Saplan v. U.S. Bank National Association

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-APR-2023
07:52 AM
Dkt. 53 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

ROSALINDA GANIR SAPLAN and RECTO RAMOS SAPLAN,
Plaintiffs-Appellants, v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BAFC 2007-A,
Defendant-Appellee, and DOES 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC15-1-001465)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)

Plaintiffs-Appellants Rosalinda G. Saplan and Recto R.

Saplan (collectively Saplans) appeal from the Circuit Court of

the First Circuit's 1 October 23, 2017 order granting Defendant-

Appellee U.S. Bank National Association's (U.S. Bank) motion for

1 The Honorable Jeffrey P. Crabtree presided.
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summary judgment 2 and the October 23, 2017 Judgment. Based on

the discussion below, we affirm in part and vacate in part.

I. Background

In 2006, the Saplans and their son, Ricky Saplan

(Ricky) purchased a lot on Ho‘olana Place in Kona (the Property)

as tenants in common, each with an undivided 1/3 interest. The

Saplans and Ricky signed a promissory note for $475,200.00 with

National City Bank secured by a mortgage for the Property and,

at some point, defaulted on the note. In 2009, National City

Bank assigned the mortgage on the Property to U.S. Bank. A

short time later, Rosalinda wrote a letter to a negotiator at

National City Bank stating she no longer occupied the Property.

U.S. Bank, in its capacity as Trustee, later gave a

limited power of attorney to PNC Bank, National Association and

PNC Mortgage (PNC), which was recorded in the Bureau of

Conveyances on February 1, 2010. On January 5, 2011, PNC's

"Notice of Mortgagee's Intention to Foreclose under Power of

Sale" was recorded in the Bureau of Conveyances.

On March 10, 2011, PNC conducted a non-judicial

foreclosure sale where PNC bought the property for $288,000.00.

2 The October 23, 2017 order was entitled "Order Granting Defendant
U.S. Bank National Association, as Trustee for BAFC 2007-A's Motion for
Summary Judgment on Plaintiff Rosalinda Ganir Saplan and Recto Ramos Saplan's
Verified Complaint, Filed July 27, 2015."

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A "Mortgagee's Quitclaim Deed Pursuant to Power of Sale" was

recorded in the Bureau of Conveyances on July 22, 2011,

conveying the Property to U.S. Bank.

There is no evidence in the record on appeal that

shows the Saplans challenged the foreclosure sale.

A. 2011 Action - U.S. Bank's Complaint for Ejectment
in Circuit Court

In 2011, U.S. Bank filed a complaint in the Circuit

Court of the Third Circuit entitled "Complaint for Ejectment;

Exhibits '1' and '2'; Foreclosure Mediation Notice; Foreclosure

Mediation Request; Summons[.]"

The Saplans moved to dismiss the complaint, which the

circuit court denied.

In its pretrial statement, U.S. Bank asserted that the

"Mortgagee's Quitclaim Deed Pursuant to Power of Sale

transferring title of said real property to [U.S Bank] was

recorded in the Bureau of Conveyances" on July 22, 2011. U.S.

Bank also asserted that the Saplans, Luku Amone (Luku), and

Rehna Amone (Rehna) 3 were "still remaining on the property as

trespassers and/or uninvited guests and lessees."

On August 2, 2013, the circuit court entered an order

dismissing the case as to all parties "pursuant to Rule 12(q) of

3 Rehna is referred to as "Rahina" by U.S. Bank and the court in the
2011 case. In the 2015 case, she is referred to as "Rehna" by the Saplans
and U.S. Bank.

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the Rules of the Circuit Courts of the State of Hawai‘i [(RCCH)]

for failure to schedule a trial setting status conference" (2013

Order). 4 The caption of the dismissal order named as defendants

the Saplans, Riley Saplan (Riley), Rehna, Luku, and John and

Mary Does 1-10. The record does not show that the circuit court

entered a final judgment, or that Ricky was a named party.

B. 2014 Action - U.S. Bank's Complaint for Summary Possession
and Ejectment in District Court

About a year later, on April 24, 2014, U.S. Bank filed

a "Verified Complaint for Summary Possession and Ejectment" in

the District Court of the Third Circuit. The complaint named as

defendants the Saplans, Ricky, and John and Jane Does 1-50, and

alleged that the Saplans, Ricky, and others remained on the

property. U.S. Bank asserted the following claims:

Count 1 "Former Owners-Tenants at Sufferance" –
U.S. Bank alleged that the former owners
were "now occupying the Property under

4 Addressing dismissals for want of prosecution, RCCH Rule 12(q)
provided:

An action may be dismissed sua sponte with written notice
to the parties if a pretrial statement has not been filed
within 8 months after a complaint has been filed (or within
any further period of extension granted by the court) or if
a trial setting status conference has not been scheduled as
required by Rule 12(c). Such dismissal may be set aside
and the action reinstated by order of the court for good
cause shown upon motion duly filed not later than ten (10)
days from the date of the order of dismissal.

RCCH Rule 12(q).

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tenancy by sufferance pursuant to" Hawaii
Revised Statutes (HRS) § 667-33 (2016); 5

Count 2 "Tenants of Former Owner - Tenants at
Sufferance" – U.S. Bank alleged that
tenants of former owners rights to occupy
were terminated and they were liable for
payment for using the Property; and

Count 3 "Trespassers" – U.S. Bank alleged that
trespassers never had right to occupy the
Property and are liable for payment.

(Emphasis omitted.)

As it acknowledges in its answering brief, U.S. Bank

dismissed the Saplans from the 2014 Action on May 20, 2014.

Three months later, the district court entered a

judgment for possession stating U.S. Bank was entitled to the

property and a writ of possession would be issued pursuant to

HRS § 666-11 (Supp. 2013). 6 Both the judgment and the writ had

5 HRS § 667-33 addresses the process after sale of a property subject
to non-judicial foreclosure, and subsection (c) provides in relevant part:

The mortgagor and any person claiming by, through, or under
the mortgagor and who is remaining in possession of the
mortgaged property after the recordation of the affidavit
and the conveyance document shall be considered a tenant at
sufferance subject to eviction or ejectment. The purchaser
may bring an action in the nature of summary possession
under chapter 666, ejectment, or trespass or may bring any
other appropriate action in a court where the mortgaged
property is located to obtain a writ of possession, a writ
of assistance, or any other relief. . . .

6 HRS § 666-11 provides:

If it is proved to the satisfaction of the court that the
plaintiff is entitled to the possession of the premises,
the plaintiff shall have judgment for possession, and for
the plaintiff's costs. Execution shall issue accordingly.

(continued . . .)

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the Saplans' names crossed out. The writ of possession was

served on Ricky and Latasha Ortiz (Ortiz) on November 5, 2014

and filed on November 20, 2014, concluding the case.

U.S. Bank conveyed the property to a third party by a

special warranty deed recorded in the Bureau of Conveyances on

March 30, 2015.

C. 2015 Action - Saplans' Complaint in This Case
in Circuit Court

On July 27, 2015, the Saplans filed a Verified

Complaint, claiming the following:

Count 1 Quiet Title, alleging they were the true
owners of the Property;

Count 2 Ejectment, seeking a writ of ejectment
against U.S. Bank pursuant to HRS § 603-36
(1993);

Count 3 Trespass, alleging U.S. Bank "and/or its
agents or assignees remain[ed] on the
[P]roperty as trespassers";

Count 4 Fraud on the Court, alleging that U.S.
Bank "concealed from the Court when
securing its writ of possession in the
2014 Case that identical claims had
already been dismissed with prejudice in
the 2011 Case";

(. . . continued)

The writ of possession shall issue to the sheriff, deputy
sheriff, police officer, or independent civil process
server from the department of public safety's list under
section 353C-10, commanding the sheriff, deputy sheriff,
police officer, or independent civil process server to
remove all persons from the premises, and to put the
plaintiff, or the plaintiff's agent, into full possession
thereof.

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Count 5 Unjust Enrichment, asserting that they
were entitled to monetary compensation if
title could not be quieted due to transfer
"to a bona fide purchaser" and;

Count 6 Punitive Damages, asserting that U.S. Bank
was indifferent to their "finances,
health, and well-being[.]"

U.S. Bank moved for summary judgment arguing that

"(1) the Saplans' claims are barred by res judicata and the

doctrines of estoppel, laches and mootness, and judicial

estoppel; and (2) they cannot establish the necessary element of

title to the Property." (Emphasis omitted.)

The Saplans filed a memorandum in opposition

contending U.S. Bank itself was precluded by res judicata, the

2011 Action adjudicated title in their favor, they did not

unreasonably delay in filing the case, and U.S. Bank did not

indicate "any inconsistent position taken by" them.

Following a hearing, the circuit court granted U.S.

Bank's motion for summary judgment and entered the Judgment in

favor of U.S. Bank.

II. Standard of Review

We review the grant or denial of summary judgment de

novo. Nuuanu Valley Ass'n v. City & Cnty. of Honolulu, 119

Hawai‘i 90, 96, 194 P.3d 531, 537 (2008).

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III. Discussion

In their sole point of error on appeal, the Saplans

contend that the circuit court erred in granting U.S. Bank's

motion for summary judgment.

The movant for summary judgment bears the initial

burden of establishing entitlement to summary judgment. See

Ralston v. Yim, 129 Hawai‘i 46, 59-61, 292 P.3d 1276, 1289-91

(2013). A defendant moving for summary judgment "may satisfy

his or her initial burden of production by either (1) presenting

evidence negating an element of the [nonmovant's] claim, or

(2) demonstrating that the nonmovant will be unable to carry his

or her burden of proof at trial." 129 Hawai‘i at 60, 292 P.3d at

1290. In other words, the movant's "burden may be discharged by

demonstrating that if the case went to trial, there would be no

competent evidence to support a judgment for his or her

opponent." Kondaur Cap. Corp. v. Matsuyoshi, 136 Hawai‘i 227,

240, 361 P.3d 454, 467 (2015) (cleaned up).

"Only with the satisfaction of this initial showing

does the burden shift to the [non-moving] party to respond by

affidavits or as otherwise provided in [Hawai‘i Rules of Civil

Procedure (HRCP)] Rule 56, setting forth specific facts showing

that there is a genuine issue for trial." 136 Hawai‘i at 240-41,

361 P.3d at 467-68 (cleaned up).

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Evidence will be examined in the light most favorable

to the non-moving party. See Nuuanu Valley Ass'n, 119 Hawai‘i at

96, 194 P.3d at 537. "[S]ummary judgment should not be granted

unless the entire record shows a right to judgment with such

clarity as to leave no room for controversy and establishes

affirmatively that the adverse party cannot prevail under any

circumstances." Goran Pleho, LLC v. Lacy, 144 Hawai‘i 224, 236,

439 P.3d 176, 188 (2019) (citation omitted).

A. The Circuit Court Did Not Err In Granting Summary Judgment
On Count 4

Starting with Count 4 (Fraud on the Court) of the

complaint, the Saplans would have been required to establish by

"clear and convincing evidence" that U.S. Bank "acted with the

intent to defraud" the court, and the court was actually

"deceived by the fraud." See Schefke v. Reliable Collection

Agency, Ltd., 96 Hawai‘i 408, 431, 32 P.3d 52, 75 (2001); 47 Am.

Jur. 2d Judgments § 665 (2023); see also 47 Am. Jur. 2d

Judgments § 691 (2023) ("nondisclosures which are not part of a

deliberate scheme of misrepresentations fall short of the

standard needed to set aside a judgment for fraud upon the

court"). Under Hawai‘i case law, to rise to the level of fraud

on the court, the purported fraud "must be a direct assault on

the integrity of the judicial process," which requires "more

than nondisclosure by a party or the party's attorney to find

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fraud on the court." Schefke, 96 Hawai‘i at 431, 32 P.3d at 75

(citation and internal quotation marks omitted).

In its motion for summary judgment, U.S. Bank argued

that "there [was] nothing to indicate that the outcome of the

2011 Action was purposefully hidden from the Court. The 2011

Action is a matter of public record and nothing suggests that

[it] was required to disclose the prior action." U.S. Bank

additionally points out that the "Saplans knew about the 2011

Action yet failed to raise it."

To support its contention that the 2011 Action was a

matter of public record, U.S. Bank attached various documents

from the 2011 Action, including the Case Information sheet from

"http://hoohiki.courts.hawaii.gov" and three documents file

stamped by the clerk of the third circuit court - the order

denying the Saplans' motion to dismiss, U.S. Bank's pretrial

statement, and the order of dismissal.

As the burden then shifted to the Saplans, they

asserted that U.S. Bank "was absolutely precluded from filing

its second action in 2014, which was nothing short of a

fraudulent effort to remove Plaintiffs from their property,

. . . amounting to an adjudication on the merits in favor of

Plaintiffs herein." The Saplans provided no affidavits or

evidence to support their assertion.

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The party asserting claim preclusion must prove that

"(1) there was a final judgment on the merits, (2) both parties

are the same or in privity with the parties in the original

suit, and (3) the claim decided in the original suit is

identical with the one presented in the action in question."

Bremer v. Weeks, 104 Hawai‘i 43, 54, 85 P.3d 150, 161 (2004).

In both the 2011 Action and the 2014 Action, U.S. Bank

asserted "ejectment." And, although there was no final

judgment, the dismissal of the 2011 Action was an adjudication

on the merits in favor of the Saplans and against U.S. Bank.

RCCH Rule 12(q) (providing in part that "[a]n action may be

dismissed sua sponte with written notice to the parties . . . if

a trial setting status conference has not been scheduled as

required by Rule 12(c)"); Ryan v. Palmer, 130 Hawai‘i 321, 322,

310 P.3d 1022, 1023 (App. 2013) (amended on reconsideration in

part by Ryan v. Palmer, 130 Hawai‘i 301, 309 P.3d 969, No. CAAP-

XX-XXXXXXX (App. Sept. 12, 2013)) (explaining that because the

circuit court's order of dismissal based on RCCH 12(q) "did not

specify otherwise, the circuit court's dismissal was with

prejudice[,]" citing HRCP Rule 41(b)(3)) (providing that

"[u]nless the court in its order for dismissal otherwise

specifies, a dismissal under this subdivision and any dismissal

not provided for in this rule . . . operates as an adjudication

upon the merits").

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But, as the party asserting preclusion, the Saplans

failed to show that the parties in the 2014 Action were the same

as the parties in the 2011 Action. After the Saplans were

dismissed from the 2014 Action, the Judgment of Possession and

Writ of Judgment affected only Ricky and Ortiz, neither of whom

were parties to the 2011 Action.

In short, U.S. Bank's 2014 Action against Ricky and

Ortiz, when considered in light of its 2011 Action against the

Saplans, did not amount to fraud on the court. Thus, we cannot

say that the circuit court erred in granting U.S. Bank's motion

for summary judgment on Count 4. Ralston, 129 Hawai‘i at 60, 292

P.3d at 1290 ("For if no evidence could be mustered to sustain

the [non-moving] party's position, a trial would be useless").

B. The Circuit Court Erred In Granting Summary Judgment On The
Remaining Counts

1. U.S. Bank failed to establish that the Saplans were
precluded from asserting Counts 1-3

On appeal, the Saplans argue that they were not

precluded from filing the 2015 action as they were not parties

to the 2014 Action and were not in privity with Ricky and Ortiz.

To the contrary, U.S. Bank proffers that all three requirements

of claim preclusion were satisfied.

As the party asserting preclusion, U.S. Bank bore the

burden of establishing that there was a final judgment on the

merits, the parties are the same or in privity with those from

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the original action, and the claims are identical. Bremer, 104

Hawai‘i at 54, 85 P.3d at 161.

Here, both the 2014 Action and this case involved an

ejectment claim. But, although there was a final judgment in

the 2014 Action, there was no final judgment against the

Saplans. In other words, U.S. Bank failed to establish that the

parties in both actions were the same. U.S. Bank dismissed the

Saplans from the 2014 Action and proceeded only against Ricky

and Ortiz. Thus, the parties were not the same in both cases.

U.S. Bank then argues that the Saplans were in privity

with Ricky "because as co-owners and co-mortgagors of the

Property, their rights, duties, and obligations under the

Mortgage were identical." The concept of privity has evolved

from the "narrowly defined meaning of 'mutual or successive

relationship[s] to the same rights of property' to 'merely a

word used to say that the relationship between the one who is a

party of record and another is close enough to include that

other within the res adjudicata.'" In re Herbert M. Dowsett

Tr., 7 Haw. App. 640, 646, 791 P.2d 398, 402 (1990) (citation

omitted). This concept of privity follows modern case law,

which recognizes the determination of sufficient privity

requires "careful examination into the circumstances in each

case as it arises." Id.

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As "res judicata is an affirmative defense under HRCP

Rule 8(c), the party asserting [it] has the burden of proving

adequate representation of the interests and proper protection

of the rights of the nonparty in the prior action." 7 Haw. App.

at 646, 791 P.2d at 402-03. "Adequate representation of the

interests of the nonparty," as well as "proper protection to the

rights of the person sought to be bound are major considerations

in privity analysis." 7 Haw. App. at 646, 791 P.2d at 402

(citations and internal quotation marks omitted). Further, the

existence of privity "depend[s] upon a finding that the first

action provided substantial protection of the rights and

interests of the [nonparty]." Id.

Generally, there is no privity between joint tenants

or tenants in common because they do not claim through or under

each other, thus judgment for or against one regarding the land

will not bind the others. Hewahewa v. Lalakea, 27 Haw. 544, 571

(Haw. Terr. 1923) (explaining that "there is no privity of

estate between tenants in common"); 50 C.J.S. Judgments § 1112

(2023) ("Joint tenants or tenants in common do not claim through

or under each other, and therefore there is no such privity

between them that a judgment for or against one of them

affecting the land will bind the other").

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Viewing the evidence in the light most favorable to

the Saplans, U.S. Bank failed to meet its burden of establishing

that the parties bound by the judgment in the 2014 Action (Ricky

and Ortiz) were the same or in privity with the parties in this

case (the Saplans).

2. U.S. Bank failed to establish that the Saplans' claims
were precluded under the doctrine of laches

The Saplans argue their claims are not precluded under

the doctrine of laches because they filed "this lawsuit within

months of U.S. Bank's wrongful sale of their home to a third

party, and within less than one year after U.S. Bank wrongfully

obtained a judgment in" the 2014 case.

"[L]aches is a defense in all civil actions." Ass'n

of Apartment Owners of Royal Aloha v. Certified Mgmt., Inc., 139

Hawai‘i 229, 235, 386 P.3d 866, 872 (2016).

There are two components to laches, both of which must
exist before the doctrine will apply. First, there must
have been a delay by the plaintiff in bringing his claim,
and that delay must have been unreasonable under the
circumstances. Delay is reasonable if the claim was
brought without undue delay after plaintiff knew of the
wrong or knew of facts and circumstances sufficient to
impute such knowledge to him. Second, that delay must have
resulted in prejudice to defendant. Common but by no means
exclusive examples of such prejudice are loss of evidence
with which to contest plaintiff's claims, including the
fading memories or deaths or material witnesses, changes in
the value of the subject matter, changes in defendant's
position, and intervening rights of third parties.

139 Hawai‘i at 234, 386 P.3d at 871. Additionally, "[l]apse of

time alone does not constitute laches. Since laches is an

equitable defense, its application is controlled by equitable

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considerations." Pelosi v. Wailea Ranch Ests., 91 Hawai‘i 478,

491, 985 P.2d 1045, 1058 (1999) (citation omitted) (holding

delay of four months from learning of definitive plans not

unreasonable).

"[A] suit by a tenant in common to recover his or her

share of the common property from a third person is not barred

by laches, if it is brought within a reasonable time after the

tenant ascertains that the third person is claiming the whole

common property." 86 C.J.S. Tenancy in Common § 166 (2023).

As the movant for summary judgment, it was U.S. Bank's

burden to prove the delay was unreasonable. See generally,

Ralston, 129 Hawai‘i at 59-61, 292 P.3d at 1289-91. Based on the

attachments to its motion for summary judgment, U.S. Bank held

title to the property for several months before the Saplans

challenged the ejectment during the 2011 Action, and that action

was dismissed in 2013 for U.S. Bank's failure to prosecute.

Later, U.S. Bank voluntarily dismissed the Saplans from the 2014

Action. About 14 months after being dismissed from the 2014

case, the Saplans instituted the current case and took an active

role in it.

In sum, the Saplans defended themselves in the 2011

Action, an action U.S. Bank failed to prosecute, and filed the

2015 Complaint about fourteen months after U.S. Bank dismissed

them from the 2014 Action. Viewing this evidence in the light

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most favorable to the Saplans, we cannot say that U.S. Bank met

its burden of establishing that the Saplans' delay in filing the

complaint was unreasonable.

3. U.S. Bank failed to establish that there was no
genuine issue of material fact

The Saplans argue that "because title to the subject

real property was at issue in the 2011 lawsuit, which was

adjudicated in [their] favor as the result of the court's

dismissal, [they] maintain a superior claim to title."

U.S. Bank, on the other hand, argues that "[t]he 2011

Action did not determine title to the Property." (Formatting

altered.) Quoting from Kondaur, U.S. Bank explains that "[i]n

order to prevail in an ejectment action, a plaintiff 'must

necessarily prove that he or she owns the parcel in issue.'"

136 Hawai‘i at 241, 361 P.3d at 468 (citation omitted). U.S.

Bank then asserts that the Saplans' "claims fail as a matter of

law because they cannot establish title to the Property[,]" and

that "[a]s a result of the March 10, 2011 foreclosure sale, [the

Saplans] were no longer the owners of the Property." (Some

formatting altered.)

Counts 1 (Quiet Title), 2 (Ejectment), and

3 (Trespass) of the Saplans' complaint requires the Saplans to

prove they are the rightful owners of the Property. See

Ibbetson v. Kaiawe, 143 Hawai‘i 1, 17, 422 P.3d 1, 17 (2018)

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(articulating plaintiff in quiet title action has burden of

proving they have "paper title to the property" or hold "title

by adverse possession") (citation omitted); Kondaur Cap. Corp.,

136 Hawai‘i at 241, 361 P.3d at 468 (stating plaintiff must prove

they own "the parcel in issue" in ejectment action) (citation

and brackets omitted); Mew Kung Tung v. Wong Ka Mau, 8 Haw. 557,

559 (Haw. Prov. Gov. 1893) (noting if title is in issue in

trespass action, plaintiff bears burden to prove title).

As the defendant moving for summary judgment, U.S.

Bank "may satisfy [its] initial burden of production by either

(1) presenting evidence negating an element of the [nonmovant's]

claim, or (2) demonstrating that the nonmovant will be unable to

carry his or her burden of proof at trial." Ralston, 129 Hawai‘i

at 60, 292 P.3d at 1290 (citations omitted). In other words,

the movant's "burden may be discharged by demonstrating that if

the case went to trial, there would be no competent evidence to

support a judgment for his or her opponent." Kondaur Cap.

Corp., 136 Hawai‘i at 240, 361 P.3d at 467 (cleaned up).

Here, U.S. Bank presented the circuit court with a

"Mortgagee's Quitclaim Deed Pursuant to Power of Sale" recorded

in the Bureau of Conveyances on July 22, 2011, conveying the

Property to U.S. Bank. However, a "quitclaim deed carries with

it all of the infirmities that the prior non-judicial

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foreclosure might have occasioned upon the deed." 136 Hawai‘i at

241, 361 P.3d at 468. A Mortgagee's "self-dealing of the

Property trigger[s] its burden to prove in the summary judgment

proceeding that the foreclosure 'sale was regularly and fairly

conducted in every particular.'" Id. (citation omitted). Such

"a self-dealing mortgagee . . . was required under Ulrich to

introduce evidence that [it] exercised its right to non-judicial

foreclosure under a power of sale in a manner that was fair,

reasonably diligent, and in good faith, and to demonstrate that

an adequate price was procured for the Property." 136 Hawai‘i at

242, 361 P.3d at 469.

In moving for summary judgment, U.S. Bank also

provided the circuit court with the Declaration of Sarah T.

Greggerson (Greggerson) of PNC, the loan servicing agent for

U.S. Bank, who attested that the subject property was sold at

public auction to U.S. Bank on March 10, 2011, and provided a

certified copy of the "Mortgagee's Quitclaim Deed Pursuant to

Power of Sale," recorded in the Bureau of Conveyances on

July 22, 2011, showing U.S. Bank had held title to the Property.

Greggerson further attested that the property was sold to a

third party on March 30, 2015.

Although Greggerson attested that "[t]he Property was

sold at public auction on March 10, 2011 to U.S. Bank, the

highest bidder[,]" her declaration "fails to provide any

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averments as to the fairness and regularity of the foreclosure

sale or as to whether [U.S. Bank] conducted the foreclosure sale

in a diligent and reasonable manner." Kondaur Cap. Corp., 136

Hawai‘i at 242, 361 P.3d at 469. Also, U.S. Bank's pre-trial

statement in the 2011 action states the Property was sold for

$288,000 at the foreclosure sale, but U.S. Bank "does not make

any declaration concerning the adequacy of this price." 136

Hawai‘i at 243, 361 P.3d at 470.

Thus, viewing the evidence presented in the light most

favorable to the Saplans, U.S. Bank failed to meet its burden at

summary judgment to show there was no genuine issue as to title

of the Property. By failing to establish as such, the burden

never shifted to the Saplans.

The circuit court thus erred in granting U.S. Bank's

motion for summary judgment on Counts 1-3. To the extent the

damages sought in Counts 5 (Unjust Enrichment/Actual Damages)

and 6 (Punitive Damages) are related to Counts 1-3, the circuit

court erred in granting summary judgment on those counts as

well.

IV. Conclusion

For the above reasons, we affirm in part and vacate in

part the circuit court's October 23, 2017 order granting summary

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

judgment and October 23, 2017 Judgment, and remand this case for

further proceedings consistent with this opinion.

DATED: Honolulu, Hawai‘i, April 26, 2023.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Frederick J. Arensmeyer,
for Plaintiffs-Appellants. /s/ Katherine G. Leonard
Associate Judge
Jade Lynne Ching and
Ryan B. Kasten, /s/ Sonja M.P. McCullen
for Defendant-Appellee. Associate Judge

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