Christiana Trust v. Burke

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-AUG-2023
07:59 AM
Dkt. 116 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CHRISTIANA TRUST, A DIVISION OF WILMINGTON
SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL
CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3,
Plaintiff-Appellee,
v.
T. MICHAEL BURKE; ELIZABETH BRAXTON BURKE,
Defendants-Appellants,
and
UNITED STATES OF AMERICA, DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE; KIHEI KAUHALE
SUBDIVISION COMMUNITY ASSOCIATION, DIRECTOR,
DEPARTMENT OF TAXATION, STATE OF HAWAI#I,
Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10;
DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 2-10;
DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS 1-10,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 14-1-0603(1))

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Defendant-Appellant Elizabeth Braxton Burke

(Elizabeth)1 appeals from the Judgment entered on March 7, 2018,

in the Circuit Court of the Second Circuit (Circuit Court).2

Elizabeth also challenges the Circuit Court's March 7, 2018

Findings of Fact and Conclusions of Law; Order Granting

Plaintiff's Motion for Summary Judgment and for Interlocutory

Decree of Foreclosure (Foreclosure Decree) entered in favor of

Plaintiff-Appellee Christiana Trust, a Division of Wilmington

Savings Fund Society, FSB, Not in Its Individual Capacity but as

Trustee of ARLP Trust 3 (Christiana Trust) and against Elizabeth

and Michael (collectively, the Burkes) and other defendants.

Elizabeth raises several points of error on appeal,

including her contention that Christiana Trust did not establish

that it had standing to file the complaint in this foreclosure

action. On appeal, Christiana Trust acknowledges and agrees that

under the evidentiary standards articulated by the Hawai#i

1
Elizabeth purported to file the March 15, 2018 Notice of Appeal on
behalf of both herself and Defendant T. Michael Burke ( Michael). Elizabeth,
who was self-represented at the time, is not licensed to practice law in
Hawai#i. Under Hawaii Revised Statutes (HRS) §§ 605-2 and 605-14 (2016), non-
attorneys "are not permitted to act as 'attorneys' and represent other natural
persons in their causes." Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr.,
Inc., 60 Haw. 372, 377, 590 P.2d 570, 573 (1979); see, e.g., Fernandes v.
Hashimoto, CAAP-XX-XXXXXXX, 2020 WL 3125334, *1 n.1 (Haw. App. June 12, 2020)
(Order). While "submissions of self-represented litigants should be
interpreted liberally," and counsel later appeared to represent the Burkes on
this appeal, "the right of self-representation is not a license not to comply
with the relevant rules of procedural and substantive law." Estate Admin.
Servs. LLC v. Mohulamu, 148 Hawai#i 10, 18, 466 P.3d 408, 418 (2020)
(citations, ellipsis, and internal quotation marks omitted). Thus, Elizabeth
is the sole appellant. In light of our disposition, however, it appears that
the relief granted on this appeal is not affected by the fact that Elizabeth
is the only appellant.
2
The Honorable Rhonda I.L. Loo presided.

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

Supreme Court, Christiana Trust did not meet the applicable

evidentiary standards and requirements to establish its standing,

as set forth in Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai#i

361, 390 P.3d 1248 (2017); U.S. Bank N.A. v. Mattos, 140 Hawai#i

26, 398 P.3d 615 (2017); Wells Fargo Bank, N.A. v. Behrendt, 142

Hawai#i 37, 414 P.3d 89 (2018).

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

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

resolve Elizabeth's appeal as follows:

We conclude that Christiana Trust failed to properly

submit admissible evidence demonstrating that it was entitled to

enforce the subject note at the time the foreclosure complaint

was filed. Thus, the Circuit Court erred in its entry of the

Foreclosure Decree and Judgment in favor of Christiana Trust.

See also U.S. Bank Tr., N.A. v. Verhagen, 149 Hawai#i 315, 327-

28, 489 P.3d 419, 431-32 (2021); Deutsche Bank Nat'l Tr. v. Yata,

152 Hawai#i 322, 335-36, 526 P.3d 299, 312-13 (2023) (recent

supreme court cases further clarifying the cases cited by the

parties). Accordingly, the March 7, 2018 Foreclosure Decree and

Judgment are vacated, and this case is remanded to the Circuit

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

Court for further proceedings. All pending motions are hereby

dismissed as moot.

DATED: Honolulu, Hawai#i, August 7, 2023.

On the briefs:
/s/ Katherine G. Leonard
R. Steven Geshell, Presiding Judge
for Defendants-Appellants.
/s/ Keith K. Hiraoka
David B. Rosen, Associate Judge
David E. McAllister,
Justin S. Moyer, /s/ Karen T. Nakasone
(Aldridge Pite, LLP), Associate Judge
for Plaintiff-Appellee.

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