The Bank of New York Mellon v. White

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-DEC-2024
07:51 AM
Dkt. 101 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

THE BANK OF NEW YORK MELLON formerly known as THE BANK OF NEW
YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWABS, INC. ASSET-
BACKED CERTIFICATES, SERIES 2006-11, Plaintiff-Appellee,
v.
BRENDA MERLE WHITE; ASSOCIATION OF APARTMENT OWNERS OF KUMELEWAI
COURT; MILILANI TOWN ASSOCIATION, Defendants-Appellees,
and
GABI KIM COLLINS, Defendant-Appellant,
and
JOHN DOES 1-20; JANE DOES 1-20; DOE CORPORATIONS 1-20; DOE
ENTITIES 1-20; AND DOE GOVERNMENTAL UNITS 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC181000644)

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

Gabi Kim Collins, representing herself,1 appeals from
the March 22, 2021 Judgment for The Bank of New York Mellon
entered by the Circuit Court of the First Circuit.2 She

1
Collins' opening brief does not comply with Rule 28(b) of the
Hawai#i Rules of Appellate Procedure. To promote access to justice, we do not
automatically foreclose self-represented litigants from appellate review
because they don't comply with court rules. Erum v. Llego, 147 Hawai#i 368,
380-81, 465 P.3d 815, 827-28 (2020). We address Collins' arguments to the
extent we can discern them.
2
The Honorable Jeannette H. Castagnetti presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

challenges the circuit court's March 22, 2021 findings,
conclusions, and decree of foreclosure. We affirm.
In 2006, Brenda Merle White signed a promissory Note to
Countrywide Home Loans, Inc. The Note was secured by a Mortgage
on White's Property in Mililani. The Mortgage was assigned to
Bank's predecessor. White defaulted on the Note in 2008.
The AOAO Kumelewai Court judicially foreclosed its lien
for unpaid assessments and fees against the Property in 2015.
Ainamakua Properties LLC acquired the Property on April 2, 2015,
by commissioner's deed. Ainamakua quitclaimed the Property to
Collins on May 18, 2015.
Bank filed a mortgage foreclosure complaint against
White, Collins, and others on April 26, 2018, and an amended
complaint on April 3, 2020. On March 22, 2021, the circuit court
entered findings of fact, conclusions of law, and an order
foreclosing the Mortgage. The court found and concluded that
Bank's lien was senior to Collins' interest in the Property. The
Judgment was also entered on March 22, 2021. Collins moved to
stay enforcement of the Judgment. A stay order was entered on
June 17, 2021; it conditioned a stay on Collins posting a
supersedeas bond.3 This appeal followed. We review a grant of
summary judgment de novo. Nozawa v. Operating Engineers Local
Union No. 3, 142 Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018).
We address Collins' arguments in the order made in her opening
brief.
(1) Collins argues: the statute of limitations
applicable to White's default under the Note is Hawaii Revised
Statutes (HRS) § 657-1 (six years); Bank recorded a notice of
intention to foreclose under power of sale on July 24, 2008; the
foreclosure complaint was untimely filed on April 26, 2018, over
six years after White's default.

3
Collins filed a "Notice of Posting Bond" on July 13, 2021, but the
receipt attached to the notice indicates she tendered a check instead of a
supersedeas bond. Collins makes no argument challenging the order
conditioning a stay upon her posting a supersedeas bond.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Collins is correct that HRS § 657-1 applies to actions
to recover on a debt based on a contract (such as the Note). But
"[a] foreclosure action is a legal proceeding to gain title or
force a sale of the property for satisfaction of a note that is
in default and secured by a lien on the subject property." Bank
of Am., N.A. v. Reyes-Toledo, 139 Hawai#i 361, 368, 390 P.3d
1248, 1255 (2017). "[T]he 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[.]" Bowler v.
Christiana Tr., No. CAAP-XX-XXXXXXX, 2018 WL 4659562, at *8 (Haw.
App. Sept. 28, 2018) (mem. op.), cert. denied, SCWC-XX-XXXXXXX,
2019 WL 951008 (Haw. Feb. 26, 2019). The limitation period under
HRS § 657-31 (2016) is twenty years. Bank's mortgage foreclosure
action was not time-barred.
(2) Collins argues that Bank lacked standing to
foreclose. Bank showed that it held the indorsed-in-blank Note,
through counsel, when its foreclosure complaint was filed.
Reyes-Toledo, 139 Hawai#i at 368, 390 P.3d at 1255. Bank also
showed it continued to hold the Note, through counsel, when it
moved for summary judgment. Bank established standing to
foreclose the Mortgage.
(3) Collins argues that Bank didn't satisfy a
condition precedent to its right to foreclose the Mortgage. She
argues that the September 20, 2019 notices of default "failed to
give notice" because they were "sent after the foreclosure was
active[.]"4 The notices told White that "[f]ailure to cure the
default on or before October 23, 2019 may result in acceleration
of the sums secured by the [Mortgage] and sale of the property,
unless a loss mitigation alternative to foreclosure has been
started." That language complied with section 22 of White's
Mortgage. The amended complaint was filed on April 3, 2020,

4
Identical notices were mailed to the Property and to White's last
known address.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

after the stated deadline to cure the default on the Note. The
amended complaint superseded the original complaint and rendered
the original of no legal effect. Beneficial Haw., Inc. v. Casey,
98 Hawai#i 159, 167, 45 P.3d 359, 367 (2002). Bank satisfied the
condition precedent to its right to foreclose the Mortgage.
The circuit court's Judgment, entered on March 22,
2021, is affirmed.
DATED: Honolulu, Hawai#i, December 30, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Gabi Kim Collins, Presiding Judge
Self-represented
Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Patricia J. McHenry,
Michi Momose, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee Associate Judge
The Bank of New York Mellon
formerly known as The Bank
of New York, as Trustee for
the Certificateholders of
CWABS, Inc. Asset-Backed
Certificates, Series 2006-11.

4