Deutsche Bank National Trust Company v. Brown

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2025
07:59 AM
Dkt. 94 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

DEUTSCHE BANK NATIONAL TRUST COMPANY as
Trustee for RESIDENTIAL ASSET SECURITIZATION
TRUST Series 2004-A9 MORTGAGE PASS-THROUGH
CERTIFICATES Series 2004-I, Plaintiff-Appellee,
v.
DIANA G. BROWN; D. MICHAEL DUNNE, successor trustee of THE
REVOCABLE LIVING TRUST OF HAROLD G. STRAND and MARGARET M.
STRAND; JERRY IVY; OMNI FINANCIAL, INC.; CITIBANK (SOUTH
DAKOTA), N.A., Defendants-Appellees,
and
THE ASSOCIATION OF OWNERS OF THE KUMULANI AT THE UPLANDS AT
MAUNA KEA, an unincorporated association, Defendant-Appellant,
and
JOHN DOES 1-50; DOE ENTITIES 1-50, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC11100410K)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant The Association of Owners of the

Kumulani at the Uplands at Mauna Kea (the AOAO) appeals from the

"Order Granting in Part and Denying in Part Defendant[-Appellee]

Diana G. Brown's [(Brown)] Motion to Dismiss Plaintiff's
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Complaint Filed on September 23, 2011 Pursuant to [Hawaiʻi Rules

of Civil Procedure (HRCP)] Rule 41(a)(2)" (Order), filed on

November 5, 2021 by the Circuit Court of the Third Circuit

(Circuit Court).1

I. BACKGROUND

This appeal arises out of a foreclosure complaint (the

Complaint) brought by OneWest Bank, F.S.B. (OneWest Bank), on

September 23, 2011, against the AOAO and Brown, among others.

The Complaint alleged that Brown had defaulted on a $548,000

note and mortgage assigned to OneWest Bank that covered Brown's

interest in the Property.

The AOAO filed its Answer to the Complaint on

October 21, 2011, in which it asserted, as its Third Affirmative

Defense,

5. Hawaii Revised Statutes § 514B-146(a) gives to
[the AOAO] a lien for all sums assessed but unpaid for the
share of common expenses chargeable to the subject
[P]roperty. This lien is superior and has priority over
all other liens except for liens for taxes and assessments
lawfully imposed by governmental authority against the
subject [P]roperty and all sums unpaid on any mortgage of
record that was recorded prior to the recordation of a
Notice of Lien by [the AOAO]. [The AOAO's] Notice of Lien
was recorded on January 28, 2008.

The AOAO did not serve Brown with its Answer, nor did it file

its own foreclosure complaint.

1 The Honorable Wendy M. DeWeese presided.

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In July 2013, OneWest Bank moved, inter alia, for

summary judgment against the AOAO, and for an order for an

interlocutory decree of foreclosure. The Circuit Court granted

the motion, and entered judgment and Findings of Fact (FOF) and

Conclusions of Law (COL) in favor of OneWest Bank. The Circuit

Court foreclosed on the mortgage, appointed a commissioner to

take possession of the Property and to sell it, and reserved

jurisdiction to determine the party or parties to whom any

surplus shall be awarded.

Two public auctions were held. At the first auction,

in August 2014, the Property was sold to a third-party buyer for

$50,000 subject to confirmation by the Circuit Court. The

Circuit Court granted OneWest Bank's motion to re-open bidding,

and a second auction was held. The Property this time was sold

to OneWest Bank, as the highest bidder, for $815,098.42, and

that sale was confirmed by the Circuit Court. The Circuit Court

ordered OneWest Bank to close on the sale within 35 days from

the filing of the confirmation order – i.e., by April 10, 2015.2

OneWest Bank failed to comply with the Circuit Court's

deadline for closing the sale, and the AOAO filed a motion

2 The Circuit Court ordered that, upon closing, the proceeds of the
Property would be paid in the following order: (1) $2,062,24 to the
Commissioner for services and expenses of the sale; (2) $581,972.26 to the
Plaintiff in satisfaction of Plaintiff's debt; (3) $116,011.95 to the AOAO
for outstanding maintenance fees, master dues, and associated legal fees;(4)
the remainder of the proceeds of sale and rental to the escrow for closing of
the sale; and (5) any amount remaining in escrow after closing of the sale to
Brown.

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requesting that OneWest Bank be ordered to pay damages to the

AOAO. OneWest Bank in turn moved the Circuit Court, inter alia,

to vacate the order confirming the sale of the Property to

OneWest Bank, and to instruct the commissioner to conduct a new

auction. The AOAO and Brown opposed OneWest Bank's motion. The

Circuit Court entered orders denying OneWest Bank's motion and

awarded damages to the AOAO.

OneWest Bank appealed. On appeal, this court vacated

the Circuit Court's award of damages to the AOAO, concluding

that the issue of OneWest Bank's liability for damages was not

properly before the Circuit Court. On certiorari, the Hawaiʻi

Supreme Court (Supreme Court) held that, while "[t]he [C]ircuit

[C]ourt was acting within its discretion when it held OneWest

[Bank] liable for its failure to close the foreclosure sale by

the court-ordered deadline," the Circuit Court abused its

discretion in awarding damages to the AOAO. OneWest Bank,

F.S.B. v. Ass'n of Owners of Kumulani at Uplands at Mauna Kea,

146 Hawaiʻi 105, 112, 456 P.3d 178, 185 (2020). The Supreme

Court explained that "it would not be appropriate to award . . .

damages to [the AOAO] based on Brown's underlying obligations to

[the AOAO] to which OneWest [Bank] was not a party, particularly

when OneWest [Bank] is the senior lienholder." Id. at 114, 456

P.3d at 187. The Supreme Court remanded to the Circuit Court

for further proceedings consistent with its opinion, i.e., "for

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proper disposition of the [forfeited] down payment amount,"

which was to be accomplished "by applying the amount to reduce

Brown's debt as a penalty for [OneWest Bank's] failure to close

the sale[.]" Id.

On remand, Deutsche Bank National Trust Company as

Trustee for Residential Asset Securitization Trust Series 2004-

A9 Mortgage Pass-Through Certificates Series 2004-I (Deutsche

Bank) was substituted as a party for OneWest Bank. The AOAO

moved the Circuit Court for relief, seeking, inter alia, for the

Circuit Court to reopen bidding, and to authorize the sale of

the Property to a named third-party bidder. Brown, joined by

Deutsche Bank, moved pursuant to HRCP Rule 41(a)(2) for

dismissal of the Complaint, on the basis that Brown paid the

mortgage in full.

The Circuit Court granted in part and denied in part

the AOAO's motion for relief. The Circuit Court ruled, inter

alia, that,

(3) [The AOAO's] request that the Mortgaged
Property be sold to James and Mitzi MacCallum for an amount
of $638,628.88 is denied.

(4) [The AOAO's] request that sales proceeds be
distributed as proposed in its Motion is denied without
prejudice insofar as the sales price for the Mortgaged
Property is not yet known and the Court has questions
regarding amounts owed to various parties.

(5) [Deutsche Bank's] lien of $581,972.26 shall be
[reduced by] $81,509.84 for a total lien amount of
$500,462.42 in accordance with the Hawaii Supreme Court
Opinion filed on January 9, 2020 in this matter.

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(6) [The AOAO's] request that its lien be set at
$218,085.27 as of April 1, 2020 is denied without prejudice
as the Court has questions regarding the amounts owed to
various parties and further litigation is necessary.

(7) [The AOAO's] request that [Deutsche Bank] be
ordered to pay $98,687.29 to [the AOAO] pursuant to the
order filed on January 13, 2015, which ordered [Deutsche
Bank] to pay the [AOAO's] fees and dues commencing
September 1, 2014 to the date of closing, is denied without
prejudice as further litigation is necessary.

. . . .

(9) The Mortgaged Property shall be sold at public
auction according to Paragraphs 4 through 14 on pages 7
through 11 of the [FOF and COL], . . . filed June 3, 2014.

(Emphasis added.)

The Circuit Court subsequently granted in part and

denied in part Brown's motion to dismiss the Complaint, and

provided in relevant part,

(a) [Deutsche Bank's] Complaint filed herein on
September 23, 2011 is dismissed without prejudice as to any
legal recourse the [AOAO] may have against [Deutsche Bank]
and/or [Brown] in connection with the [AOAO's] lien or any
unpaid assessments, which may be asserted in a separate
independent action.

The Circuit Court's Minute Order, which the Circuit

Court attached to and incorporated into its order dismissing the

Complaint, explained, among other things, that "[a]llowing Brown

to pay off her mortgage with [Deutsche] Bank and retain her

[P]roperty and requiring [the AOAO] to pursue its cause of

action independently of this case is the just and equitable

result under the facts and circumstances of this case.

Moreover, [the AOAO] cannot force [Deutsche] Bank to foreclose."

This appeal followed.

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II. POINTS OF ERROR

The AOAO raises three points of error on appeal,

contending that the Circuit Court erred in its conclusion that:

(1) the AOAO did not assert a cross-claim; (2) the AOAO did not

assert a counterclaim; and (3) it had jurisdiction and authority

to dismiss the case in violation of its prior orders.

Upon careful review of the record and relevant legal

authorities, and having given due consideration to the arguments

advanced and the issues raised by the parties, we resolve the

AOAO's contentions as follows:

(1) We address the AOAO's points of error out of order

to first resolve the question of whether the Circuit Court had

"jurisdiction and authority to dismiss the case." See Norris v.

Six Flags Theme Parks, Inc., 102 Hawaiʻi 203, 206, 74 P.3d 26, 29

(2003) (noting "[t]he United States Supreme Court has said that

jurisdiction generally must precede merits in dispositional

order.") (cleaned up). "The existence of jurisdiction is a

question of law [reviewed] de novo under the right/wrong

standard." Amantiad v. Odum, 90 Hawaiʻi 152, 158, 977 P.2d 160,

166 (1999) (citation omitted).

The record reflects that, following confirmation of

the sale of the Property to OneWest Bank at public auction,

OneWest Bank failed to close the sale. Further litigation

ensued. The Circuit Court, finding that OneWest Bank had

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defaulted on closing the sale, awarded damages to the AOAO. On

appeal, the Supreme Court held that, while it was within the

Circuit Court's discretion to order OneWest Bank to pay damages,

the damages should go towards a reduction of its lien against

Brown. The Supreme Court remanded the matter, instructing the

Circuit Court to "apply[] the [damages] amount to reduce Brown's

debt as a penalty for [OneWest Bank's] failure to close the

sale[.]" OneWest, 146 Hawaiʻi at 114, 456 P.3d at 187.

We conclude that, on remand, jurisdiction reverted to

the Circuit Court, which sat as a court of equity over this

foreclosure proceeding:

Foreclosure is an equitable action. Courts of equity
have the power to mold their decrees to conserve the
equities of the parties under the circumstances of the
case. A court sitting in equity in a foreclosure case has
the plenary power to fashion a decree to conform to the
equitable requirements of the situation. Whether and to
what extent relief should be granted rests within the sound
discretion of the court and will not be disturbed absent an
abuse of such discretion.

Peak Cap. Grp., LLC v. Perez, 141 Hawaiʻi 160, 172, 407 P.3d 116,

128 (2017) (cleaned up).

The Circuit Court had equitable authority to order

another public auction for the sale of the Property. It also

had authority to subsequently dismiss the Complaint upon Brown's

satisfaction of her mortgage obligations in full. At the time

it dismissed the Complaint, a third public auction was still

pending, and Brown could therefore exercise her "common-law

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right to cure [the] default." Santiago v. Tanaka, 137 Hawaiʻi

137, 156-57, 366 P.3d 612, 631-32 (2016) ("Because equity abhors

forfeitures, and regards and treats as done what ought to be

done, it is typical in foreclosure cases that a right to cure a

default and stop the foreclosure continues up to the day of the

confirmation of the sale." (cleaned up).

Therefore, the AOAO's jurisdictional argument lacks

merit.

(2) The AOAO contends, as its second and third points

of error, that the Circuit Court erred in granting the motion to

dismiss because the AOAO had a pending cross-claim and

counterclaim. A trial court's ruling on a motion to dismiss is

reviewed de novo, under the right/wrong standard. Wright v.

Home Depot U.S.A., Inc., 111 Hawaiʻi 401, 406, 142 P.3d 265, 270

(2006).

Irrespective of whether the AOAO had a cognizable

cross-claim and/or counterclaim, a point that is disputed by the

parties, the record reflects that there were no surplus proceeds

against which the AOAO could assert a cross-claim or

counterclaim following Brown's full satisfaction of her mortgage

obligations.

The decree of foreclosure in a mortgage foreclosure
action extinguishes the liens of junior lienors who are
parties. Defenses to the foreclosure complaint are
required to be pleaded by such junior lienor defendants and
are adjudicated by the decree of foreclosure. The claims of
such junior lienors to any surplus remaining after

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satisfaction of the senior mortgage, on the other hand, are
to be pleaded as pure cross claims pursuant to HRCP Rule
13(g). Unless there is a surplus after satisfying the
mortgage debt, these cross claims have only academic
significance.

Powers v. Ellis, 56 Haw. 587, 588, 545 P.2d 1173, 1174 (1976)

(cleaned up) (emphasis added).

The Circuit Court was therefore not wrong in

concluding that the AOAO "claimed a right to 'any surplus of the

proceeds.' . . . So, even if a valid claim had been asserted by

[the AOAO] sufficient to argue against dismissal, . . . there

are no surplus proceeds against which such a hypothetical claim

could be asserted in this matter."

Therefore, we conclude that the Circuit Court did not

err in granting Brown's motion to dismiss.

III. CONCLUSION

For the foregoing reasons, we affirm the Circuit

Court's Order.

DATED: Honolulu, Hawaiʻi, January 30, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Kristi L. Arakaki,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Charles R. Prather,
for Plaintiff-Appellee. /s/ Kimberly T. Guidry
Associate Judge
Keith M. Kiuchi,
for Defendant-Appellee.

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