NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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