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Jpmorgan Chase Bank National Association v. Benner

Intermediate Court of Appeals of Hawaii

April 6, 2016

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee,
v.
RONALD W. BENNER, Defendant-Appellant, and JOHN and MARY DOES 1-10, Defendants

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 10-1-0799-04)

          Gary V. Dubin, Frederick J. Arensmeyer, Andrew Goff, (Dubin Law Offices), for Defendant-Appellant.

          Jade L. Ching, Melissa M. Uhl, (Alston Hunt Floyd & Ing), for Plaintiff-Appellee.

          NAKAMURA, C.J., FUJISE and GINOZA, JJ.

          OPINION

          GINOZA, J.

         Defendant-Appellant Ronald W. Benner (Benner) appeals from the Judgment filed on March 6, 2013, in the Circuit Court of the First Circuit (circuit court)[1] On appeal, Benner challenges the: (1) "Order Granting Plaintiff JPMorgan Chase Bank, National Association's Motion for Summary Judgment Filed October 26, 2012 and for Writ of Ejectment Against Defendant Ronald W. Benner" (Order Granting Summary Judgment), filed on March 6, 2013; and (2) "Order Denying Defendant Ronald W. Benner's Motion to Reconsider the Court's Order Granting Plaintiff's Motion for Summary Judgment and for Writ of Ejectment" (Order Denying Motion for Reconsideration), filed June 21, 2013.

         In his points of error, Benner contends the circuit court erred when it: (1) granted summary judgment to Plaintiff-Appellee JPMorgan Chase Bank, National Association (JPMorgan Chase) because there was a genuine issue of material fact as to whether JPMorgan Chase had authority to conduct the non-judicial foreclosure sale; (2) granted summary judgment, determining that the three-year statute of repose pursuant to the Truth in Lending Act (TILA) expired before Benner exercised his rights under the Act; (3) granted summary judgment, determining that an Unfair and Deceptive Acts or Practices (UDAP) claim could not be asserted against JPMorgan Chase; and (4) denied Benner's Motion for Reconsideration.

         For the reasons set forth below, we vacate and remand.

         I. Brief Background

         On May 7, 2007, Benner executed an Adjustable Rate Note (Note) in favor of Washington Mutual Bank, FA (Washington Mutual). On January 6, 2009, Washington Mutual sent a Notice of Collection Activity to Benner stating that Benner had failed to make the required monthly payments under the terms of the Note and that Benner had thirty days to cure the default.

         On June 24, 2009, an Assignment of Mortgage and Note from Washington Mutual to JPMorgan Chase was recorded.

         On July 2, 2009, JPMorgan Chase recorded a Notice of Mortgagee's Non-Judicial Foreclosure Under Power of Sale. On August 25, 2009, JPMorgan Chase recorded Mortgagee's Affidavit of Foreclosure Under Power of Sale (Affidavit of Sale), which provides, inter alia, that JPMorgan Chase purchased the property at the non-judicial foreclosure sale.

         On April 13, 2010, JPMorgan Chase filed a Complaint for Ejectment against Benner. On October 26, 2012, JPMorgan Chase filed a motion for summary judgment.

         On March 6, 2013, the circuit court filed the Order Granting Summary Judgment to JPMorgan Chase, the ...


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