NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-JUN-2023
08:37 AM
Dkt. 76 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE
LOAN TRUST 2007-BC1, PASS-THROUGH CERTIFICATES,
SERIES 2007-BC1, Plaintiff-Appellee,
v.
DAVID AUREO SALVADOR CORDERO; MARY TAN LLANOS CORDERO,
Defendants-Appellants,
and
WAIALAE GOLF COURSE COMMUNITY ASSOCIATION,
Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; AND
DOE GOVERNMENTAL UNITS 1-10,
Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC141002257)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Defendants-Appellants David Aureo Salvador Cordero and
Mary Tan Llanos Cordero (collectively, Corderos) appeal from the
October 15, 2020 "Order Granting Plaintiff's Motion for Leave to
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Amend Findings of Fact, Conclusions of Law and Order Granting
Plaintiff's Motion for Default Judgment Against Defendants
Waialae Golf Course Community Association and Summary Judgment
and Decree of Foreclosure Against All Defendants on Complaint
Filed October 30, 2014" (Order Granting Motion for Leave to
Amend Foreclosure Decree),1 filed and entered by the Circuit
Court of the First Circuit (Circuit Court).2
On appeal, the Corderos contend that the Circuit Court
plainly3 erred in granting Plaintiff-Appellee Wells Fargo Bank,
National Association, as Trustee for Structured Asset Securities
Corporation Mortgage Loan Trust 2007-BC1, Pass-Through
Certificates, Series 2007-BC1's (Wells Fargo) Motion for Leave
to Amend Foreclosure Decree because the Circuit Court did not
have jurisdiction to "amend" a judgment by that motion, and the
judgment should have instead been vacated and the foreclosure
process begun anew.
1 The Corderos also appealed from the amended foreclosure decree
and amended judgment entered on October 15, 2020, which we dismissed for lack
of appellate jurisdiction on June 30, 2021 (Order of Partial Dismissal). We
determined that the amended judgment did not amend the original July 17, 2019
Judgment in a material and substantial way, the time to appeal ran from the
original judgment, and the notice of appeal was untimely from that original
judgment. The Corderos' request for certiorari review of the Order of
Partial Dismissal was rejected by the Hawai‘i Supreme Court on September 7,
2021. See Wells Fargo, Nat'l Ass'n as Tr. for Structured Asset Sec. Corp.
Mortg. Loan Tr. 2001-BC1, Pass Through Certificates Series 20074-BC1 v.
Cordero, No. SCWC-XX-XXXXXXX, 2021 WL 4077556, at *1 (Sept. 7, 2021). We
thus do not address the Corderos's first and third points of error, which
challenged the grant of summary judgment leading to the entry of the July 17,
2019 foreclosure decree and judgment. The Corderos similarly acknowledge in
their Reply Brief that this appeal is now limited to review of the October
15, 2020 Order Granting Motion for Leave to Amend Foreclosure Decree.
2 The Honorable Jeannette H. Castagnetti presiding.
3 The Corderos acknowledge that they did not oppose or object to
the Motion for Leave to Amend Foreclosure Decree before the Circuit Court.
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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, we affirm.
On January 31, 2020, following the entry of the July
17, 2019 foreclosure decree and judgment, Wells Fargo filed the
Motion for Leave to Amend Foreclosure Decree as a non-hearing
motion under Rules of the Circuit Court of the State of Hawai‘i
(RCCH) Rule 7.2(c). The Corderos did not oppose the non-hearing
motion.4 The Motion for Leave to Amend Foreclosure Decree
sought to amend the July 17, 2019 foreclosure decree by
including a missing exhibit, Exhibit "A", that was referred to
in the foreclosure decree but not attached.5
"In civil cases, the plain error rule is only invoked
when 'justice so requires.'" U.S. Bank Nat'l Ass'n v. Castro,
131 Hawai‘i 28, 42, 313 P.3d 717, 731 (2013) (quoting Montalvo v.
Lapez, 77 Hawai‘i 282, 290, 884 P.2d 345, 353 (1994)). The
exercise of an appellate court's discretion to notice plain
error in civil cases involves consideration of three factors:
"(1) whether consideration of the issue not raised at trial
requires additional facts; (2) whether its resolution will
affect the integrity of the trial court's findings of fact; and
(3) whether the issue is of great public import." Id.
The Corderos urge that their contention of error
"should be considered as 'plain error' as at no time was the
Motion for Leave to Amend [Foreclosure Decree] objected to."
4 RCCH Rule 7.2(c) provides that "[a]ny opposition to a non-hearing
motion shall be filed and served no later than 10 days after the service date
indicated on the certificate of service accompanying the motion or no later
than 12 days after the service date if the motion is served by mail."
5 The Declaration of Counsel attached to the motion stated that the
July 17, 2019 foreclosure decree "was missing the property description that
was supposed to be attached as Exhibit A," and that "[t]here [we]re no other
changes to the Document."
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The Corderos, however, provide no analysis applying the above
standard for plain error review to the Order Granting Motion for
Leave to Amend Foreclosure Decree, or argument why plain error
review is warranted. In these circumstances, the Corderos'
point of error is waived and we will not review for plain error.
See Hawai‘i Rules of Appellate Procedure Rule 28(b)(7) ("Points
not argued may be deemed waived."); In re N.C., 123 Hawai‘i 184,
195, 231 P.3d 457, 468 (2010) (upholding denial of plain error
review in a juvenile criminal proceeding where petitioner-
appellant "did not indicate which constitutional or fundamental
rights had been violated . . . .").
For the foregoing reasons, we affirm the October 15,
2020 "Order Granting Plaintiff's Motion for Leave to Amend
Findings of Fact, Conclusions of Law and Order Granting
Plaintiff's Motion for Default Judgment Against Defendants
Waialae Golf Course Community Association and Summary Judgment
and Decree of Foreclosure Against All Defendants on Complaint
Filed October 30, 2014," filed and entered by the Circuit Court
of the First Circuit.
DATED: Honolulu, Hawai‘i, June 21, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Keith M. Kiuchi Chief Judge
for Defendants-Appellants.
/s/ Clyde J. Wadsworth
David A. Nakashima Associate Judge
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge
4