BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, Plaintiff-Appellee,
CHARITO LABRADOR HERMANO, Defendant-Appellant, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE GOVERNMENTAL UNITS 1-50, Defendants
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO.
Steven Geshell, for Defendant-Appellant.
Charles R. Prather, Robin Miller, for Plaintiff-Appellee.
Nakamura, Chief Judge, Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Charito Labrador Hermano (Hermano) appeals from the November
14, 2013 Judgment (Judgment), entered in favor of
Plaintiff-Appellee Bank of America, N.A., Successor by Merger
to BAC Home Loans Servicing, LP fka Countrywide Home Loans
Servicing LP (the Bank or Bank of America), by the Circuit
Court of the First Circuit (Circuit Court).
raises the following points of error on appeal:
Circuit Court erred when it dismissed Hermano's
Circuit Court erred when it granted the Bank's motion for
summary judgment and entered the interlocutory decree of
foreclosure in its November 14, 2013 Findings of Fact,
Conclusions of Law, Order Granting Plaintiff's Motion for
Summary Judgment Against All Parties and for Decree of
Interlocutory Foreclosure (FOFs, COLs, and Order);
Circuit Court erred when it entered a judgment of foreclosure
based on the FOFs, COLs, and Order; and
Circuit Court made erroneous FOFs and COLs. Upon careful
review of the record and the briefs submitted by the parties,
and having given due consideration to the arguments advanced
and the issues raised by the parties, we resolve
Hermano's points of error as follows:
Hermano argues that the Circuit Court erred in dismissing
Hermano's Counterclaim because the Counterclaim satisfies
the pleading requirements of Hawai'i Rules of Civil
Procedure (HRCP) Rule 12(b)(6) "for the simple reason
that if [she] proves the facts alleged and asserted in her
counterclaim . . ., she will be entitled to relief." To
satisfy Rule 8(a)(1), a pleading
must contain either direct allegations on every material
point necessary to sustain a recovery on any legal theory,
even though it may not be the theory suggested or intended by
the pleader, or contain allegations from which an inference
fairly may be drawn that evidence on these material points
will be introduced at trial.
Marsland v. Pang, 5 Haw.App. 463, 475, 701 P.2d 175,
186 (1985) (quoting 5 Wright and Miller, Federal Practice
and Procedure: Civil § 1216, at 121-23 (1969)).
Inadequate pleadings may be dismissed by motion under HRCP
Rule 12(b)(6), however,
"[a] complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his or her
claim that would entitle him or her to relief." In
re Estate of Rogers, 103 Hawai'i 275, 280, 81 P.3d
1190, 1195 (2003) (block quote format and citation omitted).
"ur consideration is strictly limited to the
allegations of the complaint, and we must deem those
allegations to be true." Id. at 281, 81 P.3d at
1196 (block quote format and citation omitted).
"However, in weighing the allegations of the complaint
as against a motion to dismiss, the court is not required to
accept conclusory allegations on the legal effect of the
events alleged." Marsland v. Pang, 5 Haw.App.
463, 474, 701 P.2d 175, 186 (1985) .
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the "grounds"
of his "entitlement to relief" requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the
complaint's allegations are true (even if doubtful in
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)[.] Pavsek v. Sandvold, 127 Hawai'i 390,
402-03, 279 P.3d 55, 67-68 (App. 2012).
explains the legal theory underlying her Counterclaim as
[The Bank] could not own the mortgage and the note because
they were securitized over three years ago and the trust into
which the note and mortgage were transferred was dissolved
and terminated. Therefore, [she] has pled all the
counterclaims based on the factual and legal theory that the
[Bank] does not own the note and the mortgage and, therefore,
has no right to bring this foreclosure action. [She] has
relied upon 26 U.S.C. § 860, et seq for the
proposition that transfers out of the trust are void after 90
days of the closing date ...