U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BNC MORTGAGE PASS THROUGH CERTIFICATES SERIES 2006-2, Plaintiff/Appellee,
AVELINA SALVACION, JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, AND DOE GOVERNMENT UNITS 1-10, Defendant/Appellant; AVELINA SALVACION, Counterclaim-Plaintiff/Appellant,
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BNC MORTGAGE PASS THROUGH CERTIFICATES SERIES 2006-2; and DOES 1-150, Counterclaim-Defendant/Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT. CIVIL NO. 09-1-0007.
For Defendant/Counterclaim-Plaintiff/Appellant: Gary Victor Dubin, Frederick J. Arensmeyer, Zeina Jafar, Richard T. Forrester, Dubin Law Offices.
For Plaintiff/Counterclaim-Defendant/Appellee: Carol A. Eblen, Edmund K. Saffery, Lynda L. Arakawa, Goodsill Anderson Quinn & Stifel.
Daniel R. Foley, PRESIDING J., Alexa M. Fujise AND
Katherine G. Leonard, JJ.
[134 Hawai'i 171] FOLEY, J.
Defendant/Counterclaim-Plaintiff/Appellant, Avelina Salvacion (Salvacion), appeals from the May 22, 2013 " Judgment on Findings of Fact, Conclusions of Law and Order Granting Plaintiff's Motion for Summary Judgment and Decree of Foreclosure Against All Defendants on Complaint Filed January 15, 2009 and Order Granting Plaintiff/Counterclaim Defendant's Motion for Summary Judgment as to All Counts of Defendant/Counterclaimant Avelina Salvacion's Counterclaim, Filed January 13, 2012," entered in the Circuit Court of the Fifth Circuit (circuit court).
On appeal, Salvacion contends the circuit court erred when it granted " Plaintiff's Motion for Summary Judgment and Decree of [134 Hawai'i 172] Foreclosure Against All Defendants on Complaint Filed January 15, 2009" (2009 MSJ) and " Plaintiff/Counterclaim Defendant's Motion for Summary Judgment as to All Counts of Defendant/Counterclaimant Avelina Salvacion's Counterclaim, Filed January 13, 2012" (Counterclaim MSJ) in favor of Plaintiff/Counterclaim-Defendant/Appellee, U.S. Bank National Association (USBNA). Although not raised as a point of error on appeal, Salvacion also argues in her opening brief that the circuit court abused its discretion when it declined to grant Salvacion's request for a continuance pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 56(f).
A. Motion for Summary Judgment
The appellate court reviews " the circuit court's grant or denial of summary Judgment de novo." Querubin v. Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2005).
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 party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
Id. at 56, 109 P.3d at 697 (quoting Durette v. Plastic Recycling, Inc., 105 Hawai'i 490, 501, 100 P.3d 60, 71 (2004)).
The Hawai'i Supreme Court has set forth the following burden-shifting paradigm for situations where the non-movant ...