Deutsche Bank National Trust Company v. Maher

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-JUN-2025
07:51 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-NC5,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-NC5,
Plaintiff-Appellee,
v.
MICHAEL C. MAHER; AMY K. MAHER,
Defendants-Appellants,
and
ASSOCIATION OF APARTMENT OWNERS PU‘U WAI MELE;
NEW CENTURY MORTGAGE CORPORATION,
Defendants-Appellees,
and
JOHN and MARY DOES 1-20; DOE PARTNERSHIPS, CORPORATIONS or OTHER
ENTITIES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC18100004K)
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SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

This foreclosure appeal challenges the plaintiff's
standing to enforce a note (Note). We vacate and remand.
Defendants-Appellants Michael C. Maher and Amy K.
Maher (collectively, the Mahers) appeal from the Circuit Court
of the Third Circuit's (Circuit Court) 1 August 9, 2021 "Judgment"
and "Findings of Fact; Conclusions of Law; Order Granting
[Plaintiff-Appellee Deutsche Bank National Trust Company, as
Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-NC5,
Mortgage Pass-Through Certificates, Series 2006-NC5 (DB)]'s
Motion for Summary Judgment, and for Interlocutory Decree of
Foreclosure Against All Parties Filed April 1, 2020" (Order
Granting Summary Judgment). The Mahers' first and third points
of error challenge standing based on evidentiary insufficiency,
and the second point challenges the admissibility of DB's loan
servicer's records.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve this
appeal as follows.
On January 9, 2018, DB filed a Complaint to foreclose
the Mahers' mortgage after the Mahers defaulted on their
mortgage payments.
On April 1, 2020, DB moved for summary judgment, which
the Mahers opposed. The Circuit Court entered the Order
Granting Summary Judgment and the Judgment, from which the
Mahers appealed.

1 The Honorable Robert D.S. Kim presided.

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The relevant evidence of standing consisted of the
declaration of Maria Soberon (Soberon Declaration), a "Document
Control Officer" for DB's loan servicer and agent, Select
Portfolio Servicing, Inc. (SPS), along with an "SPS business
record" attached as Exhibit "4." The Soberon Declaration at
paragraph 12 stated the following with regard to possession of
the Note:
12. According to SPS's business records, [DB], through
SPS, has possession of the [N]ote in this instant action
("Note"), which has been duly endorsed, and was in
possession of the Note at the time of the filing of the
complaint. Therefore, [DB] has the right to enforce the
Note. A true and correct copy of the SPS business record
is attached as Exhibit "4" and made a part of this
Declaration by reference. SPS relied on this record to
show that it remained in possession of the Note since at
least November 12, 2015, when it confirmed it possessed it.

Exhibit "4" consisted of an nine-page printout of screenshots
marked "Document Control Data" at the top with a website address
at the bottom of each page; a "Document Tracking" section,
reflecting two entries for "Location of Note" as "Requested" and
"Completed" on "10/20/2014" and "11/12/2015"; a "Collateral
Located" section, reflecting "Comments" with a "10/20/2014"
entry stating "[o]riginal note located at [SPS], Inc. 3815 South
West Temple SLC UT 84115"; and another "Collateral Located"
section, reflecting "Comments" with a "11/12/2015" entry again
stating "[o]riginal note located at [SPS], Inc." with the same
address.
On appeal, the Mahers argue that, assuming arguendo
DB's documentary evidence was admissible, the evidence failed to
prove DB or its agent "had possession of the Note on the date it
filed the Complaint[.]" The Mahers claim the Soberon
Declaration only showed possession as of November 12, 2015,
"which was over two years from the date that the Complaint was
filed[,]" and failed to "explain[] where the Note was" between

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November 12, 2015 and January 9, 2018, when the Complaint was
filed. The Mahers contend that under Deutsche Bank Nat'l Tr.
Co. as Tr. for Morgan Stanley ABS Cap. I Inc. Tr. 2006-NC4 v.
Yata, 152 Hawai‘i 322, 526 P.3d 299 (2023), a certification
regarding possession of the Note that predated the filing date
of the complaint of "anything more than nine months" "was
insufficient," and the time period here was "a gap of over 26
months."
DB responds that "[u]nder the standards set in
Verhagen and Yata,[2] the Soberon Declaration and the Document
Tracking business record [(Exhibit "4")] together are sufficient
to establish possession of the Note on the date the complaint
was filed on January 9, 2018." (Footnote added.) DB argues
that its evidence showed the Note was in SPS's possession with
its location confirmed on October 20, 2014 and November 12,
2015; "[t]here are no other entries indicating the Note ever
moved"; and thus, the Soberon Declaration "confirms that SPS had
possession of the Note at the time the complaint was filed." 3

2 In U.S. Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr.
v. Verhagen, 149 Hawai‘i 315, 328 n.10, 489 P.3d 419, 432 n.10 (2021), the
Hawai‘i Supreme Court concluded that U.S. Bank established possession of the
note on the day the complaint was filed where the certification "predate[d]
the filing of the complaint by less than two months." In Yata, the
certification deemed insufficient in that case was "nearly nine months before
the [c]omplaint was filed." 152 Hawai‘i at 336, 526 P.3d at 313.

3 To support its argument, DB quotes from State v. Forman, 125
Hawai‘i 417, 424, 263 P.3d 127, 134 (App. 2011), that "if a business record
designed to note every transaction of a particular kind contains no notation
of such a transaction between specified dates, no such transaction occurred
between those dates." (Cleaned up.) DB's reliance on Forman is
unpersuasive. Forman dealt with the admissibility of the absence of a
contract for a moped rental from a business record, and the trustworthiness
of such evidence of absence under the business records exception, in a
criminal prosecution for unauthorized use of a moped. Id. at 422-26, 263
P.3d at 132-36. As such, Forman is inapposite. This case involves the
sufficiency of evidence to establish the location of a note at a certain
point in time, where Hawai‘i foreclosure law, as set forth infra, requires
such evidence to establish standing at the time the suit was initiated. An

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We review the grant of summary judgment de novo. U.S.
Bank N.A. v. Mattos, 140 Hawai‘i 26, 30, 398 P.3d 615, 619
(2017). To establish standing, "a foreclosing plaintiff must
necessarily prove its entitlement to enforce the note as it is
the default on the note that gives rise to the action." Bank of
Am., N.A. v. Reyes-Toledo, 139 Hawai‘i 361, 368, 390 P.3d 1248,
1255 (2017) (citation omitted). This means "a foreclosing
plaintiff must establish its standing to bring a lawsuit at the
commencement of the proceeding[.]" Yata, 152 Hawai‘i at 335, 526
P.3d at 312 (quoting Verhagen, 149 Hawai‘i at 327, 489 P.3d at
431). The foreclosing plaintiff may establish it is the holder
of the note by showing its agent physically possessed it. See
Verhagen, 149 Hawai‘i at 327-28, 489 P.3d at 431-32.
The relevant portion of the "McCloskey Declaration"
found insufficient to establish standing in Yata stated:
14. At the time the foreclosure [c]omplaint was filed on
September 10, 2014, Deutsche Bank, through its custodian
Deutsche Bank National Trust Company, was in possession of
the Note. The Note was kept by the custodian at 1761 E.
St. Andrew Place, Santa Ana, CA 92705 on behalf of Deutsche
Bank. The original date of possession of the Note by the
custodian was April 4, 2006. The Note had been returned to
the custodian on December 27, 2013. The custodian
maintained possession of the Note until May 8, 2015. A
true and correct copy of the documentation supporting Note
possession at the time of the filing of the Complaint is
attached hereto as Exhibit "2".

152 Hawai‘i at 328, 526 P.3d at 305 (brackets omitted).
The Yata court held that where the certification of
the note possession predated the filing of the complaint "by
nearly nine months," and where the McCloskey Declaration and
exhibit supporting note possession did "not explain where the
screenshots came from or how to interpret the screenshots[,]"

inference of continued possession based on the absence of evidence that the
Note had moved in the "26 months" before the Complaint was filed, does not
comply with this requirement.

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such evidence "did not establish Deutsche Bank's possession of
the [n]ote before or after it filed the [c]omplaint[.]" Id. at
336, 526 P.3d at 313.
Here, DB's certification of the Note possession
consisted of the Soberon Declaration, which was significantly
less detailed than the McCloskey Declaration deemed insufficient
in Yata. The Soberon Declaration also suffers the same
infirmity as the Yata declaration because it does not explain
how to interpret the screenshots in Exhibit "4." There is no
explanation as to how the screenshot showing a "Requested" and
"Completed" "Location of Note" on November 12, 2015, establishes
the required possession as of the January 9, 2018 Complaint
filing date. See Wells Fargo Bank, N.A., as Tr. for
Certificateholders of Soundview Home Loan Tr. 2007-OPT1, Asset-
Backed Certificates, Series 2007-OPT1 v. Flores, No. CAAP-22-
0000736, 2025 WL 662791, at *3 (Haw. App. Feb. 28, 2025) (SDO)
(concluding that standing was established where the declaration
explained the term "Location Move" as referencing "a change in
the physical storage location" of the note within Wells Fargo's
or its agent's control, in response to Flores's claim that the
two "Location Move" entries meant the Note was not in Wells
Fargo's possession during the time period between the dates of
those entries). The Soberon Declaration's statement that the
"11/12/2015" entry showing the Note location with SPS proved
that SBS had possession of the endorsed Note "and was in
possession of the Note at the time of the filing of the
[C]omplaint" is also conclusory in its claim of continued
possession spanning the "26 months" until the filing of the
Complaint. See U.S. Bank, N.A., Tr. to Lasalle Bank Nat'l Ass'n
v. Davis, No. CAAP-XX-XXXXXXX, 2023 WL 4264970, at *2 (Haw. App.
June 29, 2023) (SDO) (rejecting loan servicer's officer's

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declaration relying on an "unclear and unexplained" printout
that "merely allude[d] to U.S. Bank's counsel possessing the
[n]ote on March 9, 2015, and SPS possessing the [n]ote on March
13, 2015, nearly two years before the January 26, 2017
[c]omplaint"; and holding that the declaration's "vague
testimony" of possession at the time of the complaint and at the
time of her declaration was "conclusory" and "fail[ed] to
identify which entity possessed the [n]ote at which point in
time").
In Flores, supra, we held that standing was
established where the "Activity Report" for Flores's loan
"confirmed Wells Fargo's physical possession of the [n]ote from
February 14, 2007 until August 8, 2014[,]" which "included the
date, August 20, 2013, on which the [c]omplaint was filed."
2025 WL 662791, at *3. In this case, however, there was no
evidence of two separate dates of confirmed possession that
encompassed the filing date of the Complaint. Here, assuming
arguendo DB's evidence was admissible, DB established two dates
for possession of the Note –- "10/20/2014" and "11/12/2015" --
which were two to three years prior to the filing of the
Complaint. The November 12, 2015 evidence of Note possession
predated the filing of the Complaint in this case by
approximately "26 months," beyond the two years deemed
insufficient in Davis, and way beyond the nine months rejected
in Yata.
On this record, the evidence was insufficient to
establish the required possession as of January 9, 2018, when
the Complaint was filed, and the grant of summary judgment was
erroneous. See Mattos, 140 Hawai‘i at 30, 398 P.3d at 619. In
light of our conclusion that DB failed to establish its standing

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to sue for foreclosure, we need not reach the remaining point of
error.
For the foregoing reasons, we vacate the Circuit
Court's August 9, 2021 Judgment and Order Granting Summary
Judgment, and we remand to the Circuit Court for further
proceedings.
DATED: Honolulu, Hawai‘i, June 12, 2025.
On the briefs:
/s/ Katherine G. Leonard
Keith M. Kiuchi,
Acting Chief Judge
for Defendants-Appellants.
/s/ Karen T. Nakasone
Lisa K. Swartzfager,
Associate Judge
for Plaintiff-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge

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