Ewa Villages Owners Association v. Tautua

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAR-2025
08:14 AM
Dkt. 86 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

EWA VILLAGES OWNERS ASSOCIATION, by its Board of Directors,
Plaintiff/Counterclaim Defendant-Appellee,
v.
ROPATI JAMES TAUTUA; EMMA TUASIVI TAUTUA,
Defendants/Counterclaimants/Cross-claim Defendants-Appellants;
NATIONSTAR MORTGAGE LLC; ARROW FINANCIAL SERVICES, LLC,
Defendants/Cross-claim Defendants-Appellees; CITY AND COUNTY OF
HONOLULU, Defendant/Counterclaimant/Cross-claimant-Appellees;
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS
1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10;
DOE GOVERNMENTAL UNITS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)

Defendants/Counterclaimants/Cross-claim Defendants-

Appellants Ropati James Tautua and Emma Tuasivi Tautua (Tautuas)

appeal from the Findings of Fact (FOF), Conclusions of Law

(COL), and Order Granting Plaintiff Ewa Villages Owners
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Association's Motion for Summary Judgment and Interlocutory

Decree of Foreclosure, Filed on October 19, 2021 (Foreclosure

Decree), and the Judgment (Foreclosure Judgment) based on the

Foreclosure Decree, entered pursuant to Hawai‘i Rules of Civil

Procedure Rules 54(b) and 58, both filed on January 12, 2022 by

the Circuit Court of the First Circuit (circuit court).1

Plaintiff/Counterclaim Defendant-Appellee Ewa Villages

Owners Association (Ewa Villages) is a planned community

association organized under Hawaii Revised Statutes (HRS)

Chapter 421J, as well as the Declaration of Covenants,

Conditions and Restrictions of Ewa Villages Community, and the

Bylaws of Ewa Villages (collectively, the Project Documents).

The Tautuas own residential property in Ewa Beach, Hawai‘i

(Property) and, in accordance with HRS Chapter 421J and the

Project Documents, are obligated to pay association dues,

reimbursable repairs, late fees, attorneys' fees and costs, and

other assessments to Ewa Villages. The Tautuas owed past-due

assessments to Ewa Villages, and Ewa Villages filed the February

2019 Notice of Default and Lien on the Property (2019 Lien) in

the Land Court of the State of Hawai‛i.

Ewa Villages filed its "Complaint for Foreclosure"

(Complaint) in November 2020, and its Motion for Summary

1 The Honorable Jeannette H. Castagnetti presided.

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Judgment and Interlocutory Decree of Foreclosure (Motion) in

October 2021. The circuit court granted Ewa Villages' Motion,

finding no genuine issue of material fact that there are sums

"due and owing" by the Tautuas to Ewa Villages, but reserved

ruling as to the specific amounts. The circuit court ruled that

it would hold a further hearing to confirm the foreclosure sale,

at which "the amount of association dues, reimbursable repairs,

late fees, attorneys' fees and costs, and other assessments owed

by [the Tautuas] to [Ewa Villages]" would be determined. The

Tautuas appealed.

On appeal, the Tautuas contend that the circuit court

erred in granting summary judgment and the Foreclosure Decree.

We review the circuit court's grant of summary judgment de novo,

applying the following standard,

[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 that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the
effect of establishing or refuting one of the essential
elements of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light most
favorable to the non-moving party. In other words, we must
view all of the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion.

Ralston v. Yim, 129 Hawaiʻi 46, 55-56, 292 P.3d 1276, 1285-86

(2013) (citation omitted).

Upon careful review of the record and the briefs

submitted, and having given due consideration to the case law

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and authorities relevant to the arguments advanced, we resolve

the Tautuas' points of error as follows.2

(1) The Tautuas first contend that the circuit court

erred in entering summary judgment in Ewa Villages' favor, and

granting the Foreclosure Decree, because Ewa Villages "NEVER

proved the amounts owed by the Tautuas as required by HRS § 667-

19(2), nor [were the amounts] even alleged."

We conclude that Ewa Villages satisfied its initial

burden on summary judgment. Ewa Villages submitted a ledger, as

exhibit 4 to their Motion and authenticated by declaration,

establishing the Tautuas' default.3 The record also reflects

2 The Tautuas set forth the following points of error:

1. The Circuit Court Erred in Granting [Ewa Villages'] Motion
for Summary Judgment Because: (A) [Ewa Villages] NEVER
proved the amounts owed by the Tautuas as required by HRS §
667-19(2) [(Supp. 2017)], nor was it even alleged, (B)
there was no valid lien that [Ewa Villages] could foreclose
upon as the 2019 [L]ien was filed BEFORE the Satisfaction
of Judgment was filed and AFTER the assessment for
reimbursable repairs, and (C) [Ewa Villages'] claimed
attorneys' fees were not reasonable.

2. The Circuit Court Erred in Making the [FOF] in Paragraphs
4, 5 and 7 of its Jan. 12, 2022 [FOF], [COL] and Order
. . . .

3. The Circuit Court Erred in Making the [COL] in Paragraphs C
and G of its Jan. 12, 2022 [FOF], [COL] and Order . . . .

3 The Tautua's reliance on Wells Fargo Bank, N.A. v. Fong, 149
Hawai‛i 249, 488 P.3d 1228 (2021) is misplaced. In Fong, the Hawaiʻi Supreme
Court found that there were genuine issues of material fact regarding default
where a bank's ledger showed conflicting evidence of whether the mortgagee
was current on all required payments at the alleged date of default. Id. at
253-54, 488 P.3d at 1232-33. Here, the Tautuas admitted to default, and they
do not demonstrate how the Ewa Villages' ledger purportedly shows the Tautuas
made payments to cover all unpaid assessments to their Ewa Villages' account.

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that the Tautuas acknowledged their default. At the hearing on

the Motion, the Tautuas' counsel did not contest that the

Tautuas owed "[$]7534.14" to Ewa Villages, arguing only that

"the question is how much more do [the Tautuas] owe and how does

that relate to the satisfaction of judgment."

The burden then shifted to the Tautuas, and the

Tautuas did not raise a genuine issue of material fact. The

Tautuas did not argue in the underlying proceedings that HRS

§ 667-19(2) requires Ewa Villages to prove a specific additional

amount owed, or that Ewa Villages failed to demand payment from

the Tautuas. Therefore, those arguments are waived on appeal.

See Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort

Co., 100 Hawai‘i 97, 107, 58 P.3d 608, 618 (2002) ("Legal issues

not raised in the trial court are ordinarily deemed waived on

appeal.").

Moreover, the Tautuas are appealing the entry of the

Foreclosure Decree,4 and "[t]he material inquiry relevant to a

4 It is axiomatic that "foreclosure cases are bifurcated into two
separately appealable parts." Bank of Am., N.A. v. Reyes-Toledo, 139 Hawai‛i
361, 372, 390 P.3d 1248, 1259 (2017) (cleaned up). "[T]he decree of
foreclosure and order of sale are appealable pursuant to HRS § 667-51(a)(1)
and (2)." Id. All other orders, including,

Orders confirming sale, deficiency judgments, orders
directing the distribution of proceeds, and other orders
issued subsequent to the decree of foreclosure are
separately appealable pursuant to HRS § 667-51(a)(2)-(3)
and therefore fall within the second part of the bifurcated
proceedings.

Id. at 372 & n.20, 390 P.3d at 1259 & n.20 (cleaned up).

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foreclosure decree is whether a default occurred, not the amount

owed." IndyMac Bank v. Miguel, 117 Hawai‘i 506, 520, 184 P.3d

821, 835 (App. 2008) (emphasis added).

Any challenge to the total amount of past-due

assessments owed is therefore premature. "Our law 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.'" HawaiiUSA Fed. Credit Union v. Monalim,

147 Hawai‘i 33, 49 n.22, 464 P.3d 821, 837 n.22 (2020) (quoting

Bank of Honolulu, N.A. v. Anderson, 3 Haw. App. 545, 549, 654

P.2d 1370, 1374 (App. 1982)). "This process does not require a

court to determine the [total] amount due on the mortgage before

granting a decree of foreclosure to the mortgagee." Id.

(2) The Tautuas next contend that the circuit court

erred in granting summary judgment because "there was no valid

lien that [Ewa Villages] could foreclose upon as the 2019 [L]ien

was filed BEFORE the Satisfaction of Judgment was filed and

AFTER the assessment for reimbursable repairs." The Tautuas

concede that the 2019 Lien is valid as to the stated amount of

$11,955.14, but dispute that it includes amounts incurred after

its date of recordation. The Tautuas appear to contend, on this

logic, that there is no valid lien for assessments accruing

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after the 2019 Lien's recordation, upon which Ewa Villages can

foreclose.

Ewa Villages demonstrated that the 2019 Lien, which

was attached as exhibit 7 to the Motion and authenticated by

declaration, is for "unpaid amounts assessed by [Ewa Villages]

as of February 1, 2019 and for all subsequent assessments,

including all costs, expenses, and attorneys' fees incurred by

or on behalf of [Ewa Villages] for collecting any delinquent

assessments against the Property." The 2019 Lien, therefore,

includes the "subsequent assessments" that the Tautuas accrued

after recordation of the lien.

Moreover, Ewa Villages established that it also has a

statutory lien for unpaid assessments. See HRS § 421J-10.5(a)

(Supp. 2012) (stating that "[a]ll sums assessed by the

association, but unpaid for the share of the assessments

chargeable to any unit, shall constitute a lien on the unit" and

further provides that the expiration of a recorded lien "shall

in no way affect the association's automatic lien that arises

pursuant to this subsection or the association documents.").

The circuit court, therefore, did not err in

concluding that there was no genuine issue of material fact

regarding the existence of a valid lien on the Property, against

which Ewa Villages could foreclose. We reiterate that, to the

extent the Tautuas contend there exists a genuine issue as to

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the precise amount owed to Ewa Villages, that challenge is

premature.

(3) The Tautuas lastly contend that Ewa Villages

"claimed attorneys' fees [that] were not reasonable." "The

trial court's grant or denial of attorneys' fees and costs is

reviewed under the abuse of discretion standard." Kamaka v.

Goodsill Anderson Quinn & Stifel, 117 Hawaiʻi 92, 105, 176 P.3d

91, 104 (2008) (cleaned up).

We determine that the circuit court did not abuse its

discretion in concluding that Ewa Villages is entitled to

reasonable attorneys' fees pursuant to HRS Chapter 421J. See

HRS § 421J-10(a) (2004) (stating that "[a]ll costs and expenses,

including reasonable attorneys' fees" for collecting any

delinquent assessments, foreclosing any lien, or enforcing any

provision of the association documents or HRS Chapter 421J

chapter "shall be promptly paid on demand to the association").

The Tautuas prematurely challenge the fee amount insofar as the

Foreclosure Decree states the circuit court reserved ruling on

"the amount of association dues, reimbursable repairs, late

fees, attorneys' fees and costs, and other assessments owed by

[the Tautuas]" until the confirmation of the foreclosure sale.

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For the reasons set forth above, the Foreclosure

Decree and Foreclosure Judgment are affirmed.

DATED: Honolulu, Hawaiʻi, March 28, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Keith M. Kiuchi,
for Defendants/ /s/ Keith K. Hiraoka
Counterclaimants/Cross-claim Associate Judge
Defendants-Appellants.
/s/ Kimberly T. Guidry
Bradford Chun, Associate Judge
for Plaintiff/Counterclaim
Defendant-Appellee.

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