NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAR-2022
07:49 AM
Dkt. 39 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR LONG BEACH
MORTGAGE LOAN TRUST 2006-11, Plaintiff-Appellee,
v.
WILLIAM GASPAR and JOYAL K. GASPAR, Defendants-Appellants,
and
JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE
CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE GOVERNMENTAL UNITS
1-50, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC13100476K)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Self-represented Defendants-Appellants William Gaspar
and Joyal K. Gaspar (collectively, the Gaspars) appeal from the
Final Judgment in favor of Plaintiff-Appellee Deutsche Bank
National Trust Company entered by the Circuit Court of the Third
Circuit on April 3, 2018.1 For the reasons explained below, we
conclude there was a valid settlement between the Gaspars and
Bank, and affirm the Final Judgment.
Bank filed a complaint for foreclosure against the
Gaspars on July 23, 2013. The complaint alleged that: the
Gaspars executed a promissory Note to Washington Mutual Bank on
1
The Honorable Melvin H. Fujino presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
October 11, 2006; the Note was secured by a Mortgage on real
Property located on the island of Hawai#i; the Mortgage was
assigned to Bank, which was the holder of the Note; the Gaspars
defaulted on the Note. Bank sought to foreclose on the Mortgage.
The Gaspars (representing themselves) answered the complaint on
September 5, 2013.
The circuit court entered its "Order Setting Trial Date
and Pretrial Deadlines" on December 9, 2014. Trial was set for
May 15, 2015. A settlement conference was set for April 15,
2015.
Bank filed a motion for summary judgment and decree of
foreclosure on March 25, 2015. The motion was set for hearing on
May 1, 2015.
The circuit court conducted the settlement conference
on April 15, 2015. In attendance were the Gaspars and Bank's
attorney and representative. The circuit court minutes state
there was a "[s]ettlement placed on record" at 6:30 p.m.2 The
transcript of the settlement conference was not requested by the
Gaspars under Hawai#i Rules of Appellate Procedure (HRAP) Rule
10(b)(1), and is not part of the record on appeal. However, the
circuit court minutes state:
[The Gaspars] understand the agreement; no one is
forcing them to enter into the agreement; they understands
[sic] everything stated.
On April 17, 2015, the Gaspars signed the "Stipulated
Findings of Fact, Conclusions of Law, Order Granting [Bank]'s
[motion for summary] Judgment Against All Parties and for
Interlocutory Decree of Foreclosure" (Stipulation & Judgment).
Bank signed the Stipulation & Judgment on April 30, 2015. The
Stipulation & Judgment was filed on June 8, 2015.3
2
The minutes note that the circuit court "thanked parties for
staying late and coming to an agreement[.]"
3
Also on June 8, 2015, a notice of entry of judgment was entered by
the circuit court clerk pursuant to Rule 77(d) of the Hawai#i Rules of Civil
(continued...)
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On June 19, 2015, the circuit court entered the "Order
Sua Sponte Correcting the Stipulated Findings of Fact,
Conclusions of Law, Order Granting [Bank]'s Judgment Against All
Parties and for Interlocutory Decree of Foreclosure, Filed
June 8, 2015[.]" The Order inserted the name of the
commissioner, because the circuit court "failed to appoint a
commissioner in paragraph four (4) of the [Stipulation &
Judgment] prior to the filing of the Stipulation [& Judgment][.]"
There were no other changes to the Stipulation & Judgment.
The commissioner filed a report on January 27, 2016.
Bank was the sole bidder at the foreclosure auction.
Bank filed a motion to confirm the sale to Bank on
October 11, 2017. The Gaspars opposed the motion. The circuit
court denied Bank's motion on December 28, 2017. The circuit
court directed the commissioner to schedule a further auction of
the Property.
The commissioner filed a report on the continued
auction on January 23, 2018. The commissioner published notice
of the auction three times, but Bank was again the only bidder.
Bank filed a second motion for confirmation of sale on
February 9, 2018. The Gaspars again opposed the motion. The
circuit court confirmed the sale by order entered on April 3,
2018. Also on April 3, 2018, the circuit court entered the Final
Judgment and a writ of ejectment. This appeal followed.
The Gaspars contend the circuit court erred by granting
Bank's motion for summary judgment and decree of foreclosure.
In response, Bank contends that the Gaspars agreed to
settle the foreclosure lawsuit by signing the Stipulation &
Judgment.
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(...continued)
Procedure (HRCP). The Stipulation & Judgment recites: "As there is no just
reason for delay, this Court expressly directs that a final judgment shall be
entered as to [Bank]'s Complaint for Foreclosure." However, the record on
appeal contains no separate judgment under HRCP Rule 58 entered on June 8,
2015. The April 3, 2018 Final Judgment is the only judgment in the record.
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In reply,4 the Gaspars admit that they "promptly signed
the [Stipulation & Judgment] dated April 17, 2015 and submitted
to" [Bank]. They argued: they refused to sign a separate
settlement agreement prepared by Bank; "[t]here is no record
filed by the [Bank] evidencing a settlement agreement has been
reached"; and "[n]o settlement agreement equates to no binding
contract."
The Gaspars agree they signed the Stipulation &
Judgment, but contend the Stipulation & Judgment is not a
settlement agreement. The issue presented by this appeal is
whether the Stipulation & Judgment was a settlement agreement.
"[T]he enforceability of a settlement agreement is a conclusion
of law reviewable de novo." Assocs. Fin. Servs. Co. of Hawai#i
v. Mijo, 87 Hawai#i 19, 28, 950 P.2d 1219, 1228 (1998) (citation
omitted).
"To determine the validity of [a] settlement agreement,
the court looks to the totality of the circumstances surrounding
the making of the agreement." Mijo, 87 Hawai#i at 29, 950 P.2d
at 1229 (citations omitted).
Where the evidence in the record shows that all the
essential elements of a contract are present, a compromise
agreement among the parties in litigation may be approved by
the court and cannot be set aside except on the grounds that
would justify rescission. Generally, in the absence of bad
faith or fraud, when parties enter into an agreement
settling and adjusting a dispute, neither party is permitted
to repudiate it.
However, since very important rights are at stake in
most cases, appellate courts must strive to ensure that the
purported compromise agreement sought to be enforced is
truly an agreement of the parties.
Id. at 28–29, 950 P.2d at 1228–29 (bold italics added) (citation
and original italics omitted). "[T]he essential elements of a
contract [are]: (1) capacity to enter the contract, (2) offer,
4
The appendix to the Reply Brief contains documents that are not
part of the record, and therefore cannot be considered by us in this appeal.
See HRAP Rule 28(b)(10) ("Anything that is not part of the record shall not be
appended to the brief[.]").
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(3) acceptance, and (4) consideration." Calipjo v. Purdy, 144
Hawai#i 266, 280, 439 P.3d 218, 232 (2019).
The Gaspars and Bank were the parties to the lawsuit.
The Gaspars and Bank signed the Stipulation & Judgment; the
following facts recited in the Stipulation & Judgment are binding
on them:
3. [The Gaspars], for value received, duly made,
executed and delivered to Washington Mutual Bank, a
promissory note ("Note") dated October 11, 2006, in the
principal amount of $688,800.00. . . .
4. For the purpose of securing payment on the Note,
[the Gaspars], as mortgagors, duly made, executed and
delivered a mortgage ("Mortgage") encumbering the Property
to Washington Mutual Bank ("Mortgagee"). . . .
5. [Bank] is the current holder of the Note and
Mortgage[.]
Being the parties to the lawsuit below, the Gaspars and Bank had
the capacity to contract to settle the lawsuit.
The record on appeal does not indicate which party made
and accepted which offers but again, because the Gaspars and Bank
signed the Stipulation & Judgment, there was agreement on the
following terms:
10. . . . [Bank] is entitled to the foreclosure of
its Mortgage and to have the Property sold as requested, in
accordance with the terms of the Mortgage.
. . . .
16. [The Gaspars] shall be entitled to remain in the
Property until October 20, 2015, after which time [the
Gaspars] shall vacate the Property, removing personal
property and not removing any fixutres [sic].
. . . .
A. . . . [P]ursuant to the agreement of the
parties, So [sic] long as [the Gaspars] comply with the
terms of this agreement and leave the Property vacant,
intact, and in broom-swept condition by October 20, 2015, no
further payment by [the Gaspars] shall be required.
. . . .
3. The Mortgage currently held by [Bank] shall be
and is hereby foreclosed as requested, and the property
subject to the Mortgage shall be sold at a public auction,
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without an upset price, as authorized by law and under the
provisions of the Mortgage.
. . . .
12. The purchaser at the foreclosure auction shall
not disturb [the Gaspars'] right to remain on the Property
until October 20, 2015 or such earlier date that [the
Gaspars] notify [Bank] that the property has been vacated
and left in broom-swept condition.
Consideration is "a bargained for exchange whereby the
promisor receives some benefit or the promisee suffers a
detriment." Calipjo, 144 Hawai#i at 280–81, 439 P.3d at 232–33
(citations omitted). By signing the Stipulation & Judgment, the
Gaspars agreed they owed Bank $1,066,867.41 as of March 31, 2015.
Bank agreed to limit its recovery to the amount generated at the
foreclosure auction. Bank — the only bidder — submitted a credit
bid for $427,500, which was approved by the circuit court. Bank
waived its right to a deficiency judgment as part of the
settlement; but for the Stipulation & Judgment, the Gaspars would
have owed the bank an additional ($1,066,867.41 - $427,500 =)
$639,367.41. See HawaiiUSA Fed. Credit Union v. Monalim, 147
Hawai#i 33, 464 P.3d 821 (2020), cert. denied, 141 S. Ct. 1059
(Mem.), 208 L. Ed. 2d 525 (Jan. 11, 2021) (explaining deficiency
judgment calculation). On this record, we conclude there was an
exchange of consideration for the settlement.
The Gaspars argue there was no settlement because they
refused to sign a separate settlement agreement prepared by Bank.
But the Gaspars signed the Stipulation & Judgment, which
contained all of the material terms of a settlement. No separate
writing was necessary.
The Gaspars argue, "[t]here is no record filed by the
[Bank] evidencing a settlement agreement has been reached"; and
"[n]o settlement agreement equates to no binding contract." The
Stipulation & Judgment evidences the settlement that was reached,
and is the settlement agreement.
Based upon the foregoing, the Final Judgment entered by
the circuit court on April 3, 2018, is affirmed.
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DATED: Honolulu, Hawai#i, March 24, 2022.
On the briefs:
/s/ Katherine G. Leonard
William Gaspar and Joyal Presiding Judge
Gaspar, Self-represented
Defendants-Appellants. /s/ Keith K. Hiraoka
Associate Judge
Lansen H. G. Leu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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