The Bank of New York Mellon v. Wilkins

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2023
08:00 AM
Dkt. 116 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK
AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC.,
ALTERNATIVE LOAN TRUST 2006-23CB MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2006-23CB, Plaintiff-Appellee, v.
DENNIS WILKINS; ANNA FETUAU WILKINS; BRANDON CRAIG KAWIKA
MASAYUKI KAMIKO; FAYELYN KUULEIALOHA KAMIKO,
Defendants-Appellants and
ASSOCIATION OF APARTMENT OWNERS OF THE ROYAL PALM AT
WAIPIO; THE ROYAL PALM AT WAIPIO; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., SOLELY AS NOMINEE FOR
COUNTRYWIDE HOME LOANS, INC.; STATE OF HAWAII
DEPARTMENT OF TAXATION, Defendants-Appellees, and
JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;
DOE CORPORATIONS 1-50 and DOE GOVERNMENTAL UNITS 2-50,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 08-1-2377)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)

Defendants-Appellants Dennis Wilkins, Anna Fetuau

Wilkins, Brandon Craig Kawika Masayuki Kamiko, and Fayelyn

Kuuleialoha Kamiko (Appellants) appeal from the February 12, 2019

Judgment (Judgment on Confirmation Order) entered by the Circuit
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Court of the First Circuit (Circuit Court).1 Appellants also

challenge the Findings of Fact, Conclusions of Law, and Order

Granting Plaintiff's Motion for Summary Judgment Against All

Defendants and for Interlocutory Decree of Foreclosure

(Foreclosure Decree) entered by the Circuit Court on June 22,

2018, as well as the Circuit Court's Order Confirming Foreclosure

Sale, Approving Commissioner's Report, Allowance of

Commissioner's Fees, Attorney's Fees, Costs, Directing Conveyance

(Confirmation Order) and for Writ of Ejectment (Writ of

Ejectment), entered on February 12, 2019. On June 22, 2018, the

Circuit Court entered a final judgment on the Foreclosure Decree

(Foreclosure Judgment).

It appears that Appellants seek to raise two related

points of error on appeal,2 contending that: (1) the Circuit

Court erred in entering the Foreclosure Decree; and (2)

Plaintiff-Appellee The Bank of New York Mellon, formerly known as

The Bank of New York as Trustee for the Certificateholders CWALT,

Inc., Alternative Loan Trust 2006-23CB Mortgage Pass Through

Certificates, Series 2006-23CB (BONY Mellon) failed to carry its

1
The Honorable Jeannette H. Castagnetti presided.
2
Appellants' points of error are not in compliance with Hawai #i
Rules of Appellate Procedure (HRAP) Rule 28(b)(4). "Points not presented in
accordance with HRAP Rule 28(b)(4) will be disregarded." Alvarez Fam. Tr. v.
Ass'n of Apartment Owners of Kaanapali Alii, 121 Hawai #i 474, 488, 221 P.3d
452, 466 (2009) (emphasis and brackets omitted). While noncompliance with
HRAP Rule 28(b)(4) may be sufficient to affirm a lower court's judgment, "we
endeavor to afford 'litigants the opportunity to have their cases heard on the
merits, where possible.'" Royce v. Plaza Home Mortg., Inc., No.
CAAP-XX-XXXXXXX, 2022 WL 17335413, *1 n.2 (Haw. App. Nov. 30, 2022) (SDO)
(quoting Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012)).

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

burden of proof to show that it had possession of the subject

note at the time that the foreclosure complaint was filed.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised, as well as the

relevant legal authorities, we address Appellants' arguments as

follows:

On July 24, 2019, this court entered an order stating,

inter alia:

[W]e have appellate jurisdiction over the instant
appeal for the limited purpose of reviewing the [Judgment on
Confirmation Order].

The [Judgment on Confirmation Order] is certified
under HRCP Rule 54(b) and appealable pursuant to HRS § 667-
51(a)(2), and the Appellants' March 11, 2019 notice of
appeal timely invoked our appellate jurisdiction to review
it under Rule 4(a)(1) of the Hawai#i Rules of Appellate
Procedure. [T]he Appellants' failure to seek timely
appellate review of the circuit court's earlier [Foreclosure
Judgment] on the [Foreclosure Decree] pursuant to HRS § 667-
51(a)(1) rendered that [Foreclosure Judgment] "final and
binding." Mortg. Elec. Registration Sys. Inc. v. Wise, 130
Hawai#i 11, 17, 304 P.3d 1192, 1198 (2013). Thereafter, "in
the context of proceedings to confirm the sale of foreclosed
property, the judgment of foreclosure has a preclusive
effect." Id. at 18, 390 P.3d at 1199. Under the doctrine
of res judicata, the failure of an aggrieved party to timely
appeal from a judgment on the decree of foreclosure pursuant
to HRS § 657-51(a)(1) precludes subsequent appellate review
of that judgment on the decree of foreclosure by way of an
appeal from a judgment on an order confirming the sale of
the foreclosed property. Id. at 17-18, 390 P.3d at 1198-99.
In the instant case, the Appellants' March 11, 2019 notice
of appeal designated the [Foreclosure Decree] as one of the
appealed documents, but the Appellants are nevertheless
precluded from appellate review of [Foreclosure Judgment]
and the related [Foreclosure Decree].

However, pursuant to HRS § 657-51(a)(2), the
Appellants are entitled to appellate review of [Judgment on
Confirmation Order].

As we previously stated, Appellants failed to timely

appeal from the Foreclosure Judgment and Foreclosure Decree, and

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the merits of the Foreclosure Decree are not reviewable in this

appeal. Wise, 130 Hawai#i at 17, 304 P.3d at 1198; see also Bank

of N.Y. Mellon v. R. Onaga, Inc., 140 Hawai#i 358, 368, 400 P.3d

559, 569 (2017) (holding that "[a]n appellant cannot challenge

the merits of a foreclosure decree in an appeal of an order

confirming sale[]" because "orders confirming sale are separately

appealable from the decree of foreclosure.") (brackets and

citation omitted); Royce, 2022 WL 17335413 at *2-4 (holding that

res judicata precluded self-represented plaintiffs from

challenging the foreclosure judgment after they did not timely

appeal the judgment).

Appellants' only arguments pertain to the entry of the

Foreclosure Decree; Appellants do not raise any arguments

challenging the Confirmation Order and/or the Judgment on

Confirmation Order.

Therefore, the Circuit Court's February 12, 2019

Judgment on Confirmation Order is affirmed.

DATED: Honolulu, Hawai#i, February 27, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Keoni K. Agard,
(HK Law Group, LLC), /s/ Karen T. Nakasone
for Defendants-Appellants. Associate Judge

Charles R. Prather, /s/ Sonja M.P. McCullen
Robin Miller, Associate Judge
Peter T. Stone,
for Plaintiff-Appellee.

4