NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2021
01:46 PM
Dkt. 87 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE
REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL I, INC. TRUST
2007-NC4 MORTGAGE PASS TROUGH CERTIFICATES, SERIES 2207-NC4,
Plaintiff-Appellee, v. GINA LEE OKUDA-STAURING, also known as
GINA L. STAURING, Defendant-Appellant; and EARL M. OKUDA, JR.;
DEPARTMENT OF TAXATION - STATE OF HAWAI#I; JOHN DOES 1-20;
JANE DOES 1-20; DOE CORPORATIONS 1-20; and
DOE GOVERNMENTAL UNITS 1-20, Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 16-1-0065)
ORDER GRANTING MOTION TO DISMISS APPEAL WITH PREJUDICE
(By: Ginoza, Chief Judge, Fujise and Hiraoka, JJ.)
Upon consideration of Plaintiff-Appellee Deutsche Bank
National Trust Company's (Deutsche Bank) May 12, 2021 Motion to
Dismiss Appeal With Prejudice (May 12, 2021 Motion), self-
represented Defendant-Appellant Gina Lee Okuda-Stauring's (Okuda-
Stauring) May 14, 2021 Fourth Motion Extension of Opening Brief
(May 14, 2021 Motion), which the court construes as a motion for
relief from default and a fifth extension of time for the opening
brief, Okuda-Stauring's June 2, 2021 Motion for Extension to
Respond to Plaintiff-Appellee's Motion to Dismiss Appeal (June 2,
2021 Motion), the papers in support and in opposition, and the
record, it appears that:
(1) On March 31, 2021, the court, among other things,
granted Okuda-Stauring relief from her second default and a
fourth extension of time for the opening brief to April 30, 2021,
with no further extensions. The court cautioned Okuda-Stauring a
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
third time in this appeal about timely filing documents and that
future violations may result in sanctions, and that any further
default of the opening brief may result in sanctions authorized
by Hawai#i Rules of Appellate Procedure (HRAP) Rule 30,
including, without limitation, monetary sanctions, the appeal
being dismissed, or both;
(2) Okuda-Stauring failed to file the opening brief or
timely request an extension, and therefore is in default a third
time in this appeal. See HRAP Rule 30;
(3) In the May 12, 2021 Motion, Deutsche Bank seeks to
dismiss the appeal with prejudice because Okuda-Stauring "has
shown a repeated pattern" of HRAP violations, and despite relief
from default twice and multiple extensions, she failed to file an
opening brief;
(4) In the May 14, 2021 Motion, Okuda-Stauring seeks
relief from default and a fifth extension of time for the opening
brief, under HRAP Rule 26(b) and (e), for thirty days because she
is self-represented, she struggled to provide record references
in the opening brief because the record on appeal is missing
scanned images of numerous documents, there was a power outage on
Kaua#i that affected her on April 29, 2021, and there are various
orders concerning foreclosure actions at the state and federal
levels;
(5) Okuda-Stauring's assertions are inconsistent with
past submissions in this case. On November 25, 2020, Okuda-
Stauring filed an affidavit in support of her motion for
extension of time for the opening brief, where she swore under
oath that the opening brief was completed on November 20, 2020,
except for page numbers on the table of contents, and the only
reason she did not file the opening brief by November 20, 2020,
was that she had trouble logging into JEFS. Seven months later,
the opening brief has not been filed;
(6) Three times the court cautioned Okuda-Stauring to
timely file documents and that future violations may result in
sanctions. Twice it granted her relief from default of the
opening brief and cautioned her that any further default of the
opening brief could result in the appeal being dismissed, under
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HRAP Rule 30. The March 31, 2021 order stated that no further
extensions would be granted. Yet Okduda-Stauring defaulted on
the opening brief a third time and did not seek relief until
after Deutsche Bank filed a motion to dismiss the appeal;
(7) In addition, the record on appeal is not
incomplete, as Okuda-Stauring suggests. "When all documents in
the record on appeal, other than exhibits, are available in JIMS,
the clerk of the court or agency appealed from need not transmit
the physical or imaged documents, but shall file a notification
with the appellate clerk that the documents are available in
JIMS." HRAP Rule 11(b)(1). Here, the circuit court clerk
correctly filed a record on appeal with two volumes that contain
imaged documents and one volume that contains a complete copy of
the index of the JIMS record in the underlying case, with
documents electronically available through JIMS, that were not
submitted as imaged documents in the first two volumes of the
record on appeal, highlighted in yellow. Thus, the record on
appeal is complete and in compliance with HRAP Rule 11(b)(1);
(8) Further, a power outage the day before the opening
brief was due might have justified an additional day for the
opening brief, but Okuda-Stauring did not timely bring it to the
court's attention and that is not the relief she seeks here;
(9) Finally, the federal Coronavirus Aid, Relief, and
Economic Security (CARES) Act provided a nationwide moratorium on
some, but not all, foreclosure proceedings. Specifically, the
Act provided relief for "federally backed loans." Although the
foreclosure moratorium under the CARES Act has expired, federal
agencies have continued to extend the moratorium on foreclosures
of federally backed loans covered under the CARES Act. On
July 20, 2020, Deutsche Bank filed a declaration stating the
subject loan in this case is not a federally backed mortgage loan
as defined by the CARES Act. Thus, the moratorium does not apply
here. In addition, as Okuda-Stauring acknowledges, at least one
federal agency order she cites applies to evictions and renters,
which is not at issue here;
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(10) Deutsche Bank has demonstrated good cause to grant
the May 12, 2021 Motion and Okuda-Stauring fails to demonstrate
good cause to grant the May 14, 2021 Motion;
(11) In the June 2, 2021 Motion, Okuda-Stauring seeks a
first extension of time to file a response to the May 12, 2021
Motion because (a) she is self-represented; (b) this is a
"challenging time" with the pandemic; (c) she did not know
Deutsche Bank had filed the May 12, 2021 Motion "until days
later," as she "does not check her P.O. Box or email daily";
(c) she will oppose the May 12, 2021 Motion for the same reasons
stated in her May 14, 2021 Motion; and (d) she "requires more
time to find stronger cases" to support her position; and
(12) As a registered JEFS User, Okuda-Stauring is
responsible for monitoring her e-mail for notices of electronic
filings in this case. Because the court considered her May 14,
2021 Motion, there is no need to consider the same arguments in
opposition to the May 12, 2021 Motion. Okuda-Stauring fails to
demonstrate good cause for the requested relief.
Therefore, IT IS HEREBY ORDERED that the May 12, 2021
Motion is granted, and the appeal is dismissed with prejudice.
IT IS FURTHER ORDERED that the May 14, 2021 Motion is
denied.
IT IS FURTHER ORDERED that the June 2, 2021 Motion is
denied.
DATED: Honolulu, Hawai#i, June 30, 2021.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Alexa D.M. Fujise
Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
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