HSBC Bank USA v. Tucker, Sr.

── HSBC Bank USA v. Tucker, Sr. ── Court: Hawaii Intermediate Court of Appeals Date: May 13, 2026 Category: General NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 13-MAY-2026 08:00 AM Dkt. 90 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR ACE 2006-NC1, Plaintiff-Appellee, v. ANTHONY TUCKER, SR. and WINIFRED HAPUA TUCKER, Defendants-Appellants, and NEW CENTURY MORTGAGE CORPORATION; CAPITAL ONE BANK (USA), N.A.; ASSOCIATION OF APARTMENT OWNERS OF MAKAKILO GARDENS, INCREMENT 1, Defendants-Appellees; and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10, and DOE GOVERNMENTAL UNITS 1-10, Defendants. APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC151000657) SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, McCullen and Gluck, JJ.) In this foreclosure action, Defendants-Appellants Anthony Tucker, Sr. and Winifred Hapua Tucker (the Tuckers) appeal from the May 20, 2024 "Findings of Fact, Conclusions of Law and Order Granting Plaintiff's Motion for Summary Judgment and Decree of Foreclosure Against All Defendants on Complaint Filed April 13, 2015," and the May 21, 2024 Final Judgment,  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER entered by the Circuit Court of the First Circuit (Circuit Court). 1 The Tuckers contend the Circuit Court erred in granting summary judgment because (1) Plaintiff-Appellee HSBC Bank USA (Bank) did not prove it had possession of the promissory note (Note) at the time it filed its foreclosure complaint on April 13, 2015 (Complaint); (2) the Bank did not prove it sent a default letter; and (3) a genuine issue of material fact exists as to whether the Tuckers satisfied the terms of a loan modification. After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve the Tuckers' contentions as follows, and affirm. (1) Possession of the Note: The Tuckers first argue that the Bank did not validly establish possession of the Note at the time the Complaint was filed. A foreclosing plaintiff must establish that it had standing to enforce the subject promissory note at the time the complaint was filed. U.S. Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr. v. Verhagen, 149 Hawaiʻi 315, 327-28, 489 P.3d 419, 431-32 (2021), as amended (July 6, 2021); Bank of Am., N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 368, 390 P.3d 1248, 1255 (2017). A person entitled to enforce the note includes the holder. Hawaiʻi Revised Statutes §§ 490:1-201(b), 3-301 (2008). Here, the Bank submitted a 21-page declaration from Juliana Thurab (Thurab), custodian of records for the PHH Mortgage Corporation (PHH), the loan servicing company for the Bank. Thurab's declaration stated, inter alia, that the Note 1 The Honorable Karin L. Holma presided. 2  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER was held by the Bank's prior loan servicing company, Ocwen Loan Servicing, LLC (Ocwen), continuously from April 18, 2013 to July 1, 2016. Thurab and the Bank's counsel gave clear testimony as to possession of the Note thereafter. In 2019, Ocwen merged with PHH Mortgage Corporation; PHH's records, mainta