The Bank of New York Mellon v. Manzanillo

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-AUG-2025
07:57 AM
Dkt. 62 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS, CWABS, INC., ASSET-BACKED CERTIFICATES,
SERIES 2007-11, Plaintiff-Appellee,
v.
HERMAN MANZANILLO, Defendant-Appellant; and ALGERIA BALAIS
MANZANILLO; WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE OF THE ASPEN
HOLDINGS TRUST, A DELAWARE STATUTORY TRUST, Defendants-
Appellees, 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. 1CC191001441)

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

This is a judicial foreclosure case. Defendant-

Appellant Herman Manzanillo (Manzanillo) appeals from the

Circuit Court of the First Circuit's (circuit court):1 (1)

1 The Honorable Jeannette H. Castagnetti presided.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

"Findings of Fact, Conclusions of Law and Order Granting

[Plaintiff-Appellee The Bank of New York Mellon, as Trustee for

the Certificateholders, CWABS, Inc., Asset-Backed Certificates,

Series 2007-11's (BONYM)] Motion for Summary Judgment Against

All Defendants and for Interlocutory Decree of Foreclosure"

(Foreclosure Order), filed on August 4, 2022; (2) Judgment,

filed on August 4, 2022; and (3) "Notice to Parties of Denial of

Motion for Reconsideration," filed on December 8, 2022.

The summary judgment record reflects that Manzanillo

owned real estate in Waipahu (the Property). In May 2007,

Manzanillo and Alegria Balais Manzanillo (Alegria)2 executed a

$480,000 promissory note (Note) in favor of Countrywide Home

Loans, Inc. (Countrywide). The Note was secured with a mortgage

on the Property (the Mortgage). The Mortgage identified

Mortgage Electronic Registration Systems, Inc. (MERS), solely as

nominee for Countrywide, as mortgagee. The Mortgage was

assigned to BONYM by assignment of mortgage recorded on June 30,

2010, and, in February 2011, Manzanillo and Alegria executed a

Loan Modification Agreement, modifying the original principal

balance due under the Note to $518,632.32.

2 The record reflects that Alegria is deceased, and she is not a
party to this appeal.

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Manzanillo and Alegria defaulted on the Note, failed

to timely cure the default, and BONYM filed a Complaint for

Mortgage Foreclosure (the Complaint) on September 10, 2019.

BONYM moved for summary judgment and interlocutory

decree of foreclosure in February 2022. The circuit court

granted BONYM's Motion for Summary Judgment (MSJ) and entered

Judgment. On appeal, Manzanillo raises a single point of error,

contending that "[t]he Circuit Court committed clear and

manifest error of law in granting summary judgment in favor of

BONYM and abused its discretion in failing to reconsider its

summary judgment ruling, because BONYM failed to present

admissible evidence establishing its standing to sue, which was

its prima facie burden."

Upon careful review of the record and relevant legal

authorities, and having given due consideration to the arguments

advanced and the issues raised by the parties, we resolve

Manzanillo's contention as follows.

We review the circuit court's grant of summary

judgment de novo, applying the following standard,

[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must

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view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.

Ralston v. Yim, 129 Hawaiʻi 46, 55-56, 292 P.3d 1276, 1285-86

(2013) (citation omitted).

BONYM, as the foreclosing party, "must [inter alia]

prove its entitlement to enforce the note and mortgage." Bank

of Am., N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 367, 390 P.3d

1248, 1254 (2017) (citations omitted). In Reyes-Toledo, the

Hawaiʻi Supreme Court held that,

A foreclosing plaintiff's burden to prove entitlement to
enforce the note overlaps with the requirements of standing
in foreclosure actions as standing is concerned with
whether the parties have the right to bring suit.
Typically, a plaintiff does not have standing to invoke the
jurisdiction of the court unless the plaintiff has suffered
an injury in fact. A mortgage is a conveyance of an
interest in real property that is given as security for the
payment of the note. 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. Thus, the underlying
"injury in fact" to a foreclosing plaintiff is the
mortgagee's failure to satisfy its obligation to pay the
debt obligation to the note holder. Accordingly, in
establishing standing, a foreclosing plaintiff must
necessarily prove its entitlement to enforce the note as it
is the default on the note that gives rise to the action.

Id. at 367-68, 390 P.3d at 1254-55 (cleaned up).

Here, the summary judgment record reflects that BONYM

provided the circuit court with the following: (1) the September

13, 2019 Declaration of Custodian of Records for TMLF Hawaii

LLLC (TMLF), Jannie Isisaki (Isisaki), who declared under

penalty of law that,

2. The information in [Isisaki's] Declaration is
taken from [TMLF's] business records. [Isisaki has]
personal knowledge of [TMLF's] procedures for creating

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these records. They are: (a) made at or near the time of
the occurrence of the matters recorded by persons with
personal knowledge of the information in the business
record, or from information transmitted by persons with
personal knowledge; (b) kept in the course of [TMLF's]
regularly conducted business activities; and (c) created by
[TMLF] as a regular practice.

3. It is part of [TMLF's] business practice to keep
the original promissory notes on behalf of clients before
filing of a Complaint, if the Complaint was filed by
[TMLF]. If the Complaint is not filed by [TMLF], counsel
still takes possession of the original Note.

4. According to the records and files of [TMLF], on
08/21/2019, [TMLF] was in possession of the original Note,
indorsed in blank. A true and correct copy of the Bailee
Letter dated 08/21/2019 is attached hereto as Exhibit "B".

5. The original Note, indorsed in blank is currently
stored at [TMLF's] designated storage facility in a fire-
proof safe.

6. According to my records and files, [BONYM] has
authorized [TMLF] to be in physical possession of the
original Note during the duration of this litigation[;]

(2) the January 14, 2022 Declaration of Mariah Royce (Royce),

Document Verification Specialist for NewRez LLC fka New Penn

Financial, LLC d/b/a Shellpoint Mortgage Servicing (NewRez),3 who

declared based on her review of NewRez's business records and

personal knowledge, that "[NewRez's] records indicate that

[BONYM], by and through its counsel, had possession of the

original Note, indorsed in blank, as of 09/10/2019, the date of

the filing of the complaint in this foreclosure[;]" (3) the

August 20, 2019 Bailee Letter to TMLF, authenticated by Isisaki

and Royce; and (4) the Note, Mortgage, and Assignment of

Mortgage to BONYM.

3 NewRez was the loan servicer for Manzanillo's loan.

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On this record, we conclude that BONYM satisfied its

initial burden on summary judgment. See U.S. Bank Tr., N.A. v.

Verhagen, 149 Hawaiʻi 315, 328, 489 P.3d 419, 432 (2021)

("Collectively, the evidence presented by U.S. Bank . . .

establishes the bank's possession of the Note on the day the

complaint was filed.") (footnote omitted).

The burden then shifted to Manzanillo, and Manzanillo

did not meet his burden of establishing that there is a genuine

question of material fact for trial. See Verhagen, 149 Hawaiʻi

at 328, 489 P.3d at 432 ("[A] defendant may counter this

inference of possession at the time of filing with evidence

setting forth 'specific facts showing that there is a genuine

issue' as to whether the plaintiff actually possessed the

subject note at the time it filed suit." (citing Hawaiʻi Rules of

Civil Procedure Rule 56(e))). Manzanillo has offered no

evidence that BONYM, through its counsel, did not possess the

Note at the time the Complaint was filed.4

4 Manzanillo, who was self-represented at the time of the summary
judgment hearing, did not oppose BONYM's MSJ. Manzanillo subsequently
obtained counsel and filed a Motion for Reconsideration of the Foreclosure
Order. On appeal, Manzanillo contends that the circuit court abused its
discretion by not ruling on the Motion for Reconsideration, which resulted in
the entry of a default Notice to Parties of Denial of the Motion for
Reconsideration. Manzanillo's Motion for Reconsideration did not present any
evidence that would raise a genuine issue of material fact as to BONYM's
possession of the Note at the time the Complaint was filed. We therefore
conclude that the circuit court did not abuse its discretion.

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For the foregoing reasons, we affirm the circuit

court's Foreclosure Order and Judgment, filed August 4, 2022.

DATED: Honolulu, Hawaiʻi, August 14, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Frederick J. Arensmeyer,
for Defendant-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Charles R. Prather,
for Plaintiff-Appellee. /s/ Kimberly T. Guidry
Associate Judge

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