Another Homeowner Victory In Hawaii! Gary Dubin, Attorney

US Bank v Compton 9335344481 Hawaii 2020 Dubin

So here is yet another example of litigation done correctly. This case demonstrates that the courts can and will be convinced to rule in favor of homeowners when the correct issue is raised at the right time in the right way. Here are some quotes from the case:

“Compton asserts that the evidence which U.S. Bank sought to admit through (1) the “Declaration of Indebtedness and on Prior Business Records” by Carol Davis (Davis), a “Document Execution Specialist” employed by Nationstar Mortgage LLC d/b/a Mr. Cooper (Nationstar), as servicing agent for U.S. Bank, attached to the Motion for Summary Judgment, and (2) the “Declaration of Custodian of Note” by Gina Santellan (Santellan), a “custodian of original loan records” employed by The Mortgage Law Firm, PLC (TMLF CA), attached to U.S. Bank’s “Supplemental Memorandum in Support of Its [Motion for Summary Judgment],” was hearsay and not admissible evidence.

“someone purporting to be a “custodian or other qualified witness” must establish sufficient foundation upon which to admit the note. In Wells Fargo Bank, N.A. v. Behrendt, 142 Hawai5i 37, 414 P.3d 89 (2018), the Hawai5i Supreme Court ...

“Davis does not attest to being a custodian of records, but an authorized signer for Nationstar.

“Davis declaration does not state that U.S. Bank possessed the Note at the time the Complaint was filed, merely stating that “[U.S. Bank] has possession of the Note,” and that based on Nationstar’s records, U.S. Bank “by and through Nationstar had possession of the original Note prior to 01/24/17, the date of the filing of the complaint in this foreclosure.”

“although Davis attests to Nationstar incorporating the records of Bank of America, the “Prior Servicer,” and relying upon the accuracy of those records, Davis does not aver that she is familiar with the record-keeping system of Bank of America or the lender Countrywide, which purportedly created the Note and signed the blank endorsement. Thus, Davis’s declaration failed to establish the foundation for the Note to be admitted into evidence. Behrendt, 142 Hawai5i at 45, 414 P.3d at 97; U.S. Bank N.A. v. Mattos, 140 Hawai5i 26, 32-33, 398 P.3d 615, 621-22 (2017).

“Santellans’ declaration does not establish the foundation for admission of the Note to establish possession. That is, like the Davis declaration, Santellan does not attest that she has “familiarity with the record-keeping system of the business that created the record to explain how the record was generated in the ordinary course of business.” Behrendt, 142 Hawai5i at 45, 414 P.3d at 97 (quoting Mattos, 140 Hawai5i at 32, 398 P.3d at 621); Fitzwater, 122 Hawai5i at 365-66, 227 P.3d at 531-32) (determining that while there is no requirement that the records have been prepared by the entity that has custody of them, as long as they were created in the regular course of some entity’s business, the witness must have enough familiarity with the record-keeping system of the business that created the record to explain how the record was generated in the ordinary course of business) (quotation marks omitted).

“Viewing the evidence in the light most favorable to Compton, as we must for purposes of a summary judgment ruling, we conclude that there is a genuine issue of material fact as to whether U.S. Bank had standing to initiate this foreclosure action when it was commenced. Accordingly, we conclude that the Circuit Court erred in granting U.S. Bank’s Motion for Summary Judgment.

“Based on the foregoing, the Judgment and the “Findings of Fact, Conclusions of Law and Order Granting Plaintiff’s Motion for Summary Judgment against All Defendants and for Interlocutory Decree of Foreclosure,” both entered on August 10, 2018, by the Circuit Court of the Second Circuit, are vacated. This case is remanded to the Circuit Court for further proceedings consistent …

6 Responses

  1. legisman…never mind the “just pay your mortgage”…we all hear that.

  2. Not hearing anything here on how to get it done…we all know they are “liars”. And the lawyers, for the most part have never met their clients, so they have no knowledge of what they speak. Either way, anyone here got a solution to the problem?

  3. PS. Hawaii is are relatively small islands with warm climate comfortable for camping and other outdoor living.

    Judges probably finally realized that if they will push everyone on the streets and gift their homes to Big Bank as tax free revenue, here will be nobody to fund judicial paychecks.

    And here will be nobody to foreclose since judges eliminated most “homeowners” already.

  4. It happens not because Judges started to follow laws or decided to serve average people and confront banks fraud.

    It happens because Judges enable Banks fraud too zealously and leave Banks without food.

    Big Banks have less to steal, thanks to judicial enthusiasm in promoting foreclosure and creating homelessness; and started to complain themselves.

    Read 09.16.20 Article where Deutsche Bank (a fake Trustee for non-existing Trusts.

    Thanks Judges!

    So many young adults living with parents will have ‘serious consequences’ for financial markets: Deutsche Bank.

    Mostly as a result of being priced out of the housing market, the majority of young adults under 30 are living with their parents.

    According to a new report by Deutsche Bank, a worsening generational wealth divide risks ushering in a new “Age of Disorder.”

    “The widening generational divide should be a key source of alarm for investors, financial markets and society as a whole,” wrote Deutsche Bank analyst Henry Allen, adding that there could be “serious consequences for asset markets” if the gap between older and younger Americans’ wealth isn’t addressed.

    Nope, Judges do not serve people.

    They are now blamed by Banks for creating a giant financial and social crisis which can (and will) have a giant consequences for non-assets markets – where banks have very little to steal.

  5. you saved me the time. you are exactly right. they will go to trial and have all their ducks lined up.

  6. Dubin is the typical “stall” atty. whose never really “won” a case. This case cited is the typical “standing” case, where the bank will just come back and re-foreclose.

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