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CIVIL MOTIONS CALENDAR
FTRST CIRCUIT
FÏFTH DIVISION

DATE: I^'EDNESDAY, ]ANUARY 3 20L8

J UDGE: HONORABLE J EANNETTE H CASTAGNETTI, JUDGE PRESTDING
CL ERK :
REPORTER:
BArLrpr/lnw cLERK: cHRrsrrNE BEcK-MTLLAN
1

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
3 /- 8 /_rZ * _Z /_LZ /_1-Z * _tZ /_L3 /_LZ
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.
* * * :l Jr * tr * * ìÈ * * * * * ìt * * * ìl * ¡l tr lt * ìf * * ¡l ¡t * ìl * * * * * * * * * * * * ìt * ¡t tr * ìl
*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

DATE: I^'EDNESDAY, JANUARY 3 20L8

:
] UDGE HONORABLE J EANNETTE H CASTAGNETTI, JUDGE PRESIDING
CLERK:
REPORTER:
BAILIFF/LAW CLERK: CHRTSTINE BECK-MTLLAN
2

AND PLAINTIFFIS REPLY TO DEFENDANT'S SECOND

SUPPLEMENTAL OppOSITION FILED DECEMBER 28, 20L7,
THE COURT DENIES THE MOTION.
PLAINTTFF HAS NOT MET ITS INITIAL BURDEN OF
DEMONSTRATING THAT PLAINTIFF IS ENTITLED TO
JUDGMENT AS A MATTER OF LAW ON ITS COMPLAINT FOR
FORECLOSURE. PLAINTIFF HAS NOT ESTABLTSHED,
THROUGH ADMISSIBLE EVIDENCE, THAT PROPER NOTICE OF
DEFAULT hIAS GIVEN TO DEFENDANTS ELLIS. THE
REQUTSITE FOUNDATION FOR THE ADMISSIBTLITY OF
BUSINESS RECORDS OF PRIOR LOAN SERVICERS OR
BUSINESS ENTITIES UNDER THE BUSINESS RECORDS
EXCEPTION TO THE HERSAY RULE HAS NOT BEEN MET. SEE
HRE RULE 803 (B) (6) . CLEARLyt THE DECLARATTON OF
VANESSA TETTLER ATTACHED TO PLATNTIFF'S MOTION FOR
SUMMARY JUDGMENT DOES NOT MEET THE REQUISITE
FOUNDATIONAL REQUTREMENTS FOR ADMISSION OF THE
BUSINESS RECORDS OF THE PRTOR LOAN SERVICER OR
OTHER BUSTNESS ENTITIES RELATTNG TO THE SUBJECT
LOAN. SEE STATE V. FTTZWATER, L22 HAI^'AI I r 354,
(see NEXT sEeuENcE FoR ADDTTToNAL MTNUTES)
 CTVIL MOTIONS CALENDAR
FIRST CIRCUIT
FI FTH DTVISION

DATE: T^,EDN ESDAY, JANUARY 3, 20L8

JUDGE: HONORAB L E J EANNETTE H. CASTAGNETTT, JUDGE PRESIDING
CLERK:
REPORTER:
BATLTFF/LAW CLERK: CHRISTINE BECK-MILLAN
----PAGE L
9:00 A.M.
L. lcc L5-L-000953 !VELLS FARGO BANK NA STEVEN TAKAO II^,AMURA
VS. FOR WELLS FARGO BANK, N
DAVID I,t/ENDELL ELLIS ETAL
GARY VICTOR DUBIN
FOR DAVID I^IENDELL ELLIS

----_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

DATE: WEDNESDAY, JANUARY 3 2 018

JUDGE: HONORABLE JEANNETTE H CASTAGNETTI, JUDGE PRESIDING
CL ERK :
REPORTER:
BAIL]FFlLAW CLERK: CHRTSTINE BECK-MILLAN
2

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

DATE: WEDNESDAY, JANUARY 3 201_8

JUDGE: HONORABLE J EANNETTE H CASTAGNETTT, JUDGE PRESIDING
CL ERK :
REPORTER:
BAILIFF/LAI,Ú CLERK: CHRISTINE BECK-MILLAN
PAG E 1_

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.

DATE : O1-- 1.1. -20t8 BY ORDER OF TH E COURT: ------- CLERK