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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-SEP-2025
08:31 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

U.S. BANK NATIONAL ASSOCIATION, as Trustee, Successor in interest
to Bank of America National Association, as Trustee, Successor by
Merger to LaSalle Bank National Association, as Trustee for
Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed
Pass-through Certificates, Series 2007-SP2, Plaintiff-Appellee,
v.
PAULINE FRANCES PILIALOHA YAP, Defendant-Appellant, and
JOHN DOES 1-20; JANE DOES 1-20; DOE CORPORATIONS 1-20;
DOE ENTITIES 1-20; DOE GOVERNMENTAL UNITS 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC191000217)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Pauline Frances Pilialoha Yap (Yap)

appeals from the June 1, 2023 Judgment and challenges the June 1,

2023 Findings of Fact, Conclusions of Law and Order Granting

Plaintiff's Motion for Summary Judgment Against All Defendants

and for Interlocutory Decree of Foreclosure [(Second MSJ)]

(FOFs/COLs/Order), entered by the Circuit Court of the First

Circuit (Circuit Court), in favor of Plaintiff-Appellee U.S. Bank

National Association, as Trustee, successor in interest to Bank

of America National Association, as Trustee, successor by merger

to LaSalle Bank National Association, as Trustee for Residential
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Assert Mortgage Products, Inc., Mortgage Asset-Backed Pass-

Through Certificates, Series 2007-SP2 (U.S. Bank).1

Yap raises three points of error on appeal, contending

that the Circuit Court erred in granting the Second MSJ because:

(1) U.S. Bank failed to demonstrate possession of a January 26,

2009 loan modification document (Loan Modification); (2) there

was no verification from U.S. Bank's counsel regarding possession

of either the November 6, 2006 fixed rate balloon note Yap

executed and delivered to People's Choice Home Loan, Inc.

(People's Choice) in the principal amount of $526,500.00 (Note)

or the Loan Modification; and (3) there was no business record or

document establishing LaSalle Bank as an original Trustee or U.S.

Bank as a successor-in-interest.

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 Yap's

points of error as follows:

(1) Yap argues that U.S. Bank failed to demonstrate

possession of the Loan Modification under Bank of Am., N.A. v.

Reyes-Toledo, 139 Hawai i 361, 390 P.3d 1248 (2017). Yap does

not point to any authority to support the proposition that a

foreclosing plaintiff must demonstrate possession of a loan

modification agreement for a note to prove its entitlement to

enforce the note, nor could we find any. 2

1
The Honorable Jeannette H. Castagnetti presided.
2
We note that Yap failed to raise this argument in the Circuit
Court.

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To establish standing to foreclose, the plaintiff must

prove its entitlement to enforce the note and mortgage.

Reyes-Toledo, 139 Hawai i at 367, 390 P.3d at 1254. Under Hawaii

Revised Statutes (HRS) § 490:3-301 (2008), a "'[p]erson entitled

to enforce' an instrument means (i) the holder of the instrument,

or (ii) a nonholder in possession of the instrument who has the

rights of a holder[.]" An instrument is a "note" if it is a

promise. HRS § 490:3-104(e) (2008). When a note is indorsed in

blank, it becomes payable to the bearer and may be negotiated by

transfer of possession alone unless specially indorsed. Id. at

370, 390 P.3d at 1257 (citing HRS § 490:3-205(b) (2008)). A

foreclosing plaintiff establishes their standing to foreclose by

producing evidence that it was the holder of the note at the time

it filed the complaint. Id.

HRS § 490:3-301 does not require a person to be in

possession of any modifications to a note in order to be entitled

to enforce the note. 3 We conclude that Yap's argument is without

merit.

3
We further note that HRS § 490:3-117 (2008) provides:

§ 490:3-117 Other agreements affecting instrument.
Subject to applicable law regarding exclusion of proof of
contemporaneous or previous agreements, the obligation of a
party to an instrument to pay the instrument may be
modified, supplemented, or nullified by a separate agreement
of the obligor and a person entitled to enforce the
instrument, if the instrument is issued or the obligation is
incurred in reliance on the agreement or as part of the same
transaction giving rise to the agreement. To the extent an
obligation is modified, supplemented, or nullified by an
agreement under this section, the agreement is a defense to
the obligation.

HRS § 490:3-117 does not indicate that possession of a loan
modification agreement is required for the enforcement of an instrument.
Rather, it provides otherwise by stating that a loan modification agreement
may be used as a defense to an obligation.

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(2) Yap argues that the Circuit Court erred in

granting the Second MSJ because the Amended Complaint contained

no verification from U.S. Bank's counsel regarding possession of

the original Note or the Loan Modification. As discussed supra,

U.S. Bank need not demonstrate that it had possession of the Loan

Modification to prove its entitlement to enforce the Note.

The Circuit Court determined in COLs 4 and 5 as

follows:
4. Plaintiff is the holder of the Note and Mortgage
and is entitled to enforce them. Plaintiff qualifies as the
Note holder with standing to prosecute the instant action as
the Note is indorsed in blank, thereby converting the Note
to a bearer instrument, and Plaintiff is currently in
rightful possession of the indorsed Note.

5. Plaintiff was the holder of the Note, indorsed in
blank, at the time the Complaint was filed.

COLs 4 and 5 are supported by the record. U.S. Bank

attached a copy of the Note as well as Allonges 1 and 2 to the

Second MSJ. Allonge 1 was indorsed in blank, and Allonge 2 was

void. U.S. Bank has standing if it possessed the original Note

at the time it brought the foreclosure action. See Reyes-Toledo,

139 Hawai i at 370, 390 P.3d at 1257.

Possession of the original note may be established by

sworn testimony corroborated by admissible documentary evidence.

U.S. Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr. v.

Verhagen, 149 Hawai i 315, 327-28, 489 P.3d 419, 431-32 (2021).

Here, U.S. Bank produced the declaration testimony of Juliana

Thurab (Thurab), an employee and authorized record custodian of

PHH Mortgage Corporation (PHH), who is the successor by merger to

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the prior loan servicer, Ocwen Loan Servicing, LLC (Ocwen).4

Thurab declared, inter alia, "PHH's records indicate that [U.S.

Bank], by and through its counsel, had possession of the original

Note, indorsed in blank, as of 12/20/2021, the date of the filing

of the Amended Complaint. A true and correct copy of the

Attorney Bailee, which I have reviewed, reflecting possession of

the original Note, indorsed in blank, by [U.S. Bank's] attorney

is attached as Exhibit '5' and is incorporated herein by

reference." Thurab's testimony is corroborated by the Attorney

Bailee letter dated January 17, 2019, which confirmed that The

Mortgage Law Firm attorney Brian Nii currently held the original

Note and two allonges on behalf of U.S. Bank and/or the loan

servicer, Ocwen. Accordingly, the Attorney Bailee letter and

Thurab Declaration established that U.S. Bank's counsel held the

original Note and pertinent Allonge on behalf of U.S. Bank as of

January 17, 2019, twenty-one days prior to the filing of the

Complaint on February 7, 2019, and nearly three years prior to

the filing of the Amended Complaint on December 20, 2021. See

Verhagen, 149 Hawai i at 327-28, 489 P.3d at 431-32. We conclude

that the Circuit Court did not err in determining that there was

no genuine issue of material fact as to U.S. Bank's standing to

foreclose as the holder of the Note.

(3) Yap argues that the Circuit Court erred in

granting the Second MSJ because U.S. Bank failed to establish

that (1) the Trust document existed, (2) LaSalle Bank National

4
Effective June 1, 2019, the prior loan servicer, Ocwen, merged
into PHH as reflected in the approved October 8, 2019 Petition for Order re:
Change of Name of Ocwen Loan Servicing, LLC to PHH Mortgage Corporation filed
in the Land Court of the State of Hawai i.

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Association (LaSalle Bank) was Trustee, (3) Bank of America was

the successor-by-merger to LaSalle Bank such that it became

Trustee, and (4) U.S. Bank was the successor-in-interest to Bank

of America such that it became the Trustee.

U.S. Bank established that it was the holder of the

Note, indorsed in blank, at the time the Complaint was filed.

Accordingly, U.S. Bank established its entitlement to enforce the

Note and was not required to further produce evidence that it was

the Trustee. See, e.g., U.S. Bank, Nat'l Ass'n as Tr. Under

Pooling & Servicing Agreement Dated as of March 1, 2007, GSAMP

Tr. 2007-HE2, Mortgage Pass-Through Certificates, Series 2007-HE2

v. Lelenoa, No. CAAP-XX-XXXXXXX, 2024 WL 5154817, *3 (Haw. App.

Dec. 18, 2024) (SDO) ("U.S. Bank established its possession of

the Note and was not required to introduce evidence that it was

the trustee"); see also U.S. Bank Nat. Ass'n v. Salvacion, 134

Hawai i 170, 175, 338 P.3d 1185, 1190 (App. 2014). We conclude

that Yap's third point of error is without merit.

For these reasons, the Circuit Court's June 1, 2023

Judgment is affirmed.

DATED: Honolulu, Hawai i, September 5, 2025.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Richard T. Forrester,
(Forrester Legal, LLLC) /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge

David A. Nakashima, /s/ Clyde J. Wadsworth
Jade Lynne Ching, Associate Judge
Michelle N. Comeau,
Ryan B. Kasten,
(Nakashima Ching LLC)
for Plaintiff-Appellee.