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The Bank of New York Mellon v. Comito

Intermediate Court of Appeals of Hawai'i

November 23, 2015

THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWMBS, INC., ALTERNATIVE LOAN TRUST 2006-0A1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-0A1, Plaintiff/Appellee/Cross-Appellant,
v.
FRANK O. COMITO, LINDA A. COMITO, Defendants/Appellants/Cross-Appellees and JOHN DOES 1-50, JANE DOES 1-50, Defendants. BLUE MOUNTAIN HOMES, LLC, Third-Party Plaintiff/Appellee/Cross-Appellee,
v.
THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWMBS, INC., ALTERNATIVE LOAN TRUST 2006-0A1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-0A1; FRANK 0. COMITO; LINDA A. COMITO, Third-Party Defendants/Appellees, and JOHN DOES 1-50, JANE DOES 1-50, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, DOE " NON-PROFIT 11 CORPORATIONS 1-10, DOE ASSOCIATIONS 1-10, and DOE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CIVIL NO. 11-1-1838).

On the briefs: Gary Victor Dubin, Frederick J. Arensmeyer, (Dubin Law Offices), for Defendants/Appellants/Cross-Appellees.

Patricia J. McHenry, Kirk M. Neste, (Cades Schutte), for Plaintiff/Appellee/Cross-Appellant.

NAKAMURA, C.J., FOLEY AND REIFURTH, JJ.

OPINION

Page 241

[136 Hawai'i 533] FOLEY, J.

Defendants/Appellants/Cross-Appellees Frank 0. Comito and Linda A. Comito (together, Comitos) appeal from the: (1) August 7, 2014 " Order Granting Plaintiff's Motion for Summary Judgment and Writ of Possession Filed May 13, 2014" ; (2) August 7, 2014 " Writ of Ejectment" ; and (3) August 7, 2014 " Judgment for Ejectment" entered in the Circuit Court of the First Circuit[1] (circuit court).

Page 242

[136 Hawai'i 534] On appeal, the Comitos contend the circuit court erred in granting summary judgment and a writ of ejectment in favor of Plaintiff/Appellee/Cross-Appellant Bank of New York Mellon, as Trustee for the Certificateholders CWMBS, Inc., Alternative Loan Trust 2006-0A1 Mortgage Pass-Through Certificates, Series 2006-0A1 (BNYM) after BNYM had transferred title of the property to Third-Party Plaintiff/Appellee/Cross-Appellee Blue Mountain Homes, LLC (Blue Mountain) during the pendency of the ejectment action, allegedly divesting BNYM of standing to pursue its ejectment action.

BNYM cross-appeals from the " Order Denying Plaintiff's Motion for an Award of Attorneys' Fees and Costs Against [the Comitos], Filed August 22, 2014" entered on October 9, 2014 in the circuit court.

On cross-appeal, BNYM contends the circuit court erred in denying BNYM's motion for attorneys' fees on jurisdictional grounds.

I. BACKGROUND

The Comitos mortgaged their property to Home Loan Capital Inc. (Home Loan Capital), and the mortgage was recorded on January 20, 2006. Under the terms of the mortgage, Mortgage Electronic Registration Systems, Inc. (MERS) was ...


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