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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-DEC-2025
07:49 AM
Dkt. 78 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

WELLS FARGO BANK, N.A. AS TRUSTEE FOR OPTION ONE
MORTGAGE LOAN TRUST 2006-2 ASSET-BACKED CERTIFICATES
SERIES 2006-2, Plaintiff-Appellee, v. JONATHAN BEHRENDT,
Defendant/Cross-Claimant-Appellant; ASSOCIATION OF APARTMENT
OWNERS OF WAIALAE GARDENS, Defendant/Cross-Claim Defendant-
Appellee; SAND CANYON CORPORATION, Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10, DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; DOE ENTITES 1-10; and DOE GOVERNMENTAL UNITS
1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC151000407)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and Wadsworth, JJ.)

Jonathan Behrendt appeals from the Judgment on Findings
of Fact, Conclusions of Law and Order Granting Plaintiff's Motion
for Summary Judgment and Decree of Foreclosure for Wells Fargo
Bank, N.A. entered by the Circuit Court of the First Circuit on
May 15, 2023.1 We affirm.
Wells Fargo sued Behrendt and others to foreclose a
mortgage on real property. The Circuit Court granted Wells
Fargo's motion for summary judgment and entered a foreclosure
judgment. Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai#i 37,

1
The Honorable Jeannette H. Castagnetti presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

40, 414 P.3d 89, 92 (2018). Behrendt appealed. Relevant to this
appeal, the supreme court held that Wells Fargo did not show it
was entitled to enforce the note when its complaint was filed.2
Id. at 46, 414 P.3d at 98. It vacated the foreclosure judgment
and remanded for further proceedings.
On remand, Wells Fargo again moved for summary
judgment. An order granting the motion and the Judgment were
entered on May 15, 2023. This appeal followed.
Behrendt states three points of error, which we have
reordered: (1) Wells Fargo did not prove through admissible
evidence it had the note on the date its complaint was filed;
(2) the Circuit Court erred by concluding that Wells Fargo had
standing to enforce the note; and (3) Juliana Thurab, whose
declaration authenticated documents supporting Wells Fargo's
motion for summary judgment, was not a qualified witness.
We review a grant of summary judgment de novo.
Behrendt, 142 Hawai#i at 41, 414 P.3d at 93. We review
conclusions of law de novo under the right/wrong standard. Id.
at 40-41, 414 P.3d at 92-93. A mixed finding of fact and
conclusion of law is reviewed under the clearly erroneous
standard because it depends on the facts and circumstances of the
case. Est. of Klink ex rel. Klink v. State, 113 Hawai#i 332,
351, 152 P.3d 504, 523 (2007). A mixed finding and conclusion
supported by substantial evidence and correctly applying the law
will not be overturned. Id.
(1) A foreclosing plaintiff must establish its
standing to enforce the note when the complaint was filed.
Behrendt, 142 Hawai#i at 41, 414 P.3d at 93.
Wells Fargo's complaint was filed on March 9, 2015.
Wells Fargo's counsel submitted a declaration stating he received

2
Wells Fargo had argued "its possession of the Note at the time the
action was initiated is in turn proven by the identical copy of the Note
attached to the complaint." Behrendt, 142 Hawai#i at 44, 414 P.3d at 96.

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the original note and allonges3 on November 13, 2014, giving the
UPS tracking number. He stated he is familiar with his law
firm's case management and record keeping systems and
operations.4 He authenticated his own business records showing
receipt of the original note on November 13, 2014, reflecting the
UPS tracking number. He stated he reviewed the original note and
allonges stored at his office on August 29, 2022. He
authenticated the copy of the note attached as Exhibit 2 to Wells
Fargo's motion for summary judgment, filed on September 2, 2022.
Wells Fargo submitted evidence it was the holder of the
note when its complaint was filed and when its motion for summary
judgment was filed. The burden then shifted to Behrendt to offer
"evidence setting forth specific facts showing that there is a
genuine issue as to whether the plaintiff actually possessed the
subject note at the time it filed suit." U.S. Bank Tr., N.A. v.
Verhagen, 149 Hawai#i 315, 328, 489 P.3d 419, 432 (2021)
(quotation marks omitted).
Behrendt offered no new evidence. He instead argued
that Wells Fargo didn't show the allonges were affixed to the
note consistent with Hawaii Revised Statutes § 490:3-204(a) ("For
the purpose of determining whether a signature is made on an
instrument, a paper affixed to the instrument is a part of the
instrument.").
In reply, Wells Fargo's counsel submitted another
declaration stating he examined the original note, and "the Note,
and three Allonges are firmly affixed by a staple as one set of
documents." On this record, we conclude there was no genuine
issue that Wells Fargo was entitled to enforce the note on the
date it filed its foreclosure complaint.

3
An allonge is a "paper sometimes attached to a negotiable
instrument for the purpose of receiving further indorsements when the original
paper is filled with indorsements." Behrendt, 142 Hawai#i at 39 n.1, 414 P.3d
at 91 n.1.
4
He is thus a "qualified witness" to authenticate his law firm's
own business records. U.S. Bank Tr., N.A. v. Verhagen, 149 Hawai#i 315,
321-22, 489 P.3d 419, 425-26 (2021).

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(2) The Circuit Court concluded that Wells Fargo
established its standing to enforce the Note as required
by the [c]ase of Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai#i
361, 390 P.3d 1248 (2017), and thereby to prosecute the
foreclosure action. This was a mixed finding and conclusion. It
was supported by uncontroverted evidence in the record and was
not clearly erroneous.
(3) Behrendt contends that Thurab was not a "qualified
witness" to authenticate the business records of Wells Fargo's
loan servicing agent, PHH Mortgage Corporation. We discuss this
point last because it does not implicate authentication of the
note; the note was authenticated by the declarations of Wells
Fargo's counsel discussed above.
It does, however, bear upon admissibility of the
records on which Wells Fargo relied to establish the borrower's
default and its entitlement to foreclose.

Incorporated records are admissible under [Hawaii Rules of
Evidence] Rule 803(b)(6) when a custodian or qualified
witness testifies that [1] the documents were incorporated
and kept in the normal course of business, [2] that the
incorporating business typically relies upon the accuracy of
the contents of the documents, and [3] the circumstances
otherwise indicate the trustworthiness of the document.

Verhagen, 149 Hawai#i at 325-26, 489 P.3d at 429-30 (emphasis
added) (quoting Behrendt, 142 Hawai#i at 45, 414 P.3d at 97).
Thurab did not have to show she was a "qualified
witness" because she was "custodian of PHH's records." Her
declaration established that PHH incorporated the records of the
prior loan servicer, Ocwen Loan Servicing, LLC, and kept them in
the ordinary course of PHH's business. It also stated that PHH
"validated [Ocwen's records] in many ways, including, but not
limited to, going through a due diligence phase, review of hard
copy documents, and review of the payment history and accounting
of other fees, costs, and expenses charged to the Loan by Prior
Servicer." That testimony established circumstances indicating

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the trustworthiness of the incorporated records. Verhagen, 149
Hawai#i at 326, 489 P.3d at 430.
Behrendt argues that Thurab's declaration did not
mention another prior loan servicer, American Home Mortgage
Servicing, Inc., which entered into a Security Retention
Agreement with the borrower in 2011. PHH became the loan
servicer in 2019. That, contends Behrendt, shows that PHH failed
to review all prior loan servicer's records.
Verhagen contains no such requirement; the current
servicer only has to show circumstances indicating
trustworthiness of the documents it incorporated from the
previous servicer. Thurab's declaration in fact authenticates
American Home's Security Retention Agreement as Exhibit 9 to
Wells Fargo's motion for summary judgment. That was an
additional circumstance indicating trustworthiness of the
documents PHH incorporated from Ocwen, which included documents
Ocwen incorporated from American Home.
The May 15, 2023 Judgment on Findings of Fact,
Conclusions of Law and Order Granting Plaintiff's Motion for
Summary Judgment and Decree of Foreclosure is affirmed.
DATED: Honolulu, Hawai#i, December 3, 2025.

On the briefs:
/s/ Karen T. Nakasone
Keith M. Kiuchi, Chief Judge
for Defendant/Cross-
Claimant-Appellant /s/ Keith K. Hiraoka
Jonathan Behrendt. Associate Judge

David A. Nakashima, /s/ Clyde J. Wadsworth
Jade Lynne Ching, Associate Judge
Michelle N. Comeau,
Ryan B. Kasten,
for Plaintiff-Appellee.