HSBC Bank USA v. Tucker, Sr.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-MAY-2026
08:00 AM
Dkt. 90 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

HSBC BANK USA, NATIONAL ASSOCIATION,
AS TRUSTEE FOR ACE 2006-NC1, Plaintiff-Appellee,
v.
ANTHONY TUCKER, SR. and WINIFRED HAPUA TUCKER,
Defendants-Appellants, and
NEW CENTURY MORTGAGE CORPORATION; CAPITAL ONE BANK (USA), N.A.;
ASSOCIATION OF APARTMENT OWNERS OF MAKAKILO GARDENS,
INCREMENT 1, 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.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC151000657)

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

In this foreclosure action, Defendants-Appellants
Anthony Tucker, Sr. and Winifred Hapua Tucker (the Tuckers)
appeal from the May 20, 2024 "Findings of Fact, Conclusions of
Law and Order Granting Plaintiff's Motion for Summary Judgment
and Decree of Foreclosure Against All Defendants on Complaint
Filed April 13, 2015," and the May 21, 2024 Final Judgment,
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

entered by the Circuit Court of the First Circuit (Circuit
Court). 1
The Tuckers contend the Circuit Court erred in
granting summary judgment because (1) Plaintiff-Appellee HSBC
Bank USA (Bank) did not prove it had possession of the
promissory note (Note) at the time it filed its foreclosure
complaint on April 13, 2015 (Complaint); (2) the Bank did not
prove it sent a default letter; and (3) a genuine issue of
material fact exists as to whether the Tuckers satisfied the
terms of a loan modification. After reviewing the record on
appeal and the relevant legal authorities, and giving due
consideration to the issues raised and the arguments advanced by
the parties, we resolve the Tuckers' contentions as follows, and
affirm.
(1) Possession of the Note: The Tuckers first argue
that the Bank did not validly establish possession of the Note
at the time the Complaint was filed.
A foreclosing plaintiff must establish that it had
standing to enforce the subject promissory note at the time the
complaint was filed. U.S. Bank Tr., N.A. as Tr. for LSF9 Master
Participation Tr. v. Verhagen, 149 Hawaiʻi 315, 327-28, 489 P.3d
419, 431-32 (2021), as amended (July 6, 2021); Bank of Am., N.A.
v. Reyes-Toledo, 139 Hawaiʻi 361, 368, 390 P.3d 1248, 1255
(2017). A person entitled to enforce the note includes the
holder. Hawaiʻi Revised Statutes §§ 490:1-201(b), 3-301 (2008).
Here, the Bank submitted a 21-page declaration from
Juliana Thurab (Thurab), custodian of records for the PHH
Mortgage Corporation (PHH), the loan servicing company for the
Bank. Thurab's declaration stated, inter alia, that the Note

1 The Honorable Karin L. Holma presided.

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was held by the Bank's prior loan servicing company, Ocwen Loan
Servicing, LLC (Ocwen), continuously from April 18, 2013 to
July 1, 2016. Thurab and the Bank's counsel gave clear
testimony as to possession of the Note thereafter. In 2019,
Ocwen merged with PHH Mortgage Corporation; PHH's records,
maintained in the regular course of business, included and
incorporated Ocwen's records. Thurab's declaration stated that
PHH's processes for "boarding" (i.e., incorporating records from
other servicers, including Ocwen) "ensure the accuracy and
trustworthiness of the records being boarded."
Thurab explained that she was familiar with PHH's
records retention policies, and she described the boarding
process, as well as PHH's and Ocwen's recordkeeping procedures,
in detail. She declared, "I can confirm that [Ocwen] received
the original Note on April 18, 2013. Ocwen maintained
continuous uninterrupted possession of the Note until July 1,
2016, when the collateral file was shipped to [the Bank's
counsel]."
The declarations submitted by the Bank with its Motion
for Summary Judgment (Motion) were sufficient to establish its
possession of the Note when the Complaint was filed on April 13,
2015. The Bank thus satisfied its initial burden on summary
judgment. The burden then shifted to the Tuckers, who did not
show there was a genuine issue of material fact as to the Bank's
physical possession of the Note on April 13, 2015. See
Verhagen, 149 Hawaiʻi at 328, 489 P.3d at 432. Thus, the Circuit
Court did not err in granting summary judgment to the Bank.
(2) Default Letter: The Tuckers contend that summary
judgment was improper because the Bank did not prove that it
sent a valid default letter.

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The Note states:
Unless applicable law requires a different method,
any notice that must be given to me under this Note will be
given by delivering it or by mailing it by first class mail
to me at the Property Address above or at a different
address if I give the Note Holder a notice of my different
address.

(Emphasis added.)
The Tuckers make two arguments. First, they argue
that a May 5, 2012 default letter did not satisfy the Note's
notice requirement because the default letter was sent by
certified mail rather than first class mail. "[T]he United
States Postal Service describes first class mail as a type of
mail, while certification is described simply as an 'extra
service' for which 'First-Class mail' is eligible." U.S. Bank
Nat'l Assn v. Torres, 559 F. Supp. 3d 62, 68 (D.R.I. 2021)
(quoting What Domestic Mail Extra Services are Available?, USPS
(Aug. 13, 2021), https://faq.usps.com/s/article/What-Domestic-
Mail-Extra-Services-are-Available) [https://perma.cc/2LG9-7FJJ];
see also Torres, 559 F. Supp. 3d at 68 (stating that "the
question of whether certified mail is first-class mail is not
unique to this case" and collecting cases concluding that
certified first-class mail satisfies the requirement for first-
class mail). Even if there were some dispute about certified
mail, however, the Tuckers' argument still fails: the Thurab
declaration states that the default notice was mailed "via USPS
First Class Mail and Certified mail." (Emphasis added.)
The Tuckers' second argument is that summary judgment
was improper because the Bank did not properly authenticate the
mailing of the default letters. With its Motion, the Bank
provided copies of the May 2012 default notices 2 and a mailing

2 Although the Tuckers make arguments regarding the insufficiency
of default notices sent in 2015, the Bank does not rely upon the 2015 notices
to establish its right to foreclose.

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log. As discussed supra, the Thurab declaration contained
detailed information as to the Bank's recordkeeping practices
and incorporation of the prior mortgage servicers' records. The
Thurab declaration was sufficient to authenticate the business
records and demonstrate that notices were, in fact, mailed. See
Verhagen, 149 Hawaiʻi at 325, 489 P.3d at 429. The Circuit Court
did not err in ruling that the Bank satisfied its initial burden
on summary judgment. 3
(3) Loan Modification: The Tuckers' final argument is
that there is a genuine issue of material fact as to whether the
Tuckers made the requisite payments under a loan modification
program in 2015 (after the Complaint was filed in the instant
case).
After making a loan payment on February 7, 2012, the
Tuckers made no additional mortgage payments for over three and
a half years. After the Complaint was filed in April 2015, the
Tuckers agreed to a loan modification offer: the Tuckers were
required to submit three payments of $743.17 each, on October 1,
November 1, and December 1, 2015. According to the terms of the
loan modification, if the Tuckers made those payments, the loan
would be permanently modified. Challenging the Circuit Court's
finding, the Tuckers argue that they did, in fact, comply with
the terms of the loan modification program, and that foreclosing
on their home under these circumstances is fundamentally unfair.
The Tuckers' first payment was short: they paid only
$655.00, leaving out $88.17 required for escrow. Ocwen – the
servicer at the time – called Mr. Tucker twice and left

3 We note that, on appeal, the Tuckers argue only that the Bank did
not meet its initial burden on summary judgment. The Tuckers make no
argument that they, as the non-movants, met their burden to show a genuine
issue of material fact. As such, any argument to this effect has been
waived.

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messages; on the third attempt, Ocwen reached Mr. Tucker and
advised him of the shortfall. The Tuckers made a payment of
$88.17 shortly thereafter and then made a full payment of
$743.17 the following month. The third month, the Tuckers sent
a check for $743.17; however, the Tuckers' check indicated the
funds should be split between two loans that Ocwen serviced (the
primary mortgage and a second mortgage), and Ocwen followed
those instructions in applying the payments to the two loans.
Consequently, the Tuckers were once again short $88.17 during
the trial loan modification period.
The Tuckers argue that there is a genuine issue of
material fact as to whether the Tuckers made all three payments.
But the Tuckers do not dispute that their third payment directed
Ocwen to split the funds between two loans, such that their
payment towards the first loan was short. There is no genuine
issue of material fact.
We are mindful of the supreme court's admonition that
"equity abhors forfeitures." James B. Nutter & Co. v. Namahoe,
153 Hawaiʻi 149, 169, 528 P.3d 222, 242 (2023) (cleaned up). To
the extent the Tuckers argue "[t]he conduct of Ocwen was not
equitable," the record shows the Bank repeatedly tried to avoid
foreclosure. Ocwen telephoned Mr. Tucker four times and left
messages each time. The Bank made the Tuckers yet another
modification offer in January 2016. Nevertheless, as of the
date of the Thurab Declaration (December 2023), the Tuckers had
made no payments for at least eight years. The Circuit Court
did not err in granting summary judgment to the Bank.
Based on the foregoing, we affirm the May 20, 2024
"Findings of Fact, Conclusions of Law and Order Granting
Plaintiff's Motion for Summary Judgment and Decree of

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Foreclosure Against All Defendants on Complaint Filed April 13,
2015," and the May 21, 2024 Final Judgment.
DATED: Honolulu, Hawai‘i, May 13, 2026.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Keith M. Kiuchi,
for Defendants-Appellants. /s/ Sonja M.P. McCullen
Associate Judge
Mary Martin and
Zachary K. Kondo, /s/ Daniel M. Gluck
(Pulice Nervell), Associate Judge
for Plaintiff-Appellee.

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