338 P.3d 1185
Haw. Ct. App.2014Background
- Salvación appeals a May 22, 2013 circuit court judgment granting USBNA summary judgment and foreclosure on the January 15, 2009 complaint and the January 13, 2012 counterclaim MSJ.
- Salvación contends the court erred in granting USBNA’s 2009 MSJ and USBNA’s Counterclaim MSJ.
- Salvación argues the circuit court abused HRCP Rule 56(f) by denying a continuance to obtain discovery.
- USBNA presented evidence that Lull acted independently of the lenders; the note/mortgage were between borrower and lender, not broker.
- The record shows the Note/Mortgage originated with BNC Mortgage and MERS, then were assigned to USBNA as trustee for the BNC Mortgage Loan Trust 2006-2, with a June 20, 2008 recording of the assignment.
- The circuit court held there was no genuine issue that Lull’s actions could not be imputed to USBNA, that no deceptive practices under HRS chapter 480 were shown, and Salvación generally lacked standing to challenge the assignment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether broker fraud can be imputed to USBNA | Salvación failed to show Lull acted as USBNA’s agent | Lenders' actions and agency must be proven to hold USBNA liable | No genuine issue; broker did not prove agency; USBNA not liable for broker's actions. |
| Whether HRS 480-2 deceptive practices void the Note/Mortgage | Lenders’ practices were deceptive; violations allow rescission | Salvación was not misled by lenders’ actions; higher payments were her choice | No material deception; no violation established. |
| Standing to foreclose and validity of the assignment | USBNA had prima facie standing via direct chain of title | Salvación challenged the PSA/Trust terms and assignment validity | USBNA valid holder; Salva-ción lacks standing to challenge the assignment. |
| Court’s denial of HRCP Rule 56(f) continuance | Continuance would be futile to raise genuine issues | Need for discovery to impeach USBNA’s ownership/standing | Not an abuse of discretion; no further discovery would create a genuine issue. |
Key Cases Cited
- City Bank v. Abad, 106 Hawai'i 406, 105 P.3d 1212 (Haw. Ct. App. 2005) (mortgage broker not a party to lender–borrower contract)
- Hawaii Cmty. Fed. Credit Union v. Keka, 94 Hawai'i 213, 11 P.3d 1 (Haw. 2000) (deception definition under HRS 480-2; consumer misrepresentation standard)
- Beneficial Hawaii, Inc. v. Kida, 96 Hawai'i 289, 30 P.3d 895 (Haw. 2001) (rules on lender-liability and mortgage broker involvement)
- Durette v. Plastic Recycling, Inc., 105 Hawai'i 490, 100 P.3d 60 (Haw. 2004) (summary judgment standard; burden-shifting framework)
- Ralston v. Yim, 129 Hawai'i 46, 292 P.3d 1276 (Haw. 2013) (summary judgment; Rule 56(f) continuance and timely discovery)