The Bank of New York Mellon v. Collins

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-JUN-2025
08:10 AM
Dkt. 247 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK,
AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC.
ALTERNATIVE LOAN TRUST 2006-12CB, MORTGAGE PASS-THRU
CERTIFICATES SERIES 2006-12CB, Plaintiff-Appellee, v.
GABI K. COLLINS, Defendant-Appellant, and
ASSOCIATION OF APARTMENT OWNERS OF KEMOO BY THE LAKE;
DONALD COURTNEY BROWN; JOHN DOES 1-20; JANE DOES 1-20;
DOE CORPORATIONS 1-20; DOE ENTITIES 1-20; AND
DOE GOVERNMENTAL UNITS 1-20, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC161001062)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, McCullen and Guidry, JJ.)

Self-represented Defendant-Appellant Gabi Kim Collins

appeals from the Circuit Court of the First Circuit's March 10,

2022 judgment entered on an interlocutory decree of foreclosure

(Judgment). 1 On appeal, Collins raises five points of error

(POE) challenging the foreclosure decree in favor of Plaintiff-

1 The Honorable Gary W.B. Chang presided.
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Appellee The Bank of New York Mellon fka the Bank of New York,

as Trustee for the Certificateholders of CWALT, Inc. Alternative

Loan Trust 2006-12CB, Mortgage Pass-Thru Certificates Series

2006-12CB (BONY). 2

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve the

points of error as discussed below, and affirm.

(1) Collins first contends the circuit "court gravely

erred when it determined that [BONY] had satisfied the

requirements of standing at inception, in regards to both BONY

and the purported servicers" (POE 1). 3 (Formatting altered.)

Collins thus argues that summary judgment "was in error due to

failure to prove standing." (Formatting altered.)

A person is entitled to enforce an instrument when the

person is "the holder of the instrument." Hawaiʻi Revised

2 However, we deem POE 2 waived as no argument on this point was
presented in the argument section of Collins's opening brief. Hawai‘i Rules
of Appellate Procedure Rule 28(b)(7) ("Points not argued may be deemed
waived."). In POE 2, Collins contends the circuit "court gravely erred when
it failed to view the factual evidence for [summary judgment] in light most
favorable to the person opposing the motion, which was [Collins]."
(Formatting altered.)

3 Collins also challenges standing by asserting the assignment of
mortgage was void as Countrywide "was out of business"; "the Note reveals
alterations and endorsement fraud"; "BONY took opposing positions in two
different courts"; "BONY's acceptance of $8.5B settlement barred its claims";
"power of attorneys invalid and failed to grant authority to servicer"; and
"servicer's counterfeit loan numbers rejected[.]" (Formatting altered.)
After review, we determine these assertions did not raise genuine issues of
material fact as to BONY's standing to foreclose.

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Statutes (HRS) § 490:3-301 (2008). A promissory note is a

negotiable instrument, and a lender is entitled to enforce the

note if it is the holder. See Bank of Am., N.A. v. Reyes-

Toledo, 139 Hawai‘i 361, 369, 369 n.14, 370-71, 390 P.3d 1248,

1256, 1256 n.14, 1257-58 (2017). The foreclosing party may

establish it is the holder of a note by showing that its agent

physically possessed the note. See generally U.S. Bank Tr.,

N.A. as Tr. for LSF9 Master Participation Tr. v. Verhagen, 149

Hawaiʻi 315, 317, 327-28, 489 P.3d 419, 421, 431-32 (2021). We

review the grant of summary judgment de novo. U.S. Bank N.A. v.

Mattos, 140 Hawaiʻi 26, 30, 398 P.3d 615, 619 (2017).

To establish it possessed the promissory note (Note)

when it filed the complaint, BONY attached the following to its

second motion for summary judgment:

1. An Affidavit of Bank of America, N.A. (BANA) as Master

Servicer, in which the declarant, Assistant Vice

President Nichole Renee Williams, testified that

BANA's records confirm that BANA transmitted the

original blank-indorsed Note to BONY's counsel, The

Mortgage Law Firm (TMLF), at their California office

on or about June 5, 2012. The testimony was supported

by a "Transmittal Report" and "Instance Summary[,]"

confirming the transfer.

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2. A declaration of Sylvia Meregillano (Meregillano),

custodian of records for TMLF. Meregillano testified

that TMLF received the original blank-indorsed Note on

June 28, 2012, before the complaint was filed, and

that TMLF was still in possession of the Note on

April 21, 2017, after the complaint was filed. An

April 21, 2017 "Bailee Letter - Updated" from TMLF,

acknowledging TMLF's possession of the original blank-

indorsed Note on that date, supported the testimony.

3. A declaration of Document Coordinator Sandra Burgess,

an employee of Bayview Loan Servicing, LLC (Bayview),

the sub-servicer of the subject mortgage (Mortgage),

testifying that Bayview's records indicated TMLF had

possession of the original blank-indorsed Note on

June 1, 2016, the date the complaint was filed. A

June 5, 2012 Document Transmittal Report, confirming

TMLF's possession of the Note on June 5, 2012,

supported the testimony.

4. A declaration of Document Coordinator Keli Smith,

another Bayview employee, testifying that a "Complaint

Checklist prepared and executed by Bayview on

April 12, 2016," two months before the complaint was

filed, confirms that "the original Note for this loan

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was in" TMLF's possession at that time. The Complaint

Checklist was also attached as an exhibit.

This evidence supported a finding that BONY's counsel

physically possessed the blank-indorsed Note when BONY filed the

June 1, 2016 foreclosure complaint. In other words, BONY

established it had standing to file the complaint.

Thus, the circuit court did not err in granting BONY's

motion for summary judgment.

(2) Related to standing, Collins contends the circuit

"court gravely erred when it granted a foreclosure to an

Imposter who lacked standing and authority, after eliminating

the trial on the merits, the [summary judgment] hearing" (POE

3). (Formatting altered.) Collins argues her right to "fair

process" was prejudiced when the Honorable Jeanette Castagnetti

was replaced by the Honorable Gary Chang, who "cancelled the

trial and then cancelled the [summary judgment] hearing[.]"

"The requirements of due process are flexible and

depend on many factors, but there are certain fundamentals of

just procedure which are the same for every type of tribunal and

every type of proceeding." Peak Capital Grp., LLC v. Perez, 141

Hawaiʻi 160, 178, 407 P.3d 116, 134 (2017) (citation omitted).

"The basic elements of procedural due process are notice and an

opportunity to be heard at a meaningful time and in a meaningful

manner." Id. (citation omitted). Questions concerning

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procedural due process are reviewed de novo. Bank of Hawaii v.

Kunimoto, 91 Hawaiʻi 372, 387, 984 P.2d 1198, 1213 (1999).

Collins filed a memorandum in opposition to BONY's

motion for summary judgment. Collins also had notice of, and

presented argument at, the initial hearing on the motion for

summary judgment. The hearing was continued, but before the

hearing took place, the circuit court converted the motion to a

non-hearing motion pursuant to the authority the supreme court

granted in response to the COVID-19 pandemic.

And, as discussed above, BONY demonstrated there was

no genuine issue as to whether it had standing to file the

complaint. Because BONY demonstrated it had standing to file

the complaint and Collins's memorandum in opposition and

argument did not show a genuine issue of material fact existed,

the circuit court properly determined trial was no longer

necessary. See generally Mattos, 140 Hawaiʻi at 30, 398 P.3d at

619. Collins moreover does not identify the evidence or assert

the argument(s) she intended to raise at the hearing to defeat

the summary judgment motion.

Thus, the circuit court did not violate Collins's

right to due process.

(3) Collins next contends the circuit "court gravely

erred when it sanctioned [her] regarding the meet and confer,

which was a harsh and unreasonable penalty, which allowed [BONY]

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to escape having to prove standing" (POE 4). (Formatting

altered.)

Hawai‘i Rules of Civil Procedure (HRCP) Rule 37(a)(2)

provides that a motion compelling discovery "must include a

certification that the movant has in good faith conferred or

attempted to confer with the person or party failing to make the

discovery in an effort to secure the information or material

without court action." To obtain an order compelling discovery

under HRCP Rule 37(a)(2), which may subject the non-movant to

penalties for non-compliance, the movant must first show that an

effort was made to secure the information or material without

court action. See HRCP Rule 37(a)(2), (b). We review a trial

court's ruling on a motion to compel discovery for an abuse of

discretion. Bank of New York Mellon v. Lemay, 137 Hawaiʻi 30,

33, 364 P.3d 928, 931 (App. 2015).

Collins moved to compel discovery from BONY, which the

circuit court denied without prejudice because Collins failed to

"establish a satisfactory record" that she had met and conferred

with BONY regarding the requested discovery before filing the

motion. A month and a half after the circuit court denied her

first motion to compel, Collins again moved to compel discovery

from BONY, which the circuit court denied, this time with

prejudice, because Collins "did not contact opposing counsel for

plaintiff to confer or attempt to confer" regarding the

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requested discovery before filing the motion and the discovery

cutoff had closed.

Under these circumstances, the circuit court did not

abuse its discretion.

(4) Finally, Collins contends the circuit "court

gravely erred by failing to apply the 6 year" statute of

limitation (POE 5). (Formatting altered.) Collins argues her

"debt expired six years after acceleration" of the loan.

(Formatting altered.)

The application of the statute of limitations is

reviewed de novo. See generally Est. of Roxas v. Marcos, 121

Hawaiʻi 59, 66, 214 P.3d 598, 605 (2009). In Bowler v.

Christiana Trust, a Division of Wilmington Savings Fund Society,

FSB, 143 Hawai‘i 235, 426 P.3d 459, No. CAAP-XX-XXXXXXX, 2018 WL

4659562, at *8 (App. Sept. 28, 2018) (mem. op.), this court held

that the "statute of limitations on actions 'to recover

possession of any lands, or make any entry thereon,' under HRS

§ 657-31 [is] most analogous to a foreclosure action, as opposed

to an action to recover a debt," thus, "a mortgagee may

foreclose on the mortgage after the [six-year] statute of

limitations has run on an action to recover on the underlying

note, except that the mortgagee is not entitled to a deficiency

judgment against the debtor."

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The "limitation period under HRS § 657-31 (2016) is

twenty years." Bank of New York Mellon v. White, 155 Hawai‘i

255, 562 P.3d 176, No. CAAP-XX-XXXXXXX, 2024 WL 5245129, at *1

(App. Dec. 30, 2024) (SDO) (ruling on similar issue where

Collins was also a party), cert. granted, No. SCWC-XX-XXXXXXX.

Thus, the circuit court did not err in applying the

twenty-year statute of limitation.

Based on the foregoing, we affirm the circuit court's

March 10, 2022 Judgment.

DATED: Honolulu, Hawai‘i, June 3, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Gabi Kim Collins,
Defendant-Appellant, pro se. /s/ Sonja M.P. McCullen
Associate Judge
Charles R. Prather,
Robin Miller, /s/ Kimberly T. Guidry
Sun Young Park, Associate Judge
Peter T. Stone,
for Plaintiff-Appellee.

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