NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
Defendant-Appellant Diane E. Mather (
On appeal, Mather seems to primarily contend that the circuit court erred in granting summary judgment because a genuine issue of material fact remained as to whether CitiMortgage was in possession of the original promissory note at the commencement of and throughout the foreclosure proceeding, and therefore lacked standing to foreclose on the subject mortgage.
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, as well as the relevant statutory and case law, we conclude that Mather's appeal is without merit.
The Hawai`i Supreme Court recently discussed the standing requirements for foreclosing parties, holding that:
In addition, a party seeking to foreclose on a property must submit an attorney affirmation in compliance with Hawai`i Revised Statutes (
HRS § 490:3-301 (2008) provides that "the holder of the instrument" is entitled to enforce the instrument. HRS § 490:1-201 (2008) defines a "[h]older" as the "person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." HRS § 490:3-201 (2008) further provides:
Here, the "Initial Interest
The Complaint stated that CitiMortgage "is the current entity entitled to enforce the terms of the
Through (1) the submission of the foregoing documents, (2) copies of the mortgage and assignment, (3) the Declaration of Karyn A. Doi, filed February 25, 2015 with a letter notifying Mather of her default attached, and (4) the exhibits and declarations submitted in support of the Complaint and Motion for Summary Judgment, CitiMortgage established: (1) the existence and execution by Mather of the subject note and mortgage; (2) the terms of the note and mortgage; (3) default on the payments due under the terms of the note and mortgage; (4) notice of default; and (5) CitiMortgage's entitlement to enforce the Note at the commencement of the proceedings.
Mather's other assertions related to CitiMortgage's failure to prove its possession of the "original" Note are without merit. Evidence in the record clearly establishes that the circuit court did not err in finding that CitiMortgage was the holder of the original Note.
Mather also contends that the circuit court erred in granting CitiMortgage's Motion for Summary Judgment because Cohoon's "Declaration in Support of Plaintiff's Motion for Summary Judgment" (
Additionally, Mather asserts that Cohoon is not an authenticating witness and therefore, the Cohoon Declaration did not authenticate any of the documents referenced as exhibits in the declaration. "The Hawai`i Supreme Court has held that a `qualified witness' can authenticate a document as a record of regularly conducted activity pursuant to [Hawai`i Rules of Evidence (
The Cohoon Declaration stated that Cohoon is an employee of CitiMortgage. The Cohoon Declaration further stated that Cohoon, as custodian of the records referenced, has access and is familiar with CitiMortgage's books and records regarding Mather's loan and that Cohoon is familiar with the manner in which CitiMortgage maintains its books and records. Moreover, the Cohoon Declaration indicated that CitiMortgage's documents, which Cohoon referred to in preparing her declaration, were records "made at or near the time of the occurrence of the matters set forth in such records, by an employee or representative with knowledge of the acts or events recorded." Cohoon further declared that CitiMortgage "maintains and relies on these business records in the ordinary course of its mortgage loan servicing business" and confirms that "prior records for [Mather's loan] received from the Prior Servicer(s)/Lender(s) are accurate and have been incorporated into" CitiMortgage's business records for Mather's loan. Accordingly, the Cohoon Declaration established that CitiMortgage relies on the documents related to Mather's loan and the documents constituted "records of regularly conducted activity" that were admissible as a hearsay exception, pursuant to HRE Rule 803 (b) (6). Therefore, the circuit court did not err in relying upon the documents when it granted summary judgment in favor of CitiMortgage.
Accordingly, the circuit court's October 12, 2015 "Findings of Fact and Conclusions of Law; Order Granting Plaintiff's Motion for Summary Judgment and for Interlocutory Decree of Foreclosure Filed July 31, 2015" and "Judgment" are affirmed.
All other pending motions are denied.