LAW L!§BFZAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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No. 2 3505 -. §
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m THE INTERMEDIATE CQURT oF APPEALS §§
`oF THE STATE oF HAWAI‘I §
iii 63
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143 NENUE HOLDINGS, LLC, a HaWaii limited liability CO
Plaintiff-Appellee, v. SUZANNE BONDS, aka Suzanne Duong
Bonds, Defendant-Appellant
SUZANNE BONDS, Counterclaimant-Appellant v. 143 NENUE
HOLDINGS, LLC, a Hawaii limited liability company,
Counterclaim Defendant/Crossclaimant-Appellee, and
AMERIQUEST MORTGAGE COMPANY, a Delaware corporation,
Additional Counterclaim Defendant/Crossclaim Defendant-
Appellee and RONALD G.S. AU; RYAN G.S. AU; and NATALIE
AU, Additional Counterclaim Defendants-Appellees, and
a Hawaii limited
FREDDlE FRANCO; ALALA MANAGEMENT, LLC,
liability company; and DOES 1 THROUGH 20, Additional
Counterclaim Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FlRST CIRCUIT
(CiV. NO. 05-l-O377)
SUMMARY DlSPOSITlON ORDER
(By: Nakamura, C.J., Fujise and Leonard, JJ.)
Defendant-Counterclaimant-Appellant Suzanne Bonds
2007 amended final judgment of
appeals from the March 23,
(circuit court).1
(Bonds)
arguments
the Circuit Court of the First Circuit
After a careful review of the issues raised,
and the record in the instant case, we
advanced, applicable law,
resolve Bonds's appeal as follows:
I.
During the pendency of Bonds's appeals in related
27659 and 27833, (l) Addtional Counterclaim
appeal Nos.
Ryan G.S. Au, and Natalie Au
Defendants Ronald G.S. Au,
(collectively Au) moved to dismiss the counterclaims against
Plaintiff-Counterclaim Defendant/Crossclaimant-Appellee
them, (2)
1 The Honorable Karen S.S. Ahn presided.
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143 Nenue Holdings, LLC. (Nenue) moved for summary judgment as to
count 13 of Bonds's counterclaim, and (3) Additional Counterclaim
Defendant/Crossclaim Defendant-Appellee Ameriquest Mortgage
Company (Ameriquest) moved for summary judgment as to count 5 of
Bonds's counterclaim. The circuit court granted all three
motions and entered judgment in the movants' favor (April l8,
2006 judgment). However, subsequent to Bonds's notice of appeal
from the April 18, 2006 judgment, docketed as SC No. 27892, the
Supreme Court dismissed SC No. 27892 for lack of appellate
jurisdiction due to the April 18, 2006 judgment's failure to
satisfy the requirements of Hawaii Revised Statutes (HRS) § 641-
1(a) (1993). The circuit court entered an amended final judgment
(March 23, 2007 judgment):
1. in favor of Nenue as to all claims in the
complaint;
2. in favor of Nenue, dismissing with prejudice
Bonds's counterclaim counts 10 (Superior Title)
and 13 (Injunctive Relief Against Section 667-5 as
Unconstitutional), and dismissing without
prejudice counts 11 (Unfair and Deceptive Acts and
Practices), 12 (Infliction of Severe Emotional
Distress), 14 (Organized Criminal Racketeering),
and 15 (Punitive Damages);
3. in favor of Ameriquest, dismissing with prejudice
Bonds's counterclaim counts 1 (Breach of Written
Contract), 2 (Breach of the Implied Covenant of
Good Faith and Fair Dealing), 3 (Wrongful Non-
judicial Foreclosure), 4 (Rescission and
Reformation Based on Adhesion Clauses),
5 (Injunctive Relief Against Section 667-5 as
Unconstitutional), 6 (Unfair and Deceptive Acts
and Practices), 7 (Infliction of Severe Emotional
Distress), 8 (Punitive Damages), and 9 (Rescission
Based on Federal Truth-in-Lending Act Violations);
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4. dismissing without prejudice all claims raised in
Bonds's counterclaim against Alala and Franco; and
5. in favor of Au as to all claims raised in Bonds's
counterclaim against Au.
Bonds filed a notice of appeal from the March 23, 2007 amended
judgment, resulting in the present appeal.
II.
Bonds argues that the circuit court's actions
constituted state action, subjecting its decisions to
constitutional scrutiny, and the circuit court deprived Bonds of
her constitutional right to due process of law and to the equal
protection of the law in violation of both Section 5 of Article 1
of the Hawaii State Constitution and the Fifth and Fourteenth
Amendments to the United States Constitution.
lll.
This appeal involves Bonds's "constitutional claim" --
counterclaim counts 5 and 13 against Ameriquest and Nenue 5-
which alleged:
BONDS seeks an order of this Court enjoining the
enforcement [of Nenue's title to the property] and declaring
Section 667-5 of the Hawaii Revised Statutes
unconstitutional pursuant to both the United States
Constitution and the Hawaii State Constitution as an unfair
deprivation of economic rights, on its face and/or as
applied, as "state action" in its enforcement, depriving
BONDS of her federal and/or state procedural due process of
law rights, lacking minimum procedural due process
protections for borrowers in this State, as exemplified in
the factual circumstances of this case, were said
[nonjudicial sale of/nonjudicially transferred title to] her
Land Court property otherwise to be upheld.
In granting Ameriquest and Nenue's motions for summary
judgment as to counts 5 and 13, the circuit court based its
decision, in the first place, on mootness, citing to HRS § 501-
118 (2006) and Aames Fundinq Corp. v. Mores, 107 HawaiU_95, 110
P.3d 1042 (2005); however, the circuit court also rejected the
merits of Bonds's constitutional claim, citing to Apao v. Bank of
New York, 324 F.3d 1091 (9th Cir. 2003), and ruled her claim was
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
barred by res judicata, citing to Fovtik v. Chandler, 88 Hawafi
307, 966 P.2d 619 (l998).
Bonds has failed to show error in the circuit court's
grant of summary judgment and consequent entry of judgment in
Ameriquest and Nenue's favor. In light of Aames Funding and HRS
§ 501-118, Ameriquest and Nenue were entitled to judgment as a
matter of law as Bonds failed to successfully impeach the
foreclosure action before a certificate of title had been issued
in Nenue's favor.
In Aames Funding, the Hawafi Supreme Court "surmised
from the text of HRS § 501-1182 that a mortgagor's right to
impeach any foreclosure proceeding is expressly limited to the
period before entry of a new certificate of title." 107 Hawafi
at 101, 110 P.3d at 1048 (internal quotation marks, brackets, and
ellipses omitted; footnote added). Once the certificate of title
was recorded with the Land Court, title to the property became
"conclusive and unimpeachable." ld; at 103, 110 P.3d at 1050.
Therefore, "defenses to mortgages foreclosed upon by exercise of
2 HRS § 50l~ll8 StateS:
Mortgages of registered land may be foreclosed like
mortgages of unregistered land.
In case of foreclosure by action, a certified copy of
the final judgment of the court confirming the sale may be
filed or recorded with the assistant registrar or the deputy
after the time for appealing therefrom has expired and the
purchaser shall thereupon be entitled to the entry of a new
certificate.
In case of foreclosure by exercising the power of sale
without a previous judgment, the affidavit required by
chapter 667 shall be recorded with the assistant registrar.
The purchaser or the purchaser’s assigns at the foreclosure
sale may thereupon at any time present the deed under the
power of sale to the assistant registrar for recording and
obtain a new certificate. Nothing in this chapter shall be
construed to prevent the mortgagor or other person in
interest from directly impeaching by action or otherwise,
any foreclosure proceedings affecting registered land, prior
to the entry of a new certificate of title.
After a new certificate of title has been entered, no
judgment recovered on the mortgage note for any balance due
thereon shall operate to open the foreclosure or affect the
title to registered land.
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the mortgagee's power of sale must be raised 'prior to the entry
of a new certificate of title.'" ;d4 at 102, 110 P.3d at 1049.
Here, Bonds did not challenge the foreclosure sale
until after the certificate of title granting Nenue the title tod
the property was recorded in the Land Court, thus title to the
property in Nenue became "conclusive and unimpeachable."
Because this court does not have jurisdiction to decide
abstract propositions of law or moot cases, the merits of Bonds's
claims will not be addressed. Lathrop v. Sakatani, 111 Hawafi
307, 141 P.3d 480 (2006).
IV.
According1y, the Circuit Court of the First Circuit's
March 23, 2007 amended final judgment is affirmed.
DATED: Honolulu, Hawafi, May 27, 2010
On the briefs:
Gary V. Dubin l Q : c b
for Defendant-Counterclaimant-
Appellant. j Chief Judge
Wayne Nasser,
Kirk W. Caldwell, and , "
Michael R. Vieira,
(Asford & Wriston) Associate Judge
for P1aintiff~Counterclaim
Defendant/Crossclaimant-
Appellee 143 Nenue Holdings,
LLC. and Additional
Counterc1aim Defendants-
Appel1ees Freddie Franco and
A1ala Management, LLC.
Jade Lynne Ching,
Laura P. Couch,
(Alston Hunt Floyd & Ing),
for Additional Counterc1aim
Defendant/Crossc1aim
Defendant-Appe1lee Ameriquest
Mortgage Company.