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Bank of America, N.A. v. Hermano

Intermediate Court of Appeals of Hawaii

June 22, 2016

BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, Plaintiff-Appellee,
v.
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

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 12-1-0276)

          R. Steven Geshell, for Defendant-Appellant.

          Charles R. Prather, Robin Miller, for Plaintiff-Appellee.

          By: Nakamura, Chief Judge, Leonard and Ginoza, JJ.

          SUMMARY DISPOSITION ORDER

         Defendant-Appellant 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).[1]

         Hermano raises the following points of error on appeal:

         (1) The Circuit Court erred when it dismissed Hermano's counterclaim;

         (2) The 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);

         (3) The Circuit Court erred when it entered a judgment of foreclosure based on the FOFs, COLs, and Order; and

         (4) The 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:

         (1) 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). "[0]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 fact).

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).

         Hermano explains the legal theory underlying her Counterclaim as follows:

[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 ...

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