APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 10-1-0356)
NOT FOR PUBLICATION IN WEST'S HAWAIfI REPORTS AND PACIFIC REPORTER
(By: Nakamura, C.J., Foley and Fujise, JJ.)
Defendant-Appellant Maryellen McClune Markley (Markley) appeals from the Judgment filed on July 14, 2010 in the Circuit Court of the First Circuit *fn1 (circuit court). Pursuant to the circuit court's Findings of Fact; Conclusions of Law; Order Granting Motion for Summary Judgment as Against all Defendants and for Interlocutory Decree of Foreclosure filed on July 14, 2010 (FOF/COL/Order), the court granted summary judgment in favor of Plaintiff-Appellee Wells Fargo Bank, N.A., as Trustee For the Certificateholders of Soundview Home Loan Trust 2007-OPT4, AssetBacked Certificates, Series 2007-OPT4 (Wells Fargo).
On appeal, Markley contends the circuit court erred in granting summary judgment because genuine issues of material fact remained as to whether Markley had been provided with the Notice of Right to Cancel forms required under the federal Truth-in- Lending Act (the TILA), 15 U.S.C. § 1635 (1995).
In consideration of a loan made by Option One Mortgage Corporation (OOMC) to Markely in the principal sum of $825,000.00, Markley executed a promissory note and a first mortgage (mortgage), both dated July 12, 2007, in favor of OOMC. On February 5, 2010, Markely attempted to cancel the mortgage by sending a letter to both OOMC and Wells Fargo.
On February 18, 2010, Wells Fargo filed a complaint against Markley to foreclose the mortgage. Markley filed her answer on March 17, 2010.
Wells Fargo filed a Motion for Summary Judgment as Against All Defendants and for Interlocutory Decree of Foreclosure (MSJ) on March 31, 2010. On April 13, 2010, Markely filed her memorandum in opposition, in which she argued that the mortgage was void and unenforceable under TILA because Markley had not been provided with two copies of the Notice of Right to Cancel.
The circuit court held a hearing on the MSJ on June 2, 2010. On July 14, 2010, the circuit court issued its FOF/COL/Order and the Judgment.
On July 26, 2010, Markley filed a "Motion for Reconsideration of the Court's Order Granting Motion for Summary Judgment as Against all Defendants and for Interlocutory Decree of Foreclosure Filed July 14, 2010." The circuit court denied Markley's motion for reconsideration on September 13, 2010. Markley timely appealed.
The appellate courts review "the circuit court's grant or denial of summary judgment de novo." Querubin v. Thronas, 107 Hawaifi 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawaifi 490, 501, 100 P.3d 60, 71 (2004)).
The Hawaifi Supreme Court has often articulated that summary 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 ...