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U.S. Bank National Association v. Smith

Intermediate Court of Appeals of Hawaii

January 11, 2016

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP HOME EQUITY PASS THROUGH CERTIFICATES, SERIES, Plaintiff-Appellee,
v.
DANIEL SMITH, TAMMY SMITH, Defendants-Appellants and JOHN AND MARY DOES, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT(CIVIL NO. 09-1-2444)

Gary Victor Dubin Frederick J. Arensmeyer (Dubin Law Offices) for Defendants-Appellants.

Tom E. Roesser Seth T. Buckley (Carlsmith Ball) for Plaintiff-Appellee.

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

OPINION

FOLEY, J.

Defendants-Appellants Daniel Smith and Tammy Smith (together, Smiths) appeal from the following, entered on June 26, 2014 in the Circuit Court of the First Circuit[1] (circuit court): (1) "Order Granting Plaintiff's Motion for Summary Judgment for Ejectment Against All Defendants, Filed December 4, 2013;" (2) "Notice of Entry of Judgment/Order, • " and (3) "Final Judgment Entered Against All Defendants."

On appeal, the Smiths contend the circuit court erred by granting summary judgment in favor of Plaintiff-Appellee U.S. Bank National Association, as Trustee, on Behalf of the Holders of the Credit Suisse First Boston Mortgage Securities Corp Home Equity Pass Through Certificates, Series 2006-8 (U.S. Bank).

I. BACKGROUND

On September 5, 2006, the Smiths executed a promissory note (Note) from Lime Financial Services, Ltd. (Lime Financial). As security for the Note, the Smiths executed a mortgage (Mortgage) on the property located at 49-078 Johnson Road, Kaneohe, Hawai'i 96744 (Property) to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Lime Financial. On December 1, 2006, MERS assigned the Mortgage to U.S. Bank. The assignment was recorded in the State of Hawai'i Bureau of Conveyances (Bureau of Conveyances) on August 13, 2007 as document number 2007-144774.

The Smiths failed to pay the amount due and owing according to the Note and Mortgage, and U.S. Bank sent the Smiths a notice of default on May 5, 2008. On July 16, 2009, U.S. Bank held a public auction of the Property and the Property was subsequently sold to U.S. Bank as the highest bidder. U.S. Bank executed a Quitclaim Deed for the Property and the Quitclaim Deed was recorded in the Bureau of Conveyances on September 23, 2009 as document number 2009-146405.

On October 20, 2009, U.S. Bank filed a "Complaint for Ejectment" (Complaint), alleging the Smiths were "still remaining on the [Property] as trespassers and/or uninvited guests and lessees." On February 23, 2010, U.S. Bank filed a "Motion for Summary Judgment, and For Writ of Ejectment Against [the Smiths]" (First MSJ). On March 10, 2010, the Smiths filed a "Memorandum in Opposition to [U.S. Bank's First MSJ]" (Memorandum in Opposition to First MSJ). In their Memorandum in Opposition to First MSJ, the Smiths argued, inter alia, that summary judgment in favor of U.S. Bank was not appropriate because the Note and Mortgage were void. Specifically, the Smiths argued that Lime Financial violated the Federal Truth-in-Lending Act (TILA) and engaged in Unfair or Deceptive Acts or Practices (UDAP) in violation of Hawaii Revised Statutes (HRS) chapter 480. The circuit court denied the First MSJ on March 29, 2010 after a hearing held March 17, 2010.[2]

On December 4, 2013, U.S. Bank filed a "Motion for Summary Judgment For Ejectment against [the Smiths]" (Second MSJ). The Smiths did not file a memorandum in opposition to U.S. Bank's Second MSJ. Instead, on February 25, 2014, the Smiths' counsel filed a "Declaration of Counsel for [the Smiths] in Opposition to [U.S. Bank's Second MSJ]" (Declaration) stating that "because [U.S. Bank's] motion raises nothing new and is therefore precluded, it should be denied by the Court for the reasons previously argued by [the Smiths] in their [Memo in Opposition to First MSJ], which is attached and reincorporated herein." Counsel for the Smiths did attach the Memorandum in Opposition to First MSJ as an exhibit to the Declaration. The circuit court held a hearing on U.S. Bank's Second MSJ on March 5, 2014 and took the matter under advisement.

On June 26, 2014, the circuit court entered its "Order Granting Plaintiff's Motion for Summary Judgment for Ejectment Against All Defendants, Filed December 4, 2013, " granting U.S. Bank's ...


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