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Wells Fargo Bank v. Ishimitsu

2026-08-27

Summary

Holding. The Intermediate Court of Appeals affirmed the circuit court's grant of summary judgment and interlocutory decree of foreclosure in favor of Wells Fargo.

In 2006, Ishimitsu obtained a mortgage loan from Franklin Financial to purchase a Mililani property. The property was later conveyed to Tong via apartment deed in 2016. After Ishimitsu defaulted on the loan, Wells Fargo filed a foreclosure action in February 2023. Tong opposed summary judgment, raising seven points of error including challenges to Wells Fargo's standing, the validity of notice of default, and the applicability of a statute of limitations.

The court addressed the core issues. First, Wells Fargo satisfied its burden of establishing standing to enforce the note by demonstrating through admissible evidence that it possessed the note, which was specially indorsed to Wells Fargo, at the time the foreclosure complaint was filed. Second, Wells Fargo properly established that notice of default was mailed to Ishimitsu through testimony from a loan servicer officer with sufficient familiarity with the servicer's record-keeping systems and standard practices. Third, the court rejected a six-year limitations argument based on intervening Hawaii Supreme Court precedent establishing that mortgage foreclosures are subject to a twenty-year statute of limitations. The remaining points were deemed harmless in light of Wells Fargo's established entitlement to foreclose as a matter of law.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether Wells Fargo established standing to enforce a specially indorsed promissory note
  • Whether notice of default was proved through admissible business records testimony
  • Whether a six-year statute of limitations barred the foreclosure action
  • Whether a non-party to a mortgage assignment lacks standing to challenge its validity

Procedural posture

The Intermediate Court of Appeals reviewed an appeal from the circuit court's grant of summary judgment and interlocutory decree of foreclosure filed by Tong, the subsequent owner of the property.

Authorities cited

Opinion

majority opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed

Intermediate Court of Appeals

CAAP-XX-XXXXXXX

27-AUG-2026

08:22 AM

Dkt. 50 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE,

ON BEHALF OF THE HOLDERS OF THE STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., BEAR STEARNS MORTGAGE FUNDING TRUST 2007-AR1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-AR1,

Plaintiff-Appellee,

v.

BRYCE JARET ISHIMITSU, Defendant-Appellee, and

ASSOCIATION OF APARTMENT OWNERS OF HAVENS OF IʻI VISTAS;

Defendant/Cross-Claimant-Appellee,

MILILANI TOWN ASSOCIATION; MARINER'S VILLAGE THREE COMMUNITY

ASSOCIATION, Defendants-Appellees, and

SEAN CHEUNG TONG, TRUSTEE OF THE UNRECORDED KOOLANI TRUST DATED JANUARY 1, 2015, Defendant/Cross-Claim Defendant-Appellant, and

JOHN AND MARY DOES 1-20; DOE PARTNERSHIPS,

CORPORATIONS OR OTHER ENTITIES 1-20, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER

(By: Nakasone, Chief Judge, Hiraoka and McCullen, JJ.)

Defendant/Cross-Claim Defendant-Appellant Sean Cheung

Tong, Trustee of the Unrecorded Koolani Trust Dated January 1,

2015 (Tong), appeals from the Circuit Court of the First

Circuit's October 28, 2024 "Findings of Fact; Conclusions of NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Law; Order Granting Plaintiff's Motion for Summary Judgment and

for Interlocutory Decree of Foreclosure Against All Parties,

Filed July 26, 2024" (Summary Judgment Order) and Judgment in

favor of Plaintiff-Appellee Wells Fargo Bank, National

Association, as Trustee on Behalf of the Holders of the

Structured Asset Mortgage Investments II Inc., Bear Sterns

Mortgage Funding Trust 2007-AR1, Mortgage Pass-Through

Certificates, Series 2007-AR1 (Wells Fargo). 1

On appeal, Tong raises seven points of error (POE),

contending that the circuit court erred by: (1) concluding Tong

lacked standing to challenge that notice of default was

provided; (2) concluding Tong's Answer to the Complaint admitted

that notice of default was provided by failing to deny it with

specificity and particularity; (3) finding the mortgagor was

provided notice of default via first class mail; (4) concluding

Wells Fargo provided admissible evidence of delivery of the

notice of default under the business records hearsay exception

via testimony of knowledge of standard mailing practices;

(5) denying Tong's request for a continuance to conduct further

discovery on the purported notice of default; (6) granting

summary judgment despite the foreclosure claim being barred

1 The Honorable James H. Ashford presided.

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under the applicable six-year statute of limitations; and

(7) concluding Wells Fargo established standing to foreclose.

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 this

appeal as discussed below and affirm.

In 2006, Defendant-Appellee Bryce Jaret Ishimitsu

(Ishimitsu) executed an Adjustable Rate Note (the Note) in favor

of Franklin Financial, a Corporation (Franklin Financial),

secured by a Mortgage (the Mortgage) in favor of Mortgage

Electronic Registration Systems, Inc., solely as nominee for

Franklin Financial, its successors and assigns, that encumbered

the property located at 95-1111 Koolani Drive #214, Mililani,

Hawaiʻi 96789 (the Property). The Property was subsequently sold

to Defendant-Appellee Mililani Town Association via a quitclaim

deed recorded on May 27, 2014, and was later conveyed to Tong

via an apartment deed recorded in the Land Court on November 3,

2016. Ishimitsu defaulted on the Mortgage loan.

On February 15, 2023, Wells Fargo filed the underlying

Complaint for foreclosure. Wells Fargo moved for summary

judgment and an interlocutory decree of foreclosure (First

Motion). Tong opposed, and the circuit court denied the First

Motion without prejudice.

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On July 26, 2024, Wells Fargo again moved for summary

judgment and an interlocutory decree of foreclosure (Second

Motion). Tong again opposed. The circuit court granted the

Second Motion. Tong appealed.

(1) We first address POE 7 regarding Wells Fargo's

standing to foreclose on the Property. Tong contends the

circuit court erroneously granted summary judgment in favor of

Wells Fargo because genuine issues of material fact remained

with respect to Wells Fargo's standing to foreclose.

Specifically, Tong asserts that Wells Fargo failed to meet its

burden of establishing by admissible evidence (1) its capacity

as "a Trustee 'on behalf of the holders of the Structured Asset

Mortgage Investments II Inc., Bear Sterns Mortgage Funding Trust

2007-AR1, Mortgage Pass-Through Certificates, Series 2007-AR1'"

(2007-AR1 Trust); (2) the existence of a valid assignment of the

Mortgage to the 2007-AR1 Trust; or (3) whether the Note included

a special indorsement to "Wells Fargo Bank, N.A., as Trustee,"

at the time it was received.

We review the grant or denial of summary judgment de

novo. Nationstar Mortg. LLC v. Kanahele, 144 Hawaiʻi 394, 401,

443 P.3d 86, 93 (2019).

To establish its right to foreclose on a mortgage, a

foreclosing plaintiff must establish its standing, or

entitlement to enforce the subject note, at the time the action

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was commenced. Bank of America, N.A. v. Reyes-Toledo, 139

Hawaiʻi 361, 367-71, 390 P.3d 1248, 1254-58 (2017). Standing may

be established through admissible evidence showing that the

foreclosing plaintiff was in possession of the note at the time

the complaint was filed. Id. at 368, 390 P.3d at 1255. This

requirement applies where the subject note is specially

indorsed. E.g., U.S. Bank Nat'l Ass'n as Tr. for C-Bass Mortg.

Loan Asset-Backed Certificates, Series 2007-CB1 v. Jung Hoon

Kim, 144 Hawaiʻi 383, 442 P.3d 446, 2019 WL 2205680, at *1

(App. May 22, 2019) (SDO).

[A] special indorsement occurs if the indorsement is made

by the holder of an instrument and the indorsement

identifies a person to whom it makes the instrument

payable. [Hawaiʻi Revised Statutes (HRS)] § 490:3-205(a)

[(2008)]. When an instrument is specially indorsed, it

becomes payable to the identified person and may be

negotiated only by the indorsement of that person. Id.

Reyes-Toledo, 139 Hawaiʻi at 370, 390 P.3d at 1257.

Here, the Second Motion was supported by the

declaration of Gari-Ann Wise (Wise), the custodian of records of

collateral files for Wells Fargo's counsel. The Wise

declaration stated that the original wet ink indorsed Note was

received on November 9, 2017, and that Wise personally confirmed

possession of the Note on January 10, 2023. The Wise

declaration further stated that had the Note left the firm's

possession, it would have been logged in the firm's document

management system. The "true and correct redacted copies of the

documents that were received and scanned within [the firm's]

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record-keeping system" show that the Note was specially indorsed

to "Wells Fargo Bank, N.A., as Trustee."

Because Wells Fargo's counsel was in possession of the

Note as its bailee on February 15, 2023, when the foreclosure

complaint was filed, and the Note was specially indorsed to

Wells Fargo, Wells Fargo was entitled to enforce the Note. See

id.

Because Wells Fargo carried its burden of showing it

was in possession of the Note at the relevant time and had

standing to foreclose on the Property, the burden then shifted

to Tong to point to specific facts in evidence to show a

challenged fact was material and in genuine dispute. See U.S.

Bank N.A. v. Mattos, 140 Hawaiʻi 26, 30, 398 P.3d 615, 619 (2017)

(quoting French v. Hawaii Pizza Hut, Inc., 105 Hawaiʻi 462, 470,

99 P.3d 1046, 1054 (2004)). Tong points to no such facts. See

id.

Wells Fargo was not separately required to establish

the validity of the assignment of the Mortgage because the

transfer of a promissory note also transfers the right to

enforce the mortgage. See HRS § 490:9-203(g) (2008) ("The

attachment of a security interest in a right to payment or

performance secured by a security interest or other lien on

personal or real property is also attachment of a security

interest in the security interest, mortgage, or other lien.");

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Reyes-Toledo, 139 Hawaiʻi at 371 n.17, 390 P.3d at 1258 n.17

(stating that "the security follows the debt").

Moreover, as a third party, Tong lacks "standing to

challenge the validity of an assignment of its loans because

they are not parties to the agreement." U.S. Bank Nat'l Ass'n

v. Salvacion, 134 Hawaiʻi 170, 175, 338 P.3d 1185, 1190 (App.

2014). While "Hawaiʻi courts may recognize exceptions when a

challenge would deem the assignment void, not voidable," Tong

makes no such argument on appeal. Id.

Tong similarly lacks standing to challenge the

assignment of a mortgage to a securitized trust. See Bank of

New York Mellon v. Rumbawa, 137 Hawaiʻi 206, 366 P.3d 1085, 2016

WL 482170, at *1-2 (App. Feb. 4, 2016) (SDO) ("Courts have

rejected the argument that before a party may foreclose on a

property, 'it must first prove the validity of every transfer in

the chain of title.'" (quoting Deutsche Bank Tr. Co. v. Beesley,

Civil No. 12-00067 SOM/KSC, 2012 WL 5383555, at *4 (D. Haw.

Oct. 30, 2012)). Moreover, "noncompliance with a trust's

governing document is irrelevant to the assignee's standing to

foreclose," and it "does not render the assignment void."

Salvacion, 134 Hawaiʻi at 175-76, 338 P.3d at 1190-91.

Accordingly, the circuit court did not err by

concluding Wells Fargo had standing to enforce the Note through

its foreclosure complaint.

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(2) We now turn to POE 3 and 4, where Tong argues the

circuit court erroneously found Wells Fargo gave the requisite

notice of default in compliance with the terms of the Mortgage

because, Tong contends, delivery of the notice was not supported

by admissible evidence.

To establish entitlement to foreclose, the foreclosing

party must demonstrate (1) the existence of the agreement,

(2) the terms of the agreement, (3) default under the terms of

the agreement, and (4) the giving of requisite notice. Bank of

Honolulu, N.A. v. Anderson, 3 Haw. App. 545, 551, 654 P.2d 1370,

1375 (App. 1982).

Here, the Second Motion was supported by, among other

things, two Notices of Default, both dated August 24, 2021, and

addressed to Ishimitsu at the Property; the declaration of

Cynthia May (May), an officer for Wells Fargo's loan servicer;

and screenshots of the loan servicer's correspondence tracker

and log. The Notices of Default and the correspondence tracker

and log all show a code, "LR062," which, May averred, "indicates

that [the] notices were sent via first class mail," consistent

with the servicer's standard mailing practices.

Tong contends that May's declaration regarding the

meaning of the "LR062" code is inadmissible hearsay that cannot

support proof that notice was given:

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To the extent Ms. May's purported personal knowledge

as to the use by [the servicer] and meaning of the code

"LR062" may have been based upon her review and knowledge

of things such as [the servicer's] written policies,

training guides, operation procedures, or other similar

business records, because those records were not identified

and produced, Ms. May's allegation of having personal

knowledge if based thereon that the notices of Default were

mailed by first class mail on August 24, 2021, remains

inadmissible hearsay.

"Though hearsay is generally inadmissible, [Hawaiʻi

Rules of Evidence (HRE)] Rule 803(b)(6) establishes a hearsay

exception for 'records of regularly conducted activity.'" U.S.

Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr. v.

Verhagen, 149 Hawaiʻi 315, 325, 489 P.3d 419, 429 (2021). HRE

Rule 803(b)(6) provides in relevant part:

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

(b) Other exceptions.

(6) Records of regularly conducted activity. 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.

(Emphases added.)

A witness is qualified to provide the testimony

required under HRE Rule 803(b)(6) where they have "enough

familiarity with the record-keeping system of the business that

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created the record to explain how the record was generated in

the ordinary course of business." Wells Fargo Bank, N.A. v.

Behrendt, 142 Hawaiʻi 37, 45, 414 P.3d 89, 97 (2018) (citing

Mattos, 140 Hawaiʻi at 32, 398 P.3d at 621 (quoting State v.

Fitzwater, 122 Hawaiʻi 354, 365-66, 227 P.3d 520, 531-32

(2010))).

May was qualified to lay a foundation for the

admission of these records. See id.; HRE Rule 803(b)(6). The

May declaration stated, "[a]s an officer of [Wells Fargo's loan

servicer], I am personally familiar with [the servicer]'s

standard mailing practices and procedures," because "I am

authorized and trained to access these records" and use the

relevant systems "on a regular basis as a routine function of my

employment."

Thus, Wells Fargo carried its burden of showing the

Notices of Default were mailed to Ishimitsu on or around

August 24, 2021. The burden then shifted to Tong to point to

specific facts in evidence to show a challenged fact was

material and in genuine dispute. See Mattos, 140 Hawaiʻi at 30,

398 P.3d at 619 (quoting French, 105 Hawaiʻi at 470, 99 P.3d at

1054). Tong points to no such facts. See id.

Accordingly, the circuit court did not err by granting

Wells Fargo's Second Motion.

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(3) As to POE 6, Tong contends the foreclosure action

was subject to a six-year statute of limitations. After the

parties briefed the matters in this case, the Hawaiʻi Supreme

Court held that "the statute of limitations for mortgage

foreclosure actions is twenty years per HRS § 657-31." Bank of

New York Mellon as Tr. for Certificateholders of CWABS, Inc.

Asset-Backed Certificates, Series 2006-11 v. White, 156 Hawaiʻi

246, 249, 573 P.3d 629, 632 (2025). Thus, POE 6 fails.

(4) Finally, we decline to reach Tong's remaining

points of error, contending the circuit court erred by

concluding Tong lacked standing to challenge that notice of

default was provided (POE 1); concluding Tong's Answer to the

Complaint admitted that notice of default was provided by

failing to deny it with specificity and particularity (POE 2);

and denying Tong's request for a continuance to conduct further

discovery on the purported notice of default (POE 5).

As discussed above, Wells Fargo established standing

and entitlement to bring its foreclosure action as a matter of

law. Error, if any, in concluding Tong lacked standing to

challenge notice of default, concluding Tong failed to deny with

specificity, and denying Tong's continuance request to conduct

discovery would be harmless. See Salvacion, 134 Hawaiʻi at 176,

338 P.3d at 1191 ("Further discovery would not have rebutted

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USBNA's showing of absence of genuine issue of fact." (citation

modified)).

Based on the foregoing, we affirm the circuit court's

October 28, 2024 Summary Judgment Order and Judgment.

DATED: Honolulu, Hawaiʻi, August 27, 2026.

On the briefs: /s/ Karen T. Nakasone

Chief Judge

Frederick J. Arensmeyer,

for Defendant/Cross- /s/ Keith K. Hiraoka Claim Defendant-Appellant. Associate Judge

Lansen H.G. Leu, /s/ Sonja M.P. McCullen (Leu Okuda & Doi), Associate Judge

for Plaintiff-Appellee.

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