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CIVIL MOTIONS CALENDAR
FTRST CIRCUIT
FÏFTH DIVISION
9:00 A .M.
1. 1cc 1s-1-0009s3 WELLS FARGO BANK NA STEVEN TAKAO IWAMURA
VS. FOR WELLS FARGO BANK, N
DAVI D I^IENDELL ELLTS ETAL
GARY VICTOR DUBIN
FOR DAVID I,'/ENDELL ELLIS
PLAINTTFF'S MoTIoN FoR SUMMARY JUDGMENT A ND
DECREE OF FORECLOSURE AGAINST ALL DEFENDANTS O N
coMpLArNT FrLED S /L9/20L5 (s rwnuunR) (ç¡,t=LL/1, 6/L6
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ìrtr******COURT REpORTER: SHARON HULIHEE*t*****
(9 42 L0arvl)
= =24-9:49:
CASE CALLED WITH APPEARANCES BY STEVEN
Ih,AMURA FOR PLTF AND KATHERINE BELFORD FOR ELLIS
DEFTS.
MS. BELFORD AND MR. II¡/AMURA PRESENTED ARGUMENT
RE REYES-TOLEDO AND MATTOS REQUIREMENTS AND NOTICE
OF DEFAULT LETTER.
COURT TOOK THE MATTER UNDER ADVISEMENT AND T^,ILL
ÏSSUE A MINUTE ORDER.
CONCLUDED.
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*tI MINUTE oRDER ( CBM ) : JANUARY 10, 201-8 **
oN JANUARY 3 2 0 18, THE COURT TOOK UNDER ,
ADVISEMENT PLAINT I FF S MOTION FOR SUMMARY
JUDGMENT, FrLED ApRrL 25, 20L6. HAVTNG CONSTDERED
THE MOTION, DEFENDANTS DAVID AND LoRI ELLIS'
OPPOSITION FTLED NOVEMBER L4, 20L6, PLATNTIFF'S
REPLY FILED NOVEMBER 30, 20L6, DEFENDANTS ELLTS'
FIRST SUPPLEMENTAL MEMORANDUM IN OPPOSITION FILED
FEBRUARy 28, 20L7, pLArNTrrp's suBMrssroN oF THE
DECLARATION CONCERNING ORIG]NAL NOTE FILED MARCH
15, 20L7, pLATNTTFF's SUppLEMENTAL DEcLARATToN rN
SUPPORT OF PLAINTTFFIS MOTION FILED OCTOBER 19,
20L7, DEFENDANTS ELLIS' SEcoND SUPPLEMENTAL
MEMoRANDUM rN opposrrroN FrLED DEcEMBER 26, 20L7,
CIVIL MOTIONS CALENDAR
FIRST CIRCUTT
FI FTH DIVISTON
----_ADDIÏIONAL-MINUTES_
(noorrroNAL MrNUT ES FROM PRIOR SEQUENCE)
366, 227 P. 3D 520, 532 (20L0) ; u. s. BANK v.
MATTOS, 140 HAWAr ' r 26 , 398 P. 3D 61_5 (20L7) .
rHUS,
ÏNSOFAR AS PLAINTIF F'S MOTION RELIES ON TEITLER'S
DECLARATTON, WHICH IS BASED, IN PART, ON RECORDS
RECEIVED FROM A PRIOR LOAN SERVTCER, THE MOTION IS
LARGELY BASED ON TNADMISSIBLE HEARSAY.
ALTHOUGH PLAINTTFF ATTEMPTED TO CORRECT TTS
EVIDENTIARY PROBLEMS U/ITH A SUBSEQUENT F]LING OF
THE DECLARATION OF VTTAL PHTLMA OF OcI¡/EN LOAN
SERVICTNG (ATTACHED TO PLAINTTFF'S SUPPLEMENTAL
DECLARATTON IN SUPPORT OF PLAINTIFF'S MOTION FOR
suMMARy JUDGMENT, FILED ON OCTOBER 19, 20L7), THE
REQUISITE FOUNDATION FOR THE ADMISSTBILTTY OF
EXHIBTT 7 (THE NOTICE OF DEFAULT LETTER) UNDER THE
BUSTNESS RECORDS EXCEPTTON TO THE HEARSAY RULE
HAS NOT BEEN ESTABLISHED. SPECIFICALLY, PHILMA ' S
DECLARATION DOES NOT ESTABLISH FAMILIARITY WITH
THE RECORD-KEEPTNG SYSTEM OF THE PRIOR LOAN
SERVICER AS FAR AS GENERATTNG NOTICES OF D E FAU LT
ARE CONCERNED. SEE MATTOS , L40 HAI¡JAI ,r AT 33, 399
p.3D AT 622. rN THIS TNSTANCE, THE NOTTCE OF
DEFAULT (arreCHeO TO pLAINTTFF'S MOTTON FO R
SUMMARY JUDGMENT, EXHIBTT 7) APPEARS TO HAVE BEEN
WRITTEN BY A LAI/'/ FIRM AND NOT CREATED BY THE PRIOR
LOAN SERVICER. THERE TS NO ADMISSIBLE EVIDENCE BY
t^/Ay oF pHTLMA'S DECLARATION, OR OTHERWTSE,
ESTABLISHING THAT NOTTCE OF DEFAULT WAS GIVEN TO
DEFENDANTS ELLIS. IN FACT, PHILMA'S DECLARATTON
DOES NOT MENTION NOTTCE OF DEFAULT TO DEFENDANTS
CTVÏL MOTIONS CALENDAR
FIRST CTRCUIT
FIFTH DIVISION
WHATS O EV ER.
INS OFAR AS NOTTCE OF DEFAULT IS ONE OF THE
MATERIAL FACTS PLAINTIFF MUST ESTABLISH TO BE
ENTITL ED TO SUMMARY JUDGMENT, AND PLATNTTFF HAS
NOT ESTA BLISHED THROUGH ADMISSIBLE EVIDENCE THAT
PROPER N oTrcE vúAS pRovrDED , pLAINTI FF I S MOTTON
MUST BE DENTED. SEE BANK OF HONOLULU, N.A. V.
ANDERSON , 3 HAW. APP. 545, 551, 654 P.2D t370,
L375 (19 82) (To BE ENTITLED To SUMMARY JUDGMENT IN
AN ACTION TO FORECLOSE A MORTGAGE, PLAINTIFF HAS
THE BURDEN OF ESTABLISHING THE FOLLOT^,ING
UNDISPUTED MATERIAL FACTS: (1-) THE EXISTENCE OF
THE LOAN AGREEMENT; (2) THE TERMS oF THE
AGREEMENT; (3) oTFAULT UNDER THE TERMS oF THE
AGREEMENT; AND (4) NoTIcE oF DEFAULT I^,AS
pRovroeo). rN ADDrrroN, THE couRT ALSo NorEs rHAT
THE REeursrrE FoUNDATToN UNDER HRE RULE 803 (B) (6)
(sEE NEXT sEeuENcE FoR ADDTTToNAL uruures)
CIV IL MOTIONS CALENDAR
FIRST CIRCUIT
FTFTH DIVISTON
9:00 A.M.
L. 1cc 15 - 1_-0009 5 3 I¡JELLS FARGO BANK NA STEVEN TAKAO IIÂ,IAMURA
VS. FOR WELLS FARGO BANK, N
DAVID WENDELL ELLIS ETAL
GARY VICTOR DUBTN
FOR DAVTD UJENDELL ELLIS
---_-ADDIÏIONAL-MINUTES-*
(aoorrroNAL MTNUTES FRoM pRroR sEeuENcE)
FOR THE NOTICE OF DEFAULT FROM PLAINTTFFIS LOCAL
couNSEL (ATTACHED TO pLAINTTFF'S MOTION AS EXHTBTT
L2) WAS NoT PRoPERLY ESTABLISHED IN THE
DECLARATTON OF ROBERT EHRHORN, JR.
FTNALLY, EVEN IF THE NOTICES OF DEFAULT IVERE
ADMÏSSÏBL E, A GENUTNE ISSUE OF MATERIAL FACT
EXISTS AS TO WHETHER SAID NOTICES COMPLY WITH
SECTION 2 20 F THE SUBJECT MORTGAGE.
FOR THE SE REASONS, PLATNTIFF'S MOTTON IS
DENI ED .
pURSUANT TO CTRCUIT COURT RULE 23, COUNSEL
FOR DEFENDANTS ELLIS ARE INSTRUCTED TO PREPARE THE
ORDER DENYING THE MOTION.
A COPY OF THE MINUTE ORDER SHALL BE PLACED IN THE
ATTORNEY COURT JACKET FOR CLAY CHAPMAN IÌ^JAMURA
PULICE & NERVELL, DUBIN LAhJ OFFICES, AND MAILED TO
DEFENDANTS ASSOCTATION OF APARTMENT Oh'NERS OF
I^IOODCREEK AND LAUNANI VALLEY COMMUNITY
ASSOCIATION.