The Bank of New York Mellon v. Whittington

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JUN-2026
07:50 AM
Dkt. 66 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK,
SUCCESSOR INDENTURE TRUSTEE TO JPMORGAN CHASE BANK,
N.A. AS INDENTURE TRUSTEE ON BEHALF OF THE NOTEHOLDERS
OF THE CWHEQ INC., CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 2005-K, Plaintiff-Appellee,
v.
JEFFREY ALAN WHITTINGTON, DARYL JEAN KATSUKO WHITTINGTON,
Defendants-Appellants
and
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK
AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC.,
CHL MORTGAGE PASS-THROUGH TRUST 2005-24, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-24; QUEEN'S GATE COMMUNITY ASSOCIATION,
QUEEN'S POINT COMMUNITY ASSOCIATION, Defendants-Appellees
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.

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

JUNE 19, 2026

NAKASONE, CHIEF JUDGE, AND WADSWORTH AND GUIDRY, JJ.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

OPINION OF THE COURT BY WADSWORTH, J.

This appeal stems from a foreclosure action on a second
mortgage securing a home equity line of credit agreement (HELOC).
The Circuit Court of the First Circuit1/ (Circuit Court) entered
summary judgment and a foreclosure decree in favor of Plaintiff-
Appellee The Bank of New York Mellon fka the Bank of New York,
Successor Indenture Trustee to JPMorgan Chase Bank, N.A., as
Indenture Trustee on Behalf of the Noteholders of The CWHEQ Inc.,
CWHEQ Revolving Home Equity Loan Trust, Series 2005-K (BONYM)
against self-represented Defendants-Appellants Daryl Jean Katsuko
Whittington (Daryl) and Jeffrey Alan Whittington (Jeffrey)
(together, the Whittingtons) and other defendants.
The Whittingtons appeal from the Circuit Court's: (1)
June 26, 2024 Judgment on Findings of Fact, Conclusions of Law
and Order Granting [BONYM]'s Motion for Default Judgment and
Summary Judgment and Decree of Foreclosure Against All Defendants
on Complaint Filed February 27, 2023 (Judgment); and (2)
August 23, 2024 Order Denying [the Whittingtons'] Notice and
Motion for New Trial, Filed April 1, 2024. See Hawai#i Rules of
Appellate Procedure (HRAP) Rule 4(a)(3). The Whittingtons also
challenge the Circuit Court's June 26, 2024 Findings of Fact,
Conclusions of Law and Order Granting [BONYM]'s Motion for
Default Judgment and Summary Judgment and Decree of Foreclosure
Against All Defendants on Complaint Filed February 27, 2023
(Foreclosure Decree).2/

1/
The Honorable James H. Ashford presided.
2/
Daryl's opening brief states that Jeffrey died on September 5,
2024, after the notice of appeal was filed. Although she purports to submit
the brief for herself and Jeffrey, she cannot speak for Jeffrey or his estate
absent compliance with HRAP Rule 43(a), which provides for substitution of a
party who dies pending appeal.
On May 21, 2026, this court issued an Order providing, among other
things, that within ten days, "any party or a personal representative of
Jeffrey may file a statement advising this court whether a personal
representative has been appointed and, if so, whether that person wishes to
substitute into this case[,]" pursuant to HRAP Rule 43(a). The Order also
required the parties to file a statement as to whether the appeal is moot as
to Jeffrey. BONYM filed a statement indicating that if any substitution
should be made, Daryl should be substituted for Jeffrey, but that the appeal
is moot as to Jeffrey. Daryl did not respond to the Order. Because we
conclude that the appeal is moot as to Jeffrey (see infra), we further
conclude that no substitution is necessary.

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On appeal, Daryl contends that the Circuit Court erred
in granting BONYM's January 29, 2024 motion for default and
summary judgment (MSJ) because: (1) the subject HELOC was not a
negotiable instrument as defined by Hawaii Revised Statutes (HRS)
§ 490:3-104 and therefore not transferable by endorsement;3/ and
(2) "the [Circuit] Court agreed that it was in dispute that . . .
the Note was properly endorsed[.]"4/
We hold that the HELOC was not a negotiable instrument
under HRS § 490:3-104 because it did not contain an unconditional
promise to pay "a fixed amount of money." HRS § 490:3-104(a).
Because the HELOC was not a negotiable instrument, BONYM could

3/
During the relevant time period, HRS § 490:3-104 (2008) stated, in
pertinent part:
Negotiable instrument. (a) Except as provided in
subsections (c) and (d), "negotiable instrument" means an
unconditional promise or order to pay a fixed amount of
money, with or without interest or other charges described
in the promise or order, if it:
(1) Is payable to bearer or to order at the time it
is issued or first comes into possession of a
holder;

(2) Is payable on demand or at a definite time; and

(3) Does not state any other undertaking or
instruction by the person promising or ordering
payment to do any act in addition to the payment
of money, but the promise or order may contain:

(A) An undertaking or power to give, maintain, or
protect collateral to secure payment;
(B) An authorization or power to the holder to
confess judgment or realize on or dispose of
collateral;

(C) A waiver of the benefit of any law intended for
the advantage or protection of an obligor.
(b) "Instrument" means a negotiable instrument.
4/
Daryl's first point of error has been restated for clarity. The
opening brief fails to comply in certain respects with HRAP Rule 28(b). In
particular, Daryl fails to provide a statement of "where in the record the
alleged error[s were] objected to or the manner in which the alleged error[s
were] brought to the attention of the court," as required by HRAP Rule
28(b)(4)(iii). In addition, Daryl's argument is cursory and somewhat
difficult to discern. HRAP Rule 28(b)(7). Nevertheless, Hawai #i appellate
courts have "consistently adhered to the policy of affording litigants the
opportunity 'to have their cases heard on the merits, where possible.'"
Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012) (quoting
Morgan v. Plan. Dep't, Cnty. of Kauai, 104 Hawai #i 173, 180–81, 86 P.3d 982,
989–90 (2004)). We thus address Daryl's arguments to the extent discernible.

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not enforce it under HRS § 490:3-3015/ as a "holder," based on
possession of the HELOC, endorsed in blank. Enforcement rights
in a nonnegotiable instrument such as the HELOC may be
transferred by written assignment. This means that the mere
possession of the instrument endorsed in blank does not
necessarily indicate that the possessor has authority to enforce
it. Accordingly, BONYM did not establish its standing to enforce
the HELOC merely by showing it possessed the HELOC, endorsed in
blank, at the time it filed the foreclosure complaint. Summary
judgment was granted in error.
We therefore vacate the Judgment.

I. Background

Based on the parties' respective summary judgment
submissions, the following facts appear to be uncontroverted.
Daryl executed the HELOC dated September 30, 2005, and
delivered it to First Magnus Financial Corporation (FMFC). The
HELOC provided a line of credit that allowed Daryl to make draws
or "loans" of varying amounts up to a $200,000 credit limit, and
obligated Daryl to pay to FMFC's order whatever she borrowed,
plus interest. The HELOC further provided: "[FMFC] may transfer
and assign [its] rights and obligations under this Agreement and
the Mortgage at any time without [Daryl's] consent."
The HELOC was secured by a second mortgage (Mortgage)
dated September 30, 2005, and recorded in the Bureau of
Conveyances on October 6, 2005, on certain real property in
Honolulu owned by the Whittingtons (Property). The Mortgage was

5/
During the relevant time period, HRS § 490:3-301 (2008) stated, in
pertinent part:
Person entitled to enforce instrument. "Person
entitled to enforce" an instrument means (i) the holder of
the instrument, (ii) a nonholder in possession of the
instrument who has the rights of a holder, or (iii) a person
not in possession of the instrument who is entitled to
enforce the instrument pursuant to section 490:3-309 or
490:3-418(d).
As relevant here, under HRS § 490:1-201(b) (2008), "'[h]older'
means . . . [t]he person in possession of a negotiable instrument that is
payable either to bearer or to an identified person that is the person in
possession[.]" (Formatting altered.)

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executed by Daryl and Jeffrey and given to Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for FMFC, and
FMFC's "successors and assigns[.]"
At some later time, FMFC endorsed the HELOC by means of
an endorsement stamp "pay to the order of" Countrywide Bank,
N.A., which then endorsed the HELOC by means of an endorsement
stamp "pay to the order of" Countrywide Home Loans Inc. (CHLI).
CHLI then endorsed the HELOC by means of an endorsement stamp "in
blank."
The Mortgage was assigned twice via a written
assignment. First, by an Assignment of Mortgage dated August 28,
2013 (2013 Assignment), MERS as nominee for FMFC assigned "all
its right, title, and interest in and to" the Mortgage to The
Bank of New York Mellon FKA The Bank of New York, as Successor
Trustee to JPMorgan Chase Bank, N.A., as Trustee on behalf of the
Certificateholders of the CWHEQ Inc., CWHEQ Revolving Home Equity
Loan Trust, Series 2005-K (2013 Assignee). The 2013 Assignment
was recorded in the Bureau of Conveyances on September 30, 2013.
Second, by an Assignment of Mortgage dated June 27, 2022 (2022
Assignment), the 2013 Assignee assigned the Mortgage "with all
the right, title and interest of the [2013 Assignee] in and to
the [P]roperty" to BONYM. The 2022 Assignment was recorded in
the Bureau of Conveyances on December 14, 2022.
Meanwhile, the Whittingtons conveyed the Property to
Daryl as tenant in severalty by a Quitclaim Deed dated August 27,
2008, and recorded in the Bureau of Conveyances on the same date.
After Daryl defaulted on the HELOC and written notice
was given, on February 27, 2023, BONYM filed a foreclosure
complaint (Complaint) against Daryl, Jeffrey and others who may
have had an interest in the Property.
On January 29, 2024, BONYM filed the MSJ. BONYM argued
that it had standing to enforce the HELOC under HRS § 490:3-301
because it was the holder of the HELOC, which was endorsed in
blank, and was in possession of the HELOC when the Complaint was
filed.
On February 22, 2024, the Whittingtons filed their
opposition to the MSJ. They argued in part that the HELOC was

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not a negotiable instrument as defined by HRS § 490:3-104, the
HELOC "could not be legally endorsed in blank or to BONYM[,]" and
therefore BONYM had not established its standing to enforce the
HELOC.
Following a March 6, 2024 hearing, the Circuit Court
granted the MSJ. The court reasoned in part:

While Defendants are correct that the HELOC is not a
negotiable instrument as defined by [HRS] § 490:3-104, the
Court disagrees with Defendants' contention that Plaintiffs
are without standing to foreclose. The Court is unaware of
any Hawai#i case law concluding that a non-negotiable
instrument cannot also be transferred by means of an in
blank or special endorsement as was done here. The Court
finds as a matter of law that a lender has standing, and is
entitled to foreclose, if the HELOC (1) has a special or in
blank endorsement, (2) was delivered, and (3) the lender has
possession.

On this basis, the court found there was no genuine issue of
material fact as to BONYM's standing to foreclose. The court
subsequently entered the Foreclosure Decree and the Judgment.

II. Discussion

A. Mootness as to Jeffrey
We first address BONYM's contention that this appeal is
moot as to Jeffrey. BONYM argues that this is so because: (1)
"[f]oreclosure is an 'in rem' proceeding, and Jeffrey was not a
signator to the [HELOC]"; (2) "[t]he Foreclosure [Decree] . . .
confirms the conveyance of the mortgaged property to Daryl, as
tenant in severalty"; and (3) "Jeffrey was dismissed from the
foreclosure proceeding effective May 9, 2025, pursuant to [the
Circuit Court's order at] Dkt. 170."6/
"A case is moot if it has lost its character as a
present, live controversy of the kind that must exist if courts
are to avoid advisory opinions on abstract propositions of law."
Civil Beat Law Ctr. for the Pub. Interest, Inc. v. City & Cnty.
of Honolulu, 144 Hawai#i 466, 476, 445 P.3d 47, 57 (2019)

6/
BONYM is referring to the Circuit Court's May 9, 2025 Order
Granting [BONYM's] Motion for Partial Dismissal Without Prejudice of [BONYM's]
Complaint Filed February 27, 2023 and Vacate Findings of Fact, Conclusions of
Law and Order Granting [BONYM's] Motion for Default Judgment and Summary
Judgment and Decree of Foreclosure Against All Defendants on Complaint Filed
February 27, 2023, Filed June 26, 2024, as to . . . Jeffrey . . . (Partial
Dismissal Order).

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(quoting Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d
696, 726 (2007)). In other words, "a case is moot if the
reviewing court can no longer grant effective relief."
Kaho#ohanohano, 114 Hawai#i at 332, 162 P.3d at 726 (emphasis and
brackets omitted) (quoting Kemp v. State of Hawai#i Child Support
Enf't Agency, 111 Hawai#i 367, 385, 141 P.3d 1014, 1032 (2006)).
We take judicial notice of the Partial Dismissal
Order, which vacated the Foreclosure Decree and dismissed the
Complaint as to Jeffrey. It appears, therefore, that the
Judgment as to Jeffrey, which was based on the Complaint and the
Foreclosure Decree, has been rendered void as to Jeffrey, and we
construe BONYM's mootness argument to acknowledge as much. In
this situation, we can no longer grant effective relief to
Jeffrey (or his estate), and we thus conclude that the appeal is
moot as to him.

B. Summary Judgment As Against Daryl
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). A foreclosing plaintiff must establish its standing to
enforce the underlying debt obligation when the complaint was
filed. See Bank of America, N.A. v. Reyes-Toledo, 139 Hawai#i
361, 368, 390 P.3d 1248, 1255 (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."). Where the debt obligation is a negotiable
instrument, a person entitled to enforce it includes the
"holder," defined in relevant part as "[t]he person in possession
of a negotiable instrument that is payable either to bearer or to
an identified person that is the person in possession[.]" HRS
§§ 490:1-201(b), :3-301. To be "negotiable," an instrument must,
among other things, contain "an unconditional promise or order to
pay a fixed amount of money, with or without interest . . . [.]"
§ 490:3-104 (emphasis added).
Here, on its face, the HELOC does not contain an
unconditional promise to pay a fixed amount of money. Rather, it
provides a line of credit that allowed Daryl to make draws or

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"loans" of varying amounts up to the credit limit, and obligated
Daryl to pay whatever she borrowed, plus interest. The HELOC
therefore did not meet the definition of a negotiable instrument
under HRS § 490:3-104, such that the right to enforce it could
pass through possession.7/ BONYM was not a "holder" of the HELOC
when it filed the Complaint.
The Circuit Court similarly concluded that the HELOC
was not a negotiable instrument as defined by HRS § 490:3-104.
Nevertheless, the court "disagree[d] with [the Whittingtons']
contention that [BONYM is] without standing to foreclose[,]"
because the court was "unaware of any Hawai#i case law concluding
that a non-negotiable instrument cannot also be transferred by
means of an in blank or special endorsement as was done here."
The court concluded that BONYM had established its standing as a
matter of law. On appeal, BONYM echoes this conclusion.8/
The problem with this reasoning is that it provides no
legal basis for BONYM to enforce the HELOC against Daryl, as it
cannot enforce the agreement under HRS § 490:3-301 as a "holder,"
based on possession of a nonnegotiable instrument endorsed in
blank. And Hawai#i case law does not resolve the enforcement
issue in these circumstances. In other jurisdictions, the
majority common law view is that it is possible to transfer the
right to enforce a nonnegotiable note by endorsement and
delivery. See Marquez Vargas, 589 P.3d at 301 (citing Dale A.
Whitman, Transferring Nonnegotiable Mortgage Notes, 11 Fla. A&M

7/
"The majority of jurisdictions to consider the issue have come to
the same conclusion: credit line agreements, including HELOC agreements, are
not negotiable instruments because they do not contain an unconditional
promise to pay a fixed amount of money and instead require reference to
separate documents to determine the principal amount borrowed." Marquez
Vargas v. RRA CP Opportunity Trust 1, 589 P.3d 281, 292 & n.10 (Wash. Apr. 30,
2026) (collecting cases).
8/
BONYM also argues that the HELOC became payable in a fixed amount
in June 2020, after the draw period ended, Daryl ceased making payments, and
the holder's servicer declared all sums owing due and payable. Even if the
latter event could have transformed the HELOC into a negotiable instrument,
BONYM has not pointed to any evidence in the record showing that the event
occurred prior to endorsement and delivery of the HELOC. See Marquez Vargas,
589 P.3d at 294 ("The fact that an agreement provides that the principal will
become fixed at a future date fails to satisfy the 'fixed amount of money'
requirement.").

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U. L. Rev. 63, 97-98 & nn.143-44 (2015) (collecting cases)).9/
But the majority view also permits transfer of enforcement rights
in a nonnegotiable note by written assignment without delivery.
See id. (discussing majority view); Whitman, supra, at 97-98 &
n.146 (stating that "a substantial majority" of jurisdictions
"recognize the validity of a transfer [of enforcement rights] by
a separate document of assignment, without indorsement or
delivery of the note itself") (collecting cases). This view is
consistent with Hawai#i law, and we are inclined to follow it.
See Fireman's Fund Ins. Co. v. AIG Hawai#i Ins. Co., 109 Hawai#i
343, 349, 126 P.3d 386, 392 (2006) ("[A]n assignment operates to
place the assignee in the shoes of the assignor, and provides the
assignee with the same legal rights as the assignor had before
assignment."); Wohlschlegel v. Uhlmann–Kihei, Inc., 4 Haw. App.
123, 135, 662 P.2d 505, 514 (1983) (beneficial rights under an
executory contract are generally assignable); cf. IndyMac Bank v.
Miguel, 117 Hawai#i 506, 513, 184 P.3d 821, 828 (App. 2008)
(ruling that a promissory note and mortgage were validly assigned
by the original mortgagee to an assignee). That a nonnegotiable
instrument may be transferred by written assignment means that
mere possession of the instrument endorsed in blank does not
necessarily indicate that the possessor has authority to enforce
it.
Indeed, BONYM points out that the HELOC is assignable
by its terms.10/ However, BONYM has not shown a right to enforce
the HELOC through any written assignment. The assignment of the
Mortgage to BONYM, for example, assigns "the mortgage hereinafter
described, with all the right, title, and interest of the
Assignor in and to the property described in that certain
mortgage . . . ." On its face, the assignment does not refer to
the HELOC or otherwise reflect an intent to transfer the HELOC to
BONYM.

9/
The Marquez-Vargas opinion "uses the term 'instrument'
interchangeably with the term 'note' or 'mortgage note,' modifying the term
with 'negotiable' or 'nonnegotiable' as appropriate." 589 P.3d at 286 n.2.
10/
As noted above, the HELOC provides that "[FMFC] may transfer and
assign [its] rights and obligations under this Agreement and the Mortgage at
any time without [Daryl's] consent."

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Accordingly, we conclude that BONYM could not establish
its standing merely by showing that it possessed the HELOC,
endorsed in blank, at the time the Complaint was filed. On this
record, BONYM did not establish its standing to enforce the HELOC
and foreclose as a matter of law. The Circuit Court therefore
erred in granting the MSJ. See OneWest Bank, NA v. FMCDH Realty,
Inc., 165 A.D.3d 128, 135, 83 N.Y.S.3d 612 (N.Y. App. Div. 2018)
(for purposes of summary judgment, the plaintiff's possession of
a nonnegotiable note endorsed in blank was not sufficient to
establish that plaintiff had the right to enforce).
Given our disposition, we need not address Daryl's
remaining contention.

III. Conclusion

For the reasons discussed above, the Foreclosure Decree
and the Judgment are vacated as to Daryl, and the appeal is
dismissed as moot as to Jeffrey. The case is remanded to the
Circuit Court for further proceedings consistent with this
opinion.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Daryl J.K. Whittington,
Self-represented Defendant-
Appellant /s/ Clyde J. Wadsworth
Associate Judge
Zachary K. Kondo and
Mary Martin
(Clay Iwamura Pulice & Nervell) /s/ Kimberly T. Guidry
for Plaintiff-Appellee Associate Judge

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JUN-2026
07:50 AM
Dkt. 66 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK,
SUCCESSOR INDENTURE TRUSTEE TO JPMORGAN CHASE BANK,
N.A. AS INDENTURE TRUSTEE ON BEHALF OF THE NOTEHOLDERS
OF THE CWHEQ INC., CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 2005-K, Plaintiff-Appellee,
v.
JEFFREY ALAN WHITTINGTON, DARYL JEAN KATSUKO WHITTINGTON,
Defendants-Appellants
and
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK
AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC.,
CHL MORTGAGE PASS-THROUGH TRUST 2005-24, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-24; QUEEN'S GATE COMMUNITY ASSOCIATION,
QUEEN'S POINT COMMUNITY ASSOCIATION, Defendants-Appellees
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.

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

JUNE 19, 2026

NAKASONE, CHIEF JUDGE, AND WADSWORTH AND GUIDRY, JJ.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

OPINION OF THE COURT BY WADSWORTH, J.

This appeal stems from a foreclosure action on a second
mortgage securing a home equity line of credit agreement (HELOC).
The Circuit Court of the First Circuit1/ (Circuit Court) entered
summary judgment and a foreclosure decree in favor of Plaintiff-
Appellee The Bank of New York Mellon fka the Bank of New York,
Successor Indenture Trustee to JPMorgan Chase Bank, N.A., as
Indenture Trustee on Behalf of the Noteholders of The CWHEQ Inc.,
CWHEQ Revolving Home Equity Loan Trust, Series 2005-K (BONYM)
against self-represented Defendants-Appellants Daryl Jean Katsuko
Whittington (Daryl) and Jeffrey Alan Whittington (Jeffrey)
(together, the Whittingtons) and other defendants.
The Whittingtons appeal from the Circuit Court's: (1)
June 26, 2024 Judgment on Findings of Fact, Conclusions of Law
and Order Granting [BONYM]'s Motion for Default Judgment and
Summary Judgment and Decree of Foreclosure Against All Defendants
on Complaint Filed February 27, 2023 (Judgment); and (2)
August 23, 2024 Order Denying [the Whittingtons'] Notice and
Motion for New Trial, Filed April 1, 2024. See Hawai#i Rules of
Appellate Procedure (HRAP) Rule 4(a)(3). The Whittingtons also
challenge the Circuit Court's June 26, 2024 Findings of Fact,
Conclusions of Law and Order Granting [BONYM]'s Motion for
Default Judgment and Summary Judgment and Decree of Foreclosure
Against All Defendants on Complaint Filed February 27, 2023
(Foreclosure Decree).2/

1/
The Honorable James H. Ashford presided.
2/
Daryl's opening brief states that Jeffrey died on September 5,
2024, after the notice of appeal was filed. Although she purports to submit
the brief for herself and Jeffrey, she cannot speak for Jeffrey or his estate
absent compliance with HRAP Rule 43(a), which provides for substitution of a
party who dies pending appeal.
On May 21, 2026, this court issued an Order providing, among other
things, that within ten days, "any party or a personal representative of
Jeffrey may file a statement advising this court whether a personal
representative has been appointed and, if so, whether that person wishes to
substitute into this case[,]" pursuant to HRAP Rule 43(a). The Order also
required the parties to file a statement as to whether the appeal is moot as
to Jeffrey. BONYM filed a statement indicating that if any substitution
should be made, Daryl should be substituted for Jeffrey, but that the appeal
is moot as to Jeffrey. Daryl did not respond to the Order. Because we
conclude that the appeal is moot as to Jeffrey (see infra), we further
conclude that no substitution is necessary.

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On appeal, Daryl contends that the Circuit Court erred
in granting BONYM's January 29, 2024 motion for default and
summary judgment (MSJ) because: (1) the subject HELOC was not a
negotiable instrument as defined by Hawaii Revised Statutes (HRS)
§ 490:3-104 and therefore not transferable by endorsement;3/ and
(2) "the [Circuit] Court agreed that it was in dispute that . . .
the Note was properly endorsed[.]"4/
We hold that the HELOC was not a negotiable instrument
under HRS § 490:3-104 because it did not contain an unconditional
promise to pay "a fixed amount of money." HRS § 490:3-104(a).
Because the HELOC was not a negotiable instrument, BONYM could

3/
During the relevant time period, HRS § 490:3-104 (2008) stated, in
pertinent part:

Negotiable instrument. (a) Except as provided in
subsections (c) and (d), "negotiable instrument" means an
unconditional promise or order to pay a fixed amount of
money, with or without interest or other charges described
in the promise or order, if it:

(1) Is payable to bearer or to order at the time it
is issued or first comes into possession of a
holder;

(2) Is payable on demand or at a definite time; and

(3) Does not state any other undertaking or
instruction by the person promising or ordering
payment to do any act in addition to the payment
of money, but the promise or order may contain:
(A) An undertaking or power to give, maintain, or
protect collateral to secure payment;
(B) An authorization or power to the holder to
confess judgment or realize on or dispose of
collateral;
(C) A waiver of the benefit of any law intended for
the advantage or protection of an obligor.
(b) "Instrument" means a negotiable instrument.
4/
Daryl's first point of error has been restated for clarity. The
opening brief fails to comply in certain respects with HRAP Rule 28(b). In
particular, Daryl fails to provide a statement of "where in the record the
alleged error[s were] objected to or the manner in which the alleged error[s
were] brought to the attention of the court," as required by HRAP Rule
28(b)(4)(iii). In addition, Daryl's argument is cursory and somewhat
difficult to discern. HRAP Rule 28(b)(7). Nevertheless, Hawai #i appellate
courts have "consistently adhered to the policy of affording litigants the
opportunity 'to have their cases heard on the merits, where possible.'"
Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012) (quoting
Morgan v. Plan. Dep't, Cnty. of Kauai, 104 Hawai #i 173, 180–81, 86 P.3d 982,
989–90 (2004)). We thus address Daryl's arguments to the extent discernible.

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not enforce it under HRS § 490:3-3015/ as a "holder," based on
possession of the HELOC, endorsed in blank. Enforcement rights
in a nonnegotiable instrument such as the HELOC may be
transferred by written assignment. This means that the mere
possession of the instrument endorsed in blank does not
necessarily indicate that the possessor has authority to enforce
it. Accordingly, BONYM did not establish its standing to enforce
the HELOC merely by showing it possessed the HELOC, endorsed in
blank, at the time it filed the foreclosure complaint. Summary
judgment was granted in error.
We therefore vacate the Judgment.

I. Background

Based on the parties' respective summary judgment
submissions, the following facts appear to be uncontroverted.
Daryl executed the HELOC dated September 30, 2005, and
delivered it to First Magnus Financial Corporation (FMFC). The
HELOC provided a line of credit that allowed Daryl to make draws
or "loans" of varying amounts up to a $200,000 credit limit, and
obligated Daryl to pay to FMFC's order whatever she borrowed,
plus interest. The HELOC further provided: "[FMFC] may transfer
and assign [its] rights and obligations under this Agreement and
the Mortgage at any time without [Daryl's] consent."
The HELOC was secured by a second mortgage (Mortgage)
dated September 30, 2005, and recorded in the Bureau of
Conveyances on October 6, 2005, on certain real property in
Honolulu owned by the Whittingtons (Property). The Mortgage was

5/
During the relevant time period, HRS § 490:3-301 (2008) stated, in
pertinent part:
Person entitled to enforce instrument. "Person
entitled to enforce" an instrument means (i) the holder of
the instrument, (ii) a nonholder in possession of the
instrument who has the rights of a holder, or (iii) a person
not in possession of the instrument who is entitled to
enforce the instrument pursuant to section 490:3-309 or
490:3-418(d).
As relevant here, under HRS § 490:1-201(b) (2008), "'[h]older'
means . . . [t]he person in possession of a negotiable instrument that is
payable either to bearer or to an identified person that is the person in
possession[.]" (Formatting altered.)

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executed by Daryl and Jeffrey and given to Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for FMFC, and
FMFC's "successors and assigns[.]"
At some later time, FMFC endorsed the HELOC by means of
an endorsement stamp "pay to the order of" Countrywide Bank,
N.A., which then endorsed the HELOC by means of an endorsement
stamp "pay to the order of" Countrywide Home Loans Inc. (CHLI).
CHLI then endorsed the HELOC by means of an endorsement stamp "in
blank."
The Mortgage was assigned twice via a written
assignment. First, by an Assignment of Mortgage dated August 28,
2013 (2013 Assignment), MERS as nominee for FMFC assigned "all
its right, title, and interest in and to" the Mortgage to The
Bank of New York Mellon FKA The Bank of New York, as Successor
Trustee to JPMorgan Chase Bank, N.A., as Trustee on behalf of the
Certificateholders of the CWHEQ Inc., CWHEQ Revolving Home Equity
Loan Trust, Series 2005-K (2013 Assignee). The 2013 Assignment
was recorded in the Bureau of Conveyances on September 30, 2013.
Second, by an Assignment of Mortgage dated June 27, 2022 (2022
Assignment), the 2013 Assignee assigned the Mortgage "with all
the right, title and interest of the [2013 Assignee] in and to
the [P]roperty" to BONYM. The 2022 Assignment was recorded in
the Bureau of Conveyances on December 14, 2022.
Meanwhile, the Whittingtons conveyed the Property to
Daryl as tenant in severalty by a Quitclaim Deed dated August 27,
2008, and recorded in the Bureau of Conveyances on the same date.
After Daryl defaulted on the HELOC and written notice
was given, on February 27, 2023, BONYM filed a foreclosure
complaint (Complaint) against Daryl, Jeffrey and others who may
have had an interest in the Property.
On January 29, 2024, BONYM filed the MSJ. BONYM argued
that it had standing to enforce the HELOC under HRS § 490:3-301
because it was the holder of the HELOC, which was endorsed in
blank, and was in possession of the HELOC when the Complaint was
filed.
On February 22, 2024, the Whittingtons filed their
opposition to the MSJ. They argued in part that the HELOC was

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not a negotiable instrument as defined by HRS § 490:3-104, the
HELOC "could not be legally endorsed in blank or to BONYM[,]" and
therefore BONYM had not established its standing to enforce the
HELOC.
Following a March 6, 2024 hearing, the Circuit Court
granted the MSJ. The court reasoned in part:

While Defendants are correct that the HELOC is not a
negotiable instrument as defined by [HRS] § 490:3-104, the
Court disagrees with Defendants' contention that Plaintiffs
are without standing to foreclose. The Court is unaware of
any Hawai#i case law concluding that a non-negotiable
instrument cannot also be transferred by means of an in
blank or special endorsement as was done here. The Court
finds as a matter of law that a lender has standing, and is
entitled to foreclose, if the HELOC (1) has a special or in
blank endorsement, (2) was delivered, and (3) the lender has
possession.

On this basis, the court found there was no genuine issue of
material fact as to BONYM's standing to foreclose. The court
subsequently entered the Foreclosure Decree and the Judgment.

II. Discussion

A. Mootness as to Jeffrey
We first address BONYM's contention that this appeal is
moot as to Jeffrey. BONYM argues that this is so because: (1)
"[f]oreclosure is an 'in rem' proceeding, and Jeffrey was not a
signator to the [HELOC]"; (2) "[t]he Foreclosure [Decree] . . .
confirms the conveyance of the mortgaged property to Daryl, as
tenant in severalty"; and (3) "Jeffrey was dismissed from the
foreclosure proceeding effective May 9, 2025, pursuant to [the
Circuit Court's order at] Dkt. 170."6/
"A case is moot if it has lost its character as a
present, live controversy of the kind that must exist if courts
are to avoid advisory opinions on abstract propositions of law."
Civil Beat Law Ctr. for the Pub. Interest, Inc. v. City & Cnty.
of Honolulu, 144 Hawai#i 466, 476, 445 P.3d 47, 57 (2019)

6/
BONYM is referring to the Circuit Court's May 9, 2025 Order
Granting [BONYM's] Motion for Partial Dismissal Without Prejudice of [BONYM's]
Complaint Filed February 27, 2023 and Vacate Findings of Fact, Conclusions of
Law and Order Granting [BONYM's] Motion for Default Judgment and Summary
Judgment and Decree of Foreclosure Against All Defendants on Complaint Filed
February 27, 2023, Filed June 26, 2024, as to . . . Jeffrey . . . (Partial
Dismissal Order).

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(quoting Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d
696, 726 (2007)). In other words, "a case is moot if the
reviewing court can no longer grant effective relief."
Kaho#ohanohano, 114 Hawai#i at 332, 162 P.3d at 726 (emphasis and
brackets omitted) (quoting Kemp v. State of Hawai#i Child Support
Enf't Agency, 111 Hawai#i 367, 385, 141 P.3d 1014, 1032 (2006)).
We take judicial notice of the Partial Dismissal
Order, which vacated the Foreclosure Decree and dismissed the
Complaint as to Jeffrey. It appears, therefore, that the
Judgment as to Jeffrey, which was based on the Complaint and the
Foreclosure Decree, has been rendered void as to Jeffrey, and we
construe BONYM's mootness argument to acknowledge as much. In
this situation, we can no longer grant effective relief to
Jeffrey (or his estate), and we thus conclude that the appeal is
moot as to him.

B. Summary Judgment As Against Daryl
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). A foreclosing plaintiff must establish its standing to
enforce the underlying debt obligation when the complaint was
filed. See Bank of America, N.A. v. Reyes-Toledo, 139 Hawai#i
361, 368, 390 P.3d 1248, 1255 (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."). Where the debt obligation is a negotiable
instrument, a person entitled to enforce it includes the
"holder," defined in relevant part as "[t]he person in possession
of a negotiable instrument that is payable either to bearer or to
an identified person that is the person in possession[.]" HRS
§§ 490:1-201(b), :3-301. To be "negotiable," an instrument must,
among other things, contain "an unconditional promise or order to
pay a fixed amount of money, with or without interest . . . [.]"
§ 490:3-104 (emphasis added).
Here, on its face, the HELOC does not contain an
unconditional promise to pay a fixed amount of money. Rather, it
provides a line of credit that allowed Daryl to make draws or

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"loans" of varying amounts up to the credit limit, and obligated
Daryl to pay whatever she borrowed, plus interest. The HELOC
therefore did not meet the definition of a negotiable instrument
under HRS § 490:3-104, such that the right to enforce it could
pass through possession.7/ BONYM was not a "holder" of the HELOC
when it filed the Complaint.
The Circuit Court similarly concluded that the HELOC
was not a negotiable instrument as defined by HRS § 490:3-104.
Nevertheless, the court "disagree[d] with [the Whittingtons']
contention that [BONYM is] without standing to foreclose[,]"
because the court was "unaware of any Hawai#i case law concluding
that a non-negotiable instrument cannot also be transferred by
means of an in blank or special endorsement as was done here."
The court concluded that BONYM had established its standing as a
matter of law. On appeal, BONYM echoes this conclusion.8/
The problem with this reasoning is that it provides no
legal basis for BONYM to enforce the HELOC against Daryl, as it
cannot enforce the agreement under HRS § 490:3-301 as a "holder,"
based on possession of a nonnegotiable instrument endorsed in
blank. And Hawai#i case law does not resolve the enforcement
issue in these circumstances. In other jurisdictions, the
majority common law view is that it is possible to transfer the
right to enforce a nonnegotiable note by endorsement and
delivery. See Marquez Vargas, 589 P.3d at 301 (citing Dale A.
Whitman, Transferring Nonnegotiable Mortgage Notes, 11 Fla. A&M

7/
"The majority of jurisdictions to consider the issue have come to
the same conclusion: credit line agreements, including HELOC agreements, are
not negotiable instruments because they do not contain an unconditional
promise to pay a fixed amount of money and instead require reference to
separate documents to determine the principal amount borrowed." Marquez
Vargas v. RRA CP Opportunity Trust 1, 589 P.3d 281, 292 & n.10 (Wash. Apr. 30,
2026) (collecting cases).
8/
BONYM also argues that the HELOC became payable in a fixed amount
in June 2020, after the draw period ended, Daryl ceased making payments, and
the holder's servicer declared all sums owing due and payable. Even if the
latter event could have transformed the HELOC into a negotiable instrument,
BONYM has not pointed to any evidence in the record showing that the event
occurred prior to endorsement and delivery of the HELOC. See Marquez Vargas,
589 P.3d at 294 ("The fact that an agreement provides that the principal will
become fixed at a future date fails to satisfy the 'fixed amount of money'
requirement.").

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U. L. Rev. 63, 97-98 & nn.143-44 (2015) (collecting cases)).9/
But the majority view also permits transfer of enforcement rights
in a nonnegotiable note by written assignment without delivery.
See id. (discussing majority view); Whitman, supra, at 97-98 &
n.146 (stating that "a substantial majority" of jurisdictions
"recognize the validity of a transfer [of enforcement rights] by
a separate document of assignment, without indorsement or
delivery of the note itself") (collecting cases). This view is
consistent with Hawai#i law, and we are inclined to follow it.
See Fireman's Fund Ins. Co. v. AIG Hawai#i Ins. Co., 109 Hawai#i
343, 349, 126 P.3d 386, 392 (2006) ("[A]n assignment operates to
place the assignee in the shoes of the assignor, and provides the
assignee with the same legal rights as the assignor had before
assignment."); Wohlschlegel v. Uhlmann–Kihei, Inc., 4 Haw. App.
123, 135, 662 P.2d 505, 514 (1983) (beneficial rights under an
executory contract are generally assignable); cf. IndyMac Bank v.
Miguel, 117 Hawai#i 506, 513, 184 P.3d 821, 828 (App. 2008)
(ruling that a promissory note and mortgage were validly assigned
by the original mortgagee to an assignee). That a nonnegotiable
instrument may be transferred by written assignment means that
mere possession of the instrument endorsed in blank does not
necessarily indicate that the possessor has authority to enforce
it.
Indeed, BONYM points out that the HELOC is assignable
by its terms.10/ However, BONYM has not shown a right to enforce
the HELOC through any written assignment. The assignment of the
Mortgage to BONYM, for example, assigns "the mortgage hereinafter
described, with all the right, title, and interest of the
Assignor in and to the property described in that certain
mortgage . . . ." On its face, the assignment does not refer to
the HELOC or otherwise reflect an intent to transfer the HELOC to
BONYM.

9/
The Marquez-Vargas opinion "uses the term 'instrument'
interchangeably with the term 'note' or 'mortgage note,' modifying the term
with 'negotiable' or 'nonnegotiable' as appropriate." 589 P.3d at 286 n.2.
10/
As noted above, the HELOC provides that "[FMFC] may transfer and
assign [its] rights and obligations under this Agreement and the Mortgage at
any time without [Daryl's] consent."

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Accordingly, we conclude that BONYM could not establish
its standing merely by showing that it possessed the HELOC,
endorsed in blank, at the time the Complaint was filed. On this
record, BONYM did not establish its standing to enforce the HELOC
and foreclose as a matter of law. The Circuit Court therefore
erred in granting the MSJ. See OneWest Bank, NA v. FMCDH Realty,
Inc., 165 A.D.3d 128, 135, 83 N.Y.S.3d 612 (N.Y. App. Div. 2018)
(for purposes of summary judgment, the plaintiff's possession of
a nonnegotiable note endorsed in blank was not sufficient to
establish that plaintiff had the right to enforce).
Given our disposition, we need not address Daryl's
remaining contention.

III. Conclusion

For the reasons discussed above, the Foreclosure Decree
and the Judgment are vacated as to Daryl, and the appeal is
dismissed as moot as to Jeffrey. The case is remanded to the
Circuit Court for further proceedings consistent with this
opinion.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Daryl J.K. Whittington,
Self-represented Defendant-
Appellant /s/ Clyde J. Wadsworth
Associate Judge
Zachary K. Kondo and
Mary Martin
(Clay Iwamura Pulice & Nervell) /s/ Kimberly T. Guidry
for Plaintiff-Appellee Associate Judge

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