US Bank National Association v. Swink

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUL-2025
08:02 AM
Dkt. 51 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CREDIT SUISSE FIRST
BOSTON MORTGAGE SECURITIES CORP. CSMC MORTGAGE-BACKED PASS-
THROUGH CERTIFICATES, SERIES 2007-6, Plaintiff-Appellee,
v.
BONNIE I. SWINK and JACK SWINK, Defendants-Appellants,
and
DEPARTMENT OF TAXATION, STATE OF HAWAI‘I, 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 2-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC141000702)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Hiraoka, JJ.)
This is a second appeal arising out of a foreclosure
decree and judgment, following a prior remand from this court. 1
We affirm.

1 U.S. Bank Nat'l Ass'n v. Swink, NO. CAAP-XX-XXXXXXX, 2018 WL
2714851 (Haw. App. June 6, 2018) (SDO).
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Defendants-Appellants Bonnie I. Swink and Jack Swink
(collectively, the Swinks) appeal from the December 12, 2022
Judgment of the Circuit Court of the Second Circuit (Circuit
Court), 2 entered in favor of Plaintiff-Appellee US Bank National
Association, as Trustee for Credit Suisse First Boston Mortgage
Securities Corp. CSMC Mortgage-Backed Pass-Through Certificates,
Series 2007-6 (US Bank).
The Swinks contend the Circuit Court erred: (1) "in
holding that the applicable date for determining whether US Bank
and its predecessor had possession of the note was the date of
the First Amended Complaint" (Amended Complaint) filed on
September 8, 2021, "rather than the date the original Complaint
was filed" on December 9, 2014; and (2) in granting summary
judgment where US Bank did not prove, through admissible
evidence of the prior loan servicer's records, that "the default
letter of April 3, 2014 was sent to the Swinks."
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, we resolve the
Swinks' points of error as follows.
US Bank filed a December 9, 2014 Complaint for
foreclosure on a property (Property) secured by a promissory
note (Note) and a mortgage executed by the Swinks, following the
Swinks' default on the Note. US Bank's 2017 summary judgment
against the Swinks was vacated on appeal, for lack of admissible
evidence establishing that US Bank possessed the Note at the
time the Complaint was filed.
On remand, US Bank filed the Amended Complaint on
September 8, 2021. On September 14, 2022, US Bank filed a

2 The Honorable Kirstin M. Hamman presided.

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motion for summary judgment on the Amended Complaint, which was
granted. On December 12, 2022, the Circuit Court filed its
"Findings of Fact, Conclusions of Law and Order Granting [US
Bank]'s Motion for Summary Judgment Against All Defendants and
for Interlocutory Decree of Foreclosure" (MSJ Order) and entered
the Judgment, from which the Swinks timely appealed.
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). A foreclosing plaintiff must establish standing by
showing it had the right to enforce the note when its complaint
was filed. Bank of Am., N.A. v. Reyes-Toledo, 139 Hawaiʻi 361,
368, 390 P.3d 1248, 1255 (2017).
(1) The Swinks argue US Bank had to prove possession
of the Note on the date the original Complaint was filed,
relying on the "standing at inception" rule applied in other
jurisdictions. The Swinks argue the Circuit Court's grant of
summary judgment was erroneous because US Bank lacked standing.
US Bank points to this court's decision in Hanalei,
BRC Inc. v. Porter, 7 Haw. App. 304, 760 P.2d 676 (App. 1988),
which predates the 2017 Reyes-Toledo case, to argue that this
precedent indicates that US Bank "should be permitted to
establish standing as of the date it filed its Amended
Complaint."
In Porter, the creditor plaintiff filed suit for
nonpayment on a note, when it "did not have actual possession of
the Note when the original complaint was filed on June 28,
1985." Id. at 309, 760 P.2d at 680. This court explained that
in the amended complaint filed on February 11, 1987, the
creditor plaintiff "alleged that it was a holder of the Note[,]"
and appended evidence as such. Id. This court stated:

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[A]s a general rule, an action cannot be maintained if it
is prematurely commenced before the accrual of the cause of
action which is sought to be enforced. 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." 1A C.J.S Actions § 238 at 713
(1985). See also Thompson v. Meyers, 211 Kan. 26, 33, 505
P.2d 680, 686 (1973). Here, [p]laintiff cured the error of
premature filing by filing its amended complaint on
February 11, 1987, when [p]laintiff was in possession of
the [n]ote and a holder thereof.

Id. at 310, 760 P.2d at 680 (brackets omitted).
The 2017 Reyes-Toledo opinion cited Porter as
supporting authority, but noted in a footnote that:
It is noted that the Porter case allowed for the curing of
the premature commencement by the filing of an amended
complaint after the plaintiff came into possession of the
instrument. We note that this case does not present the
issue of whether an amended complaint will cure the
premature filing of a foreclosure action, and therefore we
do not address this aspect of the Porter case.

Reyes-Toledo, 139 Hawaiʻi at 368 n.12, 390 P.3d at 1255 n.12.
This case presents the identical issue as Porter,
because the Amended Complaint here, which stated the same
foreclosure cause of action as the original Complaint, cured the
error of the premature filing of the original Complaint. See
Porter, 7 Haw. App. at 310, 760 P.2d at 680. "An amended
complaint supersedes the original complaint and renders the
original complaint of no legal effect." Jou v. Siu,
No. CAAP-XX-XXXXXXX, 2013 WL 1187559, at *2 (Haw. App. Mar. 22,
2013) (mem. op.) (citing Beneficial Haw., Inc. v. Casey,
98 Hawaiʻi 159, 167, 45 P.3d 359, 367 (2002)).
The Circuit Court's conclusion that US Bank "had
possession of the original note, indorsed in blank, on
09/08/2021[,]" the date of the Amended Complaint, was correct.
The Circuit Court did not err by granting summary judgment on

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the grounds that US Bank had standing. See Mattos, 140 Hawaiʻi
at 30, 398 P.3d at 619.
(2) The Swinks argue that US Bank "is unable to prove
that the default letter of April 3, 2014 was sent to the Swinks
because that letter was sent by the prior loan servicer, Wells
Fargo Home Mortgage" (Wells Fargo). The Swinks contend the
Wells Fargo records were inadmissible because the
"trustworthiness" of the prior loan servicer's incorporated
records was not established under Verhagen and Yata, which
require that the testimony establishing the trustworthiness of
the incorporated records to describe "pre-incorporation vetting"
by the current servicer. See U.S. Bank Tr., N.A. as Tr. for
LSF9 Master Participation Tr. v. Verhagen, 149 Hawaiʻi 315, 326,
489 P.3d 419, 430 (2021); Deutsche Bank Nat'l Tr. Co. as Tr. for
Morgan Stanley ABS Capital I Inc. Tr. 2006-NC4 v. Yata,
152 Hawaiʻi 322, 334, 526 P.3d 299, 311 (2023). The Swinks
specifically challenge the declaration of Steven B. Ross, an
officer or employee of US Bank's loan servicer, Specialized Loan
Servicing LLC (SLS) (Ross Declaration) because the declaration
"did not adequately explain that there was a due diligence
review of the documents[.]"
We conclude the Ross Declaration contained sufficient
information of "pre-incorporation vetting," establishing
circumstances indicating the trustworthiness of the incorporated
records from Wells Fargo. See Verhagen 149 Hawaiʻi at 326,
489 P.3d at 430. It stated in pertinent part:
12. A portion of the business records for the loan
in this matter were created by a prior servicer, the prior
servicer's records for the loan were integrated and boarded
into SLS's systems, such that the prior servicer's records
concerning the loan are now part of SLS's business records.
SLS maintains quality control and verification procedures
as part of the boarding process to ensure the accuracy of
the boarded records. . . .

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13. For loans that service transfer to SLS, the
company utilizes a proprietary software system called the
Pre-Boarding System ("PBS") to complete a comprehensive,
examination of the loan data for accuracy and make any
needed corrections prior to final boarding of the loan data
into the System of Record ("LoanServ"). When SLS receives
the loan data from the prior servicer for the loans that
will be boarded, trained Data Analysts at SLS load the data
into PBS for manual review and to conduct multi[-]step
audits of the data.

14. A key function of PBS is the tool called Edit
Checks, which is an automated loan data audit program,
which runs on the loan data multiple times through
different accuracy checks and audit queries. Edit Checks
search the loan data for common violations of servicing
business rules such as amortization errors, illogical
condition exceptions, and conflicting or missing data and
also validates the data when no errors or violations are
discovered. When errors and/or violations are discovered
through Edit Checks, they are reviewed manually, and the
necessary corrections are made to the loan data and the
Edit Checks process is rerun until the tool no longer finds
errors in the data.

15. Upon completion of all audits and quality
control on PBS, the loan data is pre-boarded to LoanServ
without activating the loans to prevent usage before a
final audit clearance. This interim step allows SLS to
determine and resolve any system and data errors that may
only be discovered in final form in LoanServ prior to
activation of the loans. Once the loan data has cleared
this pre-boarding audit process, then the final boarding of
the loans occur and the loan data is activated in LoanServ.

(Emphases added.) The Circuit Court did not err by admitting
the default letter, 3 and the grant of summary judgment was not
erroneous in this regard. See Mattos, 140 Hawaiʻi at 30,
398 P.3d at 619.

3 The only item of evidence the Swinks present specific argument
for, is the default letter sent by Wells Fargo. To the extent the Swinks
challenge the admission of all of the Wells Fargo records, their sole
argument presented is that "the documents from the prior loan servicer, Wells
Fargo Home Mortgage, should not have been admitted, and this includes, but is
not limited to, the default letters purportedly send [sic] by Wells Fargo."
(Emphasis added.) The blanket "is not limited to" challenge to all of the
Wells Fargo records is insufficient. See Hawaiʻi Rules of Appellate Procedure
Rule 28(b)(7).

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For the foregoing reasons, we affirm the December 12,
2022 MSJ Order and Judgment filed and entered by the Circuit
Court of the Second Circuit.
DATED: Honolulu, Hawai‘i, July 25, 2025.
On the briefs:
/s/ Karen T. Nakasone
Keith M. Kiuchi,
Chief Judge
for Defendants-Appellants.
/s/ Katherine G. Leonard
Charles R. Prather,
Associate Judge
for Plaintiff-Appellee.
/s/ Keith K. Hiraoka
Associate Judge

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