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Bank of New York Mellon v. Lemay

Intermediate Court of Appeals of Hawaii

December 7, 2015

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CHL MORTGAGE PASS-THROUGH TRUST 2006-OA5, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-OA5, Plaintiff-Appellee,
v.
RICHARD ARTHUR LEMAY; BAY THI LEMAY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., SOLELY AS NOMINEE FOR COUNTRYWIDE HOME LOANS, INC.; ASSOCIATION OF APARTMENT OWNERS OF KAPIOLANI TERRACE, Defendants-Appellees, and DERMABELLE PRODUCTS, LLC, Intervenor-Defendant-Appellant, and JOHN DOES 1-20, JANE DOES 1-20, DOE CORPORATIONS 1-20, DOE ENTITIES 1-20, AND DOE GOVERNMENTAL UNITS 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 12-1-0244)

Colin B. Sakumoto for Intervenor-Defendant- Appellant.

Peter T. Stone Daisy Lynn B. Hartsfield (TMLF Hawaii) for Plaintiff-Appellee.

FOLEY, PRESIDING J., LEONARD AND REIFURTH, JJ.

OPINION

FOLEY, J.

Intervenor-Defendant-Appellant Dermabelle Products, LLC (Dermabelle) appeals from:

(1) the "Order Denying [Dermabelle's] Motion to Compel Responses to Discovery Requests and Motion for Attorney Fees" (Order Denying Dermabelle's First Motion to Compel), entered September 5, 2 014;
(2) the denial of "[Dermabelle's] Second Motion to Compel Discovery Requests and Motion for Attorney's Fees" (Denial of Dermabelle's Second Motion to Compel);[1] and
(3) the "Findings of Fact [(FOFs)], Conclusions of Law and Order Granting Plaintiff's Motion for Summary Judgment for Foreclosure Against All Defendants and for Interlocutory Decree of Foreclosure" (FOFs/COLs/Order), entered December 16, 2014 in the Circuit Court of the First Circuit[2] (circuit court).[3]

On appeal, Dermabelle contends the circuit court erred in: (1) denying it the opportunity to conduct discovery; (2) not excluding the Declaration of Indebtedness (Declaration) as inadmissible hearsay; and (3) granting the motion for summary judgment in favor of Plaintiff-Appellee the Bank of New York Mellon fka the Bank of New York, as Trustee for the Certificateholders of the CHL Mortgage Pass-Through Trust 2006-OA5, Mortgage Pass Through Certificates, Series 2006-OA5 (BNYM).

I. BACKGROUND[4]

[FOFs]

3. On or about 01/19/2006, for value received, Defendants[-Appellees] Richard Lemay and Bay Thi Lemay [(collectively, the Lemays)] made, executed and delivered to Countrywide Home Loans, Inc. a promissory note ("Note") in the principal amount of $280, 000.00
4. For the purposes of securing payment on the Note of the principal sum, interest thereon, and all other changes as provided for in the Note, [the Lemays] made, executed, and delivered to Mortgage Electronic Registration Systems, Inc., solely as nominee for Countrywide Home Loans, Inc. that certain Mortgage ("Mortgage"), which encumbers the property located at 1560 Kanunu St #918, Honolulu, HI 96814, TMK 1-2-3-017-013-0123 ("Property"), more fully described in Exhibit "A" of the Mortgage. The Mortgage was filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii ("Land Court") as Land Document No. 3382578.
5. [BNYM] is the owner and holder of the Note and Mortgage by virtue of that certain Assignment of Mortgage dated 04/16/2011, filed in the Land Court on 05/10/2011, as Land Court Document No. 4071740 ("Assignment"). The Note, Mortgage, and ...

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