Bank of Hawaii v. Bertelmann ( 2023 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-DEC-2023
08:03 AM
Dkt. 122 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
BANK OF HAWAII,
Plaintiff-Appellee,
v.
KEVIN M. BERTELMANN, INDIVIDUALLY AND AS
TRUSTEE OF THE HAROLD E. BERTELMANN REVOCABLE
LIVING TRUST DATED MARCH 10, 2010,
Defendant-Appellant,
and
COUNTY OF HAWAI‘I, REAL PROPERTY TAX DIVISION,
Defendant-Appellee,
and
JOHN DOES 1-20, JANE DOES 1-20, DOE CORPORATIONS 1-20,
DOE ENTITIES 1-20, AND DOE GOVERNMENTAL UNITS 1-20,
Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 18-1-0304)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
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Defendant-Appellant Kevin M. Bertelmann (Bertelmann),
self-represented, appeals from: (1) the October 21, 2019
"Findings of Fact and Conclusions of Law and Order Granting
Plaintiff Bank of Hawaii's [(BOH)] Motion for Summary Judgment
and For Interlocutory Decree of Foreclosure, Filed August 1,
2019" (Foreclosure Decree); and (2) the October 21, 2019
Judgment and Notice of Entry of Judgment (Foreclosure Judgment),
both filed and entered by the Circuit Court of the Third Circuit
(Circuit Court).1
On appeal, Bertelmann contends2 that the Circuit Court
(1) lacked jurisdiction because BOH "lacked proper standing to
sue[,]" and thus the Foreclosure Decree and Foreclosure Judgment
are void; (2) erroneously granted BOH's Motion to Set Aside
Entry of Default; (3) erroneously denied Bertelmann's Motion to
Continue; and (4) erroneously granted BOH's Motion for Summary
Judgment and For Interlocutory Decree of Foreclosure (MSJ).
We affirm.
I. BACKGROUND
On November 29, 2018, BOH filed a foreclosure
complaint against Bertelmann, individually and as trustee of the
Harold E. Bertelmann Revocable Living Trust (Bertelmann Trust).
The Complaint alleged, among other things, that: Bertelmann's
parents, Harold E. (Harold) and Margaret K. (Margaret)
Bertelmann (collectively, Parents) took out a loan in 2003 with
BOH by executing a Home Equityline Agreement (Note); the loan
with BOH was secured by a mortgage (Mortgage) on real property
on Pohā Street, Nā‘ālehu, Hawai‘i 96722 (Subject Property); the
Subject Property was transferred via a 2010 deed to the
1 The Honorable Henry T. Nakamoto presided.
2 We have reordered Bertelmann's points of error for clarity.
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Bertelmann Trust; Bertelmann was named as successor trustee for
the Bertelmann Trust in 2015 after Harold passed; that
Bertelmann, as Trustee of the Bertelmann Trust, transferred the
Subject Property to himself, individually, in a 2016 deed;
Bertelmann defaulted on the Note; following demand to cure the
default and Bertelmann's failure to cure, the entire principal
balance of the Mortgage and Note were accelerated and
immediately due and payable; and BOH was entitled to foreclose
the Mortgage and sell the Subject Property.
On January 31, 2019, Bertelmann filed his Answer and
Counterclaims (Counterclaim).3
On February 25, 2019, BOH filed its Answer to
Bertelmann's Counterclaim.
On February 28, 2019, Bertelmann submitted to the
Circuit Court his Request for Entry of Default, pursuant to
Hawai‘i Rules of Civil Procedure (HRCP) Rule 55(a),4 "against
[BOH] for failure to file a valid Reply within the time allowed
by the above rules and law."
On March 1, 2019, Bertelmann's brother, Chris P.
Bertelmann (Chris), filed a Motion to Intervene.
On March 4, 2019, the Circuit Court granted
Bertelmann's Request for Entry of Default against BOH.
3 The Counterclaim alleged wrongful foreclosure; wrongful or
fraudulent inducement; bad faith; deceptive trade practices; harassment; and
intentional, reckless, or negligent infliction of emotional distress. To
date, the Counterclaim has not been adjudicated by the Circuit Court.
Bertelmann does not challenge the Foreclosure Judgment on grounds that his
counterclaims remain pending.
4 HRCP Rule 55(a) (2000), provides for the entry of default "[w]hen
a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend as provided by these rules and that fact is made
to appear by affidavit or otherwise . . . ."
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On March 13, 2019, BOH filed a non-hearing Motion to
Set Aside Entry of Default (Motion to Set Aside) pursuant to
HRCP Rule 55(c),5 arguing that BOH filed and served its Answer to
Bertelmann's Counterclaim on February 25, 2019. The Circuit
Court granted the Motion to Set Aside (Order Setting Aside
Default).
On April 24, 2019, the Circuit Court denied Chris's
Motion to Intervene.
On July 29, 2019, Chris filed a Notice of Transfer of
Title and Ownership of Subject Real Property with the Circuit
Court, giving notice of the transfer of the Subject Property
from Bertelmann to Chris.
On August 1, 2019, BOH filed its Motion for Summary
Judgment (MSJ) on the Complaint arguing, among other things,
that Bertelmann was in default for failing to pay the principal
and interest due under the Note and Mortgage, and BOH was
entitled to foreclosure of the Mortgage secured by the Subject
Property. Exhibits to the MSJ included: a legal description of
the Subject Property (Exhibit 1), the Note (Exhibit 2), the
Mortgage (Exhibit 3), a death certificate of the Parents
(Exhibit 4 and 6), a 2010 Warranty Deed transferring the Subject
Property from Harold to the Bertelmann Trust (Exhibit 5), a 2016
Warranty Deed transferring the Subject Property from Bertelmann
as trustee of the Bertelmann Trust to Bertelmann as an
individual (Exhibit 7), the payment history for the Note
(Exhibit 8), a September 11, 2018 Notice of Default letter sent
to the successor of the Bertelmann Trust at the Subject Property
address (Exhibit 9), and a notice of pendency of action
5 HRCP Rule 55(c) (2000), entitled "Setting aside default,"
provides that: "[f]or good cause shown the court may set aside an entry of
default[.]"
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(Exhibit 10).6 A Declaration of Rachel Anfinson (Anfinson) as
the Assistant Vice President of BOH was also attached.
On August 30, 2019, Bertelmann filed a non-hearing
"Motion to Join," seeking leave to join Chris as a "third party
Defendant-Counter Plaintiff" in the case.
On September 6, 2019, Bertelmann filed a "Memorandum
of Points and Authorities in Support of Motion to Continue"
(Motion to Continue) arguing, among other things, that the
provisions and terms of the Mortgage were "unconscionable and/or
illegal and the contract when viewed in its entirety is void";
that the BOH failed to give notice of the MSJ to the County of
Hawai‘i, Real Property Tax Division (County) and Chris; that the
MSJ exhibits contained "redacted materials, or uncertified
public document[s]"; that BOH failed to establish standing; and
that the September 11, 2018 Notice of Default letter was sent to
his "property address and not to his mailing address."
At the September 11, 2019 hearing on the MSJ, the
Circuit Court orally denied Bertelmann's Motion to Continue7 and
6 Exhibit 10 was described as a "true and correct copy of [BOH]'s
Notice of Pendency of Action." Exhibit 10 is missing from the record on
appeal; however, as explained infra, Exhibit 10 does not appear material to
this appeal.
7 BOH argues that Bertelmann appeals from an "Order Denying Motion
to Continue" and "cannot challenge an order that was not raised in his Notice
of Appeal." The record does not contain a written order denying the Motion
to Continue. While an "oral decision is not an appealable order[,]" KNG
Corp. v. Kim, 107 Hawai‘i 73, 77, 110 P.3d 397, 401 (2005) (citing Hawai‘i
Rules of Appellate Procedure (HRAP) Rules 4(a)(1) & (5)), "[a]n appeal from a
final judgment 'brings up for review all interlocutory orders not appealable
directly as of right which deal with issues in the case.'" Ueoka v.
Szymanski, 107 Hawai‘i 386, 396, 114 P.3d 892, 902 (2005) (quoting Pioneer
Mill Co., Ltd. v. Ward, 34 Haw. 686, 694 (1938)). Bertelmann appeals from
the Foreclosure Judgment, which is a final and appealable judgment entered on
the Foreclosure Decree pursuant to HRS § 667-51(a)(1); and we may review the
Circuit Court's oral ruling as an interlocutory order reviewable on appeal.
See KNG Corp., 107 Hawai‘i at 77, 110 P.3d at 401 (recognizing that, because
(continued . . .)
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proceeded to hear BOH's MSJ. While Bertelmann did not present
arguments in opposition at the hearing, both the Circuit Court
and BOH acknowledged that Bertelmann's Motion to Continue
contained arguments in opposition to the MSJ.8 The Circuit Court
granted the MSJ.
(. . . continued)
the appellant was appealing from a final judgment for summary possession, the
district court's oral ruling on an oral motion to establish a rent trust fund
would be treated as an interlocutory order reviewable on appeal).
8 The record reflects the following:
[BOH'S COUNSEL]: Nothing further, Your Honor. We did
file an opposition to the [Motion to Continue] yesterday. I
emailed a copy to defendant Mr. Bertelmann and he confirmed
receipt of that. I believe the Court also received it as
well, but I just wanted to make sure that was in the
record.
We believe the opposition somewhat speaks for itself.
We had a very tight timeline to file it, but essentially we
don't believe there's any basis in the motion to continue
itself that warrants an actual continuance of the motion
for summary judgment. It's mostly arguments arguing in
opposition of the motion for summary judgment as opposed to
a basis to continue it --
THE COURT: Okay.
[BOH'S COUNSEL]: -- under 56(f), et cetera.
THE COURT: Okay. Very well. So the Court, um, that's
why the reason the Court allowed this motion to come
forward.
. . . .
THE COURT: But the Court will deny the motion to
continue so we will proceed with the motion.
. . . .
THE COURT: And, Mr. Bertelmann, you have anything
further?
MR. BERTELMANN: No, not at this time, Your Honor.
(continued . . .)
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On October 21, 2019, the Circuit Court filed the
Foreclosure Decree and entered the Foreclosure Judgment.
Bertelmann timely appealed.
II. STANDARDS OF REVIEW
Standing
"The issue of standing is reviewed de novo on appeal."
Tax Found. of Haw. v. State, 144 Hawai‘i 175, 185, 439 P.3d 127,
138 (2019) (brackets omitted) (quoting Mottl v. Miyahira,
95 Hawai‘i 381, 388, 23 P.3d 716, 723 (2001)).
Motion to Set Aside an Entry of Default
We review a Circuit Court's ruling on a request to set
aside a default under HRCP Rule 55(c) for abuse of discretion.
Chen v. Mah, 146 Hawai‘i 157, 171, 457 P.3d 796, 810 (2020)
(quoting Cnty. of Hawai‘i v. Ala Loop Homeowners, 123 Hawai‘i 391,
404, 235 P.3d 1103, 1116 (2010)).
Motion for Continuance
"A trial court's decision to deny a request for a
continuance pursuant to HRCP Rule 56(f) will not be reversed
absent an abuse of discretion." Kaleikini v. Yoshioka,
128 Hawai‘i 53, 67, 283 P.3d 60, 74 (2012) (quoting Josue v.
Isuzu Motors Am., Inc., 87 Hawai‘i 413, 416, 958 P.2d 535, 538
(. . . continued)
THE COURT: Okay. So the Court has reviewed the motion
for summary judgment. I'll note that in this matter there
was a valid note and mortgage. There was a default. Default
has not been cured.
Proper notice of the default was given to
[Bertelmann] and that [BOH] had standing to file this
action on the date the complaint was filed so therefore the
motion for summary judgment is granted.
(Emphases added.)
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(1998)). "An abuse of discretion occurs if the trial court
'clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant.'" Id. (quoting Amfac, Inc. v. Waikiki
Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992)).
Motion for Summary Judgment
On appeal, "[a] trial court's decision on a motion for
summary judgment is reviewed de novo." Wells Fargo Bank, N.A.
v. Fong, 149 Hawai‘i 249, 253, 488 P.3d 1228, 1232 (2021)
(citation omitted).
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.
The burden is on the party moving for summary
judgment (moving party) to show the absence of any genuine
issue as to all material facts, which, under applicable
principles of substantive law, entitles the moving party to
judgment as a matter of law.
Id. (quoting French v. Haw. Pizza Hut, Inc., 105 Hawai‘i 462,
470, 99 P.3d 1046, 1054 (2004); Fujimoto v. Au, 95 Hawai‘i 116,
136, 19 P.3d 699, 719 (2001)).
III. DISCUSSION
A. POE 1: Bertelmann's contention that the Circuit
Court lacked jurisdiction because BOH "lacked
proper standing to sue" is waived.
Bertelmann argues that BOH did not have standing at
the time it filed its Complaint because a foreclosing plaintiff
must suffer an "injury in fact" to invoke the jurisdiction of
the court; the "injury in fact" is the mortgagor's failure to
make payment; and BOH did not suffer any injury in fact from
Bertelmann, because Bertelmann "was neither mortgagee nor
mortgagor since he did not sign the Note." Bertlemann contends
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that because BOH "lacked proper standing to sue[,]" the Circuit
Court lacked jurisdiction.
BOH asserts that Bertelmann "did not raise this
argument in the Circuit Court, and therefore, it should be
disregarded as having been waived."
In Hawai‘i state courts, "standing is not an issue of
subject matter jurisdiction[.]" Tax Found. of Haw., 144 Hawai‘i
at 192, 439 P.3d at 144. Unlike issues of subject matter
jurisdiction, which may be raised at any time or even sua
sponte, standing is not a jurisdictional issue and may be
waived. See id. at 191 n.21, 439 P.3d at 143 n.21.
Here, it appears that Bertelmann did not raise these
standing arguments below. Bertelmann's Motion to Continue in
response to the MSJ referenced "Material Issues of Fact and
Standing," but he argued only that the Mortgage was illegal and
void and that he never received notice of default—both issues we
address infra in Part III.D. Bertelmann's challenge to BOH's
standing is waived. See Ass'n. of Apt. Owners of Wailea Elua v.
Wailea Resort Co., Ltd., 100 Hawai‘i 97, 107, 58 P.3d 608, 618
(2002) ("Legal issues not raised in the trial court are
ordinarily deemed waived on appeal.").
B. POE 2: The Circuit Court did not abuse its
discretion in granting the motion to set aside
the default that had been erroneously entered
against BOH.
Bertelmann argues that the Motion to Set Aside should
not have been granted because: (1) BOH sued Bertelmann in the
"wrong legal capacity"; (2) BOH "omitted the requisite
memorandum of law mandated under [Rules of the Circuit Courts of
the State of Hawai‘i (RCCH) Rule] 7(a)"; (3) BOH provided no
facts justifying its late filing of its Answer to Bertelmann's
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Counterclaim; and (4) BOH mischaracterized the law in its Reply
Memorandum.9
BOH argues that Bertelmann's argument is without merit
because it is "undisputed that at the time the clerk entered
default against BOH, BOH had already filed and served its Answer
to [Bertelmann]'s Counterclaim." BOH asserts that the entry of
default against BOH was "clearly done in error" as BOH did not
fail "to plead or otherwise defend" against Bertelmann's
Counterclaim. BOH's contention has merit.
HRCP Rule 12(a)(1) requires that: "A defendant shall
serve an answer within 20 days after being served with the
summons and complaint, except when service is made under Rule
4(c) and a different time is prescribed in an order of court
under a statute or rule of court." HRCP Rule 55(a), pertaining
to entry of default, provides: "When a party against whom a
judgment for affirmative relief is sought has failed to plead or
otherwise defend as provided by these rules and that fact is
made to appear by affidavit or otherwise, the clerk shall enter
the party's default." (Emphasis added.) In Chen, the supreme
court noted that "there is no HRCP rule rendering an answer
filed after twenty days of service of process ineffective[,]"
where "default has not been requested and entered pursuant to
9 Bertelmann contends that BOH "mischaracterized the law" and
"failed to satisfy the Nakila three prong test" required of a party seeking
to set aside an entry of default. See The Nature Conservancy v. Nakila,
4 Haw. App. 584, 590, 671 P.2d 1025, 1030 (1983). In Nakila, this court
relied on BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 77, 549 P.2d 1147, 1150
(1976), for the proposition that a trial court should set aside the entry of
default when: (1) "the nondefaulting party will not be prejudiced by the
reopening," (2) "the defaulting party has a meritorious defense," and
(3) "the default was not the result of inexcusable neglect or a wil[l]ful
act." BDM was prospectively abrogated by the Hawai‘i Supreme Court in 2020.
See Chen, 146 Hawai‘i at 176-77, 457 P.3d at 815-16 ("Prospectively, a
HRCP Rule 55(c) motion to set aside entry of default is to be evaluated based
only on whether there has been a showing of 'good cause[.]'").
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HRCP Rule 55(a)[.]" 146 Hawai‘i at 172 n.15, 457 P.3d at 811
n.15.10 Thus, a late answer is permissible as long as default
has not yet been requested and entered. See id.
Here, the record reflects that BOH filed and served
its February 25, 2019 Answer to Bertelmann's Counterclaim a few
days after the 20-day deadline under HRCP Rule 12(a)(1).11
Because default had not yet been requested or entered when BOH
filed its late Answer, BOH could still have filed its Answer,
and cured its default by doing so. See id.; Hudson v. State of
North Carolina, 158 F.R.D. 78, 80 (E.D.N.C. 1994) (applying
identical federal rule12 and holding that the defendants' late
answer "cured their default and thereafter entry of default
would not be appropriate"). An entry of default under HRCP Rule
55(a) may only be obtained against a party who has failed to
plead or otherwise defend. See McManus v. Am. States Ins. Co.,
201 F.R.D. 493, 499 (C.D. Cal. 2000) (applying identical federal
rule and holding that entry of default was proper where the
request for entry of default "reached the courthouse before [the
defendant]'s Answer"). BOH did not fail to plead, but had filed
its February 25, 2019 Answer three days before default was
requested on February 28, 2019 and entered on March 4, 2019.
10 The supreme court in Chen explained that: "[I]n our circuit
courts, counsel and parties often provide the courtesy of informally
extending time for answering complaints without court involvement, and simply
do not request a formal entry of default until after the courtesy time has
expired." 146 Hawai‘i at 172 n.15, 457 P.3d at 811 n.15 (citing Guidelines of
Professional Courtesy and Civility for Hawai‘i Lawyers Section 2(a) (2018)).
11 The record reflects that BOH's Answer was filed twenty-five days
after Bertelmann's Counterclaim was filed and served, when it should have
been filed within twenty-two days under HRCP Rule 12(a)(2)(requiring filing
of answer 20 days after service) and Rule 6 (enlarging time by two days where
service made by mail).
12 Federal Rules of Civil Procedure Rule 55(a) is identical to
HRCP Rule 55(a).
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The entry of default under these circumstances was erroneous,
and the Circuit Court did not abuse its discretion in granting
BOH's motion to set aside the default. See Chen, 146 Hawai‘i at
171, 457 P.3d at 810.
C. POE 3: The Circuit Court did not abuse its
discretion in denying the Motion to Continue.
Bertelmann argues that the Circuit Court erred in
denying Bertelmann's Motion to Continue where: (a) Bertelmann's
Motion to Join was pending hearing, and (b) discovery and
discovery issues had not been resolved or completed.
BOH argues that the Motion to Continue was properly
denied, as Bertelmann "failed to argue a valid basis to seek a
continuance pursuant to HRCP Rule 56(f)." BOH asserts that
"nothing argued in the motion suggested that [Bertelmann] needed
additional time to oppose BOH's MSJ, nor did it provide any
insight, if BOH's MSJ was to be continued, as to what
[Bertelmann] intended to do during the interim."
HRCP Rule 56(f) provides that "the circuit court may
deny a motion for summary judgment if the opposing party
establishes that additional discovery is necessary." Org. of
Police Officers v. City and Cnty. of Honolulu, 149 Hawai‘i 492,
519, 494 P.3d 1225, 1252 (2021). The opposing party "must
demonstrate how postponement of a ruling on the motion will
enable him or her, by discovery or other means, to rebut the
movants' showing of absence of a genuine issue of fact." Acoba
v. Gen. Tire, Inc., 92 Hawai‘i 1, 9-10, 986 P.2d 288, 296-97
(1999) (brackets omitted) (quoting Josue v. Isuzu Motors Am.,
Inc., 87 Hawai‘i 413, 416, 958 P.2d 535, 538 (1998)).
Here, Bertelmann's Motion to Continue argued that BOH
failed "to notify Defendant County" and "Chris" regarding the
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MSJ; that there was a "failure to join [Chris] as a party" and
that a "Motion for Joinder [was] submitted for filing on August
29, 2019"; that the exhibits attached to the MSJ contained
"redacted materials, or uncertified" documents; that Margaret
was "impaired" and that the Mortgage and Note are "voidable";
and that the Mortgage is "null and void." On appeal, Bertelmann
asserts that the "Motion to Join was pending[,]" that "discovery
issues had not been resolved[,]" and that due to personal
circumstances, a continuance was necessary.13 Bertelmann has not
demonstrated how any additional discovery was "necessary" or how
postponement of a ruling on the motion would have enabled him to
rebut BOH's "showing of absence of a genuine issue of fact."
See Org. of Police Officers, 149 Hawai‘i at 579, 494 P.3d at
1252; Acoba, 92 Hawai‘i at 9-10, 986 P.2d at 296-97. The Circuit
Court did not abuse its discretion in denying Bertelmann's
Motion to Continue. See Kaleikini, 128 Hawai‘i at 67, 283 P.3d
at 74.
D. POE 4: Bertelmann's challenges to the granting
of the MSJ are without merit.
Bertelmann argues that the MSJ was erroneously granted
because (1) "BOH produced no evidence showing [Bertelmann] was
properly noticed of default per Note or Mortgage terms[,] or, by
its unauthorized redactions of Note and Mortgage, which created
a disputed material issue of fact"; (2) "BOH's Mortgage is void
and its terms breach the Note"; (3) "the disparate signatures of
[Margaret] in BOH's MSJ Mortgage copy and [Bertelmann]'s
13 Bertelmann points out that "a certified BOH mortgage copy, was
excluded from BOH's MSJ[,]" and that BOH was "obligated to provide . . . a
postal receipt to authenticate the [Notice of Default] letter mailing."
Bertelmann also points out that his "Motion to Continue was made [pursuant to
HRCP] Rule 56(f)"; and that he had "limited time and financial resources" due
to working far away and "coping with personal, financial, and litigation
issues[.]"
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Mortgage copy establish a disputed material issue of fact"; and
(4) BOH's counsel wrongly: "submitted redacted MSJ exhibits
without consent," "submitted a manufactured lis pendens cover
sheet," and "removed [the County] as a party without court
consent[.]"14
The record reflects that Bertelmann did not file an
opposition to BOH's MSJ or present oral argument opposing the
MSJ at the hearing, and that his arguments regarding the MSJ
appear to be raised for the first time on appeal. Arguments
"not raised in the trial court are ordinarily deemed waived on
appeal." Ass'n of Apt. Owners of Wailea Elua, 100 Hawai‘i at
107, 58 P.3d at 618 (2002). However, it appears that
Bertelmann's Motion to Continue, liberally construed, contained
opposition argument to the MSJ. See Erum v. Llego, 147 Hawai‘i
368, 380-81, 465 P.3d 815, 827-28 (2020) (holding that this
court is obligated to interpret pleadings prepared by self-
represented litigants liberally to the extent "the litigant's
argument can reasonably be discerned"). We address each of
Bertelmann's arguments to the extent it is discernible. See id.
1. The Notice of Default was properly sent to
the address listed on the Mortgage.
Bertelmann argues that BOH's copy of the Note and
Mortgage contains an "illegitimate redaction" of his Parents'
address,15 and "there is no way of knowing where BOH was
14 Bertelmann again argues that BOH lacked standing in bringing suit
against him, which we addressed supra in Part III.A., regarding POE 1.
15 BOH explains that it was obligated to redact personal
information, including the Parents' address, in public filings pursuant to
HCRR Rule 9. Personal information, as defined by HCCR Rule 2.19, does not
include residential addresses. See HCRR Rule 2.19 (explaining that personal
information includes "social security numbers, dates of birth . . ., names of
minor children, bank or investment account numbers, medical and health
records, and social service reports"). Nevertheless, this error was
harmless, as both parents were deceased at the time the September 11, 2018
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obligated to send or deliver any 'cancellation notice.'"
Bertelmann denies receiving the September 11, 2018 Notice of
Default letter, and argues that the letter is "not addressed to
[him]," "not addressed to any named living person[,]" "addressed
to his property and not his mailing address[,]" and the "zip
code is wrong." Bertelmann argues that the notice of the MSJ
and all other "motions, notices, and correspondence" were mailed
to his "Na‘alehu post office box[.]"
BOH argues that at the time of the September 11, 2018
Notice of Default letter, "both of the Bertelmanns [(the
Parents)] had passed away[,]" "the Property was placed in the
Bertelmann Trust[,]" and Bertelmann "transferred the Property
out of the Trust to himself, individually[.]" Thus, "pursuant
to the terms and obligations under the Mortgage, BOH properly
sent the Notice of Default to The Successor Trustee of The
Harold E. Bertelmann Revocable Living Trust [at] the Property
address." BOH claims that it could not send "submissions and
fillings [sic] in this case" to the address on the Mortgage, and
BOH rather was required to send these materials to the Na‘alehu
post office box address because that is the address Bertelmann
provided in his responsive pleading and other filings.
The Mortgage states:
NOTICES. Any notice required to be given under this
Mortgage, including without limitation any notice of
default . . . shall be effective when . . . deposited in
the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses
shown near the beginning of this Mortgage. . . . For notice
purposes, Grantor agrees to keep Lender informed at all
times of Grantor's current address. . . .
Notice of Default was sent, and BOH took reasonable steps under these
circumstances to send the Notice of Default to the Subject Property address
that was listed at the beginning of the Mortgage and not redacted. See HRCP
Rule 61 ("The court . . . must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.").
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(Emphases added.) Pursuant to the Mortgage, BOH sent their
September 11, 2018 Notice of Default letter via "Regular and
Certified Mail" to the Subject Property addressed to 95-5575
Pohā Street in "Naalehu, HI 96722," which is the address listed
in the Mortgage for the Subject Property and "shown near the
beginning of" the Mortgage; and thus, BOH properly directed the
Notice of Default letter to that address. If there were any
changes to the "Grantor's current address[,]" it was the
Grantor's duty to keep BOH informed and as such it was not BOH's
obligation to find a new address to send mail to.16 Thus,
Bertelmann's argument is without merit.
2. The Mortgage is not "void."
Bertelmann argues that the Mortgage is "void" because
it conveys to BOH "'all' of [his Parents'] rights, title, and
interests in their Na‘alehu residence and real property"; "grants
an assignment to BOH of their personal property"; and is
essentially a "deed masquerading or disguised as a
mortgage/security agreement[.]" Bertelmann asserts that the
Mortgage terms are "onerous, oppressive, and unconscionable,
. . . and breach the terms of the Note" because the Mortgage
conveys "all title and interest" of the Subject Property and
residence, while the Subject Property and residence was to only
be "secured by a Mortgage." Bertelmann's argument that the
Mortgage violated HRS §§ "481(a)(3)" 17 and "480-2"18 was not
16 The Mortgage refers to the Parents as the "Grantor."
17 It appears that Bertelmann cited the wrong statute. Chapter 480
deals with "Deceptive Trade Practices," and Chapter 481, which Bertelmann
refers to, is entitled "Fair Trade Regulations" and includes various sections
(i.e., HRS §§ 481-1, 481-2, etc.).
16
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
raised below and is waived. See Ass'n of Apt. Owners of Wailea
Elua, 100 Hawai‘i at 107, 58 P.3d at 618.
BOH argues that there is no evidence in the record of
"procedural unconscionability" or "substantive
unconscionability." The Mortgage was intended to "serve as a
security interest for the Note" and it did not act as a "deed
transferring the Property to BOH."
Bertelmann does not point to anything in the record
that supports his broad assertion that the Mortgage is "void"
because the Mortgage was a "deed masquerading or disguised as a
mortgage/security agreement[.]" Bertelmann does not elaborate
how the Mortgage was "onerous, oppressive, and unconscionable."
The language in the Mortgage19 created a security interest and
18 HRS § 480-2 (2008), prohibits "[u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of any trade or
commerce[.]"
19 The Mortgage stated:
Possession and Use. Until the occurrence of an Event
of Default, Grantor may (1) remain in possession and
control of the Property; (2) use, operate or manage the
Property; and (3) collect the Rents from the Property.
. . . .
Security Agreement. This instrument shall constitute
a Security Agreement to the extent any of the Property
constitutes fixtures, and Lender shall have all of the
rights of a secured party under the Uniform Commercial Code
as amended from time to time.
. . . .
FULL PERFORMANCE. If Grantor pays all the
indebtedness when due, terminates the credit line account,
and otherwise performs all of the obligations imposed upon
Grantor under this Mortgage, Lender shall execute and
deliver to Grantor a suitable satisfaction of this Mortgage
and suitable statements of termination of any financing
statement on file evidencing Lender's security interest in
the Rents and the Personal Property.
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
did not act as a "deed" to transfer the title of the Subject
Property to BOH; Bertelmann's argument is thus without merit.
3. BOH's copy of the Mortgage, which was
attached as Exhibit 3 to its MSJ, was
properly authenticated and admissible.
Bertelmann argues that there are
"alterations/discrepancies" in the following copies of the
Mortgage: Exhibit A to Bertelmann's Answer, Bertelmann's mailed
copy per discovery request, and Exhibit 3 to BOH's MSJ.
Bertelmann claims that he has a "colorable claim of forgery
and/or fraud in the factum against BOH."
BOH argues that Bertelmann "attempts to reference
various documents that are not part of the Record on Appeal and
to which he has no personal knowledge of[,]" such as the
"documents taken from BOH's production of documents." BOH also
points out that Exhibit "A" to Bertelmann's Answer was also not
"properly authenticated," no one "knows where it came from[,]"
and Bertelmann does not have "personal knowledge" of the
Mortgage. Rather, BOH's copy of the Mortgage accompanying its
MSJ was "properly authenticated."
HRCP Rule 56, entitled "Summary Judgment," provides:
(e) Form of affidavits; further testimony; defense
required. Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or further affidavits. When a
motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon
the mere allegations or denials of the adverse party's
pleading, but the adverse party's response, by affidavits
or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for
trial. If the adverse party does not so respond, summary
18
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judgment, if appropriate, shall be entered against the
adverse party.
HRCP Rule 56(e) requires "documentation submitted in support of
a summary judgment motion to be properly sworn to or to be
certified. Documents that are plainly inadmissible in evidence
and are unsworn, not properly sworn to, and/or uncertified
cannot be considered upon a summary judgment motion." Pioneer
Mill Co., Ltd. v. Dow, 90 Hawai‘i 289, 297, 978 P.2d 727, 735
(1999) (citation omitted). Exhibits are authenticated when they
are "sworn to or []certified by the preparer or custodian of
those exhibits." Id. (citation omitted).
Here, Bertelmann's copy of the Mortgage, which was
attached as Exhibit "A" to his Answer, was not admitted into
evidence, sworn to, or certified. See id. Additionally,
Bertelmann attached a copy of the Mortgage from BOH's discovery
production as Appendix 2 to his Opening Brief. Appendix 2 is
not in the trial court record, the Circuit Court denied
Bertelmann's request to supplement the record with BOH's
discovery production, and that production is not in the record
on appeal for this court to consider. See HRAP Rule 10(a) ("The
record on appeal shall consist of the trial court . . . record
. . . .").
BOH's copy of the Mortgage, attached to its MSJ as
Exhibit 3, was admissible for the Circuit Court's consideration
in determining whether to grant BOH's MSJ where the exhibit was
properly authenticated by Anfinson's declaration that she was
the "Assistant Vice President" of BOH; had "personal knowledge"
of the facts stated in the declaration; was a "custodian" of
BOH's records; and certified that the Mortgage was a "true and
correct copy" containing a Bureau of Conveyance seal. See
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HRCP Rule 56(e); Pioneer Mill Co., 90 Hawai‘i at 297, 978 P.2d at
735. Thus, the Circuit Court properly considered BOH's copy of
the Mortgage attached to its MSJ, and Bertelmann's argument is
without merit. See U.S. Bank Nat'l Ass'n v. Benoist,
No. CAAP-XX-XXXXXXX, 2015 WL 7260350, at *5 (App. Nov. 12, 2015)
(SDO) (holding that the bank's attached exhibits to their motion
for summary judgment were admissible, where there was a signed
declaration by the servicer of the bank, the declaration
indicated that she was a custodian of the business records, that
she had personal knowledge of the matters in the declaration,
and the documents attached as exhibits were certified as true
copies).
4. Bertelmann's remaining arguments opposing
the MSJ, regarding the "manufactured lis
pendens cover sheet" and BOH's alleged
removal of the County as a party "without
court consent," are without merit.
Bertelmann's argument that Exhibit 10 was not "a true
and correct copy" of BOH's Notice of Pendency of Action; that it
"omit[ted] the BOC seal, registrar's name, and signature" and
that Exhibit 10 is "missing," do not raise a "disputed material
issue of fact" as Bertelmann claims. Bertelmann does not
explain how his "substantial rights" were affected by his claims
of error regarding Exhibit 10, or how any of these alleged
errors were material or relevant to the granting of the MSJ.
See HRCP Rule 61 ("The court . . . must disregard any error or
defect . . . which does not affect the substantial rights of the
parties."); Peak Cap. Grp., LLC v. Perez, 141 Hawai‘i 160, 177,
407 P.3d 116, 133 (2017) (explaining that the effect of a notice
of pendency of action "is to render a property unmarketable and
unusable as security for a loan" (ellipsis omitted) (quoting
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
S. Utsunomiya Enters., Inc. v. Moomuku Country Club, 75 Haw.
480, 502-03, 866 P.2d 951, 963-64 (1994))).
Bertelmann also asserts that BOH inaccurately removed
the County as a party when it failed to give notice to the
County of its filing of the MSJ. BOH explains that the County
was "dismissed" since the May 3, 2019 "Stipulation for Partial
Dismissal of Defendant County of Hawai‘i‘ [sic] (West Hawai'i)
[sic] Real Property Tax Office Without Prejudice" (Stipulation
for Partial Dismissal of County), and the County "has not once
taken a position in this case, submitted any other filings aside
from its Answer to the Complaint, and has never objected to not
being served with any of the submissions[.]" Bertelmann's
contention lacks merit, where BOH and Bertelmann entered into
the May 3, 2019 Stipulation for Partial Dismissal of Defendant
County.20 Bertelmann agreed to remove the County as a party, and
the County was no longer a party when the August 1, 2019 MSJ was
filed.
For the reasons set forth above, we conclude that the
Circuit Court did not err by granting BOH's MSJ. See Fong,
149 Hawai‘i at 253, 488 P.3d at 1232.
IV. CONCLUSION
For the foregoing reasons, the (1) October 21, 2019
"Findings of Fact and Conclusions of Law and Order Granting
Plaintiff Bank of Hawaii's Motion for Summary Judgment and For
Interlocutory Decree of Foreclosure, Filed August 1, 2019"; and
(2) October 21, 2019 Judgment and Notice of Entry of Judgment,
20 The stipulation, signed by Bertelmann himself stated: "all
claims against Defendant County . . . in the above-entitled action shall be
and hereby are dismissed without prejudice" and that the County "need not
participate in further court proceedings involving the Subject Property,
unless such participation is determined to be necessary by the County or the
Court."
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both filed and entered by the Circuit Court of the Third
Circuit, are affirmed.
DATED: Honolulu, Hawai‘i, December 26, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Kevin M. Bertelmann
Chief Judge
Defendant-Appellant
/s/ Clyde J. Wadsworth
Jai W. Keep-Barnes
Associate Judge
(Bays Lung Rose & Holma)
for Plaintiff-Appellee
/s/ Karen T. Nakasone
Associate Judge
22