SCWC-14-0001134
IN THE SUPREME COURT OF THE STATE OF HAWAI’I
________________________________________________________________
U.S. BANK N.A. IN ITS CAPACITY AS TRUSTEE FOR THE REGISTERED HOLDERS OF MASTR ASSET BACKED SECURITIES TRUST 2005-NC1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-NC1,
Respondent/Plaintiff-Appellee,
vs.
JOSEPH KEAOULA MATTOS, CHANELLE LEOLA MENESES, Petitioners/Defendants-Appellants,
and
CITIFINANCIAL, INC., ASSOCIATION OF APARTMENT OWNERS OF TERRAZA/CORTEBELLA/LAS BRISAS/TIBURON,
EWA BY GENTRY COMMUNITY ASSOCIATION,
Respondents/Defendants-Appellees.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001134; CIV. NO. 11-1-1539)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioners/Defendants-Appellants Joseph Keaoula Mattos and Chanelle Leola Meneses’ application for writ of certiorari filed on May 9, 2016, is hereby accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai’i, June 23, 2016.
Gary Victor Dubin
and Frederick J. Arensmeyer
for petitioners
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
A. Questions Presented
Did the ICA commit grave errors of fact and law, requiring reversal pursuant to
HRS Section 602-59(bX1), in its concluding that the Circuit Court properly granted
summary judgment because no genuine issues of material fact existed, despite the fact
that the standing of Respondent U.S. Bank, as Trustee, of a securitized trust as
foreclosing mortgagee was in genuine dispute because there was evidence below that:
1. the two mortgage assignments to the securitized trust in the chain of U.S.
Bank’s alleged ownership of Petitioners’ loan were “robo-signed” by persons with
insufficient authority or personal knowledge as to what they swore to, and whose
signatures differed among similar mortgage assignments that they had supposedly
signed and/or notarized ;
2. the two mortgage assignments to the securitized trust in the chain of U. S.
Bank’s alleged ownership of Petitioners’ loan violated the securitized trust’s governing
instrument, known as its Pooling and Servicing Agreement, having been allegedly
transferred more than two years and more than six years respectively after the cut-off
date for placing mortgages in the securitized trust, accompanied by an allonge allegedly
transferring their promissory note to the securitized trust more than three years after its
cut-off date;
3. the two mortgage assignments to the securitized trust in the chain of U. S.
Bank’s alleged ownership of Petitioners’ loan were unproven as supported only by
hearsay declarations inadmissible pursuant to HRCP Rule 56(e) and Hawaii Evidence
Rule 803(b)(3) as U.S. Bank’s Declarants had no personal knowledge of how earlier
business records had been compiled in addition to the two mortgage assignments
having been invalid, supra.
