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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-MAY-2026
08:05 AM
Dkt. 241 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE
REGISTERED HOLDER OF ASSET-BACKED SECURITIES CORPORATION
HOME EQUITY LOAN TRUST 2004-HE7 ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2004-HE7,
Plaintiff/Crossclaim Defendant-Appellee, v.
MARCUS PONO LAKE,
Defendant/Crossclaimant/Third-Party Plaintiff-Appellee, and
MARSHALL D. CHINEN, AS SUCCESSOR SPECIAL ADMINISTRATOR OF THE
ESTATE OF VIOLA LAKE FAO, fka VIOLA INNOCENCIA FAO;
MILILANI TOWN ASSOCIATION, Defendants-Appellees, and
LANIKUHANA PATIO HOMES,
Defendant/Crossclaim Defendant-Appellee, and
1326 KEEAUMOKU, LLC,
Defendant/Crossclaim Defendant/Crossclaimant-Appellant, and
STEPHEN W. FISCHER, INDIVIDUALLY AND AS TRUSTEE FOR THE
STEPHEN W. FISCHER REVOCABLE TRUST;
REALTY PROFESSIONALS, LLC, A HAWAII LIMITED LIABILITY COMPANY;
JRS HUI, LLC, A HAWAII LIMITED LIABILITY COMPANY,
Third-Party Defendants/Crossclaimants-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
(CIVIL NO. 1CC151001975)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Wadsworth, JJ.)
This appeal arises out of a foreclosure proceeding

brought by Plaintiff/Crossclaim Defendant-Appellee U.S. Bank

National Association as Trustee for the Registered Holder of

Asset Backed Securities Corporation Home Equity Loan Trust 2004-
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

HE7 Asset Backed Pass-Through Certificates, Series 2004-HE7 (U.S.

Bank).

Defendant/Crossclaim Defendant/Crossclaimant-Appellant

1326 Keeaumoku LLC (1326 Keeaumoku) does not seek relief from the

July 26, 2021 interlocutory decree of foreclosure and related

Hawai i Rules of Civil Procedure (HRCP) Rule 54(b) judgment in

favor of U.S. Bank, the confirmation of the sale of the subject

property (Property), or the purchaser's immediate and exclusive

possession of the Property. 1326 Keeaumoku is not seeking title.

Rather, 1326 Keeaumoku seeks relief from eight orders ruling on

motions in limine for a trial scheduled on the parties' remaining

claims, which was later cancelled, and five orders regarding the

distribution of the surplus proceeds from the foreclosure sale,

entered by the Circuit Court of the First Circuit (Circuit

Court):1 (1-6) the April 11, 2022 orders denying 1326

Keeaumoku's motions in limine Nos. 6, 5, 4, 3, 2, 1; (7-8) the

April 11, 2022 orders denying Defendant/Crossclaim Defendant-

Appellee Lanikuhana Patio Homes' (Lanikuhana Homes) motions in

limine Nos. 11 and 9; (9) the May 16, 2023 Order Granting in Part

and Denying in Part 1326 Keeaumoku LLC's Motion for Confirmation

of Foreclosure Sale (1326 Keeaumoku Surplus Order); (10) the May

16, 2023 Order Partially Granting Plaintiff's Motion for Order

Confirming Foreclosure Sale, Approving Commissioner's Report,

Allowance of Commissioner's Fees, Attorney's Fees, Costs,

Directing Conveyance and for Writ of Ejectment (U.S. Bank Surplus

Order); (11) the August 1, 2023 Order Granting in Part and

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The Honorable Gary W.B. Chang presided.

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Denying in Part 1326 Keeaumoku LLC's Motion: 1) to Amend the

Minute Order Corresponding with Docket Number 842; or 2) for

Clarification; or 3) for Supersedeas Bond (Order for Supersedeas

Bond); (12) the September 18, 2023 Order Denying with Prejudice

1326 Keeaumoku's Motion for Reconsideration of the [1326

Keeaumoku Surplus Order] (Order Denying Reconsideration of 1326

Keeaumoku Surplus Order); and (13) the September 18, 2023 Order

Denying with Prejudice 1326 Keeaumoku's Motion for

Reconsideration of [U.S. Bank Surplus Order] (Order Denying

Reconsideration of U.S. Bank Surplus Order).

1326 Keeaumoku raises four points of error on appeal,

contending that the Circuit Court erred in: (1) the award of

surplus funds to Defendant/Crossclaimant/Third-Party

Plaintiff-Appellee Marcus Pono Lake (Lake) and Defendant-Appellee

Marshall D. Chinen, Successor Special Administrator of the Estate

of Viola Lake Fao FKA Viola Innocencia Fao (Fao or Estate of

Fao), for multiple reasons; (2) denying the motions for

reconsideration of the award of surplus funds because the

guidance provided in James B. Nutter & Co. v. Namahoe, 153

Hawai‘i 149, 528 P.3d 222 (2023), pertaining to the use of

equitable discretion, was new; (3) ruling on the motions in

limine; and (4) its determination of the amount of the

supersedeas bond.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the case law and statutes relevant to the issues raised and the

arguments advanced, we resolve 1326 Keeaumoku's points of error

as follows:

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(1) 1326 Keeaumoku contends that the Circuit Court

erred by awarding the surplus proceeds to Lake and the Estate of

Fao because 1326 Keeaumoku is the "owner" for the purpose of

distributing the "remainder of the proceeds" to the "owner of the

mortgaged property" under Hawaii Revised Statutes (HRS) § 667-10

(2016). 1326 Keeaumoku acknowledges that the Circuit Court "sits

in equity when they award surplus proceeds," and "is permitted to

depart from a literal interpretation of HRS § 667-10," but argues

that under HRS § 501-88 its "Certificate of Title provides

conclusive evidence that 1326 is the owner of the Property[.]"

"Mortgage foreclosure is a proceeding equitable in

nature and is thus governed by the rules of equity." Beneficial

Hawaii, Inc. v. Kida, 96 Hawai i 289, 312, 30 P.3d 895, 918

(2001). "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." Peak Cap. Grp., LLC v. Perez,

141 Hawai i 160, 172, 407 P.3d 116, 128 (2017) (internal

citations and quotation marks omitted).

HRS § 667-10 states in part that "[w]hen public sale is

made of the mortgaged property under this part, distribution of

the proceeds of the sale shall be as specified in section 667-3,

and the remainder of the proceeds, if any, shall be paid over to

the owner of the mortgaged property, after deducting the amount

of all claims and all expenses attending the same."

The U.S. Bank Surplus Order stated that "upon entry of

this Order" the $411,700 foreclosure sale proceeds and rent

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"shall be disbursed as follows": $7,673.08 for the commissioner;

$208,847.19 for U.S. Bank "inclusive of attorneys' fees and

costs, principal, and other charges"; and "[a]ny remaining funds

shall be distributed to Lake and the Estate of Fao, jointly and

severally."

At the hearing on the motions to confirm foreclosure

sale, the Circuit Court stated:
There is case law in Hawaii that speaks to the matter
of excess proceeds as being the subject of the equitable
jurisdiction of the Court, and when you couple that together
with the manner in which -- or the circumstances under which
1326 acquired its title, the Court does not find or conclude
that 1326 acquired its title by a -- an arm's length
transaction. It was a distressed foreclosure proceeding,
and the Court is unable to find that fair and reasonable
consideration was paid to the seller for the value of the
property.

And so for Mr. Lake and Ms. Fao to lose their title
because of a foreclosure proceeding that was not designed to
obtain a fair market value price is -- is hardly a fair
proceeding or manner in which to wrest title away from Mr.
Lake and Ms. Fao. So in applying this court's
interpretation of the statute, 667-10 speaks in terms of the
owner, not a owner, but the owner of the property being
entitled to the excess proceeds after the deduction or
payment of all of the expenses. It strikes the Court that
what that statute was intending to do is to allow the sale
of the property to take place, to have the mortgagee
reimbursed of its debt and expenses, and the remaining sums
to go to the owner. And the Court views the owner in that
context as referring to the original owner and not an
intervening owner that acquired title in a distressed
foreclosure proceeding.

In this case, the record demonstrates the following:

Lake and Fao owned a two-bedroom residential property, which is

part of an association managed by Lanikuhana Homes; Fao passed

away; Lanikuhana Homes commenced a non-judicial foreclosure for

unpaid maintenance fees of $16,102.24; Lake was not served with

the Lanikuhana Homes' February 4, 2014 Notice of Default and

Intention to Foreclose; Lanikuhana Homes published a Notice of

Association's Non-Judicial Foreclosure Under Power of Sale

(Notice of Sale), which stated it is foreclosing under HRS

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§§ 514B-146 (2006 & Supp. 2013) and 667-91 through 667-104 (Supp.

2012), and "there is a one year right of redemption subject to

any applicable tolling provided for in 50 U.S.C. 526(b)"; at the

public sale, 1326 Keeaumoku paid $35,000 for the Property, and

the record indicates the Property had a tax assessed value of

$260,000 as of February 20, 2014, and was sold in the underlying

judicial foreclosure for $410,000 in 2023; Lanikuhana Homes

conveyed the Property to 1326 Keeaumoku via quitclaim deed

recorded on September 9, 2014 (September 9, 2014 Quitclaim Deed);

on September 2, 2015, and within one year of the September 9,

2014 Quitclaim Deed, Lake exercised his right of redemption under

HRS § 667-92(f)(2) (Supp. 2012) by tendering payment for the

delinquency, which Lanikuhana Homes acknowledged as a timely

redemption. 1326 Keeaumoku declined to recognize Lake's

redemption.

Based on the record in this case, we conclude the

Circuit Court did not abuse its discretion by awarding the

surplus proceeds to Lake and the Estate of Fao. See Peak Cap.

Grp., 141 Hawai i at 172, 407 P.3d at 128 ("Whether and to what

extent relief should be granted rests within the sound discretion

of the [court sitting in equity in a foreclosure case] and will

not be disturbed absent an abuse of such discretion.").

In light of this disposition, it is unnecessary to

address 1326 Keeaumoku's argument that the Circuit Court erred by

awarding U.S. Bank $3,203.40 in accrued interest and "should have

examined the attorney's fees and costs" that accrued after

August 10, 2022, because this would purportedly impact the amount

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of surplus proceeds awarded to Lake and the Estate of Fao, which

the Circuit Court concluded 1326 Keeaumoku is not entitled to.

It is also unnecessary to address 1326 Keeaumoku's

argument that "it was improper to distribute the Surplus Proceeds

prior to the entry of judgment" because the Circuit Court has

since entered an April 17, 2026 judgment as to the U.S. Bank

Surplus Order and the 1326 Keeaumoku Surplus Order, which allows

this court to review the surplus orders.

(2) 1326 Keeaumoku challenges the denial of

reconsideration of the surplus orders, arguing that the Circuit

Court did not consider new authority concerning equitable relief

in foreclosure actions. We conclude that the Circuit Court did

not abuse its discretion because the motions for reconsideration

did not provide any new law or facts, and Namahoe presented an

application of the court's existing powers to grant equitable

relief in a wrongful foreclosure. See Namahoe, 153 Hawai‘i at

169, 528 P.3d at 242. Therefore, we conclude that the Circuit

Court did not err by denying 1326 Keeaumoku's motions for

reconsideration of the U.S. Bank Surplus Order and the 1326

Keeaumoku Surplus Order. See Kamaka v. Goodsill Anderson Quinn &

Stifel, 117 Hawai i 92, 104, 176 P.3d 91, 103 (2008) (stating
that "[r]econsideration is not a device to relitigate old matters

or to raise arguments or evidence that could and should have been

brought during the earlier proceeding").

(3) With respect to 1326 Keeaumoku's third point of

error, we conclude that this court lacks appellate jurisdiction

to review the eight orders ruling on motions in limine as the

April 17, 2026 Judgment did not enter final judgment as to any of

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these orders. See HRS § 641-1(a) (2016) (permitting civil

appeals only from "final judgments, orders, or decrees of circuit

and district courts . . . "); Bacon v. Karlin, 68 Haw. 648, 650,

727 P.2d 1127, 1129 (1986) (stating that when the court

"perceive[s] a jurisdictional defect in an appeal, [it] must, sua

sponte, dismiss that appeal").

(4) Finally, 1326 Keeaumoku contends that the Circuit

Court erred in its calculation of the supersedeas bond, pointing

to its separate motion to reduce the bond amount – which this

court denied – without further argument in the opening brief.

The Circuit Court calculated the $205,000 amount based

on $41,000 interest (10% of the $410,000 sale proceeds)

multiplied by 4 years for an appeal, plus "a fifth year" for

attorney's fees and costs. Also, although 1326 Keeaumoku

objected to that amount, it does not appear that 1326 Keeaumoku

suffered prejudice in complying with the Circuit Court's order

and deposited $205,000 on June 30, 2023 to stay the distribution

of the excess proceeds from escrow. While the Circuit Court

could have better articulated an estimate of attorney's fees and

costs on appeal, we nevertheless conclude that the Circuit Court

did not abuse its discretion in setting the supersedeas bond,

which protects the rights of appellees and did not discourage an

appeal by 1326 Keeaumoku. See Midkiff v. de Bisschop, 58 Haw.

546, 550, 574 P.2d 128, 131 (1978) ("The determination of the

amount of a supersedeas bond which will be sufficient to protect

the rights of an appellee is committed to the sound discretion of

the circuit court" and "the bond requirement may not be used to

discourage appeals."); Kelepolo v. Fernandez, 148 Hawai i 182,

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192, 468 P.3d 196, 206 (2020) (stating "when the judgment

determines the disposition of property--as in real actions or

actions to foreclose mortgages--a court should consider the

amount recoverable for the use and detention of the property, the

costs of the action, costs on appeal, interest, and damages for

delay when setting a supersedeas bond amount"). We conclude that

the Circuit Court did not err or abuse its discretion in the

Order for Supersedeas Bond.

For these reasons, the 1326 Keeaumoku Surplus Order,

U.S. Bank Surplus Order, Order for Supersedeas Bond, Order

Denying Reconsideration of 1326 Keeaumoku Surplus Order, Order

Denying Reconsideration of U.S. Bank Surplus Order, and the

April 17, 2026 Judgment are affirmed.

DATED: Honolulu, Hawai i, May 22, 2026.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Colin B. Sakumoto,
for Defendant/Crossclaim /s/ Katherine G. Leonard
Defendant/Crossclaimant- Associate Judge
Appellant 1326 Keeaumoku, LLC
/s/ Clyde J. Wadsworth
Charles R. Prather, Associate Judge
Vincent G. Kruse,
(TMLF Hawaii LLLC)
for Plaintiff/Crossclaim
Defendant-Appellee U.S. Bank
National Association, as
Trustee for the Registered
Holder of Asset-Backed
Securities Corporation Home
Equity Loan Trust 2004-HE7
Asset Backed Pass-Through
Certificates, Series 2004-HE7

Richard T. Forrester
(Forrester Legal LLLC)
for Defendant/Crossclaimant/
Third-Party Plaintiff-Appellee
Marcus Pono Lake