NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-APR-2022
07:49 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
FOR GSAA HOME EQUITY TRUST 2006-9 ASSET-BACKED
CERTIFICATES SERIES 2006-9, Plaintiff-Appellee,
v.
ASSOCIATION OF APARTMENT OWNERS OF ELIMA
LANI CONDOMINIUMS, Defendant-Appellant,
and
DANA C. WYNN, also known as DANA CHERYL WYNN;
WAIKOLOA VILLAGE ASSOCIATION; 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. 18-1-094K)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Association of Apartment Owners of
Elima Lani Condominiums (the AOAO) appeals from the November 22,
2019 Judgment (Foreclosure Judgment), entered by the Circuit
Court of the Third Circuit (Circuit Court)1/ in favor of
Plaintiff-Appellee U.S. Bank National Association as Trustee for
GSAA Home Equity Trust 2006-9 Asset-Backed Certificates Series
2006-9 (USBNA) and against self-represented Defendant-Appellee
Dana C. Wynn, also known as Dana Cheryl Wynn (Wynn), the AOAO,
and Defendant-Appellee Waikoloa Village Association (WVA). The
AOAO also challenges the Circuit Court's November 22, 2019
1/
The Honorable Robert D.S. Kim presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Findings of Fact, Conclusions of Law and Order Granting
Plaintiff's Motion for Summary Judgment and/or Default Judgment
Against All Defendants and for Interlocutory Decree of
Foreclosure (Foreclosure Decree). For the reasons explained
below, we affirm.
On May 1, 2018, USBNA filed a Complaint for Mortgage
Foreclosure (Complaint) against Wynn, the AOAO, and WVA regarding
the subject property (Property). The AOAO answered the
Complaint; Wynn and WVA did not. Wynn and WVA's defaults were
entered on July 16, 2018.
Prior to the filing of the Complaint, the AOAO
conducted a nonjudicial foreclosure of its lien on the Property.
On May 27, 2014, the AOAO recorded an affidavit of nonjudicial
foreclosure under power of sale in the State of Hawaii Bureau of
Conveyances (Bureau). On May 28, 2014, a Quitclaim Deed
transferring title to the Property to the AOAO was recorded in
the Bureau. The Quitclaim Deed stated that it was "subject . . .
to all encumbrances of record[.]"
On October 23, 2018, USBNA filed a motion for summary
judgment and/or default judgment against all defendants and for
an interlocutory decree of foreclosure. The AOAO filed a limited
memorandum in opposition. The AOAO contended that as the owner
of the Property, it should continue to retain possession of the
Property and collect rental proceeds "until completion of the
current foreclosure under [Hawaii Revised Statutes (HRS)]
§ 514B-146(b)." The AOAO also reserved its right to collect a
six-month special assessment under HRS § 514B-146(j), (k), and
(l).
On November 22, 2019, the Circuit Court granted USBNA's
motion and entered the Foreclosure Decree. The Circuit Court
appointed a commissioner, authorizing and directing him, inter
alia: "to take possession and control of the Property, including
but not limited to collecting rental payments and to sell the
Property at a public auction . . . [,]" subject to confirmation
by the Circuit Court. The Foreclosure Judgment was entered the
same day. The AOAO filed a timely notice of appeal.
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
The AOAO raises two points of error:
1. "The [C]ircuit [C]ourt committed reversible error
when it purportedly vested the Commissioner with and divested the
[AOAO] of equitable and legal title to the Property owned by the
[AOAO]"; and
2. "The [C]ircuit [C]ourt committed reversible error
when it agreed with [USBNA] that the right to possess and collect
rental income from the Property was within the Commissioner's
discretion upon the entry of the [Foreclosure Decree], and
ordered the Commissioner 'to take possession and control of the
Property' owned by the [AOAO], including the collection and
retention of rents."
The AOAO contends that the Circuit Court erred in
vesting the Commissioner with equitable and legal title to the
Property by way of the Foreclosure Decree, which authorized and
directed the Commissioner "to take possession and control of the
Property, including but not limited to collecting rental
payments[.]" However, the Foreclosure Decree does not purport to
vest title in the Property to the Commissioner, and the AOAO does
not explain how the quoted language accomplished that alleged
result.
Moreover, the Circuit Court did not err or abuse its
discretion in ordering the Commissioner to take possession and
control of the Property, including the collection of rents, and
to sell the Property at public auction. The AOAO's title to the
Property was subject to USBNA's mortgage lien, and a judgment of
foreclosure is a final determination of a foreclosed party's
ownership interest in the subject property. In other words,
AOAO's ownership rights in the Property were foreclosed when the
Foreclosure Judgment was entered, even though further proceedings
were necessary to enforce and otherwise effectuate the
Foreclosure Decree and the Foreclosure Judgment. See Bank of
N.Y. Mellon v. Larrua, 150 Hawai#i 429, 439-40, 504 P.3d 1017,
___ (App. 2022); U.S. Bank Tr., N.A. v. Ass'n of Apartment Owners
of Waikoloa Hills Condo. Phase I, ___ Hawai#i ___, ___, ___ P.3d.
___, ___, No. CAAP-XX-XXXXXXX, 2022 WL 574511, at *8 (Haw. App.
Feb. 25, 2022).
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
For these reasons, the Foreclosure Judgment entered on
November 22, 2019, in the Circuit Court of the Third Circuit is
affirmed.
DATED: Honolulu, Hawai#i, April 13, 2022.
On the briefs:
/s/ Katherine G. Leonard
R. Laree McGuire and Presiding Judge
Brendan K. Ogata
(Porter McGuire Kiakona, LLLP)
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Andrew J. Lautenbach and
Nainoa J. Watson
(Starn O'Toole Marcus & Fisher) /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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