Ewa Villagers Owners Association v. Tautua

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-JUN-2026
07:54 AM
Dkt. 65 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

EWA VILLAGES OWNERS ASSOCIATION, by its Board of Directors,
Plaintiff/Counterclaim Defendant-Appellee,
v.
ROPATI JAMES TAUTUA and EMMA TUASIVI TAUTUA,
Defendants/Counterclaimants/Cross-claim Defendants-Appellants,
and NATIONSTAR MORTGAGE LLC,
Defendant/Cross-claim Defendant-Appellee, and
ARROW FINANCIAL SERVICES, INC., Defendant-Appellee, and
CITY AND COUNTY OF HONOLULU,
Defendant/Counterclaimant/Cross-claimant-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. 1CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, McCullen and Guidry, JJ.)

Defendants/Counterclaimants/Cross-claim Defendants-

Appellants Ropati James Tautua and Emma Tuasivi Tautua

(together, the Tautuas) appeal from the Circuit Court of the

First Circuit's December 28, 2023 "Order Granting [Plaintiff/
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Counterclaim Defendant-Appellee Ewa Villages Owners

Association]'s Motion for an Order Confirming Foreclosure Sale,

Approving Commissioner's Report, Allowance of Commissioner's and

Attorneys' Fees and Costs, Distribution of Proceeds, Directing

Conveyance, for Writ of Ejectment, and for Deficiency Judgment,

Filed August 16, 2023" (Order Confirming Foreclosure Sale) and

Judgment. 1 (Formatting altered.)

On appeal, the Tautuas challenge the confirmation of

the foreclosure sale and the award of attorneys' fees and costs.

We affirm.

I. BACKGROUND

A. Factual Background

The background in this case has a long history. Ewa

Villages is a master-planned residential community located in

ʻEwa Beach, Oʻahu, Hawaiʻi. The City and County of Honolulu

developed Ewa Villages and created the Shared Appreciation or

Equity Program (SAE Program) to provide "safe, sanitary and

reasonably priced housing" to Hawaiʻi residents.

Under the SAE Program, prospective homebuyers would

purchase property in Ewa Villages for roughly seventy-five

percent of the original fair market value. 2 In exchange,

1 The Honorable Jeannette H. Castagnetti presided.

2 The Hawaiʻi Supreme Court considered a similar SAE lien in American
Savings Bank, F.S.B. v. Chan, 146 Hawaiʻi 94, 103, 456 P.3d 167, 176 (2020).

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homebuyers agreed to pay the City a twenty-five percent share of

the net appreciation of the property should they "be divested of

title or any interest in the [p]roperty, in any manner,

voluntarily or involuntarily, including a judicial or

nonjudicial foreclosure sale."

In 1996, as part of the SAE Program, the Tautuas

purchased a home on Tenney Street (the Property) for $185,900.00

— roughly seventy-five percent of the Property's original fair

market value of $247,000.00. 3

In 2000, the Tautuas submitted an application to the

Association's Design Review Committee to construct a six-foot-

high chain link and concrete block (otherwise referred to as a

concrete masonry unit or CMU) wall around the Property. The

Committee denied the Tautuas' application for failing to comport

with the Association's Design Standards and Declaration of

Covenants, Conditions, and Restrictions (DCCR). The Committee

explained that there was "no grade difference with adjacent

properties requiring a retaining wall" and such a wall would

"interfere with proper storm water drainage."

In 2007, the Tautuas executed a $408,000.00

adjustable-rate note secured by a mortgage on the Property with

3 The deed was recorded on June 7, 1996.

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Defendant/Cross-claim Defendant-Appellee Nationstar Mortgage

LLC, formerly known as Fremont Investment & Loan. 4

Sometime before February 2009, the Tautuas constructed

the wall. Between 2009 and 2013, the Association sent the

Tautuas nineteen violation notices regarding the wall, thirteen

of which informed the Tautuas that they were being assessed a

$200.00 fine. As of April 2015, the Association had fined the

Tautuas $2,600.00 for violating the Design Standards and DCCR,

all of which went unpaid.

B. Procedural Background

1. Wall Violation Complaint

In 2015, the Association filed a complaint seeking an

order compelling the Tautuas to bring the wall into compliance

with the Design Standards and DCCR and to pay the $2,600.00 in

unpaid fines. 5 The circuit court ordered the Tautuas to remove

all non-compliant portions of the wall, but should they fail to

do so, the circuit court authorized the Association to enter the

Property and remove all non-compliant portions of the wall at

the Tautuas' expense. The circuit court further entered a

$2,600.00 judgment against the Tautuas, representing the unpaid

4 The mortgage was recorded on January 16, 2007. The Tautuas were
current with their mortgage payments through June 2023.

5 The Honorable Karen T. Nakasone presided over the wall violation
complaint proceedings.

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fines owed to the Association, and awarded the Association

$8,256.91 in reasonable attorneys' fees and $729.40 in costs

(2015 Judgment). 6 Ultimately, the Tautuas paid the $2,600.00

judgment and attorneys' fees and costs.

But the Tautuas did not remove the non-compliant

portions of the wall. Pursuant to the 2015 Judgment, the

Association paid a contractor $7,853.40 to bring the wall into

compliance, with work beginning in mid-July 2020. The Tautuas

failed to reimburse the Association for the contractor costs.

2. Foreclosure Complaint and Appeal

In November 2020, the Association filed the underlying

foreclosure action to recover $18,949.96 in "outstanding

association dues, late fees, repair reimbursement, attorneys'

fees and costs, and other assessments," as well as additional

dues and fees being assessed until the delinquency was

satisfied.

The Association moved for summary judgment and an

interlocutory decree of foreclosure, arguing the Tautuas'

delinquency constituted a lien on which the Association could

6 The 2015 Judgment total was thus $11,586.31 = $2,600.00 + $8,256.91 +
$729.40.

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foreclose pursuant to Hawaiʻi Revised Statutes (HRS) § 421J-10.5

(Supp. 2014) and HRS § 667-1.5 (2016). 7

The circuit court granted the Association's motion,

determining that the amounts owed "constitute a valid lien on

the Property that may be foreclosed by" the Association pursuant

to HRS § 421J-10.5, and the proceeds of the foreclosure sale

could be applied to the amounts due. It instructed the

Association to provide the Tautuas "with a payoff amount so that

they may know what amount would be needed to be paid in order to

close this case." The circuit court appointed CJ Paet as

commissioner (Commissioner Paet).

7 HRS § 421J-10.5 provides in pertinent part:

§421J-10.5 Association fiscal matters; lien for
assessments. (a) All sums assessed by the association, but
unpaid for the share of the assessments chargeable to any
unit, shall constitute a lien on the unit. . . .

The lien of the association may be foreclosed by
action or by nonjudicial or power of sale foreclosure
procedures set forth in chapter 667, by the managing agent
or board, acting on behalf of the association and in the
name of the association[.]

HRS § 667-1.5 provides in pertinent part:

§667-1.5 Foreclosure by action. The circuit court
may assess the amount due upon a mortgage, whether of real
or personal property, without the intervention of a jury,
and shall render judgment for the amount awarded, and the
foreclosure of the mortgage. Execution may be issued on
the judgment, as ordered by the court.

"'Mortgage' means a mortgage, security agreement, or other document
under which property is mortgaged, encumbered, pledged, or otherwise
rendered subject to a lien for the purpose of securing the payment of
money or the performance of an obligation." HRS § 667-1 (2016).

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The Tautuas appealed; this court affirmed the circuit

court's foreclosure decree and foreclosure judgment in CAAP-22-

0000051. Ewa Vills. Owners Ass'n v. Tautua, 155 Hawaiʻi 471, 566

P.3d 375, No. CAAP-XX-XXXXXXX, 2025 WL 947852, at *4 (App.

Mar. 28, 2025) (SDO).

3. Confirmation of Sale and Appeal

Meanwhile, in December 2022, the Association moved the

circuit court for an order allowing the sale of the Property

without holding open houses, as the Tautuas refused to allow any

open house. The circuit court granted the motion.

After advertising the auction three times in the

Honolulu Star-Advertiser, Commissioner Paet received

approximately thirty-two inquiries. Then, in May 2023,

Commissioner Paet sold the Property to the Association, the sole

bidder, for $1.00. Commissioner Paet prepared and filed a

report (Commissioner's Report) and included the fact sheet (Fact

Sheet) regarding the Property.

The Fact Sheet indicated the Tautuas owed $11,955.14

to the Association as of February 1, 2019, and the Property

would be sold subject to Nationstar's mortgage interest and the

City's SAE lien. But, neither the Commissioner's Report nor the

Fact Sheet indicated the value of the senior liens held by

Nationstar and the City. The Fact Sheet indicated the

Property's assessed value for the 2023 tax year was $808,900.00.

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The Commissioner's Report stated the "bid price of $1.00 for the

subject property [was] fair and reasonable and recommend[ed]

that the Court confirm the sale."

In August 2023, the Association moved the circuit

court for an order confirming the foreclosure sale, which the

Tautuas opposed as "the amount of $1.00 [was] not fair and

reasonable" and the "Association [had] not shown the amounts

owed to Nationstar Mortgage LLC or the City & County of

Honolulu." In the Tautuas' opposition, they acknowledged the

mortgage "amount presently owed is in the mid $300,000.00s."

At a September 2023 hearing, the circuit court ordered

supplemental briefing on the Property's appraised value and the

senior lien values and continued the hearing to November 2023.

The Association's supplemental brief included three

attachments, the last of which was an appraisal report

(Appraisal Report) for the Property. According to the Appraisal

Report, the "[m]arket value assuming conventional sale" of the

Property was between $790,000.00 and $810,000.00. 8 As to the

senior liens on the Property, the Tautuas owed $362,398.02 on

8 The appraisers "were not able to inspect the interiors or confirm the
condition of the property," and instead viewed it from Tenney Street. "The
market value estimate assumes the property is in average condition for the
neighborhood, with no recent renovations, upgrades, or deferred maintenance."

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the mortgage, and the City's SAE lien was approximately

$190,635.02. 9 The two senior liens thus totaled $553,033.04.

The Appraisal Report asserted that the "effective

purchase price of $553,001 [was] fair and reasonable," given

(1) the substantial liens against the Property; (2) the "costs

to rehabilitate the property if the homeowners fail[ed] to

maintain the property during this time"; (3) the "potential for

future litigation, eviction costs, attorneys' fees, [and] a

drawn-out closing"; (4) the lack of interested bidders; and

(5) the Property's foreclosure value.

The Tautuas opposed the Association's supplemental

brief and again asked the circuit court "to determine whether

the bid price [was] so grossly inadequate as to shock the

conscience" and to reject the Association's $1.00 bid.

Because at least one bidder was interested in

reopening the auction, the circuit court reopened bidding.

Commissioner Paet reported the Association entered a new winning

bid of $15,000.00. After considering arguments, the circuit

court confirmed with Commissioner Paet that the new bid of

$15,000.00 was appropriate under the circumstances of this

9 The City determined its SAE lien based on the real property assessed
value as of September 30, 2023. The City explained it was "hoping for an
amicable resolution of this matter, so a Property appraisal was not
obtained."

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case. 10 Considering the senior liens on the Property, the

circuit court determined the "winning price or bid price to the

Association is not so grossly inadequate as to shock the

conscience under these facts and circumstances."

On December 28, 2023, the circuit court entered its

Order Confirming Foreclosure Sale, which, as relevant to this

appeal, found and concluded:

3. Bidding was reopened at the hearing on the
Motion, held on November 2, 2023. The winning bidder at
the reopened Commissioner's public sale was [the
Association] for the sum of FIFTEEN THOUSAND AND NO/100
DOLLARS ($15,000.00). The Court confirmed with the
Commissioner that the sale was legally made, fairly
conducted, and achieved a fair and reasonable price under
the circumstances.

. . . .

6. Pursuant to the Motion, as of August 9, 2023,
the amount owed by [the Tautuas] to [the Association],
excluding attorneys' fees and costs, but including the
Commissioner's fees and costs, was as follows:

Late Fees: $185.00
Reimbursable Repairs: $6,569.14
Commissioner's Fees & Costs: $4,744.07
Total: $11,498.21

. . . .

10 The circuit court also cautioned the parties that Hawaiʻi's appellate
courts may not look favorably upon such an atypical foreclosure case in which
the homeowners had not defaulted on their mortgage:

But I think what -- on the Association's side, as far
as what you need to consider is that whatever the outcome
is on the motion, this could be an appealable case up to
the higher courts and how they would view a case involving
not a homeowner who is delinquent in their monthly
assessments, but a homeowner who admittedly built something
that was nonconforming, the Association had to take care of
it, but they are current on their mortgage, and is this
something where the Association should be foreclosing on,
or is this something where the Association should just get
a personal monetary judgment against somebody like that.
I'm not saying one way or the other.

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8. [The Association]'s request for reasonable
legal fees and costs of $67,280.34 is granted.[ 11]

The circuit court then confirmed the sale and awarded attorneys'

fees and costs:

2. The sale of the Property to [the Association],
at the sale price of FIFTEEN THOUSAND AND NO/DOLLARS
($15,000.00), is hereby ratified, approved, and confirmed.
Such sale is "AS IS" and shall be without warranties.

. . . .

4. [The Association]'s Attorneys' Fees and Costs
in the amount of $67,280.34 are reasonable.

That same day, the circuit court entered its

December 28, 2023 Judgment. The Tautuas appealed.

II. DISCUSSION

On appeal, the Tautuas contend the circuit court erred

by (1) confirming the foreclosure sale because the bid price

shocks the conscience and (2) awarding attorneys' fees because

the amount was unreasonable. 12

11 Regarding the circuit court's calculations as to the total amount
owed by the Tautuas, it appears the circuit court reduced the amount for late
fees to $185.00 from the $195.00 requested in the Association's motion to
confirm the foreclosure sale. Further, as to the amount for reimbursable
repairs, it appears the circuit court adopted the $6,569.14 figure from the
Association's motion to confirm the foreclosure sale, rather than the
$7,853.40 figure from the contractor's invoice.

12 The Tautuas also contend that "the record is incomplete here,
because there is no admissible evidence of what was owed under the mortgage,
and whether the Association assumed the mortgage . . . and because the City
could not state the amount they were owed." However, the Tautuas do not
explain why the evidence they refer to was not admissible. Thus, we deem
this argument waived. See Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7)
("Points not argued may be deemed waived.").

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A. Circuit Court Did Not Abuse Its Discretion by Confirming
the Foreclosure Sale

The Tautuas challenge the foreclosure sale amount of

$15,000.00 as shocking the conscience.

"The lower court's authority to confirm a judicial

sale is a matter of equitable discretion." Hoge v. Kane, 4 Haw.

App. 533, 540, 670 P.2d 36, 40 (App. 1983). "In exercising its

discretion, the court should act in the interest of fairness and

prudence and with just regard for the rights of all concerned

and the stability of judicial sales." Id. (citing Kleeb v.

Kleeb, 316 N.W.2d 583, 586 (Neb. 1982)). "If the highest bid is

so grossly inadequate as to shock the conscience, the court

should refuse to confirm." Id. (citing Wodehouse v. Hawaiian

Tr. Co., 32 Haw. 835, 852 (Haw. Terr. 1933)).

Here, the Tautuas did not comply with the circuit

court's 2015 Judgment. In October 2015, the circuit court

ordered the Tautuas to remove all non-compliant portions of the

wall within fourteen days. The Tautuas did not. As a result,

the Association paid a contractor to remove the non-compliant

portions of the wall in 2020, about five years later. According

to the 2015 Judgment, the Tautuas were to reimburse the

Association for the contractor costs. The Tautuas did not.

Thus, as found by the circuit court at the time of the

foreclosure sale confirmation, the Tautuas owed the Association

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$11,498.21 for bringing the wall into compliance, Commissioner

Paet's fees and costs, and late fees.

Although there were many inquiries prior to the first

bidding, the Association was the only bidder. After reopening

the bidding, the Association was the top bidder at $15,000.00.

And the Tautuas do not allege in their opening brief any

mismanagement by Commissioner Paet that adversely affected the

auction sales price.

The sales price ($15,000.00) was subject to the

mortgage balance ($362,398.02) and the SAE lien ($190,635.02),

which all together totaled $568,033.04. Although evidence was

admitted that the market value of the Property (assuming a

conventional sale) was between $790,000.00 and $810,000.00, and

that the 2023 tax assessed value of the Property was

$808,900.00, the Hawaiʻi Supreme Court has stated that "the price

obtained at a foreclosure sale is often far below the fair

market value of the property as a result of the forced nature of

a foreclosure sale." HawaiiUSA Fed. Credit Union v. Monalim,

147 Hawaiʻi 33, 45, 464 P.3d 821, 833 (2020).

Further, the Tautuas hindered Commissioner Paet's

ability to market the Property by refusing to allow open houses.

See Ventures Tr. 2013-I-H-R by MCM Cap. Partners, LLC v. Laurin,

144 Hawaiʻi 432, 443 P.3d 124, Nos. CAAP-XX-XXXXXXX and CAAP-18-

0000032, 2019 WL 2609134, at *4 (App. June 26, 2019) (SDO)
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(explaining that the defendant "hindered the ability of the

commissioner to market the property" by refusing to schedule

open houses). And the Property's condition was unclear, because

the Tautuas did not allow the appraisers to inspect the

interior. Cf. id.

Considering the particular circumstances of this case

— the Tautuas' refusal to comply with the 2015 Judgment, refusal

to hold an open house, refusal to allow an inspection of the

Property — and the forced nature of a foreclosure sale, we

cannot say that the sale price subject to the mortgage and the

SAE lien shocks the conscience. See Hoge, 4 Haw. App. at 540,

670 P.2d at 40.

Thus, the circuit court did not abuse its discretion

by confirming the foreclosure sale price.

B. Circuit Court Did Not Abuse Its Discretion by Awarding
Attorneys' Fees and Costs

Next, the Tautuas challenge the circuit court's award

of $67,280.34 in attorneys' fees and costs as unreasonable

"given the amount that [the Association] sought to collect,

which was only $11,508.21." 13 Otherwise, the Tautuas do not

challenge the billing or lodestar method. In other words, the

13 The Tautuas appear to base the $11,508.21 figure on the amount the
Association said it was owed in its motion to confirm the foreclosure sale.
As mentioned above, the December 28, 2023 Order Confirming Foreclosure Sale
indicated the amount the Tautuas owed was $11,498.21, a difference of ten
dollars.

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Tautuas appear to argue that it is inherently unreasonable to

charge so much in attorneys' fees when the collection amount

"was only $11,508.21."

We review the circuit court's award of attorneys' fees

for an abuse of discretion. Chun v. Bd. of Trs. of Emps.' Ret.

Sys., 106 Hawaiʻi 416, 431, 106 P.3d 339, 354 (2005) (citing

Eastman v. McGowan, 86 Hawaiʻi 21, 27, 946 P.2d 1317, 1323

(1997)).

HRS § 421J-10 (2004) entitles planned community

associations organized under HRS Chapter 421J to "[a]ll costs

and expenses, including reasonable attorneys' fees, incurred by

or on behalf of the association" related to an enforcement

action:

[§421J-10] Attorneys' fees and expenses of
enforcement. (a) All costs and expenses, including
reasonable attorneys' fees, incurred by or on behalf of the
association for:

(1) Collecting any delinquent assessments against
any unit or the owner of any unit;

(2) Foreclosing any lien on any unit; or

(3) Enforcing any provision of the association
documents or this chapter;

against a member, occupant, tenant, employee of a member,
or any other person who in any manner may use the property,
shall be promptly paid on demand to the association by such
person or persons; provided that if the association is not
the prevailing party, all costs and expenses, including
reasonable attorneys' fees, incurred by any such person or
persons as a result of the action of the association, shall

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be promptly paid on demand to the person by the
association. The reasonableness of any attorney's fees
paid by a person or by an association as a result of an
action pursuant to paragraph (2) shall be determined by the
court.

(Emphasis added.) The statute tasks the court with determining

the "reasonableness of any attorney's fees paid by a person

. . . as a result of an action" to "[f]oreclos[e] any lien on

any unit[.]" HRS § 421J-10(a).

Based on noncompliance with the 2015 Judgment, the

Association filed its foreclosure complaint in November 2020 to

recover $18,949.96 in "outstanding association dues, late fees,

repair reimbursement, attorneys' fees and costs, and other

assessments." By the end of the circuit court proceedings three

years later in December 2023, the attorneys' fees and costs were

$67,280.34.

The Tautuas do not claim any of the fees or costs were

unreasonable beyond saying they exceed the "collection amount."

See Chun, 106 Hawaiʻi at 431, 106 P.3d at 354. And we decline to

find abuse based solely on the attorneys' fees and costs

exceeding the "collection amount," as HRS § 421J-10 allows for

"all" reasonable attorneys' fees. See id.

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Thus, the circuit court did not abuse its discretion

by awarding attorneys' fees and costs.

III. CONCLUSION

Based on the foregoing, we affirm the circuit court's

December 28, 2023 Order Confirming Foreclosure Sale and

Judgment.

DATED: Honolulu, Hawaiʻi, June 18, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Keith M. Kiuchi,
for /s/ Sonja M.P. McCullen
Defendants/Counterclaimants/ Associate Judge
Cross-claim Defendants-
Appellants. /s/ Kimberly T. Guidry
Associate Judge
Michele-Lynn E. Luke,
Saori Takahashi,
(Kessner Umebayashi Bain &
Matsunaga),
Mark K. McKellar,
for Plaintiff/Counterclaim
Defendant-Appellee.

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-JUN-2026
07:54 AM
Dkt. 65 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

EWA VILLAGES OWNERS ASSOCIATION, by its Board of Directors,
Plaintiff/Counterclaim Defendant-Appellee,
v.
ROPATI JAMES TAUTUA and EMMA TUASIVI TAUTUA,
Defendants/Counterclaimants/Cross-claim Defendants-Appellants,
and NATIONSTAR MORTGAGE LLC,
Defendant/Cross-claim Defendant-Appellee, and
ARROW FINANCIAL SERVICES, INC., Defendant-Appellee, and
CITY AND COUNTY OF HONOLULU,
Defendant/Counterclaimant/Cross-claimant-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. 1CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, McCullen and Guidry, JJ.)

Defendants/Counterclaimants/Cross-claim Defendants-

Appellants Ropati James Tautua and Emma Tuasivi Tautua

(together, the Tautuas) appeal from the Circuit Court of the

First Circuit's December 28, 2023 "Order Granting [Plaintiff/
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Counterclaim Defendant-Appellee Ewa Villages Owners

Association]'s Motion for an Order Confirming Foreclosure Sale,

Approving Commissioner's Report, Allowance of Commissioner's and

Attorneys' Fees and Costs, Distribution of Proceeds, Directing

Conveyance, for Writ of Ejectment, and for Deficiency Judgment,

Filed August 16, 2023" (Order Confirming Foreclosure Sale) and

Judgment. 1 (Formatting altered.)

On appeal, the Tautuas challenge the confirmation of

the foreclosure sale and the award of attorneys' fees and costs.

We affirm.

I. BACKGROUND

A. Factual Background

The background in this case has a long history. Ewa

Villages is a master-planned residential community located in

ʻEwa Beach, Oʻahu, Hawaiʻi. The City and County of Honolulu

developed Ewa Villages and created the Shared Appreciation or

Equity Program (SAE Program) to provide "safe, sanitary and

reasonably priced housing" to Hawaiʻi residents.

Under the SAE Program, prospective homebuyers would

purchase property in Ewa Villages for roughly seventy-five

percent of the original fair market value. 2 In exchange,

1 The Honorable Jeannette H. Castagnetti presided.

2 The Hawaiʻi Supreme Court considered a similar SAE lien in American
Savings Bank, F.S.B. v. Chan, 146 Hawaiʻi 94, 103, 456 P.3d 167, 176 (2020).

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homebuyers agreed to pay the City a twenty-five percent share of

the net appreciation of the property should they "be divested of

title or any interest in the [p]roperty, in any manner,

voluntarily or involuntarily, including a judicial or

nonjudicial foreclosure sale."

In 1996, as part of the SAE Program, the Tautuas

purchased a home on Tenney Street (the Property) for $185,900.00

— roughly seventy-five percent of the Property's original fair

market value of $247,000.00. 3

In 2000, the Tautuas submitted an application to the

Association's Design Review Committee to construct a six-foot-

high chain link and concrete block (otherwise referred to as a

concrete masonry unit or CMU) wall around the Property. The

Committee denied the Tautuas' application for failing to comport

with the Association's Design Standards and Declaration of

Covenants, Conditions, and Restrictions (DCCR). The Committee

explained that there was "no grade difference with adjacent

properties requiring a retaining wall" and such a wall would

"interfere with proper storm water drainage."

In 2007, the Tautuas executed a $408,000.00

adjustable-rate note secured by a mortgage on the Property with

3 The deed was recorded on June 7, 1996.

3
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Defendant/Cross-claim Defendant-Appellee Nationstar Mortgage

LLC, formerly known as Fremont Investment & Loan. 4

Sometime before February 2009, the Tautuas constructed

the wall. Between 2009 and 2013, the Association sent the

Tautuas nineteen violation notices regarding the wall, thirteen

of which informed the Tautuas that they were being assessed a

$200.00 fine. As of April 2015, the Association had fined the

Tautuas $2,600.00 for violating the Design Standards and DCCR,

all of which went unpaid.

B. Procedural Background

1. Wall Violation Complaint

In 2015, the Association filed a complaint seeking an

order compelling the Tautuas to bring the wall into compliance

with the Design Standards and DCCR and to pay the $2,600.00 in

unpaid fines. 5 The circuit court ordered the Tautuas to remove

all non-compliant portions of the wall, but should they fail to

do so, the circuit court authorized the Association to enter the

Property and remove all non-compliant portions of the wall at

the Tautuas' expense. The circuit court further entered a

$2,600.00 judgment against the Tautuas, representing the unpaid

4 The mortgage was recorded on January 16, 2007. The Tautuas were
current with their mortgage payments through June 2023.

5 The Honorable Karen T. Nakasone presided over the wall violation
complaint proceedings.

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fines owed to the Association, and awarded the Association

$8,256.91 in reasonable attorneys' fees and $729.40 in costs

(2015 Judgment). 6 Ultimately, the Tautuas paid the $2,600.00

judgment and attorneys' fees and costs.

But the Tautuas did not remove the non-compliant

portions of the wall. Pursuant to the 2015 Judgment, the

Association paid a contractor $7,853.40 to bring the wall into

compliance, with work beginning in mid-July 2020. The Tautuas

failed to reimburse the Association for the contractor costs.

2. Foreclosure Complaint and Appeal

In November 2020, the Association filed the underlying

foreclosure action to recover $18,949.96 in "outstanding

association dues, late fees, repair reimbursement, attorneys'

fees and costs, and other assessments," as well as additional

dues and fees being assessed until the delinquency was

satisfied.

The Association moved for summary judgment and an

interlocutory decree of foreclosure, arguing the Tautuas'

delinquency constituted a lien on which the Association could

6 The 2015 Judgment total was thus $11,586.31 = $2,600.00 + $8,256.91 +
$729.40.

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foreclose pursuant to Hawaiʻi Revised Statutes (HRS) § 421J-10.5

(Supp. 2014) and HRS § 667-1.5 (2016). 7

The circuit court granted the Association's motion,

determining that the amounts owed "constitute a valid lien on

the Property that may be foreclosed by" the Association pursuant

to HRS § 421J-10.5, and the proceeds of the foreclosure sale

could be applied to the amounts due. It instructed the

Association to provide the Tautuas "with a payoff amount so that

they may know what amount would be needed to be paid in order to

close this case." The circuit court appointed CJ Paet as

commissioner (Commissioner Paet).

7 HRS § 421J-10.5 provides in pertinent part:

§421J-10.5 Association fiscal matters; lien for
assessments. (a) All sums assessed by the association, but
unpaid for the share of the assessments chargeable to any
unit, shall constitute a lien on the unit. . . .

The lien of the association may be foreclosed by
action or by nonjudicial or power of sale foreclosure
procedures set forth in chapter 667, by the managing agent
or board, acting on behalf of the association and in the
name of the association[.]

HRS § 667-1.5 provides in pertinent part:

§667-1.5 Foreclosure by action. The circuit court
may assess the amount due upon a mortgage, whether of real
or personal property, without the intervention of a jury,
and shall render judgment for the amount awarded, and the
foreclosure of the mortgage. Execution may be issued on
the judgment, as ordered by the court.

"'Mortgage' means a mortgage, security agreement, or other document
under which property is mortgaged, encumbered, pledged, or otherwise
rendered subject to a lien for the purpose of securing the payment of
money or the performance of an obligation." HRS § 667-1 (2016).

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The Tautuas appealed; this court affirmed the circuit

court's foreclosure decree and foreclosure judgment in CAAP-22-

0000051. Ewa Vills. Owners Ass'n v. Tautua, 155 Hawaiʻi 471, 566

P.3d 375, No. CAAP-XX-XXXXXXX, 2025 WL 947852, at *4 (App.

Mar. 28, 2025) (SDO).

3. Confirmation of Sale and Appeal

Meanwhile, in December 2022, the Association moved the

circuit court for an order allowing the sale of the Property

without holding open houses, as the Tautuas refused to allow any

open house. The circuit court granted the motion.

After advertising the auction three times in the

Honolulu Star-Advertiser, Commissioner Paet received

approximately thirty-two inquiries. Then, in May 2023,

Commissioner Paet sold the Property to the Association, the sole

bidder, for $1.00. Commissioner Paet prepared and filed a

report (Commissioner's Report) and included the fact sheet (Fact

Sheet) regarding the Property.

The Fact Sheet indicated the Tautuas owed $11,955.14

to the Association as of February 1, 2019, and the Property

would be sold subject to Nationstar's mortgage interest and the

City's SAE lien. But, neither the Commissioner's Report nor the

Fact Sheet indicated the value of the senior liens held by

Nationstar and the City. The Fact Sheet indicated the

Property's assessed value for the 2023 tax year was $808,900.00.

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The Commissioner's Report stated the "bid price of $1.00 for the

subject property [was] fair and reasonable and recommend[ed]

that the Court confirm the sale."

In August 2023, the Association moved the circuit

court for an order confirming the foreclosure sale, which the

Tautuas opposed as "the amount of $1.00 [was] not fair and

reasonable" and the "Association [had] not shown the amounts

owed to Nationstar Mortgage LLC or the City & County of

Honolulu." In the Tautuas' opposition, they acknowledged the

mortgage "amount presently owed is in the mid $300,000.00s."

At a September 2023 hearing, the circuit court ordered

supplemental briefing on the Property's appraised value and the

senior lien values and continued the hearing to November 2023.

The Association's supplemental brief included three

attachments, the last of which was an appraisal report

(Appraisal Report) for the Property. According to the Appraisal

Report, the "[m]arket value assuming conventional sale" of the

Property was between $790,000.00 and $810,000.00. 8 As to the

senior liens on the Property, the Tautuas owed $362,398.02 on

8 The appraisers "were not able to inspect the interiors or confirm the
condition of the property," and instead viewed it from Tenney Street. "The
market value estimate assumes the property is in average condition for the
neighborhood, with no recent renovations, upgrades, or deferred maintenance."

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the mortgage, and the City's SAE lien was approximately

$190,635.02. 9 The two senior liens thus totaled $553,033.04.

The Appraisal Report asserted that the "effective

purchase price of $553,001 [was] fair and reasonable," given

(1) the substantial liens against the Property; (2) the "costs

to rehabilitate the property if the homeowners fail[ed] to

maintain the property during this time"; (3) the "potential for

future litigation, eviction costs, attorneys' fees, [and] a

drawn-out closing"; (4) the lack of interested bidders; and

(5) the Property's foreclosure value.

The Tautuas opposed the Association's supplemental

brief and again asked the circuit court "to determine whether

the bid price [was] so grossly inadequate as to shock the

conscience" and to reject the Association's $1.00 bid.

Because at least one bidder was interested in

reopening the auction, the circuit court reopened bidding.

Commissioner Paet reported the Association entered a new winning

bid of $15,000.00. After considering arguments, the circuit

court confirmed with Commissioner Paet that the new bid of

$15,000.00 was appropriate under the circumstances of this

9 The City determined its SAE lien based on the real property assessed
value as of September 30, 2023. The City explained it was "hoping for an
amicable resolution of this matter, so a Property appraisal was not
obtained."

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case. 10 Considering the senior liens on the Property, the

circuit court determined the "winning price or bid price to the

Association is not so grossly inadequate as to shock the

conscience under these facts and circumstances."

On December 28, 2023, the circuit court entered its

Order Confirming Foreclosure Sale, which, as relevant to this

appeal, found and concluded:

3. Bidding was reopened at the hearing on the
Motion, held on November 2, 2023. The winning bidder at
the reopened Commissioner's public sale was [the
Association] for the sum of FIFTEEN THOUSAND AND NO/100
DOLLARS ($15,000.00). The Court confirmed with the
Commissioner that the sale was legally made, fairly
conducted, and achieved a fair and reasonable price under
the circumstances.

. . . .

6. Pursuant to the Motion, as of August 9, 2023,
the amount owed by [the Tautuas] to [the Association],
excluding attorneys' fees and costs, but including the
Commissioner's fees and costs, was as follows:

Late Fees: $185.00
Reimbursable Repairs: $6,569.14
Commissioner's Fees & Costs: $4,744.07
Total: $11,498.21

. . . .

10 The circuit court also cautioned the parties that Hawaiʻi's appellate
courts may not look favorably upon such an atypical foreclosure case in which
the homeowners had not defaulted on their mortgage:

But I think what -- on the Association's side, as far
as what you need to consider is that whatever the outcome
is on the motion, this could be an appealable case up to
the higher courts and how they would view a case involving
not a homeowner who is delinquent in their monthly
assessments, but a homeowner who admittedly built something
that was nonconforming, the Association had to take care of
it, but they are current on their mortgage, and is this
something where the Association should be foreclosing on,
or is this something where the Association should just get
a personal monetary judgment against somebody like that.
I'm not saying one way or the other.

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8. [The Association]'s request for reasonable
legal fees and costs of $67,280.34 is granted.[ 11]

The circuit court then confirmed the sale and awarded attorneys'

fees and costs:

2. The sale of the Property to [the Association],
at the sale price of FIFTEEN THOUSAND AND NO/DOLLARS
($15,000.00), is hereby ratified, approved, and confirmed.
Such sale is "AS IS" and shall be without warranties.

. . . .

4. [The Association]'s Attorneys' Fees and Costs
in the amount of $67,280.34 are reasonable.

That same day, the circuit court entered its

December 28, 2023 Judgment. The Tautuas appealed.

II. DISCUSSION

On appeal, the Tautuas contend the circuit court erred

by (1) confirming the foreclosure sale because the bid price

shocks the conscience and (2) awarding attorneys' fees because

the amount was unreasonable. 12

11 Regarding the circuit court's calculations as to the total amount
owed by the Tautuas, it appears the circuit court reduced the amount for late
fees to $185.00 from the $195.00 requested in the Association's motion to
confirm the foreclosure sale. Further, as to the amount for reimbursable
repairs, it appears the circuit court adopted the $6,569.14 figure from the
Association's motion to confirm the foreclosure sale, rather than the
$7,853.40 figure from the contractor's invoice.

12 The Tautuas also contend that "the record is incomplete here,
because there is no admissible evidence of what was owed under the mortgage,
and whether the Association assumed the mortgage . . . and because the City
could not state the amount they were owed." However, the Tautuas do not
explain why the evidence they refer to was not admissible. Thus, we deem
this argument waived. See Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7)
("Points not argued may be deemed waived.").

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A. Circuit Court Did Not Abuse Its Discretion by Confirming
the Foreclosure Sale

The Tautuas challenge the foreclosure sale amount of

$15,000.00 as shocking the conscience.

"The lower court's authority to confirm a judicial

sale is a matter of equitable discretion." Hoge v. Kane, 4 Haw.

App. 533, 540, 670 P.2d 36, 40 (App. 1983). "In exercising its

discretion, the court should act in the interest of fairness and

prudence and with just regard for the rights of all concerned

and the stability of judicial sales." Id. (citing Kleeb v.

Kleeb, 316 N.W.2d 583, 586 (Neb. 1982)). "If the highest bid is

so grossly inadequate as to shock the conscience, the court

should refuse to confirm." Id. (citing Wodehouse v. Hawaiian

Tr. Co., 32 Haw. 835, 852 (Haw. Terr. 1933)).

Here, the Tautuas did not comply with the circuit

court's 2015 Judgment. In October 2015, the circuit court

ordered the Tautuas to remove all non-compliant portions of the

wall within fourteen days. The Tautuas did not. As a result,

the Association paid a contractor to remove the non-compliant

portions of the wall in 2020, about five years later. According

to the 2015 Judgment, the Tautuas were to reimburse the

Association for the contractor costs. The Tautuas did not.

Thus, as found by the circuit court at the time of the

foreclosure sale confirmation, the Tautuas owed the Association

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$11,498.21 for bringing the wall into compliance, Commissioner

Paet's fees and costs, and late fees.

Although there were many inquiries prior to the first

bidding, the Association was the only bidder. After reopening

the bidding, the Association was the top bidder at $15,000.00.

And the Tautuas do not allege in their opening brief any

mismanagement by Commissioner Paet that adversely affected the

auction sales price.

The sales price ($15,000.00) was subject to the

mortgage balance ($362,398.02) and the SAE lien ($190,635.02),

which all together totaled $568,033.04. Although evidence was

admitted that the market value of the Property (assuming a

conventional sale) was between $790,000.00 and $810,000.00, and

that the 2023 tax assessed value of the Property was

$808,900.00, the Hawaiʻi Supreme Court has stated that "the price

obtained at a foreclosure sale is often far below the fair

market value of the property as a result of the forced nature of

a foreclosure sale." HawaiiUSA Fed. Credit Union v. Monalim,

147 Hawaiʻi 33, 45, 464 P.3d 821, 833 (2020).

Further, the Tautuas hindered Commissioner Paet's

ability to market the Property by refusing to allow open houses.

See Ventures Tr. 2013-I-H-R by MCM Cap. Partners, LLC v. Laurin,

144 Hawaiʻi 432, 443 P.3d 124, Nos. CAAP-XX-XXXXXXX and CAAP-18-

0000032, 2019 WL 2609134, at *4 (App. June 26, 2019) (SDO)
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(explaining that the defendant "hindered the ability of the

commissioner to market the property" by refusing to schedule

open houses). And the Property's condition was unclear, because

the Tautuas did not allow the appraisers to inspect the

interior. Cf. id.

Considering the particular circumstances of this case

— the Tautuas' refusal to comply with the 2015 Judgment, refusal

to hold an open house, refusal to allow an inspection of the

Property — and the forced nature of a foreclosure sale, we

cannot say that the sale price subject to the mortgage and the

SAE lien shocks the conscience. See Hoge, 4 Haw. App. at 540,

670 P.2d at 40.

Thus, the circuit court did not abuse its discretion

by confirming the foreclosure sale price.

B. Circuit Court Did Not Abuse Its Discretion by Awarding
Attorneys' Fees and Costs

Next, the Tautuas challenge the circuit court's award

of $67,280.34 in attorneys' fees and costs as unreasonable

"given the amount that [the Association] sought to collect,

which was only $11,508.21." 13 Otherwise, the Tautuas do not

challenge the billing or lodestar method. In other words, the

13 The Tautuas appear to base the $11,508.21 figure on the amount the
Association said it was owed in its motion to confirm the foreclosure sale.
As mentioned above, the December 28, 2023 Order Confirming Foreclosure Sale
indicated the amount the Tautuas owed was $11,498.21, a difference of ten
dollars.

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Tautuas appear to argue that it is inherently unreasonable to

charge so much in attorneys' fees when the collection amount

"was only $11,508.21."

We review the circuit court's award of attorneys' fees

for an abuse of discretion. Chun v. Bd. of Trs. of Emps.' Ret.

Sys., 106 Hawaiʻi 416, 431, 106 P.3d 339, 354 (2005) (citing

Eastman v. McGowan, 86 Hawaiʻi 21, 27, 946 P.2d 1317, 1323

(1997)).

HRS § 421J-10 (2004) entitles planned community

associations organized under HRS Chapter 421J to "[a]ll costs

and expenses, including reasonable attorneys' fees, incurred by

or on behalf of the association" related to an enforcement

action:

[§421J-10] Attorneys' fees and expenses of
enforcement. (a) All costs and expenses, including
reasonable attorneys' fees, incurred by or on behalf of the
association for:

(1) Collecting any delinquent assessments against
any unit or the owner of any unit;

(2) Foreclosing any lien on any unit; or

(3) Enforcing any provision of the association
documents or this chapter;

against a member, occupant, tenant, employee of a member,
or any other person who in any manner may use the property,
shall be promptly paid on demand to the association by such
person or persons; provided that if the association is not
the prevailing party, all costs and expenses, including
reasonable attorneys' fees, incurred by any such person or
persons as a result of the action of the association, shall

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be promptly paid on demand to the person by the
association. The reasonableness of any attorney's fees
paid by a person or by an association as a result of an
action pursuant to paragraph (2) shall be determined by the
court.

(Emphasis added.) The statute tasks the court with determining

the "reasonableness of any attorney's fees paid by a person

. . . as a result of an action" to "[f]oreclos[e] any lien on

any unit[.]" HRS § 421J-10(a).

Based on noncompliance with the 2015 Judgment, the

Association filed its foreclosure complaint in November 2020 to

recover $18,949.96 in "outstanding association dues, late fees,

repair reimbursement, attorneys' fees and costs, and other

assessments." By the end of the circuit court proceedings three

years later in December 2023, the attorneys' fees and costs were

$67,280.34.

The Tautuas do not claim any of the fees or costs were

unreasonable beyond saying they exceed the "collection amount."

See Chun, 106 Hawaiʻi at 431, 106 P.3d at 354. And we decline to

find abuse based solely on the attorneys' fees and costs

exceeding the "collection amount," as HRS § 421J-10 allows for

"all" reasonable attorneys' fees. See id.

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Thus, the circuit court did not abuse its discretion

by awarding attorneys' fees and costs.

III. CONCLUSION

Based on the foregoing, we affirm the circuit court's

December 28, 2023 Order Confirming Foreclosure Sale and

Judgment.

DATED: Honolulu, Hawaiʻi, June 18, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Keith M. Kiuchi,
for /s/ Sonja M.P. McCullen
Defendants/Counterclaimants/ Associate Judge
Cross-claim Defendants-
Appellants. /s/ Kimberly T. Guidry
Associate Judge
Michele-Lynn E. Luke,
Saori Takahashi,
(Kessner Umebayashi Bain &
Matsunaga),
Mark K. McKellar,
for Plaintiff/Counterclaim
Defendant-Appellee.

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