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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-OCT-2025
07:59 AM
Dkt. 63 SO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

CAAP-XX-XXXXXXX

WILMINGTON SAVINGS FUND SOCIETY, FSB,
DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR
PRETIUM MORTGAGE ACQUISITION TRUST, Plaintiff-Appellee,
v.
BROOKE JULIET CARLINA RIOPTA; AMBER MEGAN RIOPTA;
CASIE ANN RIOPTA, Defendants-Appellants,
COUNTY OF KAUAI-WASTEWATER MANAGEMENT, Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and
DOE GOVERNMENTAL UNITS 1-10, Defendants
and

CAAP-XX-XXXXXXX
WILMINGTON SAVINGS FUND SOCIETY, FSB,
DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR
PRETIUM MORTGAGE ACQUISITION TRUST, Plaintiff-Appellee,
v.
BROOKE JULIET CARLINA RIOPTA; AMBER MEGAN RIOPTA;
CASIE ANN RIOPTA, Defendants-Appellants,
COUNTY OF KAUAI-WASTEWATER MANAGEMENT, Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and
DOE GOVERNMENTAL UNITS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC111000358)
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SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)

These consolidated appeals, case nos. CAAP-XX-XXXXXXX

and CAAP-XX-XXXXXXX, arise out of a foreclosure action filed by

Citimortgage, Inc. (Citimortgage) against Defendants-Appellants

Brooke Juliet Carlina Riopta (Brooke), Amber Megan Riopta

(Amber), and Casie Ann Riopta (collectively, the Rioptas) in the

Circuit Court of the Fifth Circuit (circuit court).1

In case no. CAAP-XX-XXXXXXX (2022 Appeal), the Rioptas

appeal from the (1) "Findings of Fact [(FOFs)], Conclusions of

Law [(COLs),] and Order Granting Plaintiff[-Appellee Wilmington

Savings Fund Society, FSB, Doing Business as Christiana Trust,

not in its Individual Capacity, but Solely as Trustee for

Pretium Mortgage Acquisition Trust's (Wilmington)] Motion for

Summary Judgment Against All Defendants and for Interlocutory

Decree of Foreclosure" (Foreclosure Order), and (2) Judgment

regarding the Foreclosure Order (Foreclosure Judgment), both of

which were filed on March 23, 2022 in the circuit court. The

Rioptas raise five points of error, contending that the circuit

court erred: (1) when it ruled, in determining whether

Wilmington had possession of the Note, that the applicable date

was the date of the "First Amended Complaint for Mortgage

Foreclosure" (Amended Complaint), and not the date of the

1 The Honorable Kathleen N.A. Watanabe presided.

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complaint filed by Citimortgage in 2011 (2011 Complaint); (2)

when it granted Wilmington's January 2022 motion for summary

judgment (2022 MSJ); (3) in making FOFs 4 and 6;2 (4) in making

COLs 4 and 8; and (5) when it granted Wilmington's motion for

leave to file its Amended Complaint.

In case no. CAAP-XX-XXXXXXX (2023 Appeal), the Rioptas

appeal from the (1) "Order Confirming Foreclosure Sale,

Approving Commissioner's Report, Allowance of Commissioner's

Fees, Attorney's Fees, Costs, Directing Conveyance and for Writ

of Ejectment" (Confirmation Order), and (2) Judgment regarding

the Confirmation Order (Confirmation Judgment), both of which

were filed on February 10, 2023 in the circuit court. The

Rioptas raise two points of error, contending that the circuit

court erred in finding that: (1) the sale was legally made,

fairly conducted, and the highest price obtained under the

circumstances; and (2) no objections were filed or made to the

Commissioner's Report because the Rioptas did object to the

Commissioner's Report.

Upon careful review of the record and relevant legal

authorities, and having given due consideration to the arguments

2 We note that a circuit court deciding a motion for summary
judgment does not make FOFs. We therefore apply the summary judgment
standard herein and, where appropriate, we consider the circuit court's FOFs
to be statements of the uncontroverted facts.

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advanced and the issues raised by the parties, we resolve the

Rioptas' points of error as follows3:

I. The Rioptas' 2022 Appeal

(1) The Rioptas contend that the circuit court erred

in granting leave for Wilmington to file an amended complaint

because: (1) Wilmington gave conflicting and false reasons for

requesting leave to amend its complaint; and (2) the circuit

court granted the motion before the Rioptas could obtain new

counsel.

The Rioptas did not file an opposition to Wilmington's

motion for leave to amend the complaint or request an extension

to file their opposition. "Legal issues not raised in the trial

court are ordinarily deemed waived on appeal." Ass'n of

Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi

97, 107, 58 P.3d 608, 618 (2002) (citations omitted). We

therefore decline to address this contention.4

(2) The Rioptas contend that the circuit court erred

in granting Wilmington's 2022 MSJ because Wilmington established

3 For purposes of our analysis, we consolidate and renumber the
Rioptas' points of error and arguments herein to the extent it makes sense to
do so.

4 The Rioptas, moreover, do not explain how the circuit court erred
in granting the motion before the Rioptas could obtain new counsel. See
Exotics Haw.-Kona, Inc. v. E.I. du Pont de Nemours & Co., 116 Hawaiʻi 277,
288, 172 P.3d 1021, 1032 (2007) (noting that the appellate courts are "not
obliged to address matters for which the appellants have failed to present
discernible arguments") (citations omitted).

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it had standing at the time the Amended Complaint was filed,

rather than at the time the 2011 Complaint was filed. We review

the circuit court's grant of summary judgment de novo and apply

the following standard:

[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories[,] and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of
law. A fact is material if proof of that fact would have
the effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.

Ralston v. Yim, 129 Hawaiʻi 46, 55-56, 292 P.3d 1276, 1285-86

(2013) (citation omitted).

A foreclosing plaintiff must establish standing at the

commencement of the foreclosure action. Bank of Am., N.A. v.

Reyes-Toledo, 139 Hawaiʻi 361, 368, 390 P.3d 1248, 1255 (2017).

"[A]n action cannot be maintained if it is prematurely commenced

before the accrual of the cause of action which is sought to be

enforced." Hanalei, BRC Inc. v. Porter, 7 Haw. App. 304, 310,

760 P.2d 676, 680 (App. 1988). "However, the error or defect of

premature commencement may be cured by filing an amended or

supplemental complaint after the cause of action has accrued,

unless the amended complaint states a different cause of

action." Id. (cleaned up); see also US Bank Nat'l Ass'n v.

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Swink, No. CAAP-XX-XXXXXXX, 2025 WL 2093151, at *2 (Haw. App.

July 25, 2025) (SDO).

We therefore conclude that the circuit court was not

wrong in allowing Wilmington to establish that it had standing

at the time of the Amended Complaint.

(3) The Rioptas contend that there is a genuine issue

of material fact as to the authenticity of the Note.5 Wilmington

asserts it submitted a copy of the Note and Note Allonge

pursuant to Hawaii Rules of Evidence (HRE) Rule 901(b)(1).

"[C]opies of [a n]ote . . . are not self-

authenticating commercial paper," but they are still admissible

"if there is evidence sufficient to support a finding that they

are what [the proponent of the note] claims [them to be]." U.S.

Bank Tr., N.A. v. Verhagen, 149 Hawaiʻi 315, 325, 489 P.3d 419,

429 (2021) (cleaned up). "Testimony of a witness with personal

5 The Rioptas also contend the circuit court erred because neither
Wilmington nor Citimortgage had possession of the Note when the 2011
Complaint was filed, and, therefore, Wilmington did not have standing. The
Rioptas further contend that because the Note was endorsed after the 2011
Complaint was filed, Wilmington has not established that it "held" the Note
at the time of filing. Because we concluded supra that Wilmington can
establish standing at the time the Amended Complaint was filed, we need not
address these contentions.

We also decline to address the Rioptas' contention that the
original mortgagee, ABN AMRO Mortgage Group, Inc. (ABN AMRO), violated the
Truth in Lending Act when it failed to provide the Rioptas with "completed"
copies of the Notice of Right to Cancel. The Rioptas did not raise this
issue in their opposition to Wilmington's 2022 MSJ, and therefore this
contention is waived. See Ass'n of Apartment Owners of Wailea Elua, 100
Hawaiʻi at 107, 58 P.3d at 618.

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knowledge of a document may establish the foundation necessary

for its admission." Id. (citing HRE Rule 901(b)(1)).

The "Declaration of Indebtedness and on Prior Business

Records" (Declaration), by Watson Dixon (Dixon), established an

adequate foundation to admit a copy of the Note and Note

Allonge. Dixon declared under penalty of perjury that a true

and correct copy of the Note and Note Allonge, which he had

reviewed, were attached to the 2022 MSJ.6 Therefore, the Note

6 The Declaration states, in relevant part:

1. I am authorized to sign this Declaration on behalf
of [Wilmington] as an authorized signer of Selene Finance
LP [(Selene)], which is [Wilmington's] servicing agent for
the subject loan ("the loan").

. . . .

4. The information in this Declaration is taken from
Selene's business records. I have personal knowledge of
Selene's procedures for creating these records. They are:
(a) made at or near the time of the occurrence of the
matters recorded by persons with knowledge of the
information in the business record, or from information
transmitted by persons with knowledge; (b) kept in the
course of Selene's regularly conducted business activities;
and (c) created by Selene as a regular practice.

5. On or about 03/05/2007, [Brooke and Amber], for
value received, duly made and executed a Note ("Note") in
the amount of $367,500.00. A true and correct copy of the
Note, which I have reviewed, is attached as Exhibit "1" and
is incorporated herein by reference. [Wilmington], by and
through its counsel, has possession of the Note with
standing to prosecute the instant action and the right to
foreclose the subject Mortgage. The original Note has been
specially indorsed to [Wilmington].

6. The Note contains a Note Allonge ("Allonge") by
which the Note is specially indorsed to [Wilmington]. The
original Allonge was executed, affixed to the original
Note, and has been made a part of the original Note. A
true and correct copy of the Allonge, which I have

(continued . . .)

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and Note Allonge were admissible as copies of a promissory note

pursuant to HRE Rule 901(b)(1). See Verhagen, 149 Hawaiʻi at

325, 489 P.3d at 429.

Next, the Rioptas contend that there is a question as

to the authenticity of the Note and Note Allonge because the

"original" Note was the note attached to the 2011 Complaint,

which "had no endorsement and thus had no allonge."

Hawaii Revised Statutes (HRS) § 490:3-308 (2008)

states, in relevant part, that:

In an action with respect to an instrument, the
authenticity of, and authority to make, each signature on
the instrument is admitted unless specifically denied in
the pleadings. If the validity of a signature is denied in
the pleadings, the burden of establishing validity is on
the person claiming validity, but the signature is presumed
to be authentic and authorized[.]

(Emphasis added.)

The Rioptas specifically denied the authenticity of

"any signature on any Note" in their answer to the Amended

Complaint. The record reflects that there were two different

versions of the Note that were submitted. The Note attached to

the 2011 Complaint and Citimortgage's 2012 motion for summary

judgment did not include any indorsements. The Note attached to

6(. . .continued)

reviewed, is attached as the last page of Exhibit "1" and
is incorporated herein by reference.

(Emphasis added.)

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Wilmington's 2016 motion for summary judgment and 2022 MSJ

included an indorsement from ABN AMRO to Pretium Mortgage Credit

Partners I Loan Acquisition, LP (Pretium Mortgage), and a Note

Allonge with an indorsement to Wilmington.

The Rioptas, however, did not introduce any evidence

that would support their contention that the indorsements to

Pretium Mortgage and Wilmington were not authentic.

"[S]ignature[s] [are] presumed to be authentic and

authorized[.]" HRS § 490:3-308(a); see HRS § 490:1-206 (2008)

("Whenever this chapter . . . provides that a fact is

'presumed', the trier of fact shall find the existence of the

fact unless evidence is introduced that supports a finding of

its nonexistence.")

Therefore, the Rioptas have not demonstrated that

there is a genuine issue of material fact as to the authenticity

of the Note on this basis. See Hawaiʻi Rules of Civil Procedure

Rule 56(e) ("[A]n adverse party may not rest upon the mere

allegations or denials of the adverse party's pleading, but the

adverse party's response . . . must set forth specific facts

showing that there is a genuine issue for trial.")

Finally, the Rioptas contend that Wilmington did not

prove that the Note Allonge was "affixed" to the Note. "Whether

a separate, unattached indorsement page can constitute a proper

indorsement of a negotiable instrument is a question of state

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law." Adams v. Madison Realty & Dev., Inc., 853 F.2d 163, 165-

66 (3d Cir. 1988). HRS § 490:3-204(a) (2008) defines

"[i]ndorsement" and provides that:

"Indorsement" means a signature, other than that of a
signer as maker, drawer, or acceptor, that alone or
accompanied by other words is made on an instrument for the
purpose of (i) negotiating the instrument, (ii) restricting
payment of the instrument, or (iii) incurring indorser's
liability on the instrument, but regardless of the intent
of the signer, a signature and its accompanying words is an
indorsement unless the accompanying words, the terms of the
instrument, place of the signature, or other circumstances
unambiguously indicate that the signature was made for a
purpose other than indorsement. For the purpose of
determining whether a signature is made on an instrument, a
paper affixed[7] to the instrument is a part of the
instrument.

(Emphasis added.)

Here, the indorsement to Wilmington was made on an

allonge, which is "a slip of paper sometimes attached to a

negotiable instrument for the purpose of receiving further

indorsements when the original paper is filled with

indorsements."8 U.S. Bank N.A. v. Mattos, 140 Hawaiʻi 26, 29

n.4, 398 P.3d 615, 618 n.4 (2017) (citation omitted). The Note

Allonge correctly identifies Brooke and Amber as the borrowers,

and accurately states the property address and the loan amount.

See Marts v. U.S. Bank Nat'l Ass'n, 166 F.Supp.3d 1204, 1210

7 The plain language of the statute does not expressly state how to
determine whether a paper is "affixed" to an instrument, thereby making it a
part of the instrument. See HRS § 490:3-204(a). HRS Chapter 490 does not
define "affix" or "affixed." See HRS §§ 490:1-201 (2008), 490:3-103 (2008).

8 "[A]n allonge is part of the instrument, and is valid even if the
instrument has enough space to hold additional endorsements." Thompson v.
Bank of Am., N.A., 773 F.3d 741, 747 n.1 (6th Cir. 2014) (internal quotation
marks omitted).

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(W.D. Wash. 2016) (noting that other jurisdictions have found

"that evidence of intent to affix the allonge to the note is

sufficient to establish a valid endorsement") (cleaned up).

Moreover, the Note Allonge states that "[f]or the

purpose of endorsement of the attached Note, this [Note] Allonge

is affixed and becomes a permanent part of said Note." See Wane

v. Loan Corp., 552 F. App'x 908, 914 (11th Cir. 2014) (noting

that the record did not support the contention that the allonge

was not properly affixed to the promissory note where "[t]he

allonge itself purported to be affixed to the note, such that it

became a part of it").

The Rioptas did not set forth specific facts to

support their contention that the Note Allonge was not affixed

to the Note. See Ralston, 129 Hawaiʻi at 56-57, 292 P.3d at

1286-87 ("[W]hen the moving party satisfies its initial burden

of production[,] . . . the burden shift[s] to the nonmoving

party to respond to the motion for summary judgment and

demonstrate specific facts, as opposed to general allegations,

that present a genuine issue worthy of trial.") (citation

omitted). Based on the evidence presented by Wilmington, and

absent circumstances suggesting otherwise, the circuit court did

not err in treating the Note Allonge as a valid indorsement.

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For the foregoing reasons, we conclude the circuit

court was not wrong in granting summary judgment in favor of

Wilmington.

(4) The Rioptas contend that the circuit court erred

in finding that ABN AMRO merged with Citimortgage because this

court previously stated, in its June 12, 2018 Summary

Disposition Order (2018 SDO), that there was no admissible

evidence establishing "that Citimortgage was entitled to

foreclose because it had merged with ABN AMRO . . . or any

alternative basis for Citimortgage's right to foreclose under

the Note when the [2011] Complaint was filed."9

Wilmington's 2022 MSJ included Citimortgage's

"Petition for Order Regarding Merger" and "Certificate of Merger

of [ABN AMRO] into Citimortgage." The Rioptas did not challenge

the admissibility of these documents during the 2022 MSJ

proceedings. Moreover, the Rioptas do not explain how this

evidence was not admissible. Therefore, we determine, on this

record, that the Rioptas' contention lacks merit.

9 It appears that the court, in its 2018 SDO, concluded that there
was no admissible evidence establishing Citimortgage's right to foreclose,
and not necessarily that there was no admissible evidence establishing ABN
AMRO's merger with Citimortgage. See Wilmington Sav. Fund Soc'y, FSB v.
Riopta, No. CAAP-XX-XXXXXXX, 2018 WL 2928182, at *2 (Haw. App. June 12, 2018)
(SDO).

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II. The Rioptas' 2023 Appeal

(1) The Rioptas contend that the appropriate standard

for the circuit court to apply when evaluating the foreclosure

sale price is "whether the sale price is fair and reasonable,"

or whether "fair and reasonable means" were used to obtain the

best sale price. (Internal quotation marks omitted.) The "fair

and reasonable" standard applies to non-judicial foreclosures.

See Hungate v. Law Off. of David B. Rosen, 139 Hawaiʻi 394, 408-

09, 391 P.3d 1, 15-16 (2017), abrogated on other grounds by,

State ex rel. Shikada v. Bristol-Myers Squibb Co., 152 Hawaiʻi

418, 526 P.3d 395 (2023). Therefore, this contention lacks

merit.

The Rioptas further contend that the circuit court

erred in confirming the sale and finding that the sale of the

subject property was the highest price that could be obtained

under the circumstances. We review the circuit court's decision

to confirm a judicial sale for abuse of discretion. Hoge v.

Kane, 4 Haw. App. 533, 540, 670 P.2d 36, 40 (App. 1983).

The circuit court is expected to "act in the interest

of fairness and prudence and with just regard for the rights of

all concerned and the stability of judicial sales." Id.

(citation omitted). The circuit court must not confirm the sale

"[i]f the highest bid is so grossly inadequate as to shock the

conscience." Id. (emphasis added) (citation omitted); see also

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HawaiiUSA Fed. Credit Union v. Monalim, 147 Hawaiʻi 33, 45, 464

P.3d 821, 833 (2020) (observing that "the price obtained at a

foreclosure sale is often far below the fair market value of the

property as a result of the forced nature of a foreclosure

sale") (citations omitted).

The record reflects that the Rioptas, Wilmington, and

the Commissioner signed a "Stipulation to Sell Property Without

Open Houses," in which the Rioptas acknowledged that "the sale

of the [subject p]roperty without open houses may result in a

lower sale price at the public or private sale." The

Commissioner's Report reflects that Wilmington was the only

bidder, and Wilmington bid $590,000. The Commissioner

acknowledged that the sale price was "a touch low in a moving

market," but that "it [was] likely a fair one given the market

direction [was] downward."10

We therefore conclude, on this record, that the

circuit court did not abuse its discretion in confirming the

sale of the subject property at the price obtained.

10 The Rioptas also contend that Wilmington "bid over $100,000 below
what they were owed" and that "[t]he court[] should not allow the lender to
play games like this, unless the lender affirmatively states that they will
not seek a deficiency judgment." However, Wilmington's Amended Complaint
states that, under the amended claim, "it is not entitled to a deficiency
judgment in the event the foreclosure sale proceeds are insufficient to fully
discharge and satisfy [Wilmington's] total debt."

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(2) The Rioptas contend that the circuit court erred

in determining that "no objections have been filed or made to

the Commissioner's Report." The record reflects that the

Rioptas did not file a separate objection to the Commissioner's

Report. Therefore, the Rioptas' contention lacks merit.

For the foregoing reasons, we affirm the Foreclosure

Order, Foreclosure Judgment, Confirmation Order, and

Confirmation Judgment.

DATED: Honolulu, Hawaiʻi, October 9, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Keith M. Kiuchi,
for Defendants-Appellants. /s/ Sonja M.P. McCullen
Associate Judge
Charles R. Prather,
for Plaintiff-Appellee. /s/ Kimberly T. Guidry
Associate Judge