Nationstar Mortgage, LLC v. Association of Apartment Owners of Elima Lani Condominiums

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAR-2022
07:59 AM
Dkt. 65 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NATIONSTAR MORTGAGE, LLC, Plaintiff-Appellee
v.
ASSOCIATION OF APARTMENT OWNERS OF ELIMA LANI CONDOMINIUMS,
Defendant-Appellant,
and
THOMAS BLAKE K. DAVID; SARAH L. DAVID; THE BANK OF NEW YORK
MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWHEQ, INC., HOME EQUITY LOAN ASSET BACKED
CERTIFICATES, SERIES 2006-S6; FIA CARD SERVICES, N.A.;
JOHN DOES 1-20; JANE DOES 1-20;
DOE CORPORATIONS 1-20; DOE ENTITIES 1-20;
AND DOE GOVERNMENTAL UNITS 1-20; Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 16-1-373K)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellant Association of Apartment Owners of

Elima Lani Condominiums (the AOAO) appeals from the May 16, 2018

Judgment (Confirmation Judgment) entered by the Circuit Court of
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the Third Circuit (Circuit Court).1 The AOAO also challenges, in

part, the Order Confirming Foreclosure Sale, Approving

Commissioner's Report, Allowance of Commissioner's Fees,

Attorney's Fees, Costs, Directing Conveyance and for Writ of

Ejectment entered by the Circuit Court on May 16, 2018

(Confirmation Order).

The AOAO raises three points of error on appeal,

contending that the Circuit Court erred when it: (1) concluded

that the foreclosure commissioner (Commissioner) was vested with

legal and equitable title to the subject property (Property) in

the Circuit Court's June 30, 2017 Findings of Fact, Conclusions

of Law and Order Granting Plaintiff's Motion for Summary Judgment

Against [the AOAO] and Default Judgment Against Remaining

Defendants and for Interlocutory Decree of Foreclosure

(Foreclosure Decree); (2) denied the AOAO's request for the

rental proceeds collected by the Commissioner after the entry of

the Foreclosure Decree and the judgment entered thereon on June

30, 2017 (Foreclosure Judgment), and instead ordered the money be

paid to Plaintiff-Appellee Nationstar Mortgage, LLC (Nationstar)

as partial payment of the amounts due and owing to Nationstar on

the subject note and secured by the subject mortgage (the Debt),

which was foreclosed upon in conjunction with the Foreclosure

Decree and Foreclosure Judgment; and (3) when it failed to order

1
The Honorable Robert D.S. Kim presided.

2
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

that the AOAO was entitled to receive payment for common

maintenance fees for the period from June 30, 2017, to the

completion of the foreclosure sale of the Property.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve the AOAO's points of error as follows:

(1) The AOAO does not explain how, by way of the

Confirmation Order, the Circuit Court vested the Commissioner

with title to the Property.2 We conclude that the AOAO's first

point of error is without merit. See Bank of New York Mellon v.

Larrua, No. CAAP-XX-XXXXXXX, 2022 WL 277671, at *16 (Haw. App.

Jan. 31, 2022).

(2) We conclude that the AOAO's argument that it was

entitled to exclusive possession and control of the Property and

its rents, even after the entry of the Foreclosure Decree and

Foreclosure Judgment, is without merit. See id. For the reasons

stated in U.S. Bank Trust v. Chinen, Nos. CAAP-XX-XXXXXXX and

CAAP-XX-XXXXXXX (consolidated), 2022 WL 574511, at *10 (Haw. App.

Feb. 28, 2022), which are applicable to the record in this case,

we cannot conclude that the Circuit Court abused its discretion

in assessing the equities involved when it ordered that the rents

collected by the Commissioner be applied to the Debt.

2
We note that the Foreclosure Decree does not purport to vest title
in the Commissioner; rather it authorizes and directs the Commissioner to take
possession and control of the Property, including but not limited to the
collection of rent and the sale of the Property at a public auction.

3
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(3) Based on our review of the arguments made to the

Circuit Court, as well as the entire record, we cannot conclude

that under the circumstances of this case, the Circuit Court

abused its discretion by failing to order payment to the AOAO for

common maintenance fees for the period from June 30, 2017 (the

date of the entry of the Foreclosure Decree and Foreclosure

Judgment), to the completion of the foreclosure sale of the

Property. See id.

For these reasons, the Circuit Court's May 16, 2018

Confirmation Judgment is affirmed.

DATED: Honolulu, Hawai#i, March 21, 2022.

On the briefs:

R. Laree McGuire, /s/ Katherine G. Leonard
(Porter McGuire Kiakona & Presiding Judge
Chow, LLP),
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Andrew J. Lautenbach,
Sianha M. Gualano, /s/ Sonja M.P. McCullen
(Starn O'Toole Marcus & Associate Judge
Fisher),
for Plaintiff-Appellee,
on the Answering Brief
(Withdrawing counsel),
and
Kalama M. Lui-Kwan,
(Troutman Pepper Hamilton
Sanders, LLP),
for Plaintiff-Appellee,
(Appearing counsel).

4