NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JAN-2023
08:38 AM
Dkt. 47 SO
NOS. CAAP-XX-XXXXXXX & CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
MTGLQ INVESTORS, L.P., Plaintiff-Appellee, v.
WILLIAM HALEMANO FREDERICK, Defendant-Appellant,
and
UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY
OF NORTH CAROLINA; FEDERAL HOME LOAN MORTGAGE
CORPORATION, Defendants-Appellees,
and
DOES 1 through 20, Inclusive, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 17-1-1439-09 (JHC))
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and McCullen, JJ.)
These consolidated appeals arise out of a foreclosure
action brought by Plaintiff-Appellee MTGLQ Investors, L.P.
(MTGLQ) against self-represented Defendant-Appellant William
Halemano Frederick (Frederick)1/ and other defendants. In
appellate case no. CAAP-XX-XXXXXXX, Frederick appeals from the
May 15, 2019 Judgment and interlocutory decree of foreclosure
(Foreclosure Judgment), entered in favor of MTGLQ and against all
defendants by the Circuit Court of the First Circuit (Circuit
Court).2/ In appellate case no. CAAP-XX-XXXXXXX, Frederick
appeals from the Circuit Court's August 26, 2019 "Order Denying
. . . Frederick's Motion for Relief from Judgment Filed June 14,
1/
In various documents in the record, Frederick appears to also
refer to himself as William Michael Halemano.
2/
The Honorable Jeanette H. Castagnetti presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
2019" (Order Denying Motion for Relief).
For the reasons explained below, we affirm the
Foreclosure Judgment and the Order Denying Motion for Relief.
I. Background
On September 6, 2017, MTGLQ filed a verified complaint
for mortgage foreclosure against Frederick and other defendants
regarding property located in Wai#anae, Hawai#i (subject
property). It appears that Frederick did not file an answer or
otherwise respond to the complaint. On October 31, 2018, the
Circuit Court entered an order of default against Frederick.
On November 8, 2018, MTGLQ filed a motion for summary
judgment and an interlocutory decree of foreclosure against
Frederick and the other defendants (Motion for Summary Judgment).
On December 19, 2018, Frederick filed documents titled:
(i) "Notice of [D]eed of Equitable Power and [A]uthority
[G]ranted[,] Notice of [I]nterest"; (ii) "Notice of [D]eed of
[E]quitable Power and Authority Granted[,] Bill in Equity"; (iii)
Notice of [D]eed of Equitable Power and [A]uthority [G]ranted[,]
Affidavit in [S]upport of Bill in Equity; (iv) Decree; and (v)
Exhibit A. Frederick did not file an opposition to the Motion
for Summary Judgment or appear at the December 26, 2018 hearing
on the motion.
On May 15, 2019, the Circuit Court entered its
"Findings of Fact and Conclusions of Law; Order Granting
[MTGLQ's] Motion for Summary Judgment and for Interlocutory
Decree of Foreclosure filed November 8, 2018." On the same date,
the Circuit Court entered the Foreclosure Judgment.
On June 14, 2019, Frederick filed a notice of appeal
from the Foreclosure Judgment, initiating CAAP-XX-XXXXXXX.
On the same date, Frederick filed a "Motion for Relief
from Judgement" (Motion for Relief from Judgment) in the Circuit
Court. In the two-page motion, Frederick relied on "Hawaii Rules
of Civil Procedure, Rule 60(b), Relief from Judgment for
misrepresentation or other misconduct of an adverse party." The
nature of any alleged "misrepresentation or other misconduct" was
not specified.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On August 26, 2019, the Circuit Court entered the Order
Denying Motion for Relief.
On September 25, 2019, Frederick filed a notice of
appeal from the Order Denying Motion for Relief, initiating CAAP-
XX-XXXXXXX.
On December 8, 2022, this court entered an order
consolidating Frederick's two appeals.
II. Discussion
In CAAP-XX-XXXXXXX, Frederick asserts the following
points of error:
(1) The Circuit Court abused its discretion in not
requiring MTGLQ to prove "it was the real party in interest and
had standing to judicially foreclose," where "[t]he affidavit
proffered in support of [the Motion for] Summary [J]udgment
contain[ed] false statements";
(2) As a result of the above error, the Circuit Court
improperly denied the Motion for Relief from Judgment;
(3) MTGLQ did not proffer evidence to establish the
assignment of the subject mortgage; and
(4) Frederick was not properly served with MTGLQ's
Motion for Summary Judgment.
Frederick did not raise any of these arguments in the
Circuit Court. Indeed, he did not file an opposition to the
Motion for Summary Judgment or appear at the hearing of the
motion.3/ Generally, if a party does not raise an argument at the
trial level, that argument will be deemed to have been waived on
appeal. See Cnty. of Hawai#i v. C & J Coupe Family Ltd. P'ship,
119 Hawai#i 352, 373, 198 P.3d 615, 636 (2008) (quoting State v.
Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003)); HRAP Rule
28(b)(4)(iii). Accordingly, Frederick's four points of error are
deemed waived as to the Foreclosure Judgment.
In CAAP-XX-XXXXXXX, Frederick asserts no points of
error in his opening brief and makes no discernible argument
explaining how the Circuit Court erred in denying the Motion for
3/
We note that the evidence before the Circuit Court established
that Frederick was properly served with the Motion for Summary Judgment.
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Relief from Judgment. See HRAP Rules 28(b)(4) and (7). Even if
we consider Frederick's second point of error in CAAP-XX-XXXXXXX
as having been asserted in CAAP-XX-XXXXXXX, we conclude that
Frederick did not raise below the argument he now appears to
assert on appeal – that MTGLQ failed to establish its standing to
foreclose due to alleged defects in the Declaration in Support of
[MTGLQ's] Motion for Summary Judgment," signed by Jana Love on
October 23, 2018. Because Frederick did not raise this argument
in the Circuit Court, it is deemed waived. See C & J Coupe
Family Ltd. P'ship, 119 Hawai#i at 373, 198 P.3d at 636; HRAP
Rule 28(b)(4)(iii).
In any event, the record includes evidence establishing
that MTGLQ had standing to foreclose on the subject property.
III. Conclusion
For the reasons discussed above, we affirm the
following judgment and order entered in the Circuit Court of the
First Circuit:
(1) In CAAP-XX-XXXXXXX, the May 15, 2019 Judgment; and
(2) In CAAP-XX-XXXXXXX, the August 26, 2019 "Order
Denying Defendant William Halemano Frederick's Motion for Relief
from Judgment Filed June 14, 2019."
DATED: Honolulu, Hawai#i, January 25, 2023.
On the briefs:
/s/ Keith K. Hiraoka
William Halemano Frederick, Presiding Judge
Self-represented Defendant-
Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
Justin S. Moyer
(Aldridge Pite, LLP)
for Plaintiff-Appellee. /s/ Sonja M.P. McCullen
Associate Judge
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