Case Notes

• Publication year: 2021

CASE NOTES

Page 22

Supreme Court

Civil Procedure

Provident Funding Associates v. Wittmeyer, No. SCWC-17-0000453, June 16, 2021, (Recktenwald, C.J.). This case required the Hawaii Supreme Court to consider the binding effect of a stipulation. The parties to this foreclosure, after summary judgment was entered in favor of the note holder but before sale, entered into a stipulation in which they agreed to postpone the foreclosure auction while they worked to pursue a private sale. No private sale came to pass, and the property sold at auction for less than the parties had hoped a private sale would yield. They disputed the effect the stipulation should have had on the circuit court proceedings. The Hawaii Supreme Court held that a stipulation made during the course of litigation -reduced to writing, agreed to by all parties, and filed with the court - operates in many respects like a contract and generally binds the parties to its terms. The circuit court and ICA therefore erred by failing to treat the stipulation at issue as a binding agreement.

Collections

Wells Fargo Bank, N.A. v. Fong, No. SCWC-16-0000435, May 28, 2021, (Nakayama, J.). A bank seeking to foreclose on a mortgage and note bears the burden of establishing that the borrower defaulted under the terms of the agreements. In order to satisfy this burden and prevail on a motion for summary judgment, the bank must submit evidence which clearly demonstrates the borrower's default. Wells Fargo Bank, N.A. ("Wells Fargo") sought a judicial foreclosure of the residence of Marianne S. Fong ("Fong"). In order to prove that Fong had defaulted, Wells Fargo submitted a ledger without explaining how to read the ledger. In the absence of any explanation, the ledger was ambiguous and presented genuine issues of material fact. Furthermore, although the ledger indicated that Wells Fargo billed Fong for lender-placed insurance, there was only ambiguous evidence regarding whether Wells Fargo properly charged Fong for the insurance. Thus, there was also a genuine issue of material fact concerning whether Fong actually owed the amounts that forced her into the alleged default. The ICA consequently erred in affirming the circuit court order granting summary judgment.

U.S. Bank Trust, N.A. v. Verhagen, No. SCWC-17-0000746, June 21, 2021, (Ed-dins, J.). This case concerned the admissibility and evidentiary weight of documents and declarations at issue in a foreclosure proceeding. The Hawaii Supreme Court considered: whether promissory notes were hearsay, admissible only if they fell within an exception to the hearsay rule; whether a copy of a promissory note was self-authenticating under Hawaii Rules of Evidence Rule 902(9); the scope and limits of the business records exception to the hearsay rule; and the evidentiary burden mortgagees must meet to establish standing in the foreclosure context. The Hawaii Supreme Court concluded that promissory notes were not hearsay, that copies of promissory notes are not self-authenticating under Haw. R. Evid. Rule 902(9), and that, under the incorporated records doctrine, business records may, in certain circumstances, be admissible even absent testimony concerning the business practices or records of their creator. The Hawaii Supreme Court also clarified the evidentiary burden on mortgagees seeking to show their possession of a promissory note at the time a foreclosure complaint was filed.

Criminal

State v. Milne, No. SCWC-19-0000594, June 23, 2021, (McKenna, J.). In Count 1 of a complaint filed in the family court, the State charged Noguchi Milne ("Milne") with abuse of family or household member, in violation of Haw. Rev. Stat. § 709-906(1) and (5) (2014), against Complaining Witness 1 ("CW1"). Count 2 charged Milne with third degree assault in violation of Haw. Rev. Stat. § 707-712(1)(a) (2014) against Complaining Witness 2 ("CW2"). The family court granted Milne's oral motion to dismiss Count 2, concluding it lacked subject matter jurisdiction over that count. On appeal, the ICA concluded the family court erred in dismissing Count 2 because the family court had concurrent subject matter jurisdiction over the charge based on Haw. Rev. Stat. § 571-14(b) (2014). The ICA ordered that Count 2 be remanded to the family court for further proceedings consistent with its memorandum opinion. On certiorari, Milne concedes that the family court had concurrent jurisdiction over Count 2. Milne argues, however, that the family court did not dismiss Count 2 based on a lack of subject matter jurisdiction. He maintained the family court had discretion to decline the...