NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-NOV-2023
08:11 AM
Dkt. 99 MO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CAAP-XX-XXXXXXX
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK, AS
TRUSTEE (CWALT 2006-32CB), Plaintiff-Appellee,
v.
DENNIS DUANE DESHAW AND SUSAN KAY BROER-DESHAW,
Defendants-Appellants,
and
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, SOLELY AS NOMINEE
FOR FIRST MAGNUS FINANCIAL CORPORATION, VILLAGE PARK COMMUNITY
ASSOCIATION, Defendants-Appellees,
and
DOES 1 THROUGH 20, INCLUSIVE, Defendants.
(CIVIL NO. 1CC161001821)
AND
CAAP-XX-XXXXXXX
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE
(CWALT 2006-32CB), Plaintiff-Appellee,
v.
DENNIS DUANE DESHAW AND SUSAN KAY BROER-DESHAW,
Defendants-Appellants,
and
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, SOLELY AS NOMINEE
FOR FIRST MAGNUS FINANCIAL CORPORATION; VILLAGE PARK COMMUNITY
ASSOCIATION; AND DOES 1 THROUGH 20, INCLUSIVE,
Defendants-Appellees,
and
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
SUSAN KAY BROER-DESHAW, Counterclaim Plaintiff-Appellant,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE
(CWALT 2006-32CB), Counterclaim Defendant-Appellee.
(CIVIL NO. 1CC161001821)
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
In this consolidated appeal,1 Defendants-Appellants
Dennis Duane DeShaw (DeShaw) and Susan Kay Broer-DeShaw (Broer-
DeShaw) (collectively, DeShaws) appeal in CAAP-XX-XXXXXXX
(Foreclosure Appeal)2 from the: (1) December 11, 2019 "Findings
of Fact and Conclusions of Law [(FOFs/COLs)]; Order Granting
Plaintiff's Renewed Motion for Summary Judgment and for
Interlocutory Decree of Foreclosure filed November 14, 2018"
(Foreclosure Decree), and (2) December 11, 2019 Judgment
(Foreclosure Judgment); and appeal in CAAP-XX-XXXXXXX (Fees
Appeal) from the May 23, 2022 "Findings of Fact and Conclusions
of Law; Order Granting Plaintiff's Motion for Attorney's Fees
and Costs and Additional Amounts Owed" (Fees Order). The
1 We consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX by an Order
of Consolidation filed on March 28, 2023.
2 Although it appears that the Notice of Appeal and Reply Brief
were submitted by both DeShaw and Broer-DeShaw, only Broer-DeShaw submitted
the Opening Brief and Supplemental Brief in the Foreclosure Appeal and
opposed the Foreclosure Decree below. To the extent DeShaw raises any
arguments in the Foreclosure Appeal, they are waived. See Williams v. Aona,
121 Hawai‘i 1, 8, 210 P.3d 501, 508 (2009) ("As a general rule, if a party
does not raise an argument at trial, that argument will be deemed to have
been waived on appeal; this rule applies in both criminal and civil cases."
State v. Moses, 102 Hawai‘i 449, 456, 77 P.3d 940, 947 (2003))); In re
Hawaiian Flour Mills, Inc., 76 Hawai‘i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994)
(holding that arguments raised for the first time in the reply brief on
appeal were deemed waived). We thus refer to Broer-DeShaw only in our
discussion of the Foreclosure Appeal. Broer-DeShaw was self-represented up
until briefing was completed in 2020, and thereafter retained counsel, who
appeared in the Foreclosure Appeal on November 23, 2021 and filed the
March 29, 2022 Supplemental Brief.
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Foreclosure Decree, Foreclosure Judgment, and the Fees Order,
were all filed and entered by the Circuit Court of the First
Circuit (Circuit Court).3
In the Foreclosure Appeal, Broer-DeShaw raises the
following nine points of error (POEs)4 regarding the Foreclosure
Decree:
[1]. The Trial Court has a Duty to Explain its Findings.
[2]. The Trial Court Erred in Finding that [Plaintiff-
Appellee The Bank of New York Mellon FKA The Bank of New
York, as Trustee (CWALT 2006-32CB) (BONYM)] Owned the Note
at Any Time, because [BONYM] Does Not Exist.
[3]. The Trial Court Erred in Finding that [BONYM] Owned
the Note at Any Time, because the Endorsements on the Note
Convey Nothing to [BONYM].
[4]. The Trial Court Erred in Finding that [BONYM] Owned
the Note at Any Time, because the First Purported
"Assignment" Conveys Nothing to [BONYM].
[5]. The Trial Court Erred in Finding that [BONYM] Owned
the Note at Any Time, because the Second Purported
"Assignment" Conveys Nothing to [BONYM].
[6]. The Trial Court Erred in Finding that [BONYM] Owned
the Note at Any Time, because [BONYM] Paid Nothing for the
Note.
[7]. The Trial Court Erred in Concluding that a Plaintiff
that Pays Nothing for a Loan in [sic] Entitled to Take the
Collateral that Secures the Loan.
[8]. There is No Evidence that the Notice of Default
Actually was Mailed to [Brower-DeShaw].
3 The Honorable Jeannette H. Castagnetti entered the Foreclosure
Decree and Foreclosure Judgment in the Foreclosure Appeal. The Honorable
Dean E. Ochiai entered the Fees Order in the Fees Appeal.
4 Broer-DeShaw's POEs do not comply with Hawai‘i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4) in multiple respects. We have numbered Broer-
DeShaws' POEs per the rule, and we have also consolidated and reorganized
them for clarity in our discussion infra. While the POEs do not contain
"where in the record the alleged error was objected to or the manner in which
the alleged error was brought to the attention of the court or agency[,]"
HRAP Rule 28(b)(4)(iii), we address them to the extent the contentions can be
discerned. See Erum v. Llego, 147 Hawai‘i 368, 380-81, 465 P.3d 815, 827-28
(2020) (affording liberal review to pleadings by self-represented parties to
promote access to justice).
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[9]. The Circuit Court's Judgment Amount is Based on
Evidence that it Held to be Inadmissible.
In the Fees Appeal,5 the DeShaws contend that the
Circuit Court lacked jurisdiction to enter the Fees Order, which
awarded fees and additional amounts to BONYM after a notice of
appeal had been filed from the April 12, 2022 order and judgment
confirming the sale of the property in CAAP-XX-XXXXXXX
(Confirmation Appeal).
We hold in the Foreclosure Appeal that Broer-DeShaw's
challenges to the Foreclosure Decree are not moot under the
collateral consequences exception despite the sale of the
property; but the challenges are nevertheless without merit. We
hold in the Fees Appeal that the Circuit Court retained
jurisdiction to enter the Fees Order even after the Confirmation
Appeal was filed, where the Fees Order determined the final
amounts owed to BONYM incidental to the enforcement of the
Foreclosure Decree and distributed the proceeds of the sale. We
thus affirm.
I. BACKGROUND
On September 27, 2016, BONYM filed a Verified
Complaint to Foreclose Mortgage (Complaint), alleging that the
DeShaws defaulted on a promissory note (Note) secured by a
mortgage (Mortgage) on real property on Ka‘aholo Street, Waipahu,
Hawai‘i 96797 (Subject Property).
On May 9, 2018, Broer-DeShaw filed an Answer and
Counterclaim (Counterclaim) alleging wrongful foreclosure,
5 The Opening Brief submitted in the Fees Appeal was filed by
counsel on behalf of both the DeShaws. Although the DeShaws did not
challenge the Fees Order below, we address their sole argument challenging
the Circuit Court's jurisdiction. See Bank of N.Y. Mellon v. Comito,
136 Hawai’i 532, 534, 364 P.3d 240, 242 (App. 2015) ("Questions regarding
subject matter jurisdiction may be raised at any stage of a cause of action."
(quoting Lingle v. Haw. Gov't Emps. Ass'n, AFSCME, Local 152, AFL-CIO,
107 Hawai‘i 178, 182, 111 P.3d 587, 591 (2005)).
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declaratory judgment, quiet title, and damages for unfair and
deceptive trade practices.6
On November 14, 2018, BONYM filed a "Renewed Motion
for Summary Judgment and for Interlocutory Decree of
Foreclosure" (Renewed MSJ).7 Attached was a declaration by Brian
Nwabara (Nwabara) as an "employe[e]" and "custodian" of Bayview
Loan Servicing, LLC (Bayview), "the authorized loan servicing
agent for BONYM"; and a declaration by BONYM's counsel,
declaring that BONYM was in possession of the Note at the time
the foreclosure action was commenced. Also attached were a copy
of the Note, an acknowledgement document reflecting that BONYM's
counsel received possession of the Note on September 16, 2016, a
June 4, 2015 Notice of Default letter mailed to the DeShaws at
the Subject Property address, copies of the records that Nwabara
relied on and the account and payment history of the loan, a
copy of the Mortgage, and a copy of a 2011 "Assignment of
Mortgage" (First Assignment) and 2015 "Assignment of Mortgage"
(Second Assignment).
On March 27, 2019, Broer-DeShaw filed a "Response in
Opposition to [BONYM]'s Renewed [MSJ]" (Opposition), arguing,
among other things, that BONYM "may not exist"; Nwabara's
declaration was "hearsay under U.S. Bank v. Mattos"; the
endorsement on the Note did not "convey anything to" BONYM;
6 To date, the Counterclaim has not been adjudicated by the Circuit
Court. The Counterclaim was referenced in the background of the DeShaws'
Amended Opening Brief in CAAP-XX-XXXXXXX, but no argument was made regarding
it. Both parties do address the Counterclaim in their responses filed on
August 10, 2023, pursuant to this court's July 11, 2023 order directing the
parties to address why the Foreclosure Appeal should not be dismissed for
mootness due to sale of the Subject Property to a bona fide purchaser. The
Counterclaim is discussed infra.
7 BONYM's first motion for summary judgment filed December 29,
2017, was denied without prejudice following a March 14, 2018 hearing. The
Circuit Court denied the motion because, among other things, the declaration
discussed a "prior unidentified servicer on the mortgage as containing
records relied upon by" BONYM, and due to "procedural problems."
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there was "no evidence that the Notice of Default was mailed" to
the DeShaws; the First Assignment was from "a party with no
interest in the Note," was a "legal nullity," and "forged"; "a
Note cannot be conveyed in a separate document"; the Second
Assignment did not "convey the Note"; and there was "no evidence
of payment" for the Note.
On March 29, 2019, BONYM filed a "Reply in Support of
its Renewed [MSJ]" (Reply). Attached to the Reply were
declarations by BONYM's counsel of record, Aldridge Pite, LLP,
and Aldridge Pite, LLP's Compliance Manager, Valerie Lacava
(Lacava), declaring that Aldrige Pite, LLP received the Note on
September 16, 2016.
On April 3, 2019, a hearing on the Renewed MSJ was
held.8
On December 11, 2019, the Circuit Court granted the
Renewed MSJ and filed its Foreclosure Decree and Foreclosure
Judgment. The Foreclosure Decree determined the amount due and
owing to BONYM from the DeShaws as of July 8, 2018;9 and
pertinent to the Fees Appeal, the decree awarded per diem
interest on the Note "from and after July 8, 2018", along with
other fees, expenses and amounts that the Circuit Court "shall
subsequently determine[.]"10 On December 21, 2019, Broer-DeShaw
8 The transcript of the April 3, 2019 hearing on the Renewed MSJ is
not in the record on appeal.
9 The July 8, 2018 date comes from Nwabara's Declaration and the
exhibits attached in support of BONYM's Renewed MSJ, calculating the amount
due and owing as of July 8, 2018.
10 The Foreclosure Decree stated:
CONCLUSIONS OF LAW
. . . .
4. There is due and owing to [BONYM] from DESHAWS the
sum of $609,002.91 as of July 8, 2018, plus interest at
$73.18 per day from and after July 8, 2018, plus late fees,
and any further advances made by [BONYM] for property
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timely filed the Foreclosure Appeal.11
On January 26, 2022, BONYM filed a "Renewed Motion for
Confirmation of Foreclosure Sale, Allowance of Costs,
Commissions and Fees, Distribution of Proceeds, Directing
Conveyance and for Writ of Possession/Ejectments" (Renewed
Motion for Confirmation of Sale), which the Circuit Court orally
granted at a March 4, 2022 hearing.
On March 17, 2022, BONYM filed a "Motion for
Attorney's Fees and Costs and Additional Amounts Owed" (Motion
for Fees), requesting an additional $201,345.73 for "legal fees
and costs and additional amounts owed" on the Note and Mortgage.
The DeShaws did not file an opposition.
expenses (real property taxes, fire and/or mortgage
insurance premiums, etc.), together with other amounts as
the Court shall subsequently determine to be lawfully
chargeable under the provisions of the Note and Mortgage
held by [BONYM], including interest, costs, expenses, late
fees, other charges and attorneys' fees as the Court shall
determine.
. . . .
WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED:
. . . .
5. . . . The Court reserves jurisdiction to determine
the party or parties to whom any surplus shall be awarded.
The Court shall determine the amount of the fee of the
Commissioner and the amount of the attorneys' fees and
costs of [BONYM] and shall direct the final payment of the
proceeds of the foreclosure sale. Upon distribution of the
sale proceeds according to the directions of the Court, the
Commissioner shall file an accurate accounting of receipts,
expenses and distributions. If the proceeds of such sale
are insufficient to pay the aforesaid amounts to [BONYM],
the Court shall/may direct that a joint and several
judgment for such deficiency be entered in favor of [BONYM]
and against the DESHAWS.
(Emphases added.)
11 Hawaii Revised Statutes (HRS) § 667-51 (2016), governing appeals
in foreclosure cases, provides in subsection (a)(1) that a judgment entered
on a decree of foreclosure is final and appealable.
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On April 12, 2022, the Circuit Court filed its "Order
Approving Commissioner's Report and Granting [BONYM]'s Renewed
Motion for Confirmation of Foreclosure Sale, Allowance of Costs,
Commissions and Fees, Distribution of Proceeds, Directing
Conveyance and for Writ of Possession/Ejectments, Filed
January 26, 2022" (Confirmation Order). The Confirmation Order
named Zhuping Ye (Ye) as the purchaser of the Subject Property,
and pertinent to the Fees Appeal, the Confirmation Order
"reserve[d] jurisdiction" for "any determination of any
additional amounts due and owing to [BONYM], including
attorney's fees/costs."12
12 The Confirmation Order contained the following orders:
1. In accordance with the Decree of Foreclosure, the
sale of the Mortgaged Property to Zhuping Ye or his
nominee, at a bid price of $851,000.00, be and is hereby
ratified, approved and confirmed and that upon receipt of
the fees and costs due to him, said Commissioner is hereby
ordered and directed to make a conveyance thereof to
Zhuping Ye or his nominee and to pay to [BONYM] all
proceeds from the sale of the Mortgaged Property to satisfy
all of amounts due and owing to [BONYM] after payment of
outstanding Commissioner's fees and costs.
. . . .
11. Closing of the sale to Zhuping Ye or his nominee
shall occur within thirty-five (35) days from the date of
entry of this Order.
. . . .
14. The Court reserves jurisdiction to enter such
further orders as may be necessary or appropriate to assist
Zhuping Ye or their nominee, to gain possession of the
Mortgaged Property or any determination of any additional
amounts due and owing to [BONYM], including attorney's
fees/costs.
. . . .
(Emphases added.)
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Also on April 12, 2022, the Circuit Court entered
Judgment on the Confirmation Order (Confirmation Judgment)
pursuant to Hawai‘i Rules of Civil Procedure (HRCP) Rule 54(b).13
Also on April 12, 2022, the DeShaws filed an appeal
from the Confirmation Order and Confirmation Judgment,
generating the Confirmation Appeal.14
On April 13, 2022, the day after the Confirmation
Appeal had been filed, the Circuit Court heard BONYM's Motion
for Fees, and orally granted the motion.
On May 23, 2022, while the Foreclosure Appeal and
Confirmation Appeal were pending, the Circuit Court filed the
Fees Order. The Fees Order awarded $201,345.73, consisting of,
among other things, attorney's fees, costs, and additional
interest on the Note from "July 8, 2018, through March 16,
2022,"15 in addition to the $609,002.91 previously awarded to
BONYM from the sale proceeds.
On June 22, 2022, the DeShaws appealed from the Fees
Order, generating the Fees Appeal.
On October 21, 2022, BONYM filed a motion to dismiss
the Confirmation Appeal, CAAP-XX-XXXXXXX, arguing that the
issues raised by the DeShaws in the appeal were moot because the
Subject Property had been sold to Ye, a third-party good-faith
purchaser who was not a party to the action. The motion
13 HRCP Rule 54(b) provides that a court may enter a final judgment
as to fewer than all claims, "only upon an express determination that there
is no just reason for delay and upon an express direction for the entry of
judgment."
14 HRS § 667-51(a)(2) provides that a judgment certified under HRCP
Rule 54(b) entered on an order confirming sale is final and appealable.
15 The March 16, 2022 date is as of the time the Motion for Fees was
filed on March 17, 2022.
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attached a recorded quitclaim deed reflecting the new owner of
the Subject Property. The DeShaws opposed the motion.
Also on October 21, 2022, BONYM filed a motion to
dismiss the Fees Appeal in CAAP-XX-XXXXXXX, raising the same
argument that the appeal was moot due to the sale of the Subject
Property to a third-party good-faith purchaser; and because the
DeShaws had not opposed the Fees Order below. The DeShaws
opposed the motion.
On November 4, 2022, this court granted dismissal of
the Confirmation Appeal for lack of appellate jurisdiction
because the Subject Property had been "sold to a bona fide
purchaser";16 and denied dismissal of the Fees Appeal because we
did not lack jurisdiction over the Fees Appeal based on
mootness.17
On July 11, 2023, we issued an Order to Show Cause as
to why the Foreclosure Appeal should not be dismissed for lack
of appellate jurisdiction due to mootness, based on the
dismissal of the Confirmation Appeal. The parties filed
responses on August 10, 2023. Broer-DeShaw, now represented by
counsel, argued that dismissal of the Foreclosure Appeal "will
have an undue preclusive effect upon the DeShaws' pending claims
in their wrongful foreclosure counterclaim, barring their
ability to recover damages despite being victims of a wrongful
mortgage foreclosure resulting in the unlawful loss of their
home." Broer-DeShaw cited Bank of Am., N.A. v. Reyes-Toledo,
143 Hawai‘i 249, 264, 428 P.3d 761, 776 (2018), which held that
16 This court relied on, inter alia, Bank of New York Mellon v.
R. Onaga, Inc., 140 Hawai’i 358, 370, 400 P.3d 559, 570 (2017) ("If a stay is
not obtained and the property is sold to a bona fide purchaser, the appeal
should be dismissed as moot because no effective relief can be granted.").
17 The DeShaws did not seek certiorari review of the dismissal of
the Confirmation Appeal.
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Hawai‘i law permitted a mortgagor to maintain a cause of action
for wrongful foreclosure based on the underlying facts of the
foreclosure case; and argued that "'a mortgagor should be able
to assert a counterclaim'" on those facts, but this did "'not
mean a mortgagor must assert the wrongful foreclosure claim as a
compulsory counterclaim.'" Broer-DeShaw asserted that the
Counterclaim was "based upon the exact same live controversy
that is at issue in this appeal." Broer-DeShaw urged that
"[e]ven if title cannot be recovered, under the counterclaim the
issue of damages remains[,]" and that the Foreclosure Appeal is
"not moot because effective relief can be afforded in the form
of damages."
BONYM argued that the Foreclosure Appeal is moot for
the same reasons this court dismissed the Confirmation Appeal.18
With regard to the Counterclaim, BONYM argued that the
Counterclaim was not the subject of any of the three appeals
(Foreclosure Appeal, Confirmation Appeal, Fees Appeal); the
Counterclaim had "not been directly adjudicated by the Circuit
Court"; and no order or judgment had been entered on the
Counterclaim. BONYM, however, expressly acknowledged that by
entering the Foreclosure Decree, "the Circuit Court did
indirectly find that [DeShaws'] Counterclaim lacks merit" by
"finding that BONYM had a valid Mortgage encumbering the
Property and [BONYM] was entitled to foreclose on the same."
II. STANDARDS OF REVIEW
A. Mootness
"It is axiomatic that mootness is an issue of subject
matter jurisdiction. 'Whether a court possesses subject matter
jurisdiction is a question of law reviewable de novo.'"
18 In its response, BONYM attached and incorporated its previous
argument from the October 21, 2022 motion to dismiss the Confirmation Order
Appeal, CAAP-XX-XXXXXXX, which this court granted on November 4, 2022.
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Hamilton ex rel. Lethem v. Lethem, 119 Hawai‘i 1, 4-5, 193 P.3d
839, 842-43 (2008) (quoting Kaho‘ohanohano v. Dep't of Human
Serv., 117 Hawai‘i 262, 281, 178 P.3d 538, 557 (2008)).
B. Motion for Summary Judgment
On appeal, "[a] trial court's decision on a motion for
summary judgment is reviewed de novo." Wells Fargo Bank, N.A.
v. Fong, 149 Hawai‘i 249, 253, 488 P.3d 1228, 1232 (2021)
(citation omitted).
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.
The burden is on the party moving for summary
judgment (moving party) to show the absence of any genuine
issue as to all material facts, which, under applicable
principles of substantive law, entitles the moving party to
judgment as a matter of law.
Id. (quoting French v. Haw. Pizza Hut, Inc., 105 Hawai‘i 462,
470, 99 P.3d 1046, 1054 (2004); Fujimoto v. Au, 95 Hawai‘i 116,
136, 19 P.3d 699, 719 (2001)).
C. Jurisdiction
"The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard. Questions
regarding subject matter jurisdiction may be raised at any stage
of a cause of action . . . . A judgment rendered by a circuit
court without subject matter jurisdiction is void." Bank of
N.Y. Mellon v. Comito, 136 Hawai‘i 532, 534, 364 P.3d 240, 242
(App. 2015) (quoting Lingle v. Haw. Gov't Emps. Ass'n, AFSCME,
Local 152, AFL–CIO, 107 Hawai‘i 178, 182, 111 P.3d 587, 591
(2005)).
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III. DISCUSSION
A. While the Foreclosure Appeal is moot as to the
relief requested, Broer-DeShaw's challenges to the
Foreclosure Decree are intertwined with the
unresolved Counterclaim, and are not moot.
Under Hawai‘i law, mootness is an issue of
justiciability. State v. Hewitt, 153 Hawai‘i 33, 42, 526 P.3d
558, 567 (2023). A case is moot "where events subsequent to the
judgment of the trial court have so affected the relations
between the parties that the two conditions for justiciability
relevant on appeal—adverse interest and effective remedy—have
been compromised." Lethem, 119 Hawai‘i at 5, 193 P.3d at 843
(quoting Lathrop v. Sakatani, 111 Hawai‘i 307, 312-13, 141 P.3d
480, 485-86 (2006)). "[A] 'case is moot if the reviewing court
can no longer grant effective relief.'" Cmty. Ass'ns of
Hualalai, Inc. v. Leeward Plan. Comm'n, 150 Hawai‘i 241, 253, 500
P.3d 426, 438 (2021) (quoting In re Marn Family, 141 Hawai‘i 1,
7, 403 P.3d 621, 627 (2016)).
Here, the relief Broer-Deshaw requests in the Amended
Opening Brief is for this court to "reverse" the Circuit Court's
grant of summary judgment and the Foreclosure Decree, and
"remand the matter" back to the Circuit Court for a "fair
trial." Broer-DeShaw argues that "then the true owner of the
Note and the [M]ortgage probably would be compelled to reveal
itself, and [Broer-DeShaw] could apply to that entity for a
modification and reinstatement of her loan." Broer-Deshaw,
however, did not obtain a stay of the proceeding by posting a
bond, and the Subject Property has been sold to a bona fide
purchaser. See Onaga, 140 Hawai‘i at 368-69, 400 P.3d at 569-70
(holding that because the property was sold to a bona fide
purchaser and appellant did not post a bond to stay the
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proceedings, the appeal requesting relief of "a decision on the
merits of the foreclosure decree, as well as new foreclosure
proceedings" was moot). Thus, Broer-DeShaw's appeal of the
merits of the Foreclosure Decree and Judgment would ordinarily
be moot. See id.; Cmty. Ass'ns of Hualalai, Inc., 150 Hawai‘i at
253, 500 P.3d at 438.
We do not dismiss the Foreclosure Appeal, however,
because of the possible prejudicial effect of such dismissal on
the unresolved Counterclaim, pursuant to the collateral
consequences exception to the mootness doctrine. See McCabe
Hamilton & Renny Co., Ltd. v. Chung, 98 Hawai‘i 107, 121, 43 P.3d
244, 258 (App. 2002) (recognizing that "the imposition of issue
preclusion where appellate review has been frustrated due to
mootness is obviously unfair" and vacating the subject orders,
"which are 'unreviewable because of mootness, from spawning any
legal consequences'" (quoting Aircall of Haw., Inc. v. Home
Properties, Inc., 6 Haw. App. 593, 595-96, 733 P.2d 1231, 1232-
33 (1987))); Lethem, 119 Hawai‘i at 11, 193 P.3d at 849 (adopting
the collateral consequences exception to the mootness doctrine,
and concluding that the reputational harm to a father's appeal
of an expired temporary restraining order based on allegations
of abuse of his daughter, fell within the collateral consequence
exception to the mootness doctrine).
Here, the parties do not dispute that the allegations
in the Counterclaim are intertwined with the FOFs/COLs in the
Foreclosure Decree. Broer-DeShaw argued, and BONYM
acknowledged, that the Foreclosure Decree contained findings
regarding the validity of the mortgage and BONYM's entitlement
to foreclose, which would impact the same issues raised in the
Counterclaim. If the Foreclosure Decree was unreviewable on
appeal due to mootness, there is a reasonable possibility that
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the Decree would "spawn[] . . . legal consequences" on the same
issues in the unresolved, pending Counterclaim. See McCabe,
98 Hawai‘i at 121, 43 P.3d at 258. "To invoke successfully the
collateral consequences doctrine, the litigant must show that
there is a reasonable possibility that prejudicial collateral
consequences will occur." Lethem, 119 Hawai‘i at 8, 193 P.3 at
846 (emphases omitted) (quoting Putman v. Kennedy, 900 A.2d
1256, 1261-62 (Conn. 2006)). We conclude that this standard has
been met here, and we thus review the appeal of the Foreclosure
Decree on the merits, under the collateral consequences
exception.
B. In the Foreclosure Appeal, Broer-DeShaw's
challenges to the Foreclosure Decree are without
merit.
1. The contention in POE 1 that the Circuit Court
failed to "explain its findings" is without
merit.
Broer-DeShaw argues that the Foreclosure Decree did
not address any of Broer-DeShaw's arguments, and that the
Circuit Court "just signed whatever proposed order [BONYM]
submitted to it[.]" The Circuit Court was not required to make
findings of fact and conclusions of law in disposing of the
Renewed MSJ. See HRCP Rule 52(a) ("Findings of fact and
conclusions of law are unnecessary on decisions of motions under
Rules 12 or 56 . . . ."). Nevertheless, the Foreclosure Decree
contains FOFs/COLs supporting the Circuit Court's grant of the
MSJ, none of which are specifically challenged by Broer-DeShaw.
This argument is without merit.
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2. Broer-DeShaw's contention in POE 2 that BONYM
did not "own[] the Note" because BONYM "does
not exist" is without merit.
Broer-DeShaw argues that BONYM does not own the Note
because BONYM is "fictional." In support of this contention,
Broer-DeShaw points to an unauthenticated exhibit attached to
Broer-DeShaw's declaration to the opposition to the Renewed MSJ
below. Broer-DeShaw declared that the exhibit was a printout
from the Securities and Exchange Commission, reflecting search
results for what Broer-DeShaw claimed was a "list of all 34
registered MBS trusts whose names begin with 'CWALT[,]'" with
none being BONYM.19 The exhibit contained no seal or
certification, and lacked the authentication required for public
records admissibility. See Hawaii Rules of Evidence (HRE) Rules
90120 and 902.21 Broer-DeShaw's argument that BONYM "seems not to
exist clearly raises a genuine issue of material fact" was not
19 Broer-DeShaw also claims that "[a]t the hearing on the [MSJ], the
Circuits [sic] Court ordered . . . counsel for [BONYM], 'to correct the case
caption.'" The record on appeal does not contain the transcripts of the
March 14, 2018 or April 3, 2019 hearings on the MSJ or Renewed MSJ, and we do
not address this claim. See HRAP Rule 10(1)(A) ("When an appellant desires
to raise any point on appeal that requires consideration of the oral
proceedings before the court appealed from, the appellant shall file . . .
within 10 days after filing the notice of appeal, a request or requests to
prepare a reporter's transcript."); Bettencourt v. Bettencourt, 80 Hawai‘i
225, 230, 909 P.2d 553, 558 (1995) ("The burden is upon appellant in an
appeal to show error by reference to matters in the record, and he or she has
the responsibility of providing an adequate transcript." (brackets omitted)
(quoting Union Bldg. Materials Corp. v. The Kakaako Corp., 5 Haw. App. 146,
151, 682 P.2d 82, 87 (1984))).
20 HRE Rule 901, entitled "Requirement of authentication or
identification," states that "authentication or identification" is a
"condition precedent to admissibility," which can be satisfied by "[e]vidence
that a writing authorized by law to be recorded or filed and in fact recorded
or filed in a public office, or a purported public record, report, statement,
or data compilation, in any form, is from the public office where items of
this nature are kept."
21 HRE Rule 902, entitled "Self-authentication," states that
"[e]xtrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to" "[a] document bearing a seal
purporting to be that of . . . [an] agency thereof, and a signature
purporting to be an attestation or execution."
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supported by admissible evidence under HRCP Rule 56(e). See
HRCP Rule 56(e) ("When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of the adverse party's
pleading, but the adverse party's response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.").
The Circuit Court stated in its FOFs/COLs in the
Foreclosure Decree that BONYM "is, and at all times relevant
was, a New York company, authorized to do business in the State
of Hawaii." Broer-DeShaw has not pointed to admissible evidence
in the record creating a genuine factual dispute regarding
BONYM's existence, and this contention is without merit.
3. POEs 3, 6, and 7 challenging the indorsements
on the Note and that BONYM "paid nothing" for
the Note, lack merit.
Broer-DeShaw contends that because the Note's three
endorsements are "undated," "none of them conveys [sic] anything
to [BONYM]"; BONYM's name is not on the Note; the "chain of
title . . . convey[ed] nothing to [BONYM]"; BONYM "paid nothing
for the Note"; and the Circuit Court "erred in concluding that a
plaintiff that pays nothing for a loan is entitled to take the
collateral that secures the loan."22 We construe these arguments
as a challenge to BONYM's standing to enforce the Note.
To establish standing to bring a foreclosure action, a
foreclosing plaintiff must prove its entitlement to enforce the
note and mortgage at the commencement of the suit. Reyes-
Toledo, 139 Hawai‘i at 367, 390 P.3d at 1254. A "holder" of an
instrument such as a note is a "[p]erson entitled to enforce"
22 Broer-DeShaw does not cite to any authority in support of the
argument that BONYM was required to prove what it paid to acquire the Note.
This argument is without merit.
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it. Id. at 369, 390 P.3d at 1256; HRS § 490:3-301 (2008); HRS §
490:1-201 (2008). A note may be negotiated or its possession
may be transferred by special indorsement or blank indorsement
by a holder. HRS § 490:3-201 (2008); HRS § 490:3-205 (2008).
"When indorsed in blank, an instrument becomes payable to
bearer." Reyes-Toledo, 139 Hawai‘i at 370, 390 P.3d at 1257
(citing HRS § 490:3-205(b)). A "bearer" is a person or entity
in possession of a note that is "payable to bearer or indorsed-
in-blank." HRS § 490:1-201.
Here, BONYM submitted admissible evidence establishing
that it had been in possession of the original, indorsed-in-
blank Note before the foreclosure action was commenced. Lacava,
the Compliance Manager for BONYM's counsel, submitted a
declaration with the Reply to the Renewed MSJ, confirming
receipt and review of the original Note on September 16, 2016,
before the Complaint was filed on September 27, 2016. Lacava's
attached exhibits included a Bailee Letter she signed on
September 16, 2016, acknowledging receipt of the original Note
with indorsements, from Bayview; and a copy of her September 16,
2016 email to BONYM's counsel indicating receipt of the original
loan documents. BONYM's evidence sufficiently established its
standing to enforce the Note under Reyes-Toledo. The Circuit
Court's conclusion that BONYM "is the holder of the Note" and
"was the holder of the Note at the time this foreclosure action
was commenced" was correct, and Broer-DeShaw's contentions in
this regard are without merit.
4. Broer-DeShaw's challenges to the assignments of
the Mortgage in POEs 4 and 5 lack merit.
Broer-DeShaw argues that BONYM is not the "owner" of
the Note because the First Assignment was from MERS and that
"MERS never had any interest in the Note," and "a mortgage
without its Note is a legal nullity"; the assignment was
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"forged" because it was signed by an "employee of Bank of
America, not an employee of MERS";23 and that a "Negotiable
Instrument (like a Note) cannot be conveyed in a separate
document." Broer-DeShaw further claims that the Second
Assignment "does not even attempt to convey any interest in the
Note[,]" as it "attempts to convey only an interest in the
Mortgage[.]"
Broer-DeShaw's arguments are difficult to discern. We
have already affirmed supra the Circuit Court's conclusion that
BONYM had standing to enforce the Note. Because "the security
follows the debt," a mortgage may only be enforced by the person
or entity entitled to enforce the Note. Reyes-Toledo,
139 Hawai‘i at 371 n.17, 390 P.3d at 1258 n.17 ("A mortgage may
be enforced only by, or in behalf of, a person who is entitled
to enforce the obligation the mortgage secures." (citing
Restatement (Third) of Property (Mortgages) § 5.4(c) (1997))).
Here, the record reflects that the Mortgage stated:
"MERS is a separate corporation that is acting solely as a
nominee for Lender [(First Magnus Financial Corporation)] and
Lender's successors and assigns." The Mortgage also provided:
"The Note or a partial interest in the Note (together with this
[Mortgage]) can be sold one or more times without prior notice
to Borrower." Thus, MERS had the authority under the Mortgage
to execute the First Assignment through its Assistant Secretary.
The Circuit Court pertinently determined:
5. The Mortgage was assigned by MERS to The Bank of New
York Mellon fka The Bank of New York, as Trustee for the
Certificateholders CWALT, Inc., Alternative Loan Trust
2006-32CB, Mortgage Pass-Through Certificates, Series 2006-
32CB (BONYM CWALT) pursuant to an Assignment of Mortgage
("First Assignment") recorded on September 2, 2011, in the
Bureau of Conveyances of the State of Hawaii as Document
No. 2011-141243. The Mortgage was then assigned to [BONYM]
23 The "forgery" claim appears to lack basis. The First Assignment
was signed by MERS, Inc., by "Christopher Herrera, Assistant Secretary."
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pursuant to an Assignment of Mortgage ("Second Assignment")
recorded on November 24, 2015, in the Bureau of Conveyances
of the State of Hawaii as Document No. A-58060922.
Broer-DeShaw presents no discernible challenge to the Circuit
Court's conclusion regarding the assignments.
5. Broer-DeShaw's contention in POE 8 that there
was no evidence that the Notice of Default "was
mailed" to them is without merit.
Broer-DeShaw contends that the Notice of Default was
not sent to them, and that the pertinent exhibit attached to
BONYM's Renewed MSJ "shows the cover of an envelope addressed to
[the DeShaws], but it is not postmarked and appears never to
have been sent." Broer-DeShaw claims there was no "tracking
number," "certificate of mailing," or "signature of the
[DeShaws]."
The Note pertinently provides:
7. GIVING OF NOTICES
Unless applicable law requires a different method,
any notice that must be given to me [(the DeShaws)] under
this Note will be given by delivering it or by mailing it
by first class mail to me at the Property Address above or
at a different address if I give the Note Holder a notice
of that different address.
(Emphasis added.) The Mortgage also states, "Any notice to
Borrower [(the DeShaws)] in connection with this Security
Instrument shall be deemed to have been given to Borrower when
mailed by first class mail or when actually delivered to
Borrower's notice address if sent by other means." (Emphasis
added.)
Here, the Circuit Court concluded that "[d]ue notice
has been given to DeShaws." The record reflects that Exhibit D
attached to BONYM's Renewed MSJ was a copy of a June 4, 2015
Notice of Default Letter, addressed to the DeShaws at the
Subject Property address, and sent via "First-Class Mail."
Broer-DeShaw's contention is without merit.
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6. As to POE 9, the Circuit Court did not
erroneously determine the amount owed based on
inadmissible evidence.
Broer-DeShaw argues in the Amended Opening Brief that
Nwabara's declaration for Bayview as the "new" loan servicer
contained inadmissible hearsay testimony about "past servicers
and past amounts," because the declaration contained "no
personal knowledge of prior servicers procedures and records and
no personal knowledge of all amounts paid by [Broer-DeShaw] in
the past" and "flunks the Mattos test."24 In her Supplemental
Brief,25 Broer-DeShaw also asserts that Nwabara's declaration did
not "satisfy[ ] the business records exception to the hearsay
rule or the incorporated records doctrine with respect to the
loan payment history documents[,]" and thus the records of the
prior loan services were inadmissible under Verhagen. BONYM
maintains that Nwabara's declaration was compliant with Mattos
and Verhagen, and was admissible. We conclude that Nwabara's
declaration was admissible, and Broer-DeShaw's challenge lacks
merit.
"[A] declaration in support of a summary judgment
motion must be based on personal knowledge, contain facts that
would be admissible in evidence, and show that the declarant is
competent to testify as to the matters contained within the
declaration." Mattos, 140 Hawai‘i at 30, 398 P.3d at 619. In
24 In U.S. Bank N.A. v. Mattos, the supreme court held that "a
declaration in support of a summary judgment motion must be based on personal
knowledge, contain facts that would be admissible in evidence, and show that
the declarant is competent to testify as to the matters contained within the
declaration." 140 Hawai‘i 26, 30, 398 P.3d 615, 619 (2017).
25 On March 15, 2022, this court filed an Order for Supplemental
Briefing, ordering the parties to submit supplemental briefing in light of
the supreme court's opinion in U.S. Bank Tr., N.A., as Tr. for LSF9 Master
Participation Tr. v. Verhagen, 149 Hawai‘i 315, 489 P.3d 419 (2021). On March
29, 2022, both BONYM and Broer-DeShaw through counsel, filed Supplemental
Briefs.
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Mattos, the supreme court held that loan documents were not
admissible through the "Contract Management Coordinator of OCWEN
Loan Servicing, LLC [(Ocwen)], the servicer of U.S. Bank N.A.
[(U.S. Bank)]," where the declaration did not state that the
declarant was a "custodian of records for either U.S. Bank or
Ocwen." Id. at 30-32, 398 P.3d at 619-21. Nwabara's
declaration does not contain a similar infirmity, because
Nwabara's declaration stated that he was a custodian of records
for the loan servicer, Bayview; was "familiar with Bayview's
books and records regarding the Loan, including Bayview's
servicing records and copies of the applicable loan documents";
and was familiar with "the manner in which Bayview maintain[ed]
its books and records, including computer records relating to
the servicing of the Loan." Nwabara testified that Bayview
"maintain[ed] all the day to day loan documents, records and
accounting of payments on the Loan being foreclosed in this
action."
In Verhagen, the supreme court explained that to
establish the business records exception to the hearsay rule
under the incorporated records doctrine, "records received from
another business and incorporated into the receiving business'
records may in some circumstances be regarded as 'created' by
the receiving business." 149 Hawai‘i at 325, 489 P.3d at 429
(quoting Behrendt, 142 Hawai‘i at 45, 414 P.3d at 97). Thus,
"when a record is treated as 'created' by the receiving
business, a person is qualified to authenticate it if the person
has 'enough familiarity with the record-keeping system of the
business that "created" the record,' i.e., the receiving or
incorporating business." Id. Three conditions are required to
treat an incorporated record as "created" by the receiving
business: "[1] the documents were incorporated and kept in the
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normal course of business, [2] that the incorporating business
typically relies upon the accuracy of the contents of the
documents, and [3] the circumstances otherwise indicate the
trustworthiness of the document." Id. (alterations in original)
(quoting Behrendt, 142 Hawai‘i at 45, 414 P.3d at 97). In
Verhagen, the supreme court concluded that these three
conditions were satisfied, where there was testimony that
"JPMorgan Chase's [(the prior loan servicer)] records were
incorporated into Caliber's [(the current loan servicer)] own
and kept and maintained by Caliber in the ordinary course of its
business"; that "Caliber used and relied on the incorporated
records in the regular course of its loan servicing business";
and that the incorporated records went through a "due diligence
phase" and were "reviewed" prior to being incorporated. Id. at
430-31, 489 P.3d at 326-27.
Similar to the declaration deemed sufficient in
Verhagen, Nwabara testified that "Bayview's records include[d]
and incorporate[d] records for the Loan obtained from First
Magnus Financial Corporation and Countrywide [(the prior loan
servicers)]"; the documents obtained from the prior servicers
were "kept and maintained by Bayview in the ordinary course of
its business" and "relied upon by Bayview"; the documents went
through a "due diligence phase," consisting of a "review of
[the] hard copy documents," including the "payment history," and
the "accounting of other fees, costs, and expenses charged to
the Loan by Prior Servicer." We conclude that Nwabara's
declaration as Bayview's custodian of records satisfied the
three criteria under the incorporated records doctrine to
incorporate the records of the prior loan servicers. The loan
payment history documents were thus admissible under the HRE
Rule 803(b)(6) business records exception to the hearsay rule,
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and Broer-DeShaw's challenge to the determination of the amount
owed is without merit. See id.; Mattos, 140 Hawai‘i at 30-32,
398 P.3d at 619-21.
B. In the Fees Appeal, the Circuit Court retained
jurisdiction to enter the Fees Order.
The DeShaws' sole challenge in the Fees Appeal, is
that the Circuit Court "lacked jurisdiction to alter or amend
its prior order and judgment due to the DeShaw's [sic] filing of
a notice of appeal on April 12, 2022" in the Confirmation Order
Appeal.26 The DeShaws argue that, while the Circuit Court may
retain jurisdiction to determine matters collateral or
incidental to the judgment, the Fees Order "was not a matter
that was collateral to or incedental [sic] to the [Confirmation
Judgment] the DeShaws appealed from[.]" The DeShaws assert that
"[i]nstead, the issue of distribution of confirmation sale
proceeds was the exact issue adjudicated by" the Confirmation
Order and Confirmation Judgment,27 and thus, the filing of the
26 The DeShaws did not file an opposition to the motion, and the
Circuit Court noted such in the Fees Order.
27 This is not an accurate characterization of the Confirmation
Order and Confirmation Judgment. Contrary to the DeShaws' claim, the "issue
of distribution of confirmation sale proceeds" was not "the exact issue
adjudicated" in the Confirmation Order and Confirmation Judgment. The
Confirmation Order directed payment of the previously ordered $609,002.91
amount, the Commissioner's fees and costs, and deferred the issue of
distribution of the proceeds, stating that "excess sale proceeds" would be
deposited with the court "until and unless" the Circuit Court gave further
instruction "as to how any excess sale proceeds should be distributed
pursuant to [HRS] § 667-3."
In the DeShaws' appeal from the Confirmation Order that this
court dismissed, the DeShaws challenged a procedural aspect of the sale
itself, as follows:
The Circuit Court abused its discretion in confirming the
foreclosure sale where the procedure employed by the
Commissioner, and in particular his publications notifying
persons of open houses only the day of and after said open
houses occurred, was neither reasonable nor sufficient to
obtain the highest possible price for the real estate being
sold.
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appeal "divested the Circuit Court of jurisdiction on the issues
of confirmation of sale and distribution of proceeds."
BONYM argues that the Circuit Court was not divested
of jurisdiction to grant the Motion for Fees and Amounts because
the motion was "ancillary" and "incidental" to the Foreclosure
Decree and Confirmation Order.28 BONYM points out that the Fees
Order did not "amount[] to an amendment of the Confirmation
Order" because "both the Foreclosure Order and Confirmation
Order establish that BONYM is entitled to collect attorneys'
fees and costs, additional interest, and advances for real
property taxes and insurance"; and the Fees Order "was necessary
to establish the exact calculations of the amounts of interest
and other fees and costs that BONYM was entitled to collect from
the foreclosure sale proceeds."
We conclude, under the record and circumstances of
this case, that the Fees Order fully adjudicated matters
"incident" to the enforcement of the Foreclosure Decree in this
case, including the final amount owed to BONYM and the final
distribution of the sale proceeds pursuant to HRS §§ 667-329 and
The DeShaws raised no challenge to the "issue of distribution of
confirmation sale proceeds" in their Confirmation Appeal, despite their
subsequent contention here that such distribution was the "exact issue"
adjudicated in the Confirmation Order.
28 BONYM cites to Cent. Pac. Bank v. Metcalfe, No. CAAP-XX-XXXXXXX,
2015 WL 3549997, at *1 (App. June 4, 2015) (SDO) and Nationstar Mortg., LLC
v. Lee, No. CAAP-XX-XXXXXXX, 2018 WL 4627280, at *3 (App. Sept 27, 2018)
(SDO). These cases are discussed infra.
29 HRS § 667-3 (2016), entitled "Proceeds, how applied," provides
for the distribution of foreclosure proceeds. It states:
Mortgage and other creditors shall be entitled to payment
according to the priority of their liens, and not pro rata;
and judgments of foreclosure that are conducted in
compliance with this part shall operate to extinguish the
liens of subsequent mortgages and liens of the same
property, without forcing prior mortgagees or lienors to
their right of recovery. The surplus after payment of the
mortgage foreclosed, shall be applied pro tanto to the next
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667-10.30 As such, the Circuit Court retained jurisdiction to
enter the Fees Order, and the DeShaws' contention is without
merit.
"Notwithstanding the general effect of the filing of a
notice of appeal, the trial court retains jurisdiction to
determine matters collateral or incidental to the judgment, and
may act in aid of the appeal." TSA Intern. Ltd. v. Shimizu
Corp., 92 Hawai‘i 243, 265, 990 P.2d 713, 735 (1999) (citations
omitted) (emphasis added). Foreclosure cases are "bifurcated
into two separately appealable parts: (1) the decree of
foreclosure and order of sale appealable pursuant to HRS § 667-
51(a)(1)[;] and (2) all other orders that 'fall within the
second part of the bifurcated proceedings.'" Reyes-Toledo, 139
Hawai‘i at 372, 390 P.3d at 1259 (quoting Mortg. Elec.
Registration Sys., Inc. v. Wise, 130 Hawai‘i 11, 16, 304 P.3d
1192, 1197 (2013)). The first separate and appealable part, the
foreclosure decree, "is deemed final for appeal purposes
junior mortgage or lien, and so on to the payment, wholly
or in part, of mortgages and liens junior to the one
assessed.
(Emphasis added.)
30 HRS § 667-10 (2016), entitled "Power unaffected by transfer;
surplus after sale," provides for distribution of remaining proceeds to the
owner of the property following an HRS § 667-3 distribution. It states:
No sale or transfer by the mortgagor shall impair or annul
any right or power of attorney given in the mortgage to the
mortgagee to sell or transfer the mortgaged property, as
attorney or agent of the mortgagor, except as otherwise
provided by chapters 501 and 502. When public sale is made
of the mortgaged property under this part, distribution of
the proceeds of the sale shall be as specified in section
667-3, and the remainder of the proceeds, if any, shall be
paid over to the owner of the mortgaged property, after
deducting the amount of all claims and all expenses
attending the same.
(Emphasis added.)
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notwithstanding the fact that many matters relating to it remain
undetermined." Sturkie v. Han, 2 Haw. App. 140, 146, 627 P.2d
296, 302 (App. 1981); see Sec. Pac. Mortg. Corp. v. Miller, 71
Haw. 65, 69, 783 P.2d 855, 857 (1989) (recognizing the finality
of a foreclosure decree for appeal purposes "although it
contains provisions for the determination of matters incident to
its administration and for disposition of the proceeds of the
sale" (citation omitted)). The second "separately appealable"
part includes "all other orders," which include "[o]rders
confirming sale, deficiency judgments, orders directing the
distribution of proceeds, and other orders issued subsequent to
the decree of foreclosure." Reyes-Toledo, 139 Hawai‘i at 372
n.20, 390 P.3d at 1259 n.20 (emphasis added); accord Sturkie, 2
Haw. App. at 146-47, 627 P.2d at 302 ("Matters such as the order
of sale, appointment of commissioner, confirmation of sale,
award of costs and fees, and award of deficiency judgment are
deemed to be incidents to the enforcement of the decree of
foreclosure, and errors unique to them are separately
appealable, when they are fully adjudicated[.]") (internal
citations omitted) (emphasis added).31 "Incident" is defined as
being "[d]ependent on, subordinate to, arising out of, or
31 See also Ally Bank v. Hochroth, NOS. CAAP-XX-XXXXXXX, CAAP-18-
0000465, 2020 WL 1929172, at *5 (App. April 21, 2020) (SDO) (holding that the
circuit court retained jurisdiction to award attorneys' fees and costs as
"incidents to the enforcement" of the foreclosure decree despite a request
for fees and costs being filed more than 14 days after the foreclosure
judgment (quoting Han, 2 Haw. App. at 146, 627 P.2d at 301)); Lee, 2018 WL
4627280, at *2-4 (holding that the circuit court retained jurisdiction to
award attorneys' fees and costs after the foreclosure decree and at the
confirmation of sale proceedings because such "subsequent proceedings are
simply incidents" to the enforcement of the foreclosure decree (citing Wise,
130 Hawai‘i at 16, 304 P.3d at 1197); Metcalfe, 2015 WL 3549997, at *1-2
(holding that the circuit court retained jurisdiction to award attorneys'
fees as "incidents to the enforcement" of the foreclosure decree even though
motion for fees was filed more than 14 days after foreclosure decree and
after notice of appeal from foreclosure decree was filed (emphasis omitted)
(quoting Han, 2 Haw. App. at 146-47, 627 P.2d at 302)).
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otherwise connected with (something else, usu[ally] of greater
importance)." Black's Law Dictionary 879 (10th ed. 2014).
Here, the Circuit Court did not determine the final
amount due to BONYM until after the foreclosure sale was
completed.32 The December 11, 2019 Foreclosure Decree partially
determined the amount due and owing to BONYM as "$609,002.91" as
of July 8, 2018, and also awarded items it left for subsequent
determination. Thus, the Foreclosure Decree left "many matters
. . . undetermined[,]" Sturkie, 2 Haw. App. at 146, 627 P.2d at
302, and specified that the Circuit Court would "subsequently
determine" the amounts of the "interest, costs, expenses, late
fees, other charges and attorneys' fees . . . at a subsequent
hearing", with "all sums to be paid at the date of closing of
the sale[.]" The Foreclosure Decree further ordered that these
sums would be a valid "first lien" on the Subject Property
"prior to all others." See HRS § 667-3 (providing that any
"surplus after payment of the mortgage foreclosed, shall be
applied pro tanto to the next junior mortgage or lien").
32 Establishing the amount owed on a mortgage is not one of the
elements of a foreclosure claim. See HawaiiUSA Fed. Credit Union v. Monalim,
147 Hawai‘i 33, 49 n.22, 464 P.3d 821 n.22 (2020) (holding that HRS § 667-1.5,
which provides that the Circuit Court may assess the amount due in a
foreclosure action, "does not burden the foreclosing party with the
obligation to prove the amount due on the mortgage before the foreclosure
sale because 'a deficiency judgment is rendered only after the sale of the
mortgaged property.'") (citing Bank of Honolulu, N.A. v. Anderson, 3 Haw.
App. 545, 549, 654 P.2d 1370, 1374 (1982)). To prove entitlement to
foreclosure, the lender must prove "the existence of an agreement, the terms
of the agreement, a default by the mortgagor under the terms of the
agreement, and giving of the cancellation notice." Reyes-Toledo, 139 Hawai‘i
at 367, 390 P.3d at 1254 (citing Anderson, 3 Haw. App. at 551, 654 P.2d at
1375). In Anderson, this court explained that the lender "was not required
to prove the exact amount owed under the Agreement until after the
confirmation of the foreclosure sale." Anderson, 3 Haw. App. at 550,
654 P.2d at 1374. "The exact amounts of interest and other charges and
credits, if any, could be determined after the confirmation of the
foreclosure sale." Id. at 552, 654 P.2d at 1376.
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The April 12, 2022 Confirmation Order did not contain
the final determination on the additional amounts owed to BONYM.
The Confirmation Order confirmed the sale of the Subject
Property to Ye for $851,000.00; ordered payment of $13,419.79
for the Commissioner's fees and costs "from the proceeds of the
sale"; and ordered the Commissioner to pay BONYM $609,002.91
from the sale proceeds as the amount due and owing as of July 8,
2018. In addition, the Circuit Court found that "[t]he net sale
proceeds will likely exceed the final total amount of [BONYM]'s
judgment[,]" and ordered that: "[e]xcess sale proceeds, if any,
shall be deposited with the Clerk of the Court until and unless
the Court provides further instruction as to how any excess sale
proceeds should be distributed, pursuant to [HRS] § 667-3."
Finally, the Confirmation Order provided that "[c]losing of the
sale . . . shall occur within thirty-five (35) days from the
date of entry of this Order."33 As to the undetermined
additional amounts owed to BONYM, the Confirmation Order
explicitly "reserve[d] jurisdiction to enter such future orders
as may be necessary or appropriate to . . . any determination of
any additional amounts due and owing to [BONYM], including
attorney's fees/costs." Thus, the Confirmation Order continued
to leave undetermined the amounts for the attorneys' fees,
interest, and additional expenses, and specified that the
Circuit Court would provide further instruction as to the
distribution of excess sale proceeds.
Here, the final amounts owed to BONYM from the
foreclosure sale were not determined until the Fees Order was
entered on May 23, 2022, following the May 17, 2022 closing, and
after the April 12, 2022 Confirmation Appeal was filed. The
Fees Order finally determined and granted BONYM post-
33 We take judicial notice that the 35th day from the April 12, 2022
Confirmation Order was May 17, 2022.
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
foreclosure-decree interest, attorneys' fees, costs, and
expenses pursuant to the Foreclosure Decree; the Fees Order
arose out of, was dependent upon, and was thus "incidental" to
the Foreclosure Decree. See Black's Law Dictionary, at 879.
The Fees Order also directed payment of these additional amounts
from the proceeds of the foreclosure sale, which had resulted in
a surplus rather than a deficiency. Finally, the Fees Order
ordered the Commissioner to deposit "with the Court" "any excess
funds not paid to [BONYM] at closing of the sale," which would
be "retained by the Court subject to further determination and
order when all appeals in this case have been decided and
exhausted." Accordingly, the Circuit Court retained
jurisdiction to enter the Fees Order even after the Confirmation
Appeal was filed because the Fees Order determined the final
amounts owed to BONYM upon the closing of the sale, and
distributed the proceeds of the sale, all of which were
incidents to the enforcement of the Foreclosure Decree.
See Reyes-Toledo, 139 Hawai‘i at 372 n.20, 390 P.3d at 1259 n.20;
Sturkie, 2 Haw. App. at 146-47, 627 P.2d at 302; HRS §§ 667-1.5;
667-3; 667-10.
IV. CONCLUSION
For the foregoing reasons, in the Foreclosure Appeal,
CAAP-XX-XXXXXXX, we affirm the December 11, 2019 "Findings of
Fact and Conclusions of Law; Order Granting Plaintiff's Renewed
Motion for Summary Judgment and for Interlocutory Decree of
Foreclosure filed November 14, 2018" and Judgment; and in the
Fee Order Appeal, CAAP-XX-XXXXXXX, we affirm the May 23, 2022
"Findings of Fact and Conclusions of Law; Order Granting
Plaintiff's Motion for Attorney's Fees and Costs and Additional
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Amounts Owed," all filed and entered by the Circuit Court of the
First Circuit.
DATED: Honolulu, Hawai‘i, November 29, 2023.
On the briefs:
/s/ Katherine G. Leonard
Dennis Duane DeShaw
Presiding Judge
Self-Represented Defendant-
Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
Susan Kay Broer-DeShaw
Self-Represented Defendant-
/s/ Karen T. Nakasone
Appellant/Counterclaim
Associate Judge
Plaintiff-Appellant.
Frederick J. Arensmeyer
for Defendant-Appellant
Dennis Duane DeShaw and
Defendant-Appellant/
Counterclaim Plaintiff-
Appellant Susan Kay
Broer-DeShaw.
David B. Rosen
(Aldridge Pite, LLP)
for Plaintiff-Appellee.
31