U.S. Bank National Association v. Goldstein

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2025
08:08 AM
Dkt. 72 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE
FOR THE RMAC TRUST, SERIES 2016-CTT,
Plaintiff/Counterclaim Defendant-Appellee,
v.
GERALD GOLDSTEIN, Defendant/Cross-claim Defendant-Appellant,
TRINITY FINANCIAL SERVICES, LLC,
Defendant/Counterclaimant/Cross-claimant-Appellee,
CLAIRE LEVINE; ASSOCIATION OF APARTMENT OWNERS OF
WAILEA BEACH VILLAS; WAILEA COMMUNITY ASSOCIATION;
WAILEA BEACH VILLAS ASSOCIATION OF APARTMENT OWNERS;
HAR-BRONSON DIVERSIFIED, LLC; and PACIFIC WESTERN BANK,
Defendants/Cross-claim Defendants-Appellees,
and
DOES 1 THROUGH 20, INCLUSIVE, Defendants/Cross-claim Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CC191000246)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)

Defendant/Cross-claim Defendant-Appellant Gerald

Goldstein (Goldstein) appeals from the Findings of Fact (FOFs)
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

and Conclusions of Law (COLs); Order Granting Plaintiff/

Counterclaim Defendant-Appellee U.S. Bank National Association,

Not in Its Individual Capacity but Solely as Trustee for the

RMAC Trust, Series 2016-CTT's (U.S. Bank) Motion for Summary

Judgment and for Interlocutory Decree of Foreclosure, Filed

August 16, 2022 (Order), and Judgment, both entered on October

11, 2022 by the Circuit Court of the Second Circuit (circuit

court).1

Goldstein raises four points of error on appeal,

contending that the circuit court erred in granting summary

judgment and an interlocutory decree of foreclosure because: (1)

there were genuine issues of material fact concerning the

principal balance owed under the promissory note (Note); (2) the

evidence used to prove the principal, interest, costs, tax, and

other amounts due were not admissible under the hearsay

exception in Hawaii Rules of Evidence (HRE) Rule 803(b)(6); (3)

U.S. Bank failed to provide adequate notice of the assignments

of the subject mortgage (Mortgage), the deferred interest

charges, and acceleration of the loan; and (4) all claims under

the Note are barred by the six-year statute of limitations

(SOL).

1 The Honorable Kelsey T. Kawano presided.

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

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Goldstein's points of error as follows:

(1) Goldstein contends that U.S. Bank failed to prove

that no genuine issue of material fact existed as to the

principal balance due under the Note because: (1) the Note was

executed on January 19, 2007, with the "principal amount of

$4,991,000 and the initial rate of 8.625% per annum"; (2) U.S.

Bank represented that the principal balance as of May 1, 2022

was $5,408,940.13; and (3) there is no showing or proof of how

the $5,408,940.13 principal balance was calculated.

We review the circuit court's grant of summary

judgment de novo. Kanahele v. State, 154 Hawai‘i 190, 201, 549

P.3d 275, 286 (2024). Pursuant to Hawai‘i Rules of Civil

Procedure Rule 56(c), summary judgment shall be granted,

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 a judgment as
a matter of law.

Foreclosing parties must "demonstrate that all conditions

precedent to foreclosure under the note and mortgage are

satisfied and that all steps required by statute have been

strictly complied with." Wells Fargo Bank, N.A. v. Behrendt,

142 Hawai‘i 37, 41, 414 P.3d 89, 93 (2018) (citation omitted).

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

Typically, this requires that the plaintiff prove: (1) "the

existence of an agreement"; (2) "the terms of the agreement";

(3) "a default by the mortgagor under the terms of the

agreement" -- i.e., failure to make payments; and (4) "giving of

the cancellation notice." Bank of Am., N.A. v. Reyes-Toledo,

139 Hawai‘i 361, 367, 390 P.3d 1248, 1254 (2017) (citation

omitted).

The summary judgment record reflects that U.S. Bank

produced no evidence to establish how the $5,408,940.13

principal balance was calculated.2 The circuit court's adoption

of this figure as the principal balance does not, however,

provide a basis for setting aside the circuit court's grant of

summary judgment. Goldstein does not dispute that a default

occurred, and a discrepancy in the amount of the principal

balance due does not merit vacating the foreclosure decree. See

Bank of Honolulu, N.A. v. Anderson, 3 Haw. App. 545, 549, 654

P.2d 1370, 1374 (App. 1982) (determining that Hawaii Revised

Statutes (HRS) § 667-1.5 (2016) "does not require the

determination of a sum certain before foreclosure is decreed

2 U.S. Bank's motion for summary judgment attached the declaration
of Alicia Stewart (Stewart), an employee of U.S. Bank's authorized loan
servicing agent Rushmore Loan Management Services, LLC. Stewart's
declaration states that the Note was executed with the "principal amount of
$4,991,000.00, plus interest at the initial rate of 8.625% per annum." It
further states that the principal balance at the time of the motion for
summary judgment totaled $5,408,940.13, and that interest of over $2.7
million was due at "various rates," yet there is no showing or proof of how
the $5,408,940.13 principal balance was calculated.

4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

since a deficiency judgment is rendered only after the sale of

the mortgaged property") (citation omitted).

We therefore vacate FOF 19, which finds the principal

balance to be $5,408,940.13. We further vacate COL 1, and

paragraph 2 of the Order, to the extent that the circuit court

calculated the total amount of $9,443,572.54 "due and owing" to

U.S. Bank based on the $5,408,940.13 principal balance. We

otherwise affirm the circuit court's FOFs, COLs, and Order

granting an interlocutory decree of foreclosure in favor of U.S.

Bank.

(2) Goldstein contends that the circuit court

erroneously relied on "inadmissible hearsay . . . in determining

the date of default . . . , the principal amount of the loan,

interest due, and other costs allegedly incurred" because U.S.

Bank's supporting declaration failed to establish familiarity

with the record-keeping system of a prior loan servicer, and

thus, it did not meet the requirements for introducing business

records under HRE Rule 803(b)(6), and U.S. Bank N.A. v. Mattos,

140 Hawai‘i 26, 32, 398 P.3d 615, 621 (2017). Goldstein failed

to raise this argument below, and it is therefore waived. See

Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort Co.,

100 Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues not

raised in the trial court are ordinarily deemed waived on

appeal.") (citations omitted).

5
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

(3) Goldstein contends that U.S. Bank failed to

provide adequate notice of the assignments of the Mortgage and

of the "[d]eferred [i]nterest" charges under the Note, and that

U.S. Bank's notice of "acceleration" failed to adequately inform

Goldstein of his right to bring a court action to challenge the

default as required under the Mortgage terms.

Goldstein did not argue below that U.S. Bank's notice

of default failed to comply with the Mortgage terms, or that he

was not given notice of the deferred interest charges. Those

arguments are therefore waived.

Goldstein cites HRS § 454M-5(b)(1) (2013) to support

his argument that a lender is required to provide notice of the

assignments of the Mortgage. HRS § 454M-5(b)(1) requires loan

servicers to disclose to borrowers "[a]ny notice required by [12

C.F.R. § 1024.33 (2019)]." 12 C.F.R. § 1024.33 sets forth the

duty of a loan servicer to notify the borrower of a change in

servicer. Relevant here, 12 C.F.R. § 1024.33 does not require

loan servicers to notify a borrower of an assignment of the

mortgage. Goldstein therefore fails to identify any authority

supporting his contention of error.

(4) Goldstein contends that the six-year SOL under HRS

§ 657-1 (2016) bars enforcement of the Note because the cause of

action accrued upon default, which occurred on April 1, 2009,

and U.S. Bank's complaint was filed on July 31, 2019.

6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

We review the circuit court's application of an SOL de

novo. See Est. of Roxas v. Marcos, 121 Hawai‘i 59, 66, 214 P.3d

598, 605 (2009). HRS § 490:3-118(a) (2008) governs enforcement

of a promissory note, and provides, in relevant part, that "an

action to enforce the obligation of a party to pay a note

payable at a definite time must be commenced within six years

after the due date or dates stated in the note or, if a due date

is accelerated, within six years after the accelerated due

date." "[I]n order for [a lender] to effectively exercise its

option to accelerate the maturity dates of the [promissory

note], the [lender is] required to communicate its exercise of

the option to [the borrower] by some affirmative act when it did

so," and the "initiation of a suit for the whole debt

constitutes a sufficient affirmative act to communicate to the

[borrower] that he or she has chosen to exercise his or her

option to accelerate." Bank of Haw. v. Kunimoto, 91 Hawai‘i 427,

436, 984 P.2d 1253, 1262 (App. 1997) (citations omitted). It

appears that the loan was accelerated upon the filing of the

complaint, as Goldstein fails to identify any evidence of an

earlier acceleration date. We thus conclude that the claim was

commenced within the six-year SOL.

For the foregoing reasons, we vacate FOF 19, COL 1,

and paragraph 2 of the Order, as discussed above, but otherwise

7
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

affirm the circuit court's October 11, 2022 FOFs, COLs, Order,

and Judgment.

DATED: Honolulu, Hawaiʻi, June 23, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Dennis E.W. O'Connor Jr.,
for Defendant/Cross-claim /s/ Clyde J. Wadsworth
Defendant-Appellant Associate Judge

David B. Rosen, /s/ Kimberly T. Guidry
for Plaintiff/Counterclaim Associate Judge
Defendant-Appellee

8