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Tsutae Iwamoto v. Glenn T. Hironaga

August 30, 2011

TSUTAE IWAMOTO,
PLAINTIFF-APPELLANT,
v.
GLENN T. HIRONAGA, DONALD TANIDA, NEW CENTURY MORTGAGE CORPORATION, HELEN BENCH REALTY INC., CHARLES BENCH, YU NEU BENCH, HIRONAGA DEVELOPMENTS, INC., H & L DEVELOPMENTS, LLC, TODD LEMKAU, KRC CONSULTING, INC., KIMBERLY LEMKAU, AVIS MORTGAGE INCORPORATED DBA NAVE FUNDING, US BANK NATIONAL ASSOCIATION, AS TRUSTEE RELATING TO THE ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2003-HE4, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, TRUSTEE FOR THE CERTIFICATEHOLDERS CWMBS, INC., ALTERNATIVE LOAN TRUST 2006-OA1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA1, DEFENDANTS-APPELLEES AND JOHN DOES 2-10; JANE DOES 2-10; DOE CORPORATIONS 5-10; DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10; AND DOE GOVERNMENTAL AGENCIES 1-10,
DEFENDANTS



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 07-1-2430)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding J., Leonard and Reifurth, JJ.)

Plaintiff-Appellant Tsutae Iwamoto (Iwamoto or Plaintiff) appeals from the (1) "Judgment Against Plaintiff Tsutae Iwamoto and in Favor of Defendant US Bank National Association, as Trustee Relating to the Asset-Backed Pass-Through Certificates, Series 2003-HE4 as to Counts I and III of Fourth Amended Complaint Filed on August 3, 2009," and (2) "Judgment Against Plaintiff Tsutae Iwamoto and in Favor of Defendant US Bank National Association, as Trustee Relating to the Asset- Backed Pass-Through Certificates, Series 2003-HE4 as to Count IV of Fourth Amended Complaint Filed on August 3, 2009," both filed on December 17, 2009 in the Circuit Court of the First Circuit*fn1 (circuit court). The circuit court certified both judgments as final judgments pursuant to Hawaii Rules of Civil Procedure (HRCP) Rule 54(b).

As to Counts I (Fraudulent Inducement), III (Constructive Trust), and IV (Quiet Title) of Iwamato's Fourth Amended Complaint (FAC), the circuit court entered judgment in favor of Defendant-Appellee US Bank National Association, as Trustee Relating to the Asset-Backed Pass-Through Certificates, Series 2003-HE4 (US Bank) and against Iwamoto and dismissed the three counts with prejudice.

On appeal, Iwamato contends:

(1) The circuit court erred in dismissing Counts I and III as to US Bank by holding that US Bank had proven it was a holder in due course.

(2) The circuit court erred in dismissing Count IV as to US Bank by holding that US Bank had proven it was an innocent purchaser as a matter of law.

(3) The circuit court erred in dismissing Counts I, III, and IV as to US Bank by holding that US Bank was not a party to any claims under these Counts.

(4) Although not explicitly relied upon by the circuit court, US Bank's argument in its October 9, 2009 "Motion for Summary Judgment as to Count IV of Fourth Amended Complaint" that Count IV should be dismissed because Iwamoto had unclean hands as a matter of law was in error.

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 resolve Iwamoto's points of error as follows:

(1) Iwamoto contends the circuit court erred in dismissing Counts I and III by holding that US Bank had proven it was a holder in due course. Hawaii Revised Statutes (HRS) § 490:3-302 (2008 Repl.) defines a holder in due course:

§490:3-302 Holder in due course. (a) Subject to subsection (c) and section 490:3-106(d), "holder in due course" means the holder of an instrument if:

(1) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as ...


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