HSBC Bank USA v. McMillan

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2025
08:20 AM
Dkt. 58 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE OF
J.P. MORGAN ALTERNATIVE LOAN TRUST 2006-A7,
Plaintiff-Appellee,
v.
MARK ALLEN MCMILLAN, INDIVIDUALLY AND TRUSTEE FOR THE
MCMILLAN ESTATE TRUST, AN IRREVOCABLE TRUST ESTATE
DATED MARCH 13, 2011 also known as MARK ALLEN MCMILLAN,
TRUSTEE FOR THE MCMILLAN ESTATE TRUST,
Defendant-Appellant,
and
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS
NOMINEE FOR MORTGAGEIT, INC.; UNITED STATES OF AMERICA;
STATE OF HAWAII - DEPARTMENT OF TAXATION; EDWARD HAUSMAN;
LORRAINE SILVA-HAUSMAN; THE PRINCIPALITY OF ALOHA;
CROWN LAND ESTATE OF KAUIKEAOULI PROBATE ESTATE 2410
also known as THE CROWN ESTATE OF KING KAUIKEAOULI P-2410,
A ROYAL PROBATE TRUST ESTATE RECEIVED IN ACCOMMODATION
BY TRUSTEE, KAILINAMOIWALE PAIEA; INTERNATIONAL MONETARY FUND,
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 SECOND CIRCUIT
(CASE NO. 2CC171000387)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

Mark Allen McMillan, representing himself, appeals from
the February 16, 2022 Judgment for HSBC Bank USA, National
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Association, entered by the Circuit Court of the Second Circuit.1
We affirm.
HSBC filed a foreclosure complaint against McMillan and
others on September 13, 2017. The circuit court granted HSBC's
motion for summary judgment and interlocutory decree of
foreclosure on November 19, 2019. A Foreclosure Judgment was
entered on October 21, 2019.2 McMillan filed a notice of appeal
on November 27, 2019. We dismissed the appeal for lack of
jurisdiction because McMillan's notice of appeal was not filed
within 30 days after entry of the Foreclosure Judgment, as
required by Hawai#i Rules of Appellate Procedure Rule 4(a)(1).
HSBC Bank USA v. McMillan, No. CAAP-XX-XXXXXXX, 2020 WL 1903844
(Haw. App. Apr. 17, 2020) (order).
The circuit court entered an order granting HSBC's
motion to confirm the foreclosure sale on February 16, 2022. The
Judgment (Confirmation of Sale Judgment) was also entered on
February 16, 2022. This appeal followed.
McMillan's opening brief states a single point of
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error: "Whether the court erred to proceed with foreclosure
action without proof [HSBC] were in possession of the original
Note, upon filing the complaint." McMillan thus challenges
HSBC's standing to foreclose. See Bank of Am., N.A. v.
Reyes-Toledo, 139 Hawai#i 361, 368, 390 P.3d 1248, 1255 (2017)
(stating that "a foreclosing plaintiff must establish entitlement
to enforce the note at the time the action was commenced").
McMillan's appeal from the Foreclosure Judgment was
dismissed for lack of jurisdiction. The Foreclosure Judgment is
final and binding. HSBC's right to foreclose was finally decided

1
The Honorable Kelsey T. Kawano presided.
2
The Honorable Joseph E. Cardoza presided.
3
The opening brief doesn't comply with Hawai#i Rules of Appellate
Procedure Rule 28(b). To promote access to justice, pleadings prepared by
self-represented litigants are to be interpreted liberally. Erum v. Llego,
147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020). We don't foreclose
McMillan from appellate review because he failed to comply with court rules.

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

in its favor. Res judicata prevents McMillan from challenging
HSBC's standing to foreclose in this appeal from the Confirmation
of Sale Judgment. Mortg. Elec. Registration Sys., Inc. v. Wise,
130 Hawai#i 11, 17, 304 P.3d 1192, 1198 (2013).
McMillan makes no other argument why the Confirmation
of Sale Judgment should be vacated. The February 16, 2022
Judgment for HSBC is affirmed.
DATED: Honolulu, Hawai#i, January 31, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Mark Allen McMillan,
Self-represented /s/ Karen T. Nakasone
Defendant-Appellant. Associate Judge

Patricia J. McHenry, /s/ Sonja M.P. McCullen
Lisa K. Swartzfager, Associate Judge
for Plaintiff-Appellee
HSBC Bank, USA, National
Association, as Trustee of
J.P. Morgan Alternative Loan
Trust 2006-A7.

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