U.S. Bank Trust, N.A. v. Morton

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-JUN-2024
07:59 AM
Dkt. 69 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

U.S. BANK TRUST, N.A., AS TRUSTEE FOR
LSF9 MASTER PARTICIPATION TRUST, Plaintiff-Appellee, v.
THOMAS A. MORTON, Defendant-Appellant, and
RENE D. MORTON aka RENE D. RICHARDS; COUNTY OF HAWAI#I,
a municipal corporation of the State of Hawaii,
Defendants-Appellees, and
DOES 1 THROUGH 20, Inclusive, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3CC18100151K)

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

Thomas A. Morton appeals from the April 12, 2019
Judgment for U.S. Bank Trust, N.A. entered by the Circuit Court
of the Third Circuit.1 We affirm.
U.S. Bank filed a residential mortgage foreclosure
complaint against Morton and others2 on August 3, 2018. Morton
answered the complaint, representing himself. He didn't deny the
complaint's allegations. But he disputed U.S. Bank's "legal
standing to proceed" and claimed that U.S. Bank did not have "THE
ORIGINAL DEED OF TRUST" and could not provide a "PERFECT

1
The Honorable Melvin H. Fujino presided.
2
The others were Rene D. Morton, also known as Rene D. Richards,
and the County of Hawai#i. They are not parties to this appeal.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

INSTRUMENT." U.S. Bank moved for summary judgment (MSJ). Morton
filed an opposition but did not include an affidavit, a
declaration, or documents. On April 12, 2019, the circuit court
entered findings of fact, conclusions of law, and an order
granting summary judgment, and the Judgment. Morton, through
counsel, timely moved for reconsideration. Reconsideration was
denied. This appeal followed.
The points of error section in Morton's opening brief
does not comply with Hawai#i Rules of Appellate Procedure (HRAP)
Rule 28(b)(4). As best we can discern, the statement of the case
and argument sections raise: (1) U.S. Bank's standing to
foreclose; (2) the attorney affirmation; (3) Morton's request to
conduct discovery; (4) admissibility of evidence supporting the
MSJ; (5) adequacy of the circuit court's findings and
conclusions; (6) statute of limitations; and (7) denial of the
motion for reconsideration.
(1) Morton argues U.S. Bank didn't prove it had
standing to enforce the note when its complaint was filed. See
Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai#i 361, 368, 390 P.3d
1248, 1255 (2017). It did. Attached to the complaint was a
declaration from U.S. Bank's attorney. He stated he reviewed the
original note, kept in his Honolulu office, 14 days before the
complaint was filed. A copy of the note was attached to the
declaration. The original lender was Wells Fargo Home Mortgage
of Hawaii, LLC. The note had a special indorsement by Wells
Fargo Home to Wells Fargo Bank, N.A., and a blank indorsement by
Wells Fargo Bank, N.A. This shows that U.S. Bank had the right
to enforce the note as a holder when its complaint was filed.
See id. at 367, 390 P.3d at 1254.
(2) A residential mortgage foreclosure complaint must
be accompanied by "an affirmation that the attorney has verified
the accuracy of the documents submitted, under penalty of perjury
and subject to applicable rules of professional conduct." Hawaii
Revised Statutes (HRS) § 667-17 (2016). The statute includes a
form with which the affirmation must substantially comply. An

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

Attorney Affirmation was filed with U.S. Bank's complaint.
Morton argues the attorney did not "claim firsthand personal
knowledge of the content and location of all of the relevant and
material loan documents U.S. Bank is relying on[.]" That isn't
something the statute requires. Morton offers no other argument.
The Attorney Affirmation substantially complied with HRS § 667-
17.
(3) Morton's opposition to U.S. Bank's MSJ did not ask
for a continuance to conduct discovery. He filed a "Motion for
Discovery" as a "request for reproduction of documents," but it
didn't mention the MSJ or cite Hawai#i Rules of Civil Procedure
(HRCP) Rule 56(f). See Ralston v. Yim, 129 Hawai#i 46, 63, 292
P.3d 1276, 1293 (2013) ("HRCP Rule 56(f) is the appropriate means
by which parties can ensure that they have adequate time to
respond to a motion for summary judgment."). Morton's motion was
an HRCP Rule 34 request for production of documents. Even if
construed as requesting an HRCP 56(f) continuance, the motion did
not explain what material facts the documents might reveal. See
Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116
Hawai#i 277, 308, 172 P.3d 1021, 1052 (2007) (stating that the
party seeking a continuance under HRCP Rule 56(f) "is required to
show what specific facts further discovery might unveil")
(citation omitted). And none of the documents requested would
have been material to the issues presented by the MSJ.
Morton also filed a "Motion to Compel" U.S. Bank "to
produce the original 'wet' document in court physically[.]"
U.S. Bank's counsel brought the original note to the MSJ hearing.
Morton acknowledged examining it, although he didn't believe it
was the original note. During the hearing he didn't ask for a
continuance to conduct discovery. The circuit court does not
abuse its discretion by not granting a request that was never
made.
(4) Morton argues U.S. Bank's records supporting its
MSJ were inadmissible under Hawaii Rules of Evidence (HRE)
Rule 803(b)(6). U.S. Bank's documents were authenticated by the

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

declaration of Melinda Patterson. The declaration contained the
information held sufficient to authenticate incorporated records
under HRE Rule 803(b)(6) in U.S. Bank Tr., N.A. v. Verhagen, 149
Hawai#i 315, 325-27, 489 P.3d 419, 429-31 (2021).
(5) Morton argues the circuit court's findings of fact
were insufficient to support the grant of summary judgment. His
points of error don't cite or quote any findings, as required by
HRAP Rule 28(b)(4)(C). Points not complying with HRAP
Rule 28(b)(4) will be disregarded. HRAP Rule 28(b)(4). His
brief doesn't explain which findings were insufficient, and why.
His argument is waived. HRAP Rule 28(b)(7) ("Points not argued
may be deemed waived.").
(6) Morton argues U.S. Bank's claims were barred by
the statute of limitations. He cites no authority other than HRS
§ 657-1(1). He provides no "record references supporting each
statement of fact or mention of court or agency proceedings" as
required by HRAP Rule 28(b)(3). But ultimately, the statute of
limitations is a personal defense that can be waived. Kellberg
v. Yuen, 135 Hawai#i 236, 254, 349 P.3d 343, 361 (2015). Morton
did not assert that defense in his answer or his opposition to
U.S. Bank's motion for summary judgment. He waived it.
(7) Morton's motion for reconsideration argued facts
and law that could and should have been presented in opposition
to U.S. Bank's MSJ. The circuit court did not abuse its
discretion by denying reconsideration. Sousaris v. Miller, 92
Hawai#i 505, 513, 993 P.2d 539, 547 (2000).
For these reasons, the April 12, 2019 Judgment is
affirmed.
DATED: Honolulu, Hawai#i, June 12, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Gary Victor Dubin, Presiding Judge
Frederick J. Arensmeyer,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
David B. Rosen,
for Plaintiff-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

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