CourtListener 10785329

Gesamter Gesetzestext

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-FEB-2026
07:49 AM
Dkt. 54 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

THE BANK OF NEW YORK MELLON, FORMERLY KNOWN AS THE BANK OF NEW
YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC.
ALTERNATIVE LOAN TRUST 2006-16CB MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-16CB, Plaintiff-Appellee,
v.
ASSOCIATION OF APARTMENT OWNERS OF PALM VILLAS II, Defendant-
Appellant,
and
PANCHO DELEON ABALOS; CASSIE LEI ALMANZOR ABALOS; HAWAIIUSA
FEDERAL CREDIT UNION; EWA BY GENTRY COMMUNITY ASSOCIATION,
Defendants-Appellees, and
JOHN DOES 1-20; JANE DOES 1-20; DOE CORPORATIONS 1-20;
DOE ENTITIES 1-20; and DOE GOVERNMENTAL UNITS 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC191001370)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and Wadsworth, JJ.)

The Association of Apartment Owners of Palm Villas II
(AOAO) appeals from the Hawai#i Rules of Civil Procedure
Rule 54(b)-certified Judgment for The Bank of New York Mellon
(BNYM) entered by the Circuit Court of the First Circuit.1 The
AOAO challenges the Circuit Court's orders granting BNYM's motion

1
The Honorable Jeannette H. Castagnetti presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

for partial summary judgment and denying the AOAO's motion for
reconsideration. We vacate the Judgment and remand for further
proceedings.
BNYM sued the AOAO, Pancho Deleon Abalos, Cassie Lei
Almanzor Abalos, and others. BNYM alleged it had conducted a
nonjudicial foreclosure on the Abaloses' mortgage; the
nonjudicial foreclosure was voidable because BNYM didn't publish
continuances of the public auction; the Mortgagee's Affidavit of
Foreclosure Under Power of Sale should be expunged from Land
Court records; the mortgage should be reinstated; and BNYM was
entitled to judicially foreclose the mortgage. Count 1 sought
declaratory relief; Count 2 sought rescission of the nonjudicial
foreclosure; Count 3 sought judicial foreclosure of the mortgage.
BNYM moved for partial summary judgment on Counts 1
and 2. The Circuit Court entered an order granting the motion.
It declared BNYM's 2009 nonjudicial foreclosure "null and void as
a matter of law," reinstated the mortgage, and directed BNYM to
expunge the Affidavit of Foreclosure from, and restore its
mortgage lien on, Land Court records. The Judgment was entered
on February 15, 2023. The Circuit Court denied the AOAO's motion
for reconsideration. This appeal followed.
We review a grant of summary judgment de novo. Nozawa
v. Operating Engineers Local Union No. 3, 142 Hawai#i 331, 338,
418 P.3d 1187, 1194 (2018). Summary judgment is appropriate when
the moving party shows, by admissible evidence, that the material
facts are uncontroverted and it is entitled to judgment as a
matter of law. Id. at 342, 418 P.3d at 1198. The moving party
has the burden to introduce admissible evidence to establish the
material facts, show there is no genuine issue as to any of them,
and explain why it is entitled to a judgment as a matter of law.
Id.
BNYM's motion for partial summary judgment showed that
the Abaloses signed a promissory note and a mortgage. The note

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was indorsed in blank. The mortgage had been assigned to BNYM.
BNYM nonjudicially foreclosed the mortgage. The published Notice
of Mortgagee's Intention to Foreclose Under Power of Sale stated
that a public auction would be conducted on April 28, 2009. The
April 28, 2009 auction was postponed to May 28, 2009. The record
contains no evidence that notice of the postponement was
published. The May 28, 2009 auction was postponed to August 4,
2009; the record contains no evidence that notice of that
postponement was published. The August 4, 2009 auction was
postponed to September 4, 2009; the record contains no evidence
that notice of that postponement was published. The mortgaged
property was declared sold to BNYM at the September 4, 2009
auction. A quitclaim conveyance was delivered to BNYM. The
Affidavit of Foreclosure was recorded in the Land Court on
October 1, 2009. These facts were uncontroverted.
(1) The AOAO contends BNYM lacked standing to void its
own nonjudicial foreclosure. We review standing de novo. Tax
Found. of Haw. v. State, 144 Hawai#i 175, 185, 439 P.3d 127, 137
(2019).
The AOAO argues BNYM lacked standing because it didn't
suffer an injury in fact. It relies on Sierra Club v. Department
of Transportation, 115 Hawai#i 299, 167 P.3d 292 (2007). That
case involved procedural standing for members of the public under
the Hawai#i Environmental Policy Act, a statute that accorded
procedural rights. Id. at 325, 167 P.3d at 318.
Here, BNYM sought declaratory relief. Hawaii Revised
Statutes (HRS) § 632-1 (2016) applied. "[A] party seeking
declaratory relief under HRS § 632-1 need not satisfy the three-
part 'injury in fact' test to have standing." Tax Found., 144
Hawai#i at 189, 439 P.3d at 141.

[A] party has standing to seek declaratory relief in a civil
case brought pursuant to HRS § 632-1(b) (2016): (1) where
antagonistic claims exist between the parties (a) that

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indicate imminent and inevitable litigation, or (b) where
the party seeking declaratory relief has a concrete interest
in a legal relation, status, right, or privilege that is
challenged or denied by the other party, who has or asserts
a concrete interest in the same legal relation, status,
right, or privilege; and (2) a declaratory judgment will
serve to terminate the uncertainty or controversy giving
rise to the proceeding.

Id.
BNYM had been paying maintenance fees to the AOAO since
it acquired the Abaloses' property, but stopped. BNYM's
complaint alleged that the AOAO "may claim an interest in the
Property by virtue of . . . unpaid maintenance fees[.]" The
order granting BNYM's motion for partial summary judgment
acknowledged that BNYM's obligation to pay maintenance fees was
at issue. On this record, BNYM had standing to seek a
declaration that its nonjudicial foreclosure was invalid.
(2) The AOAO contends "Hawaii law does not recognize a
cause of action for [BNYM] to void its own . . . Non-Judicial
Foreclosure[.]" The contention has merit.
The record shows, and BNYM does not controvert, that
the public auction of the Abaloses' property was postponed at
least three times, but postponement notices were not published.
The Abaloses' mortgage contained a power-of-sale provision
stating: "Lender shall publish a notice of sale and shall sell
the Property at the time and place and under the terms specified
in the notice of sale." Under that provision, BNYM "was required
to publish postponement notices." Hungate v. Law Off. of
David B. Rosen, 139 Hawai#i 394, 404, 391 P.3d 1, 11 (2017),
abrogated on other grounds by, State ex rel. Shikada v. Bristol-
Myers Squibb Co., 152 Hawai#i 418, 526 P.3d 395 (2023).
In addition, HRS § 667-5 (Supp. 2009) required that the
mortgagee's attorney "[g]ive any notices and do all acts as are
authorized or required by the power contained in the mortgage."

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The record contains no evidence that BNYM published the
postponement notices required under HRS § 667-5 and Hungate.
"[I]f a foreclosure violates a statute governing the
nonjudicial foreclosure scheme, or other law extrinsic to the
mortgage itself, the sale is 'voidable at the election of the
mortgagor[.]'" Delapinia v. Nationstar Mortg. LLC, 150 Hawai#i
91, 101, 497 P.3d 106, 116 (2021) (italics added). That is so
"whether the violation was statutory or contractual[.]" Id. at
104, 497 P.3d at 119.
BNYM argues that cases, including Santiago v. Tanaka,
137 Hawai#i 137, 366 P.3d 612 (2016) and Mount v. Apao, 139
Hawai#i 167, 384 P.3d 1268 (2016), holding a wrongful nonjudicial
foreclosure voidable at the election of the mortgagor only apply
where the property was sold to a good faith purchaser. Under
Hawai#i law, "wrongful foreclosure remedies are twofold and
alternative (and not necessarily equivalent) to each other:
(1) return of title and possession; or (2) money damages." In re
Manuel, 152 Hawai#i 290, 302, 526 P.3d 267, 279 (2023). Where a
good faith purchaser has taken title to the property, the
mortgagor cannot elect to void a wrongful nonjudicial foreclosure
(which would return title and possession to the mortgagor); the
only available remedy is an action for damages. Delapinia, 150
Hawai#i at 104, 497 P.3d at 119. But a mortgagor can elect to
void a wrongful nonjudicial foreclosure and regain title and
possession if the mortgagee purchased the property because the
mortgagee doesn't "free itself from the underlying dispute to
which it is a party." Wilmington Sav. Fund Soc'y v. Domingo, 155
Hawai#i 1, 10, 556 P.3d 347, 356 (2024). BNYM's argument is
contrary to the law.
BNYM presented no evidence that either of its
mortgagors elected to void the nonjudicial foreclosure. Rather,
the record shows the Abaloses vacated the property, which had
apparently remained vacant for ten years. On this record, BNYM

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failed to sustain its burden of producing evidence to support its
claims for declaratory relief and rescission of the nonjudicial
foreclosure. Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198. The
Circuit Court erred by granting BNYM's motion for partial summary
judgment.
We need not address the AOAO's other points of error.
The February 15, 2023 Judgment is vacated. This case is remanded
for further proceedings consistent with this summary disposition
order.
DATED: Honolulu, Hawai#i, February 6, 2026.

On the briefs:
/s/ Karen T. Nakasone
R. Laree McGuire, Chief Judge
Dallas H. Walker,
for Defendant-Appellant /s/ Keith K. Hiraoka
Association of Apartment Associate Judge
Owners of Palm Villas II.
/s/ Clyde J. Wadsworth
Charles R. Prather, Associate Judge
Robin Miller,
Sun Young Park,
Jason L. Cotton,
Peter T. Stone,
for Plaintiff-Appellee
The Bank of New York Mellon.