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Electronically Filed
Supreme Court
SCWC-13-0002610
01-NOV-2016
09:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
GERALD K. MOUNT, JR. and JANE R. MOUNT,
Respondents/Plaintiffs/Counterclaim Defendants/Appellees,
vs.
MARGARET APAO,
Petitioner/Defendant/Appellant,
and
DIRK APAO as Co-Personal Representative of the
ESTATE OF ROSE MARIE ALVARO, deceased,
Petitioner/Defendant/Counterclaim Plaintiff/
Third-Party Plaintiff/Appellant,
and
SESHA LOVELACE, as Co-Personal Representative of the
ESTATE OF ROSE MARIE ALVARO, deceased,
Petitioner/Defendant/Cross-Claim Defendant/Appellee,
and
U.S. BANK NATIONAL ASSOCIATION, A NATIONAL ASSOCIATION AS
TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES 2005-SC1,
Respondent/Third-Party Defendant/Cross-Claim Plaintiff/Appellee.
SCWC-13-0002977, SCWC-13-0002610
and SCWC-14-0000556
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0002977, CAAP-13-0002610, and CAAP-14-0000556;
CIV. NO. 11-1-2005)
NOVEMBER 1, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
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OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This consolidated appeal arises from an ejectment action
initiated after a nonjudicial foreclosure on real property
pursuant to Hawai‘i Revised Statutes (“HRS”) § 667-5 (Supp.
2008), which was repealed in 2012.1 The Circuit Court of the
First Circuit (“circuit court”) entered a Final Judgment in
favor of Gerald Mount Jr. and Jane R. Mount (“the Mounts”),
purchasers of the property through the nonjudicial foreclosure
sale, and mortgagee U.S. Bank National Association, a National
Association as Trustee for Structured Asset Securities Corp.
Mortgage Pass-Through Certificates, Series 2005-SC1 (“U.S.
Bank”). The Final Judgment was entered against Margaret Apao
(“Margaret”), sister of decedent Rose Marie Alvaro (“Alvaro”),
and Dirk Apao, Margaret’s son, as personal representative of
Alvaro’s estate (“Dirk”) (Margaret and Dirk are sometimes
collectively referred to as “the Apaos”).
With respect to the issues we address on certiorari, the
circuit court ruled that a nonjudicial foreclosure conducted
pursuant to HRS § 667-5 is a “proceeding to enforce a mortgage”
under HRS § 560:3-803(d)(1), exempt from the time limits for
presentation of claims against a decedent’s estate, set out by
1
HRS § 667-5 was in Part I of chapter 667 and was repealed by the
legislature in 2012. 2012 Haw. Sess. Laws Act 182, § 50 at 684.
2
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other subsections of HRS § 560:3-803. The circuit court also
ruled that U.S. Bank did not violate HRS § 667-5(c)(1) by
failing to provide Dirk’s former co-personal representative
Sesha Lovelace (“Lovelace”) with information she had requested
regarding the funds that would be required to reinstate the loan
and thereby cure the default (“reinstatement figures”). The
Intermediate Court of Appeals (“ICA”) affirmed.
The Apaos raise various issues on certiorari, including the
following:
1. Is a nonjudicial mortgage foreclosure under HRS § 667-5 a
“proceeding to enforce a mortgage” under HRS § 560:3-803(d)(1),
and if not, did U.S. Bank fail to comply with HRS § 560:3-
803(c)’s requirements for presentation of claims, thereby barring
its claims?
2. Was the nonjudicial foreclosure conducted in violation of
HRS § 667-5(c)(1), when U.S. Bank failed to provide Lovelace with
loan reinstatement figures?
With respect to the first issue, we hold that a
nonjudicial mortgage foreclosure conducted pursuant to HRS §
667-5 is not a “proceeding to enforce a mortgage” under HRS §
560-3-803(d)(1). Therefore, a nonjudicial foreclosure conducted
pursuant to HRS § 667-5 is not exempt from the time limits under
HRS § 560:3-803 for presentation of claims against a decedent’s
estate.2
2
HRS § 560-3-803(c), the subsection at issue in this case,
provides in relevant part:
(c) All claims against a decedent’s estate which arise at
or after the death of the decedent [] are barred []unless
presented as follows:
(continued. . .)
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With respect to the second issue, we hold that U.S. Bank’s
failure to provide reinstatement figures to Lovelace violated
HRS § 667-5(c)(1)’s requirement that “[u]pon the request of any
person entitled to notice, the attorney [or] the mortgagee . . .
shall disclose to the requestor . . . information . . .
[regarding] the amount to cure the default. . . .” We further
hold that this failure rendered the nonjudicial foreclosure sale
voidable at the Estate’s election, unless the Mounts are
innocent purchasers for value; if the Mounts are innocent
purchasers for value, then the circuit court must determine an
appropriate remedy, which generally would be an award of
damages. Santiago v. Tanaka, 137 Hawaii 137, 158, 366 P.3d 612,
633 (2016) (holding that where the nonjudicial foreclosure of a
property is wrongful, the sale of the property is invalid and
voidable at the election of the mortgagor, who shall then regain
title to and possession of the property, except where the
property has passed into the hands of an innocent purchaser for
value, under which circumstances, an action at law for damages
is generally the appropriate remedy).
(. . .continued)
. . . .
(2) . . . [W]ithin the later of four months after it
arises . . . .
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Our resolution of the second issue resolves the Apaos’
remaining four issues on certiorari, which we therefore do not
address.3
Accordingly, we vacate the ICA’s Judgment on Appeal and the
circuit court’s Final Judgment along with all the orders, writs,
and/or judgments referenced in the Final Judgment, and we remand
the case to the circuit court for further proceedings consistent
with this opinion.
II. Background
A. The Estate and the Nonjudicial Foreclosure Proceeding
In 1999, Alvaro obtained a loan for $500,000, secured by a
mortgage (“the Mortgage”) and promissory note (“the Note”) on
the subject real property located on the slopes of Diamond Head
at 2979 Makalei Place, Honolulu, Hawai‘i 96815 (“the Property”).4
The Property was appraised in 2013 to have a fair market value
of $3,535,000.
3
Issues 3 through 6 on certiorari concerned whether: (3) the entry
of the writ of possession prior to a separate, final judgment resulted in an
unlawful splitting of the ejectment claim in violation of this court’s
Separate Judgment Rule; (4) the award of attorneys’ fees and costs was
erroneous because this case was not an action in the nature of assumpsit; (5)
the damages award based in part on the amount the Mounts paid to rent an
alternate property was clearly erroneous; and (6) the supplemental damages
award for actual costs incurred in carrying out the eviction was erroneous.
4
An assignment of Mortgage from Fremont Investment & Loan, the
original mortgagee, to Mortgage Electronic Registration Systems, Inc. as
nominee for First Union National Bank (“MERS”) was recorded on August 30,
2001, and, a second assignment from MERS to U.S. Bank was recorded on
December 17, 2009.
5
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Alvaro passed away on December 18, 2002. On January 23,
2003, a petition seeking informal probate of her will and for
appointment of personal representatives was filed with the
probate court in In the Matter of the Estate of Rose Marie
Alvaro (“the Estate”), Probate Case No. 03-1-0018. Margaret and
Dirk were appointed co-personal representatives of the Estate.
A death certificate was filed in the informal probate
proceeding.
Margaret and Dirk apparently did not notify U.S. Bank or
its mortgage servicer, American Home Mortgage Servicing, Inc.
(“AHMS”), of Alvaro’s death, but began making payments on the
Note with the Estate’s funds. The Note apparently went into
arrears around November of 2004. A notice of Alvaro’s death
and regarding the informal appointment of Margaret and Dirk as
co-personal representatives in an unsupervised administration
was published in the Honolulu Star-Bulletin on three dates in
May 2005. The notice did not notify creditors of any deadlines
to present their claims.
Margaret apparently began living at the Property and
collecting the mail in 2006 or 2007. By an order entered on
July 11, 2007, the informal probate was converted to a formal
probate proceeding. Dirk and Margaret remained as co-personal
representatives.
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Letters asserting default under the Note, addressed to
Alvaro, were mailed to the Property in 2008 and 2009; Margaret
disputed receiving them. By March 1, 2009, the Note was clearly
in default. AHMS sent a letter addressed to Alvaro dated April
16, 2009 (“Default Notice”). The Default Notice provided the
amount to cure the default, $11,606.14, and stated that the loan
would be accelerated if not cured within 30 days.
Five months later, on August 5, 2009, Lovelace, as an
Estate beneficiary, petitioned the probate court to remove
Margaret and Dirk as co-personal representatives. She alleged a
conflict of interest between the Apaos and the Estate because
they had been living on the Property rent-free for years.
Lovelace also asserted:
The current personal representatives would appear to have
neglected their duties by failing to process this matter
expeditiously. . . . Also, the Estate may owe additional
penalties and taxes since the tax returns have not been
filed on time. The estate may have claims against the
current personal representatives for a surcharge. The
current personal representatives are not in a position to
handle fairly any such claims that the estate has against
them.
By the end of 2009, U.S. Bank was clearly aware of Alvaro’s
death. On December 14, 2009, the law firm of Routh Crabtree
Olson (“Routh Crabtree”), as counsel for U.S. Bank, sent a
“Notice Under Fair Debt Collection Practices Act” to the “Heirs
and/or Devisees of Rose Marie Alvaro,” stating it had been
retained to initiate foreclosure proceedings.
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On February 1, 2010, U.S. Bank recorded a Notice of Mortgagee’s
Intent to Foreclose Under Power of Sale (“Notice of Intent to
Foreclose”) in the Hawai‘i Bureau of Conveyances, setting an
auction date of April 1, 2010. According to Routh Crabtree,
the Notice of Intent to Foreclose was forwarded to all parties
who had recorded encumbrances, liens and/or other claims against
the Property. These parties included the “Heirs and/or Devisees
of Rose Marie Alvaro,” “Dirk Apao Personal Representative for
Rose Marie Alvaro,” and “Sesha Lovelace,” apparently in her
personal capacity as a beneficiary of the Estate.
Later that month, pursuant to an order filed February 23,
2010, Lovelace’s petition to remove the personal representatives
was partially granted by the probate court, and Lovelace was
substituted as a co-personal representative in place of Margaret
to serve with Dirk. This change in co-personal representatives
was handwritten on a document entitled “Second Amended Letters
Testamentary,” on which Margaret’s name was crossed out and
Lovelace’s name was written above, and which was signed and
certified by the clerk of the probate court.5
Although U.S. Bank was aware of Alvaro’s death, it
continued to send correspondence addressed to Alvaro to the
Property, which Margaret apparently received. Then, despite the
5
Hawaii Probate Rules Rule 48 pertains to the “Delegation of
Powers to Clerk and Deputy Clerks.” The fact that the letters were signed by
the clerk and not the judge is not raised as an issue in this case.
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order two days earlier officially removing her as a co-personal
representative, on February 25, 2010, Margaret, claiming to be
Alvaro, called AMHS and obtained a verbal reinstatement quote of
$72,645.42, valid until March 3, 2010, which AHMS confirmed by
a letter of the same date addressed to Alvaro and mailed to the
Property. The following day, March 31, 2010, Margaret faxed
this reinstatement amount and mortgage balance to Dirk.
The day before, on March 30, 2010, Margaret had called AHMS
again, asking for an updated reinstatement quote, first
pretending to be Alvaro and then claiming to be a personal
representative of the Estate. It appears that in order to
establish her authorization to receive loan information,
pursuant to AHMS’s request, Margaret faxed the first page of the
July 11, 2007 probate court’s “Order Granting Petition to
Transfer from Informal to Formal Proceeding and to Renew Letters
Testamentary,” which had continued her and Dirk as co-personal
representatives.
U.S. Bank postponed the foreclosure sale scheduled for
April 1, 2010. On April 19, 2010, AHMS mailed updated
reinstatement figures to Margaret, reflecting a reinstatement
amount totalling $80,138.32, which she appears to have also
forwarded to Dirk.
Ten months later, on February 3, 2011, U.S. Bank officially
served the original Notice of Intent to Foreclose on Lovelace as
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“as personal representative.” It also served Dirk “as personal
representative” on February 5, 2011. This notice still
reflected the foreclosure sale date of April 1, 2010, which had
already passed.
In any event, pursuant to the Notice of Intent to
Foreclose, which directed inquiries to AHMS, Lovelace began
requesting reinstatement figures soon after she was served.
Although Routh Crabtree had served Lovelace with the Notice of
Intent to Foreclose as a personal representative, AHMS
questioned Lovelace’s authority to receive the reinstatement
figures. Based on emails between Lovelace and her attorney, it
appears that on February 9, 2011, her attorney faxed to AHMS the
Second Amended Letters Testamentary of February 23, 2010. On
February 18, 2011, Lovelace emailed her attorney, however,
stating, “The company will not accept this document because it
doesn’t appear to be original with the names scratched out and
hand written in. Is there another copy that is more
professional and credible?” Lovelace also emailed her attorney
that she was attempting to obtain the mortgage account number
from Dirk because “[t]hey will not provide any information
without [it].” Lovelace made the following request to her
attorney:
Let me know once the documentation is faxed to American
Home Mortgaging so I can follow-up with a phone call to
determine the specifics on what is happening with [the
Property]. I want to know exactly what we owe and how long
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they have been extending the issue before we make a final
decision. I am concerned that the 6 month extention [sic]
for the $250,000 would set us up for failure if [the
Property] is foreclosed on.
On February 23, 2011, Lovelace sent a follow-up email to
Routh Crabtree. The next day, Routh Crabtree billing assistant
Julie Cihak (“Cihak”) responded to Lovelace’s email, stating, “I
need the borrower to send in a signed auth [sic] for us to give
you the figures, also I have requested the reinstatement figures
3 times and they have only supplied payoff figures I have
requested again.”
AHMS mailed two payoff statements dated February 19 and 24,
2011 to the Property, reflecting payoff amounts of $567,635.26
and $573,146.86. Margaret forwarded at least one of them to
Dirk.
On March 2, 2011, Lovelace provided the Estate account
number to Cihak. On March 3, 2011, Cihak responded that AHMS
still had not provided the reinstatement figures to her, but
that she would send them to Lovelace as soon as they did. In
addition, Routh Crabtee foreclosure analyst Candice Yoo (“Yoo”)
emailed Lovelace to ask if she had received her quote and
stated, “It looks like the sale is still set for 3-7-11. I
believe our fees and costs department have been working on
obtaining a reinstatement quote for you.” Lovelace responded
that she had not received the figures, and that “AHMSI is
insisting that the auction is not scheduled because our property
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is not listed on their website. Can I trust that this is true?
They are also saying that [Routh Crabtree] is a third party and
does not have the most updated information.”
Yoo responded the following day, March 3, 2011, to explain
that the “sale is still scheduled for 3-7-11, but I am having
the sale postponed for two weeks for your reinstatement quote.”
On March 7, 2011, Yoo informed Lovelace that the sale had been
postponed to March 21, 2011, and asked if she had received the
quote, to which Lovelace replied that she had not.
On or about March 7, 2011, AHMS apparently posted a
reinstatement quote to LPS, a service that lenders and their
attorneys use to facilitate communications between each other.
According to this reinstatement quote, the reinstatement figure
as of March 7, 2011 was $145,486.69. According to AHMS, this
reinstatement quote was intended to be released to Lovelace “if
and when she provided the required authorization.”
Neither Lovelace, Margaret, or Dirk ever received
reinstatement figures at any time after April 2010, despite
assurances to Lovelace that the March 7, 2011 continued
foreclosure sale was being postponed in order to provide her
with those figures. Despite these assurances, U.S. Bank
conducted a foreclosure auction on April 4, 2011. At the
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auction, the Mounts purchased the Property through their
company, Fair Horizon LLC,6 for approximately $1.21 million.
On April 6, 2011, Lovelace emailed Cihak to state that she
had not received the reinstatement information, but that the
Property had been sold. On April 7, 2011, Routh Crabtree lead
foreclosure analyst Monica Woodward told Lovelace that “Julie
Cihak no longer works on Hawaii files[,]” and invited her to
call regarding questions. On April 10, 2011, Lovelace emailed
her attorney regarding her conversation with Woodward, stating,
“[Woodward] explained to me that the lender would not accept the
document in question which is why I never received the
reinstatement amount. She emphasized that even though [Routh
Crabtree] forwarded them the same document they wouldn’t accept
it as reliable because of the handwritten notes.”
Thus, U.S. Bank failed to provide Lovelace reinstatement
figures, alleging she had failed to provide sufficient evidence
of her status as a personal representative, despite having
served her on February 3, 2011 with the Notice of Intent to
Foreclose specifically identifying her as a personal
representative of the Estate.
6
The Mounts were identified as the nominee for Fair Horizon LLC.
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B. The Mounts’ Ejectment Action Against the Apaos
The Mounts received a limited warranty deed to the Property
from U.S. Bank, which was recorded on July 22, 2011. On
September 7, 2011, the Mounts filed a Complaint in the circuit
court against Margaret individually and Dirk and Lovelace as co-
personal representatives, asserting claims for ejectment (Count
I) and quiet title (Count II)(“Complaint”).
On October 11, 2011, the Apaos filed a joint answer,
asserting that the nonjudicial foreclosure and sale were illegal
and void. Dirk also filed a “Counterclaim and Third-Party
Complaint for Wrongful Foreclosure, Quiet Title, and Damages”
against the Mounts and U.S. Bank for violation of the Probate
Code, HRS § 560:3-803 (Count I), violation of HRS § 667-5 (Count
II), violation of the Mortgage (Count III), and defective and
fraudulent transfer of the Mortgage (Count IV)
(“Counterclaim and Third-Party Complaint”). On October 31,
2011, Lovelace filed an answer alleging invalidity of the
foreclosure sale and incorporating by reference the Apaos’
pleadings.
On May 16, 2012, Lovelace filed a motion to substitute Dirk
or, in the alternative, to dismiss any and all claims by and
against her pursuant to a “Stipulated Settlement and Release
Agreement and Order” filed in the probate court proceeding on
November 23, 2011 (“Stipulated Settlement”). The Stipulated
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Settlement allowed Lovelace to resign as a co-personal
representative, but also required her to cooperate and assist
the Estate in its defense of the ejectment and foreclosure
proceedings involving the Property.7 Although the circuit court8
denied Lovelace’s motion by order dated August 8, 2012, claims
against Lovelace were later dismissed by stipulation.
The Mounts and the Apaos filed various cross-motions for
summary judgment on the Complaint, Counterclaim, and Third Party
Complaint.9 A consolidated hearing on the various motions was
held on May 21, 2013. The circuit court first ruled that HRS §
560:3-803(d)(1) exempted any proceeding to enforce a mortgage
7
Pursuant to the Stipulated Settlement, the named beneficiaries of
Alvaro’s will agreed to an interim partial distribution of the assets of the
Estate.” As part of the interim partial distribution, the Lovelace family
received two apartment units owned by the Estate, $100,000 in cash paid to
her attorney-client trust account, and a guarantee that the Estate would
perform its obligations, including the payment of taxes. In exchange, the
parties agreed to “waive and release any and all claims relating to the
Estate and/or to any assets of the Estate against the Estate and against each
other, including any claims that any of the Parties failed to perform any
duties owed to the Estate or to each other as Beneficiaries or Co-Personal
Representatives . . . .”
8
The Honorable Karen T. Nakasone presided over the circuit court
proceedings.
9
With respect to their Complaint, the Mounts filed motions for (1)
summary judgment on Count I for ejectment, and (2) partial summary judgment
on the Count II for quiet title regarding (a) their status as bona fide
purchasers for value, and (b) the validity of the nonjudicial foreclosure
sale. The Mounts also filed a motion for summary judgment on the
Counterclaim in its entirety. With respect to the Apaos’ Third-Party
Complaint, U.S. Bank filed a motion for partial summary judgment on Count I
alleging a violation of HRS § 560:3-803’s presentation of claim requirement
and Count IV alleging defective and fraudulent transfer of the Mortgage.
Count IV was thereafter dismissed by stipulation. U.S. Bank also filed a
substantive joinder in the Mounts’ motion for partial summary judgment as to
Count II (quiet title) of their Complaint. The Apaos filed motions for (1)
summary judgment on the Mounts’ complaint, and (2) partial summary judgment
on the Counterclaim and Third-Party Complaint as to wrongful foreclosure and
quiet title.
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from presentation of claims requirements, and that a nonjudicial
foreclosure is such a “proceeding” under HRS § 560:1-201. The
circuit court also ruled that HRS § 667-5(c)(1) was not violated
because Lovelace failed to establish her entitlement to the
reinstatement figures, and that, therefore, the foreclosure sale
was valid. The circuit court alternatively ruled that even if
HRS § 667-5 had been triggered, U.S. Bank had complied with the
requirement to provide the amount to cure because Dirk had
received reinstatement figures through Margaret. Based on its
ruling that the foreclosure sale was valid, the circuit court
granted the Mounts and U.S. Bank partial summary judgment
quieting title, granted the Mounts summary judgment on their
ejectment claim and on the Counterclaim, and denied the Apaos’
cross-motions for summary judgment on the Complaint and for
partial summary judgment on the Counterclaim and Third-Party
Complaint. In light of its ruling, the circuit court deemed
moot the Mounts’ motion for partial summary judgment alleging
bona fide purchaser status, and the Mounts withdrew that motion.
These rulings were memorialized in orders filed on July 25 and
26, 2013.
The circuit court entered a writ of ejectment on July 25,
2013, granting the Mounts possession of the Property. Four days
later, the circuit court entered a Judgment, reserving the issue
of the Mounts’ alleged damages.
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On August 6, 2013, the Apaos appealed the July 29, 2013
Judgment, as well as the orders (1) granting the Mounts summary
judgment as to Count II of the Complaint and U.S. Bank’s
joinder, (2) granting the Mounts summary judgment as to Count I
of the Complaint, (3) granting the Mounts summary judgment as to
the Counterclaim, (4) denying the Apaos summary judgment as to
the Complaint and partial summary judgment on the Counterclaim
and Third-Party Complaint, (5) denying the Apaos’ request for
judicial notice of their motion to dismiss filed in the district
court, and (6) granting U.S. Bank partial summary judgment on
Counts I and IV of the Third-Party Complaint. This appeal
initiated CAAP-13-2610. On August 9, 2013, the Apaos were
apparently served with a writ of execution, and were informed
that they had 48 hours to vacate the property. The Apaos
appealed the Writ of Possession on August 22, 2013, initiating
CAAP-13-2977. After a hearing on the Mounts’ request for
damages, the circuit court awarded the Mounts damages against
the Apaos in the amount of $237,504.81 as well as attorneys’
fees and costs in the amount of $208,592.23. The circuit court
also awarded U.S. Bank attorneys’ fees and costs of $175,423.45.
On March 13, 2014, the circuit court entered a Final Judgment
reflecting its various rulings. The Apaos appealed the circuit
court’s Final Judgment, initiating CAAP-14-556
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C. Appeal to the ICA
The ICA consolidated the three appeals (CAAP-13-2610, CAAP-
13-2977, and CAAP-14-556) under CAAP-13-2977 by orders dated
November 13, 2013 and November 18, 2014.
With respect to the issues on certiorari, the Apaos’ first
point of error argued that the circuit court erred in granting
judgment in favor of the Mounts and U.S. Bank and against the
Apaos because the nonjudicial foreclosure was conducted in
violation of (1) the Hawai‘i Probate Code, because U.S. Bank
failed to make a proper claim against the Estate by raising it
in the probate case or filing a judicial foreclosure action, and
(2) HRS § 667-5, because reinstatement information was not
provided to Lovelace after her request.10
The ICA rejected the Apaos’ points of error as “without
merit.” Mount, SDO at 4. First, the ICA affirmed the circuit
10
The Apaos presented four additional points of error, arguing that
(1) the award of attorneys’ fees and costs to U.S. Bank and the Mounts was
erroneous because this case was not an action in the nature of assumpsit; (2)
the circuit court erred in entering the writ without first entering a
separate judgment, and further, that its July 29, 2013 judgment violates the
Separate Judgment Rule, resulting in an unlawful splitting of the ejectment
claim; (3) the award of damages was clearly erroneous and inequitable where
the Mounts failed to timely file their request, were not entitled to damages
based on their rental of another unidentified property, and received a
windfall from the extremely low sale price, and the dispute was not in the
nature of assumpsit; and (4) the award of supplemental damages was clearly
erroneous.
The ICA determined that a sixth point of error, that the circuit court
abused its discretion in setting an outrageously high supersedeas bond, was
waived under Hawai‘i Rules of Appellate Procedure Rule 28(b)(7) because the
Apaos made no argument to support it. Mount v. Apao, CAAP-13-2977, at 3 n.3
(App. Jan. 9, 2015) (SDO).
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court’s ruling that “[t]he non-judicial foreclosure was an
exempt proceeding under HRS § 560:3-803(d)(1) because it was a
proceeding to enforce a mortgage.” Mount, SDO at 6. Next, with
respect to the alleged HRS § 667-5 violation, the ICA ruled that
U.S. Bank, through American Home Mortgage Servicing
(AHMS), provided Alvaro’s Estate (Estate) with
reinstatement information over the phone with Margaret on
February 25, 2010, and by letters dated February 25, 2010
and April 19, 2010 and mailed to the Property where
Margaret was residing, and also through two pay-off
statements in February 2011, at least one of which Margaret
received and shared with Dirk. The fact that Margaret
received the information after resigning as co-personal
representative (Co–PR) is irrelevant because Margaret
misrepresented herself to AHMS as a Co–PR of the Estate and
shared the reinstatement information she received with
Dirk. Also, U.S. Bank informed Lovelace that it would
provide her with the reinstatement information she
requested if she could provide U.S. Bank with the Estate’s
account number and a credible document showing that she was
a Co–PR, but Lovelace did not provide U.S. Bank with
either. U.S. Bank did not violate HRS § 667–5(a)(2) because
it provided the Apaos with reinstatement information, and
did not violate HRS § 667–5(c)(1) because Lovelace failed
to establish that she was a “person entitled to notice”
under HRS § 667–5.
Mount, SDO at 7. The ICA affirmed the circuit court’s Final
Judgment in favor of the Mounts and U.S. Bank on all claims.
D. The Apaos’ Application for Writ of Certiorari
As noted, we address the first two issues raised by the
Apaos because they are dispositive of the remaining issues. The
Apaos argue that the ICA gravely erred in (1) holding that a
nonjudicial mortgage foreclosure conducted under HRS § 667-5 is
exempt from the Hawaii Probate Code limitation of claims
requirements; (2) affirming the Final Judgment in favor of the
Mounts and U.S. Bank and against the Apaos on all claims because
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the nonjudicial foreclosure was conducted in violation of HRS §
667-5.11
III. Standards of Review
A. Statutory Interpretation
The standard of review for statutory construction is well-
established. The interpretation of a statute is a question
of law which [the appellate] court reviews de novo. Where
the language of the statute is plain and unambiguous, our
only duty is to give effect to its plain and obvious
meaning.
Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 197, 202
P.3d 1226, 1242 (2009) (internal citations omitted).
B. Motion for Summary Judgment
[An appellate] court reviews a trial court’s grant of
summary judgment de novo. Oahu Transit Servs., Inc. v.
Northfield Ins. Co., 107 Hawaii 231, 234, 112 P.3d 717, 720
(2005). The standard for granting a motion for summary
judgment is well settled:
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled
to judgment as a matter of law. A fact is material
if proof of that fact would have the effect of
establishing or refuting one of the essential
elements of a cause of action or defense asserted by
the parties. The evidence must be viewed in the
light most favorable to the non-moving party. In
other words, [the appellate court] must view all of
the evidence and the inferences drawn therefrom in
the light most favorable to the party opposing the
motion.
Price v. AIG Hawaii Ins. Co., 107 Hawaii 106, 110, 111 P.3d
1, 5 (2005) (original brackets and citation omitted).
11
See fn. 3, supra, for a description of the other issues on
certiorari, which are not addressed based on our rulings on the first two
issues.
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Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawaii 92, 104,
176 P.3d 91, 103 (2008).
IV. Discussion
A. A nonjudicial foreclosure is not a “proceeding to enforce a
mortgage” exempt from HRS § 560:3-803, which sets time
limitations for the presentation of claims against a
decedent’s estate.
In their first question on certiorari, the Apaos assert
that U.S. Bank was prohibited from pursuing its claim because a
HRS § 667-5 nonjudicial foreclosure is not a “proceeding to
enforce a mortgage” exempt from HRS § 560:3-803(c)’s bar against
claims against a decedent’s estate not presented within a
prescribed time limit. The Apaos also assert that U.S. Bank’s
claim was not timely filed against the Estate.
HRS § 560:3-803 (1997), provides in relevant part as
follows:
§560:3-803 Limitations on presentation of claims.
(c) All claims against a decedent's estate which arise at
or after the death of the decedent []are barred [] unless
presented as follows:
. . . .
(2) . . . [W]ithin []four months after it
arises. . . .
(d) Nothing in this section affects or prevents:
(1) Any proceeding to enforce any mortgage, pledge,
or other lien upon property of the estate. . . .
Whether a nonjudicial foreclosure conducted pursuant to HRS
§ 667-5 is a “proceeding to enforce a mortgage” under HRS §
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560:3-803(d)(1) exempt from the presentation of claims time
limits reflected in other subsections of HRS § 560:3-803 is a
matter of first impression in Hawaii. Both the circuit court
and ICA ruled that a nonjudicial foreclosure conducted pursuant
to HRS § 667-5 so qualifies. The Apaos assert that this ruling
was in error. For the following reasons, we agree.
According to HRS § 560:1-201, “`Proceeding’ includes an
action at law or a suit in equity.” Black’s Law Dictionary
defines an “action at law” as “[a] civil suit stating a legal
cause of action and seeking only a legal remedy.” Black’s Law
Dictionary 35 (10th ed. 2014). It defines “suit in equity” as
“A civil suit stating an equitable claim and asking for an
exclusively equitable remedy.” Id. at 1663. “Suit” is defined
as “[a]ny proceeding . . . in a court of law.” Id.
Historically, before the merger of legal and equitable
actions, actions at law were triable by a jury, while suits in
equity were heard by a judge. Mehau v. Reed, 76 Hawaii 101,
110, 869 P.2d 1320, 1329 (1994). Both actions at law and suits
in equity, however, were presented in courts. Yet, a
nonjudicial foreclosure, by its very nature, avoids the court
system. See Lee v. HSBC Bank USA, 121 Hawai‘i 287, 289, 218 P.3d
775, 777 (2009) (explaining that HRS § 667-5 “authorizes
nonjudicial foreclosure under a power of sale clause contained
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in a mortgage”); Santiago, 137 Hawai‘i at 155, 366 P.3d at 630
(“HRS § 667–5 does not provide the nonjudicial power of
foreclosure but only allows its creation, if the parties choose
to do so, within the four corners of a contract.”) (citations
omitted). Thus, a nonjudicial foreclosure is in the nature of a
contractual self-help remedy, Lee, 121 Hawai‘i at 292, 218 P.3d
at 780, and is not “an action in law or a suit in equity.”
U.S. Bank correctly argues, however, that according to HRS
§ 1-201, a “proceeding” includes “an action in law or a suit in
equity.” Thus, a “proceeding,” by definition, is not limited to
“an action in law or a suit in equity.” Therefore, if a
nonjudicial foreclosure conducted pursuant to HRS § 667-5 is a
“proceeding,” it could be a “proceeding to enforce a mortgage
even if it does not qualify as “an action in law or a suit in
equity.”
“Proceeding” is not further defined by HRS § 560:1-201.
“Because the term is not statutorily defined, this court ‘may
resort to legal or other well accepted dictionaries as one way
to determine [its] ordinary meaning.’” Gillan v. Government
Employees Ins. Co., 119 Hawaii 109, 116, 194 P.3d 1071, 1078
(2008).12
12
See also County of Haw. v. C&J Coupe Family Limited Partnership,
119 Hawaii 352, 365, 198 P.3d 615, 628 (2008), referring to Black’s Law
Dictionary to define “proceedings” in the context of HRS § 101-27.
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Black’s Law Dictionary defines “proceeding” as follows:
1. The regular and orderly progression of a lawsuit, including
all acts and events between the time of commencement and entry of
judgment. 2. Any procedure means for seeking redress from a
tribunal or agency. 3. An act or step that is part of a larger
action. 4. The business conducted by a court or other official
body; a hearing. 5. Bankruptcy. A particular dispute or matter
arising within a pending case – as opposed to the case as a
whole. . . .
“Proceeding” is a word much used to express the business
done in courts. A proceeding in court is an act done by
the authority or direction of the court, express or
implied. It is more comprehensive than the word ‘action,’
but it may include in its general sense all the steps taken
or measures adopted in the prosecution or defense of an
action, including the pleadings and judgment. . . .
The definition continues to further explain “action,” making it
clear that “action” also means a lawsuit brought in court. Id.
The definition lists various types of “proceedings.” With one
exception, “administrative proceeding,” all of the examples
concern matters in court.
A nonjudicial foreclosure conducted pursuant to HRS § 667-5
is a contractual self-help remedy and is not conducted under the
auspices of or supervised by any court or administrative agency.
Therefore, it is not a “`proceeding’ to enforce a mortgage”
under HRS § 560:1-803(d)(1).13 Thus, U.S. Bank’s nonjudicial
foreclosure against the Estate was not exempt from the
13
Although another state’s interpretation of similar statutes
would not be binding on this court, it could be persuasive. In this regard,
we note that HRS §§ 560:1-201 and 560:3-803 are part of the Hawaii Uniform
Probate Code and that the Uniform Probate Code has been adopted by many other
states. Despite the many nonjudicial foreclosures nationwide, U.S. Bank does
not cite a single case construing “proceeding to enforce a mortgage” under
the probate code to include a nonjudicial foreclosure.
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presentation of claim requirement and deadline under HRS §
560:3-803.
U.S. Bank alternatively argues that even if a nonjudicial
foreclosure is not a “proceeding to enforce a mortgage,” it met
the presentation of claims requirement of HRS § 560:3-803(c)(2).
It asserts that the April 16, 2009 Default Notice, which was
mailed to the Property, where Margaret resided, satisfied HRS §
560:3-804(1),14 and was timely presented within four months of
the Estate’s default in early 2009, as required by HRS § 560:3-
803(c)(2).
The circuit court did not address this alternative
argument, which involves factual issues. We therefore do not
decide whether U.S. Bank met the presentation of claim
14
HRS § 560:3-804(1) provides:
§560:3-804 Manner of presentation of claims. Claims
against a decedent's estate may be presented as follows:
(1) The claimant may deliver or mail to the personal
representative a written statement of the claim indicating its
basis, the name and address of the claimant, and the amount
claimed, or may file a written statement of the claim, in the
form prescribed by rule, with the clerk of the court. The claim
is deemed presented on the first to occur of receipt of the
written statement of claim by the personal representative, or the
filing of the claim with the court. If a claim is not yet due,
the date when it will become due shall be stated. If the claim
is contingent or unliquidated, the nature of the uncertainty
shall be stated. If the claim is secured, the security shall be
described. Failure to describe correctly the security, the
nature of any uncertainty, and the due date of a claim not yet
due does not invalidate the presentation made. . . .
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requirement with respect to the nonjudicial foreclosure and, if
not, the effect of any such failure. These issues are not
before us. We merely address the question of law raised in the
certiorari application and hold that a nonjudicial foreclosure
conducted pursuant to HRS § 667-5 is not a “proceeding to
enforce a mortgage” under HRS § 560:3-803(d)(1), as further
defined by HRS § 560:1-201, exempt from HRS § 560:3-803’s time
limits for presentation of claims against a decedent’s estate.
B. The nonjudicial foreclosure sale was conducted in violation
of HRS § 667-5(c)(1), which requires that information to
reinstate a loan be provided within five days of a request,
rendering the sale voidable, unless the Mounts are innocent
purchasers for value.
We next address the second issue on certiorari, whether the
nonjudicial foreclosure sale was conducted in violation of HRS §
667-5(c)(1), based on U.S. Bank’s failure to provide
reinstatement figures to Lovelace in 2011 and, if so, the
appropriate remedy.
1. As personal representative, Dirk has standing
to assert U.S. Bank’s failure to provide Lovelace
with reinstatement figures, as Lovelace was acting
as a co-personal representative when she made the
request.
As a preliminary matter, U.S. Bank asserts that the Apaos
lack standing to raise the issue of its alleged failure to
provide Lovelace with reinstatement figures in 2011. As
explained above, although U.S. Bank served Lovelace with a
Notice of Intent to Foreclose in February 2011 as a personal
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representative of the Estate, it refused to provide her with the
reinstatement figures. We therefore address U.S. Bank’s
threshold argument that the Apaos lack standing to raise a HRS §
667-5(c)(1) violation. Keahole Def. Coal., Inc. v. Bd. of Land
& Nat. Res., 110 Hawai‘i 419, 427, 134 P.3d 585, 593 (2006), as
amended (May 26, 2006) (standing may be addressed at any stage
of a case).
As noted, in the Final Judgment, all claims against
Lovelace were dismissed, and the Counterclaim and Third-Party
Claim were brought only by Dirk. At all relevant times, Dirk
was a co-personal representative of the Estate with Lovelace.
Dirk now remains as sole personal representative of the Estate.
He asserted claims against U.S. Bank and the Mounts as a co-
personal representative on behalf of the Estate. U.S. Bank
asserts that Dirk also lacks “standing” because Lovelace’s
request allegedly was not made on behalf of the Estate, but
rather, to evaluate a settlement in the probate proceeding in
which she and her family were adverse to the Estate.15 We
disagree.
15
In her deposition, Lovelace testified that she hired an attorney
in 2008 to bring the probate case against Margaret and Dirk due to “[y]ears
of non-action on their part and mismanagement of the estate[,]” including
non-payment of taxes, and failure to make any effort to distribute assets to
the beneficiaries.
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With respect to U.S. Bank’s assertion, whether or not
Lovelace asserted claims against the Estate before being
appointed a co-personal representative, there is no dispute that
Lovelace requested reinstatement information beginning in
February 2011 only after she was served with the Notice of
Intent to Foreclose, and that she requested reinstatement in her
capacity as co-personal representative, acting on behalf of the
Estate.
A personal representative is a fiduciary acting on behalf
of an estate. HRS § 560:3-703(a)(1997). Actions taken by a
personal representative that are beneficial to an estate inure
to the benefit of the estate. HRS § 560:3-701 (1996). As
Lovelace’s requests for reinstatement figures were made on
behalf of the Estate, any rights that inure to the Estate based
upon her requests for reinstatement figures belong to the
Estate. Dirk, as the current sole personal representative of
the Estate, therefore has standing to raise the HRS § 667-
5(c)(1) violation on behalf of the Estate.
2. U.S. Bank violated HRS § 667-5(c)(1) by not providing
Lovelace with reinstatement figures.
HRS § 667-5(c)(1) provides in relevant part:
(c) Upon the request of any person entitled to notice
pursuant to this section and sections 667–5.5 and 667–6,
the attorney, the mortgagee, successor, or person
represented by the attorney shall disclose to the
requestor the following information:
(1) The amount to cure the default, together with the
estimated amount of the foreclosing mortgagee’s
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attorneys’ fees and costs, and all other fees and
costs estimated to be incurred by the foreclosing
mortgagee related to the default prior to the auction
within five business days of the request[.]
In Santiago, 137 Hawaii 137, 366 P.3d 612, we stated:
The purpose that prompted the addition of HRS § 667–
5(c) to the foreclosure statute in 2008 was to “ensure that
the different nonjudicial foreclosure processes include
provisions for interested parties to receive sufficient
notice and obtain information about the intent to foreclose
[and] amounts to cure the mortgage default.” Conf. Comm.
Rep. No. 3–08, in 2008 House Journal at 1710, 2008 Senate
Journal at 793. Evident from the legislative history of
HRS § 667–5(c) is the recognition that the right to cure a
default is intrinsic in the law and that, therefore, HRS §
677–5(c) merely codified this right to ensure that
interested parties were adequately apprised of it.
The common-law right to cure a default originated
from the fundamental premise that mortgage foreclosure is a
proceeding equitable in nature and is thus governed by the
rules of equity. Because equity abhors forfeitures, and
regards and treats as done what ought to be done, it is
typical in foreclosure cases that a right to cure a default
and stop the foreclosure continues up to the day of the
confirmation of the sale. Thus, Hawaii’s courts would not
prevent a mortgagor from curing the default and halting the
foreclosure prior to the entry of a written order
confirming the foreclosure sale. Accordingly, our
interpretation that HRS § 667–5(c) provides a right to cure
is directed by HRS § 667–5(c)’s codification of the same
right under the common law. To hold otherwise would be to
disregard the emanating purpose of HRS § 667–5(c) and to
indirectly nullify the common-law right to cure as
incorporated in HRS § 667–5(c).
Id., 137 Hawaii at 631-32, 366 P.3d 156-57 (emphases in
original, internal footnotes, case citations, and case quotation
marks omitted). The circuit court and the ICA ruled that HRS §
667-5(c)(1) was not triggered because Lovelace failed to
establish herself as entitled to notice. They alternatively
ruled that U.S. Bank had complied with the requirement to
provide reinstatement figures because Dirk had received
reinstatement figures on two occasions through Margaret in
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February and April of 2010, and two payoff statements in
February 2011. U.S. Bank also argues that it did not have a
“continuing obligation to provide reinstatement figures at the
whim of the Estate after having previously complied.”
Dirk, on the other hand, argues that U.S. Bank’s failure to
provide reinstatement figures to Lovelace after her repeated
requests from February 2011 until the foreclosure sale on April
4, 2011 render the nonjudicial foreclosure sale void.
Even if U.S. Bank had provided reinstatement figures to
Margaret in February and April of 2010, there is no dispute that
U.S. Bank, for whatever reason, aborted the original nonjudicial
foreclosure sale scheduled for April 1, 2010. Ten months later,
on February 3, 2011, it served the Notice of Intent to Foreclose
on Lovelace as a personal representative (which still reflected
a foreclosure sale date of April 1, 2010). Reinstatement
figures from early 2010 which were less than $90,000, were
obviously no longer valid in early 2011, and were not the
amounts required to “cure” the default. As conceded by AHMS,
the reinstatement figure was actually $145,486.69 as of March 7,
2011. This was the amount required to “cure” the default. The
fact that AHMS mailed two payoff statements dated February 19
and 24, 2011 to the Property, reflecting payoff amounts of
$567,635.26 and $573,146.86 is immaterial, because these amounts
were not necessary to “cure” the default.
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After U.S. Bank’s attorneys served Lovelace with the
Notice of Intent to Foreclose as personal representative of the
Estate, AHMS refused to provide her with reinstatement figures,
alleging that she had to provide proof that she was a personal
representative entitled to reinstatement figures. Her alleged
failure to provide sufficient authorization to receive the
figures was the sole reason given by AHMS for refusing to
provide Lovelace with the reinstatement figures. HRS § 667-
5(c)(1), however, explicitly obligated U.S. Bank and/or its
attorney to provide Lovelace with information regarding the
amount required to cure the default. Therefore, Routh Crabtree
repeatedly attempted to secure reinstatement figures to provide
to Lovelace. Even though Routh Crabtree had explicitly
acknowledged Lovelace as a personal representative and informed
AHMS that she was entitled to reinstatement figures, AHMS
ignored Routh Crabtree and told Lovelace it would not provide
her with reinstatement figures unless she provided satisfactory
evidence that she was a personal representative. She therefore
emailed the order appointing her as co-personal representative,
yet AHMS refused to accept it on the grounds it had handwritten
information on it.
Routh Crabtree’s attorneys served Lovelace with the Notice
of Intent to Foreclose in her capacity as a personal
representative. Routh Crabtree repeatedly acknowledged Lovelace
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was entitled to receive the reinstatement figures she was
requesting and repeatedly postponed the foreclosure sale. Yet,
for whatever reason, the foreclosure sale took place on April 4,
2011.
As a co-personal representative of the Estate, Lovelace
requested reinstatement figures after U.S. Bank’s decision to
proceed with the nonjudicial foreclosure sale in early 2011.
Dirk’s receipt of reinstatement figures in early 2010 did not
eliminate U.S. Bank’s obligation to provide “cure” or
reinstatement figures in early 2011, after it chose to abort the
April 2010 foreclosure sale, then rescheduled it in 2011. In
addition, whether or not Margaret received payoff figures in
February 2011, and whether she provided those figures to Dirk is
immaterial, as the “amount to cure the default” under HRS § 667-
5(c)(1) were the reinstatement figures, as clearly acknowledged
by AHMS and Routh Crabtree.
Based on the undisputed factual chronology and record of
this case, U.S. Bank’s argument that it did not have a
“continuing obligation to provide reinstatement figures at the
whim of the Estate after having previously complied” is devoid
of merit. Even its law firm acknowledged U.S. Bank’s obligation
to provide reinstatement figures to Lovelace before proceeding
with a foreclosure sale. Therefore, U.S. Bank failed to comply
with its obligation under HRS § 667-5(c)(1).
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The Mounts and U.S. Bank argue that the Apaos’
interpretation of HRS § 667-5(c) is pre-empted by the federal
Gramm Leach Bliley Act, 15 U.S.C.A. § 6801 et seq. (“GLBA”) “to
the extent it required the mortgagee to provide reinstatement
information to anyone other than the customer on the account,
unless the person requesting the information established that
he/she was legitimately entitled to receive the information.”
Regarding the protection of nonpublic personal information, the
GLBA provides, in pertinent part, “It is the policy of the
Congress that each financial institution has an affirmative and
continuing obligation to respect the privacy of its customers
and to protect the security and confidentiality of those
customers’ nonpublic personal information.” 15 U.S.C.A. §
6801(a). In addition, the GLBA pre-empts state laws that are
inconsistent with the GLBA “only to the extent of the
inconsistency.” 15 U.S.C.A. § 6807(a). This argument lacks
merit because Lovelace was obviously entitled to receive the
information, as clearly acknowledged by U.S. Bank’s law firm.
3. The foreclosure sale is voidable, unless the Mounts
are innocent purchasers for value.
Based on U.S. Bank’s failure to provide reinstatement or
cure information to Lovelace, as required by HRS § 667-5(c)(1),
the nonjudicial foreclosure sale was conducted in violation of
HRS § 667-5.
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As far back as 1884, this court voided a mortgage sale of
real estate and livestock because the mortgagee had not complied
with the conditions of the power of sale by scheduling the
foreclosure sale one day too early. Silva v. Lopez, 5 Haw. 262
(1884) In Lee, 121 Hawaii at 296, 218 P.3d at 784, we held that
“an agreement created at a foreclosure sale conducted pursuant
to HRS section 667-5 is void and unenforceable where the
foreclosure sale is invalid under the statute. The Ninth
Circuit Court of Appeals has noted that, under Hawaii law,
“[m]ortgagee violations of the nonjudicial foreclosure
requirements of HRS § 667-5, whether those violations are
grievously prejudicial or merely technical, voids a subsequent
foreclosure sale. . . .” In re Kekauoha-Alisa, 674 F.3d 1083,
1089-90 (9th Cir. 2012).
The facts in Lee and Kekauoha-Alisa differ from the facts
in this case. In Lee, the high bidder at the nonjudicial
foreclosure sale had not completed the sale. 121 Hawaii at 289.
Under those facts, we held that the sale was void and that the
high bidder was entitled only to return of his down payment plus
accrued interest. Id. In Kekauoha-Alisa, the lender itself had
purchased the property through a credit bid, so no third party
was involved. 674 F.3d at 1086.
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In this case, however, the Mounts completed the sale, took
possession of the Property, and have now had the Property for
some time, similar to the facts in Santiago. In Santiago, we
held that “[w]here it is determined that the nonjudicial
foreclosure of a property is wrongful, the sale of the property
is invalid and voidable at the election of the mortgagor, who
shall then regain title to and possession of the property.” 137
Hawai‘i at 158, 366 P.3d at 633. We also held that where the
property has passed into the hands of an innocent purchaser for
value, rendering the voiding of a foreclosure sale
impracticable, an action at law for damages is generally the
appropriate remedy. Id.
As noted earlier, based on its other rulings in favor of
the Mounts, the circuit court deemed moot their motion for
partial summary judgment alleging bona fide purchaser status,
and the Mounts withdrew that motion. Therefore, the circuit
court never addressed whether the Mounts qualify as “innocent
purchasers for value” under the Santiago rule. Upon remand, the
circuit court is to apply Santiago to determine an appropriate
remedy for the wrongful foreclosure.
U.S. Bank’s nonjudicial foreclosure was conducted in
violation of the requirements of HRS § 667-5(c)(1).16 Because
16
As stated in footnote 1, HRS § 667–5 was repealed in 2012, before
the filing of the Final Judgment. The repeal of HRS § 667–5, however, does
(continued. . .)
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the foreclosure sale was wrongful we need not address the
additional issues raised by the Apaos concerning the writ of
possession, damages, and attorneys’ fees and costs, as those
rulings are also vacated.
V. Conclusion
Based on the foregoing, we vacate the ICA’s Judgment on
Appeal and the circuit court’s Final Judgment along with all the
orders, writs, and/or judgments referenced in the Final
Judgment, and we remand the case to the circuit court for
further proceedings consistent with this opinion.
Frederick J. Arensmeyer /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Paul Alston and
J. Blaine Rogers /s/ Sabrina S. McKenna
for respondent
U.S. Bank National /s/ Richard W. Pollack
Association, a
National Association /s/ Michael D. Wilson
as Trustee for the
Structured Asset
Securities Corporation
Mortgage Pass-Through
Certificates 2005-SC1
Mary Martin,
Michael C. Bird, and
(. . .continued)
not affect this appeal. Pursuant to HRS § 1–10 (2009), “[t]he repeal of any
law shall not affect any act done, or any right accruing, accrued, acquired,
or established, or any suit or proceedings had or commenced in any civil
case, before the time when the repeal takes effect.” See Graham Constr.
Supply, Inc. v. Schrader Constr., Inc., 63 Haw. 540, 544 n.6, 632 P.2d 649,
651 n.6 (1981) (recognizing HRS § 1–10 as a “general saving statute”).
Because the nonjudicial foreclosure was conducted pursuant to HRS § 667-5,
its repeal does not affect this appeal.
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Summer H. Kaiawe
for respondents
Gerald K. Mount, Jr.
and Jane R. Mount
37