copy of the [Thao
Declaration] is attached hereto as [Exhibit 3] and
incorporated herein by reference. . . . The details in
these records were recorded by the custodian of [Wells
Fargo] at or near the time of event, by someone with
personal knowledge of the act or event.
(Emphases altered.)
Petitioners argue that the Thoma-Ball Declaration
“contain[ed] conclusory statements with no basis of personal
knowledge.” Contrary to this assertion, Thoma-Ball clearly
indicated the bases for her statements. She expressly stated
that she was the authorized custodian of Wells Fargo’s
electronic records pertaining to the Mortgage, stated her
familiarity with such records, and based her conclusions on her
review of the Spreadsheet, which she included with her
declaration.
Petitioners also contend that the Spreadsheet is
inadmissible “because the Thoma-Ball [D]eclaration [was]
insufficient to authenticate it[.]”
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Hawaiʻi Rules of Evidence (HRE) Rule 803(b)(6) (2016)
establishes a business records hearsay exception for “records of
regularly conducted activity.” It provides that the following
is not excluded by the hearsay rule:
A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made in the course of a regularly conducted activity, at or
near the time of the acts, events, conditions, opinions, or
diagnoses, as shown by the testimony of the custodian or
other qualified witness, or by certification that complies
with rule 902(11) or a statute permitting certification,
unless the sources of information or other circumstances
indicate lack of trustworthiness.
HRE Rule 803(b)(6).
As Wells Fargo’s custodian of records, Thoma-Bell attested
that the Spreadsheet was a true and correct copy of Wells
Fargo’s business records relating to the location of the Note,
made in the regular course of Wells Fargo’s business, and
prepared at or near the time of the occurrence of the matters
set forth in such records. Lacking any indication of
untrustworthiness, the Thoma-Ball Declaration properly
authenticated the document. The circuit court also correctly
applied the business records hearsay exception to the
Spreadsheet.
Accordingly, the Thao Declaration, Thoma-Ball Declaration,
and Spreadsheet were properly before the circuit court.
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2. There was a genuine issue as to whether Wells Fargo
possessed the Note on the date the Complaint was
filed.
As the issue of standing was addressed on summary judgment,
UMB’s burden was to show that there was no genuine issue of
material fact with respect to standing. HRCP Rule 56(c).
We review the evidence in the light most favorable to
Petitioners as the non-movants. Nozawa, 142 Hawai‘i at 342, 418
P.3d at 1198 (citation omitted). UMB’s primary evidence was the
Spreadsheet, which served as the basis for Thoma-Ball’s
statement that Wells Fargo possessed the Note on the date the
Complaint was filed. The Spreadsheet appears to contain several
dated entries that indicate the occurrence of certain
transactions. The Thoma-Ball Declaration stated that these
transactions pertained to the location of the Note. Indeed,
some of the dates appear to correspond to the dates listed in
Paragraph 6 of the Thoma-Ball Declaration. For instance, the
declaration stated that on or about January 23, 2009, Wells
Fargo released the Note to Wells Fargo Home Mortgage, and the
Spreadsheet contains an entry indicating that a transaction of
“Release (Int. to Ext.)” occurred on the same date.
However, as Petitioners correctly point out, Thoma-Ball did
not sufficiently explain the Spreadsheet. The Spreadsheet
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contains a myriad of ambiguous codes and categories of
transactions. Although one could infer the meaning of some of
these labels in favor of UMB from their apparent correspondence
to the dates referenced in Paragraph 6 of the Thoma-Ball
Declaration, the declaration did not indicate or explain how to
interpret many of the codes and transactions listed in the
Spreadsheet. For example, several entries are described as
“Location Move” in the Spreadsheet, including the entry on
November 4, 2013. The Thoma-Ball Declaration did not define
that term. Viewing the evidence in the light most favorable to
Petitioners, “Location Move” could have signified that the Note
was moved to the possession of a third party on November 4,
2013. This creates a genuine issue of material fact as to
Thoma-Ball’s statement that “[f]rom October 23, 2013 to August
26, 2019 [Wells Fargo] had physical possession of the original
Note and therefore [Wells Fargo] was in possession of the
original Note and entitled to enforce the Note on January 20,
2015.”
The Thao Declaration left this fact issue open and
unresolved. In Verhagen, we addressed whether the foreclosing
plaintiff, U.S. Bank, established that it had standing at the
time it filed suit. U.S. Bank submitted documentary evidence
showing that it possessed the note “a mere six weeks before the
filing of the complaint and at the time of summary judgment.”
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Verhagen, 149 Hawai‘i at 327–28, 489 P.3d at 431–32. We held
that the evidence collectively established U.S. Bank’s
possession of the note on the day the complaint was filed. Id.
at 328, 489 P.3d at 432. Importantly, we reached this
conclusion in part because U.S. Bank demonstrated that it held
the note “less than two months” prior to filing its complaint.
Id. at 328 n.10, 489 P.3d at 432 n.10.
Here, the Thao Declaration certified possession on October
22, 2013--more than a year before Wells Fargo initiated this
action. Such a gap between the date of certification and that
of the Complaint being filed, viewed in the light most favorable
to Petitioners on this record, left ample room for a genuine
issue as to whether Wells Fargo possessed the Note when it sued
Petitioners over a year later. See id.
UMB did not establish Wells Fargo’s continuous and
uninterrupted possession from October 22, 2013 through January
20, 2015 when the Complaint was filed. Accordingly, we find
that summary judgment should not have been granted on the issue
of Wells Fargo’s possession of the Note when it filed the
Complaint.
B. FOF 7 was clearly erroneous and FOF 24 was incorrect.
FOF 7 stated that Wells Fargo “was in possession of the
original note when this foreclosure action was commenced.” And
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FOF 24, a conclusion of law in substance, provided that UMB was
entitled to the foreclosure of the Mortgage. 4
Setting aside the circuit court’s ruling on the Third
Renewed MSJ as to UMB’s standing, the Stipulation was the only
other basis that could have supported the circuit court’s
factual finding that Wells Fargo had possession of the Note when
it filed the Complaint. But any reliance on the Stipulation was
misplaced as the stipulated language was imprecise and
ambiguous.
As stated, Paragraph 6 of the Stipulation provided:
6. Prior to the commencement of this foreclosure
action, the Note was indorsed “in blank” and the original
of the Note (with the indorsement “in blank”) was delivered
to and held by Wells Fargo Bank, N.A., which was the
Plaintiff at the time this foreclosure action was
commenced. [UMB] is the current holder of the Note, which
is secured by the Mortgage.
(Emphases altered.)
4 Petitioners do not explicitly challenge FOFs 7 and 24 in their application for writ of certiorari as required by Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(C) (eff. 2022). However, “noncompliance with Rule 28 does not always result in dismissal of the claims, and this court has consistently adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible. This is particularly so where the remaining sections of the brief provide the necessary information to identify the party’s argument.” Marvin v. Pflueger, 127 Hawai‘i 490, 496, 280 P.3d 88, 94 (2012) (cleaned up). Here, Petitioners explicitly challenged FOFs 7 and 24 in their ICA briefing. Their writ application clearly challenges the ICA’s reliance on the Stipulation, and the Stipulation appears to be the circuit court’s only basis for making those FOFs, since Wells Fargo’s possession of the Note was not at issue at trial. We therefore construe Petitioners’ writ application as challenging FOFs 7 and 24.
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The Stipulation established that Wells Fargo possessed the
Note (1) prior to filing the Complaint and (2) as of the date
the Stipulation was filed, which was after the Complaint was
filed. It did not pinpoint a date of possession prior to the
action’s commencement. Did Wells Fargo hold the Note two days
before? Two months before? Two years before? The longer the
gap, the more room for a “genuine issue” as to whether Wells
Fargo possessed the Note when it sued Petitioners. See id.
Indeed, the Stipulation left open the possibility that although
Wells Fargo held the Note prior to filing the Complaint, the
Note was transferred to a third party and was not returned to
Wells Fargo until after this action was initiated.
Because of this ambiguity, FOF 7 was not supported by
substantial evidence and was therefore clearly erroneous. And
without FOF 7, UMB was unable to establish its entitlement to
foreclose on the Mortgage. See Reyes-Toledo, 139 Hawaiʻi at 368-69, 390 P.3d at 1255-56. Accordingly, FOF 24 was incorrect.
UMB further argues that Petitioners admitted to Wells
Fargo’s possession of the Note at the commencement of this
action through the Stipulation. Even if we were to accept UMB’s
argument, such a construal would be inequitable to Petitioners.
“In an equitable foreclosure proceeding, a trial court
should enforce the terms of a stipulation unless doing so would
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be inequitable.” Provident Funding Assocs., L.P. v. Gardner,
149 Hawai‘i 288, 300, 488 P.3d 1267, 1279 (2021) (citation
omitted); see State v. Foster, 44 Haw. 403, 423, 354 P.2d 960,
971 (1960), overruled on other grounds by State v. Kelekolio, 74
Haw. 479, 849 P.2d 58 (1993) (“[A] stipulation made
inadvertently, inadvisedly[,] or improvidently should be
permitted to be withdrawn by the court when inequity will result
to one side and the other party will not be prejudiced
thereby.”).
Here, the Stipulation was filed after the circuit court’s
erroneous summary judgment ruling that UMB satisfied its burden
of establishing standing. At that point in the proceedings,
Petitioners were bound to the court’s summary judgment
determination as law of the case. See PennyMac Corp. v.
Godinez, 148 Hawai‘i 323, 331, 474 P.3d 264, 272 (2020) (“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.” (cleaned
up)).
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We hold that the Stipulation did not establish Wells
Fargo’s possession of the Note on the day the Complaint was
filed. On remand, the parties will have an opportunity to
resolve this genuine issue of material fact.
V. CONCLUSION
We conclude that the ICA erred in vacating the circuit
court’s Judgment entered on March 28, 2024. Therefore, we
vacate the ICA’s April 15, 2026 Judgment on Appeal and remand
the case to the circuit court for proceedings consistent with
this opinion.
Keith M. Kiuchi /s/ Vladimir P. Devens for petitioners
/s/ Sabrina S. McKenna
Matthew P. Holm
/s/ Todd W. Eddins
for respondent
/s/ Lisa M. Ginoza
/s/ Lisa W. Cataldo
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