U.S. Bank National Association v. Hall

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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

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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

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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

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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.

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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

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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

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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

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