NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE FERGERSTROM; No. 18-17012
SHENANDOAH K. KAIAMA; WINDY K.
KAIAMA, individually and on behalf of all D.C. No.
persons similarly situated, 1:13-cv-00526-DKW-RLP
Plaintiffs-Appellants,
MEMORANDUM*
v.
PNC BANK, N.A., a national banking
association,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted February 5, 2020
Honolulu, Hawaii
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
This appeal involves non-judicial foreclosure sales of real property
registered in Hawaii’s Land Court. The mortgagors, Wayne Fergerstrom and
Shenandoah and Windy Kaiama (collectively “Appellants”), appeal the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court’s grant of summary judgment in favor of the mortgagee, PNC Bank, N.A.
(“PNC”).1 The district court concluded that Appellants’ tort claims, in which they
alleged wrongful foreclosure, unfair and deceptive practices, and unfair methods of
competition, and sought monetary damages, were time barred by Hawaii Revised
Statute § 501-118 because they filed suit after the transfer certificates of title
(“TCTs”) were entered. See Haw. Rev. Stat. § 501-118. The district court also
denied as moot Appellants’ motion to certify a class.
Appellants argue that the district court erred in entering summary judgment
because there was a genuine dispute regarding when the TCTs were entered for
purposes of section 501-118, whether section 501-118’s time bar applied to
Appellants’ claims for money damages, and, if so, whether an exception applied.
Appellants also ask this court to take judicial notice of documents and statements
in an affidavit.
We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s
order granting summary judgment de novo, see Attorneys Liab. Prot. Soc’y, Inc. v.
Ingaldson Fitzgerald, P.C., 838 F.3d 976, 980 (9th Cir. 2016), and we affirm. We
deny the motion for judicial notice. See Fed. R. Evid. 201.
1. Appellants ask the court to judicially notice materials that they did not
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Because the parties are familiar with the facts and procedural background, we
include the facts only as necessary to explain our disposition.
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submit to the district court when the motion for summary judgment was pending.
Those materials do not satisfy the criteria for judicial notice. See Fed. R.
Evid. 201. We deny the motion.
2. The district court correctly determined that PNC met its burden to show that
the TCTs were entered before Appellants brought their action and, thus,
Appellants’ claims were time barred. See Haw. Rev. Stat. § 501-118 (“Nothing in
this chapter shall be construed to prevent the mortgagor or other person in interest
from directly impeaching by action or otherwise, any foreclosure proceedings
affecting registered land, prior to the entry of a new certificate of title.”); see also
Wells Fargo Bank, N.A. v. Omiya, 420 P.3d 370, 377, 380-85 (Haw. 2018)
(discussing indicia of the “entry of” a certificate of title). Appellants did not
present sufficient evidence to establish a genuine dispute as to that material fact.
3. The district court correctly determined that section 501-118’s time bar
applied to Appellants’ tort claims for money damages. Appellants’ claims were
based on defects in the non-judicial foreclosure sales of their properties and
“directly impeach[ed] . . . the foreclosure proceedings.” Haw. Rev. Stat. § 501-
118; see Aames Funding Corp. v. Mores, 110 P.3d 1042, 1049 (Haw. 2005)
(holding that “defenses to mortgages foreclosed upon by exercise of the
mortgagee’s power of sale must be raised ‘prior to the entry of a new certificate of
title.’”) (quoting Haw. Rev. Stat. § 501-118). Thus, section 501-118 applied.
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4. The district court properly concluded that a constructive fraud or voidness
exception did not excuse the time-bar to Appellants’ claims. See Scholes v.
Kawaguchi, 419 P.3d 1029, 1035 (Haw. Ct. App. 2017) (recognizing that “certain
fraud claims can challenge the conclusive nature of a certificate of title”); see also
Santiago v. Tanaka, 366 P.3d 612, 633 (Haw. 2016) (“Where 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.”).
The court has considered Appellants’ remaining arguments and finds them
to be without merit.
AFFIRMED.
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