Deutsche Bank National Trust Company v. Winters. ICA mem. op., filed 05/19/2025. Motion for Reconsideration, filed 06/05/2025. ICA Order Denying Motion for Reconsideration, filed 07/11/2025 [ada]. ICA Order Granting Motion for Publication, filed 07/11/2025 [ada].

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUL-2025
07:56 AM
Dkt. 98 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER
THE POOLING AND SERVICING AGREEMENT DATED AS OF DECEMBER 1,
2006, GSAMP TRUST 2006-FM3, Plaintiff-Appellee,
v.
DALE SCOTT WINTERS; DALE SCOTT WINTERS, TRUSTEE UNDER THAT
CERTAIN UNRECORDED REVOCABLE LIVING TRUST DATED AUGUST 30, 1993,
MADE BY DALE SCOTT WINTERS, WITH FULL POWERS TO SELL, MORTGAGE,
LEASE OR OTHERWISE DEAL WITH THE LAND, AS TO AN UNDIVIDED 1/2
INTEREST; and DEPARTMENT OF TAXATION, STATE OF HAWAI#I,
Defendants-Appellees, and JOHN and MARY DOES 3-10, Defendants
and
EILEEN MARIE WINTERS; EILEEN MARIE WINTERS TRUSTEE UNDER THAT
CERTAIN UNRECORDED REVOCABLE LIVING TRUST DATED AUGUST 30, 1993,
MADE BY EILEEN MARIE WINTERS, WITH FULL POWERS TO SELL,
MORTGAGE, LEASE OR OTHERWISE DEAL WITH THE LAND,
AS TO AN UNDIVIDED 1/2 INTEREST, Defendant-Appellant

EILEEN MARIE WINTERS, TRUSTEE UNDER THAT CERTAIN UNRECORDED
REVOCABLE LIVING TRUST DATED AUGUST 30, 1993, MADE BY EILEEN
MARIE WINTERS, WITH FULL POWERS TO SELL, MORTGAGE, LEASE OR
OTHERWISE DEAL WITH THE LAND, AS TO AN UNDIVIDED 1/2 INTEREST,
Defendant/Counterclaimant-Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER
THE POOLING AND SERVICING AGREEMENT DATED AS OF DECEMBER 1,
2006, GSAMP TRUST 2006-FM3, Plaintiff/Counterclaim
Defendant-Appellee, and DOES 1-10, Counterclaim-Defendants

NO. CAAP-XX-XXXXXXX
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC111000093)

JULY 16, 2025

NAKASONE, CHIEF JUDGE, HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

Deutsche Bank National Trust Company nonjudicially

foreclosed a residential mortgage on property owned by Eileen

Marie Winters and Dale Scott Winters, as trustees of their

respective revocable living trusts. Deutsche Bank purchased the

property at the foreclosure auction. It then sued the Winterses

— individually, not as trustees — for ejectment and other relief.

Deutsche Bank amended its complaint and identified the Winterses,

as trustees of their respective revocable living trusts, as

defendants. Eileen, as trustee, counterclaimed for wrongful

foreclosure and quiet title, among other things. The Circuit

Court of the Fifth Circuit granted partial summary judgment for

Deutsche Bank on its claim for ejectment and on Eileen's

counterclaims for wrongful foreclosure and quiet title, and

dismissed Eileen's other counterclaims.1 Eileen appeals from the

January 18, 2022 Final Judgment for Deutsche Bank.2

We hold that the Circuit Court erred by dismissing

Eileen's counterclaims and granting summary judgment for Deutsche

Bank. Eileen's counterclaims, viewed in the light most favorable

1
The Honorable Kathleen N.A. Watanabe presided.
2
Dale Scott Winters isn't a party to this appeal.

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to her, alleged facts which entitled her to legal relief.

Eileen's opposition to Deutsche Bank's motion for partial summary

judgment, viewed in the light most favorable to her, created

genuine issues of material fact about whether Deutsche Bank and

its agents and predecessor in interest breached the Winterses'

mortgage, breached Eileen's payment plan, and violated state and

federal law. We vacate the Final Judgment in part as to Eileen,

individually and as trustee, and remand for further proceedings.

I. BACKGROUND

Deutsche Bank sued the Winterses on May 25, 2011. The

complaint alleged that Deutsche Bank had purchased property in

Kapa#a, Kaua#i in a nonjudicial foreclosure, and sought to eject

the Winterses from the property. Deutsche Bank amended its

complaint on December 30, 2014. The amended complaint added

claims for foreclosure, unjust enrichment, and an equitable lien

on the Kapa#a property.

On October 12, 2020, the Circuit Court granted Deutsche

Bank's motion to identify "Eileen Marie Winters, Trustee under

that certain unrecorded Revocable Living Trust dated August 30,

1993" as a defendant. Eileen as trustee answered and

counterclaimed for (1) wrongful nonjudicial foreclosure;

(2) unfair and deceptive acts and practices in violation of

Hawaii Revised Statutes (HRS) § 480-2 (UDAP); (3) rescission

under the federal Truth in Lending Act, 15 U.S.C. §§ 1601, et

seq. (TILA); (4) violation of the federal Real Estate Settlement

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Procedures Act, 12 U.S.C. §§ 2601, et seq. (RESPA); (5) breach of

contract; and (6) quiet title.

Deutsche Bank moved to dismiss counts 2-5 of the

counterclaim. The Circuit Court granted the motion. Deutsche

Bank then moved for partial summary judgment on its claim for

ejectment and on counts 1 (wrongful foreclosure) and 6 (quiet

title) of Eileen's counterclaim. The Circuit Court granted the

motion. The Final Judgment was entered. This appeal followed.

Eileen contends the Circuit Court erred by granting Deutsche

Bank's motion to dismiss and motion for partial summary judgment.

II. STANDARDS OF REVIEW

A. Motion to Dismiss

We review a ruling on a motion to dismiss de novo.

Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai#i 249, 263, 428 P.3d

761, 775 (2018), overruled on other grounds by Wilmington Sav.

Fund Soc'y, FSB v. Domingo, 155 Hawai#i 1, 556 P.3d 347 (2024).

We assume the facts alleged in Eileen's counterclaim are true and

view them in the light most favorable to Eileen to see if they
warrant relief under any legal theory. See id. at 256-57, 428

P.3d at 768-69.
B. Motion for Summary Judgment

We review a grant of summary judgment de novo.

Pflueger, Inc. v. AIU Holdings, Inc., 152 Hawai#i 260, 265, 526

P.3d 237, 242 (2023). Deutsche Bank had the burden to establish

the material facts, show there is no genuine issue as to any of

them, and explain why it is entitled to a judgment as a matter of

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law. Id. A fact is material if it would establish or refute an

element of a cause of action or defense. Id. We view the

evidence in the light most favorable to Eileen. Id.

III. DISCUSSION

A. The Circuit Court erred by dismissing
Eileen's counterclaim counts 2-5.

Counts 2-5 of Eileen's counterclaim alleged UDAP,

violation of TILA and RESPA, and breach of contract. It made the

following allegations which, for this appeal, we deem true and

view in the light most favorable to Eileen:

Eileen created her revocable living trust (RLT) in 2002

and transferred title to her Kapa#a home to herself as trustee.

She refinanced debt on her home in 2006 and signed a mortgage,

but the mortgage did not identify her as a trustee or name her

RLT as a mortgagor.3 The lender, Fremont, failed to deliver two

completed and signed notice-of-right-to-cancel documents at the

closing, as required under TILA.

In February 2008 Fremont informed Eileen her loan was

being transferred to Wells Fargo and she would receive written

instructions for making future payments. Eileen didn't receive

instructions. She called Wells Fargo. She was told Wells Fargo

did not own her loan. She called Fremont. She was told to make

her March 2008 payment over the phone. She did. That happened

3
The mortgage identified the "Borrower" as "Dale Scott Winters and
Eileen Marie Winters, husband and wife, as tenants by the entirety." We
express no opinion about the legal effect of the mortgage's failure to name
Eileen and Dale Scott Winters as trustees of their respective revocable living
trusts.

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again in April 2008. In May 2008 Fremont informed Eileen it was

closing and would not accept further payments. Eileen did not

receive instructions for making her May 2008 payment.

In June 2008 Litton informed Eileen it was the new loan

servicer, Wells Fargo owned her loan, she was in default, and she

needed to call to get the payoff amount. Eileen left messages at

the phone number she was given, but never received a return call.

Eileen was able to contact Litton in August 2008. She

signed a Repayment Plan Agreement on August 27, 2008, and wired

the required $5,000 initial payment. A few days later, Litton

informed her it was proceeding with a foreclosure and keeping her

initial payment because it was $100 less than required.

Litton also force-placed property insurance on the

Kapa#a property and charged the premium to the Winterses' loan,

even though the property was insured. Litton verbally quoted a

reinstatement amount, but never verified it in writing. Litton

also told Eileen to apply for a loan modification. Eileen did so

by fax.
On December 16, 2008, Eileen faxed and mailed a letter

disputing the debt and requesting an accounting and the name of

the original creditor. She never received the information, in

violation of RESPA. Litton's foreclosure counsel sent a letter

telling Eileen she had to dispute her debt in writing by

December 17, 2008.

In January 2009 Litton informed Eileen her house would

be sold at auction in March. Eileen called Litton's counsel.

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She requested a payoff number and an accounting. She followed up

in writing. Litton's counsel told Eileen her house was scheduled

for auction in two weeks.

By letter dated January 10, 2009, Litton informed

Eileen her loan could not be modified. But in early

February 2009 Litton told Eileen it had no record of receiving

loan modification documents, and she should resubmit them. In

late February 2009, Litton's counsel gave Eileen a written

reinstatement amount that was "almost double any previous

quote[.]"

On June 24, 2009, Eileen exercised her TILA rescission

right. She received no response. Deutsche Bank proceeded with a

nonjudicial foreclosure, sold the Winterses' house to itself, and

recorded a quitclaim deed on August 30, 2010.

Deutsche Bank's motion to dismiss argued that Eileen

lacked standing to assert the UDAP, TILA, RESPA, and breach-of-

contract claims because they were based on loan documents she

signed individually, not as trustee of her RLT. Deutsche Bank

alternatively argued the claims were time-barred.

(1) Count 2 alleged UDAP. A UDAP claim may only be

brought by a consumer. HRS § 480-2(d) (2008). A "consumer" is

"a natural person who, primarily for personal, family, or

household purposes, purchases, attempts to purchase, or is

solicited to purchase goods or services or who commits money,

property, or services in a personal investment." HRS § 480-1

(2008).

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Deutsche Bank argues Eileen's RLT is not a "natural

person," citing Association of Apartment Owners of Newtown

Meadows v. Venture 15, Inc., 115 Hawai#i 232, 252, 167 P.3d 225,

245 (2007) (holding that an unincorporated association is not a

"consumer" under HRS § 480–1). But a trust is not comparable to

an unincorporated association; it is an instrument creating a

relationship. HRS § 554A-1 (2018), repealed by 2021 Haw. Sess.

Laws Act 32, § 9 at 92; HRS § 554D-1104 (Supp. 2021).

Eileen's counterclaim alleged she was the trustee

holding title to her Kapa#a home under her RLT when the loan

documents, including the mortgage that encumbered the home, were

executed. If she were the RLT's beneficiary, she would be the

real party in interest and have standing to maintain a claim for

unfair or deceptive acts and practices that affected her RLT's

ownership of and title to her home. Tradewinds Hotel, Inc. v.

Cochran, 8 Haw. App. 256, 265, 799 P.2d 60, 66 (1990) (noting

general rule that a trustee having the right sought to be

enforced is the real party in interest). Deutsche Bank did not

show that Eileen was not the beneficiary of her RLT. Viewed in

the light most favorable to Eileen, her counterclaim alleged

standing to assert the UDAP claim.

Deutsche Bank argues Eileen's UDAP claim was time-

barred. A consumer suit under HRS § 480-13(b) (2008) must be

filed "within four years after the cause of action accrues[.]"

HRS § 480-24 (Supp. 2016). The last unfair or deceptive act or

practice alleged in the counterclaim was the recording of

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Deutsche Bank's quitclaim deed on August 30, 2010. A UDAP action

had to have been filed by August 30, 2014. Eileen's counterclaim

wasn't filed until November 25, 2020. But Eileen argues her

counterclaim relates back to May 25, 2011, when Deutsche Bank's

complaint was filed.

HRS § 657-3 (2016) concerns counterclaims. It

provides, in relevant part:

(a) In the cases enumerated in subsection (b), . . .
any . . . statute of limitations, shall apply to a claim
stated as a counterclaim against an opposing party in the
same manner as if an action thereon had been commenced at
the time when the opposing party commenced the opposing
party's action . . . .

(b) Subsection (a) shall apply if the claim stated
as a counterclaim:

. . . .
(2) Arises out of the transaction or occurrence that
is the subject matter of the opposing party's
claim.

Citing Mauian Hotel, Inc. v. Maui Pineapple Co., 52

Haw. 563, 567, 481 P.2d 310, 313–14 (1971) (applying Hawai#i

Rules of Civil Procedure (HRCP) Rule 15(c) concerning amendment

of a pleading), Deutsche Bank argues that "counterclaims, as with

all other claims, will relate back only if they arose out of a

situation previously described in timely pleadings." That

statement in Mauian Hotel was dicta; the claim at issue in that
case was third-party defendant Napili-Kai's amended answer to the

third-party complaint. The third-party complaint alleged that

third-party defendant Napili-Kai was liable for third-party

defendant Austin-Smith's negligent design of a dam at Napili-

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Kai's request. Napili-Kai's amended answer asserted a new cross-

claim against Austin-Smith for Napili-Kai's own property damage,

which was not a subject of the third-party complaint. The

supreme court ultimately held that Austin-Smith was estopped from

pleading the statute of limitations as a defense.

HRS § 657-3(b)(2), not HRCP Rule 15(c), applies here.

Deutsche Bank's complaint alleged that Eileen and Dale Scott

Winters were "remaining on the property as trespassers and/or

uninvited guests and lessees" after Deutsche Bank sold the

Winterses' property to itself in a nonjudicial foreclosure. It

was reasonably foreseeable that Eileen would defend against the

ejectment claim by claiming the nonjudicial foreclosure upon

which it was based was unfairly and deceptively engineered by

Deutsche Bank and its agents and predecessors in interest. See

Kondaur Cap. Corp. v. Matsuyoshi, 136 Hawai#i 227, 241, 361 P.3d

454, 468 (2015) (noting, in ejectment action where plaintiff

obtained title after non-judicial foreclosure, "the strength and

validity of Kondaur's title is unavoidably intertwined with the

validity of the foreclosure sale").

Deutsche Bank apparently realized this; its motion for

partial summary judgment stated it "commenced this action in May

2011 to confirm the validity of the nonjudicial foreclosure and

obtain a writ of ejectment." (Emphasis added.) Thus, the

Winterses' loan and mortgage, alleged default, Litton's alleged

breach of the mortgage and the Repayment Plan Agreement, and the

validity of Deutsche Bank's nonjudicial foreclosure were

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unavoidably intertwined with the subject matter of Deutsche

Bank's complaint. The complaint was filed before Eileen's UDAP

claim became time-barred. The counterclaim relates back under

HRS § 657-3(b)(2). The Circuit Court erred by dismissing

counterclaim count 2.

(2) Count 3 alleged TILA violations. Deutsche Bank

doesn't argue Eileen lacked standing; it argues only that her

TILA claim was time-barred.

TILA does not contain its own statute of limitations.

"In the absence of a controlling federal limitations period, the

general rule is that a state limitations period for an analogous

cause of action is borrowed and applied to the federal claim[.]"

Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 240

(1985).

HRS § 657-1(1) (2016), the six-year breach-of-contract

statute of limitations, is the most analogous. Cf. Hoang v. Bank

of Am., N.A., 910 F.3d 1096, 1098-99 (9th Cir. 2018) (applying

Washington's six-year contract statute of limitations to TILA
rescission enforcement claims). Eileen's counterclaim alleged

she exercised her TILA rescission right on June 24, 2009, but the

nonjudicial foreclosure nevertheless proceeded. Deutsche Bank's

complaint was filed before Eileen's TILA rescission claim became

time-barred. The Circuit Court erred by dismissing count 3.

(3) Count 4 alleged RESPA violations. Deutsche Bank

argues the RLT was not a "borrower" authorized to sue under RESPA

because Eileen signed the loan documents individually, not as the

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trustee of her RLT. 12 U.S.C. § 2605(f) ("Whoever fails to

comply with any provision of this section shall be liable to the

borrower for each such failure[.]" (emphasis added)).

Deutsche Bank relies on Keen v. Helson, 930 F.3d 799

(6th Cir. 2019). Keen is inapposite. There, Tara and Nathan

Keen bought a house. Both signed the mortgage, but only Nathan

signed the note. Tara got title to the house when they divorced.

Nathan died. The loan servicer foreclosed. Tara sued the loan

servicer for violating RESPA. The federal district court held

that Tara was not a "borrower" under RESPA because she was never

obligated under the note. Tara appealed. The Sixth Circuit

affirmed, holding that a "'borrower' is someone who is personally

obligated on a loan — i.e., someone who is actually borrowing

money. Tara Keen does not fit that description, so she does not

have a cause of action under RESPA." Id. at 800.

Here, Eileen was the borrower. Her counterclaim

alleged she owned her home as trustee of her RLT when she signed

the note. Viewing the counterclaim allegations in the light most

favorable to Eileen, she had standing as her RLT's trustee to

assert the RESPA violation because Deutsche Bank did not show she

was not the beneficiary of her RLT. Cochran, 8 Haw. App. at 265,
799 P.2d at 66.

RESPA has a three-year statute of limitations for

violations involving servicing a mortgage loan. 12 U.S.C.

§ 2614. The counterclaim alleged RESPA violations in June,

October, and December 2008. Deutsche Bank's complaint was filed

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before the earliest RESPA claim became time-barred. The Circuit

Court erred by dismissing count 4.

(4) Count 5 alleged breach of the Repayment Plan

Agreement. Deutsche Bank argues the RLT was not a party to the

agreement because it was not a signatory. Viewing the

counterclaim allegations in the light most favorable to Eileen,

she signed the Repayment Plan Agreement as the real party in

interest under her RLT. Deutsche Bank does not argue the breach

of contract claim was time-barred. The Circuit Court erred by

dismissing count 5.

B. The Circuit Court erred by granting summary
judgment on Deutsche Bank's ejectment claim.

To prevail on its ejectment claim, Deutsche Bank had to

prove it had "title to and right of possession of" the Kapa#a

property. Kondaur, 136 Hawai#i at 241, 361 P.3d at 468. In

Kondaur the supreme court noted: "Because the title to the

Property deeded by RLP [(the foreclosing mortgagee)] to Kondaur

derives from a non-judicial foreclosure sale of the Property, the
strength and validity of Kondaur's title is unavoidably

intertwined with the validity of the foreclosure sale." Id. at

241, 361 P.3d at 468.

Deutsche Bank submitted the Adjustable Rate Note, the

Mortgage, and recorded copies of the Mortgagee's Affidavit of

Foreclosure Under Power of Sale and Quitclaim Deed to support its

motion for partial summary judgment. The burden then shifted to

Eileen to show there were genuine issues of material fact

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precluding summary judgment. Pflueger, 152 Hawai#i at 265, 526

P.3d at 242.

The Mortgage provided:

20. Sale of Note; Change of Loan Servicer; Notice of
Grievance. . . . If there is a change of the Loan Servicer,
Borrower will be given written notice of the change which
will state the name and address of the new Loan Servicer,
the address to which payments should be made and any other
information RESPA requires in connection with a notice of
transfer of servicing.

Eileen submitted a 15-page declaration explaining in

more detail the facts alleged in her counterclaim. She also

submitted copies of correspondence she received from Litton, the

Repayment Plan Agreement, a $5,000 check to "Litton Mortgage," a

Litton billing statement, correspondence with Litton and its

foreclosure counsel, her December 16, 2008 letter disputing the

debt, Litton's call logs, another 2-page declaration, and her

June 24, 2009 TILA rescission letter.

Viewed in the light most favorable to Eileen, her

evidence raised genuine issues of material fact about Fremont's,

Litton's, and Deutsche Bank's breaches of the Mortgage;

violations of 12 U.S.C. § 2605 and 12 C.F.R. § 1024.33 (mortgage

servicing transfers); Litton's and Deutsche Bank's breaches of

the Repayment Plan Agreement; Litton's and Deutsche Bank's

violations of 12 U.S.C. § 2605 (force-placed insurance); and

Litton's and Deutsche Bank's violations of former HRS § 667-5(c)

(Supp. 2008) (right to cure default). If proven, the breaches

and violations could invalidate the nonjudicial foreclosure, and

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thus should have precluded summary judgment for Deutsche Bank on

its ejectment claim.

C. The Circuit Court erred by granting summary
judgment for Deutsche Bank on Eileen's
wrongful foreclosure counterclaim.

Deutsche Bank argues that Eileen's wrongful foreclosure

claim lacked merit because she failed to establish actual damages

as required by Lima v. Deutsche Bank National Trust Company, 149

Hawai#i 457, 494 P.3d 1190 (2021). In Lima the supreme court

answered a question certified by the federal district court:

When (a) a borrower has indisputably defaulted on a mortgage
for real property, (b) a lender has conducted a nonjudicial
foreclosure sale but has not strictly complied with the
requirements governing such sales, and (c) the borrower sues
the lender over that noncompliance after the foreclosure
sale and, if the property was purchased at foreclosure by
the lender, after any subsequent sale to a third-party
purchaser, may the borrower establish the requisite harm for
liability purposes under the law of wrongful foreclosure
and/or section 480-2 of Hawai#i Revised Statutes by
demonstrating the loss of title, possession, and/or
investments in the property without regard to the effect of
the mortgage on those items?

Id. at 460, 494 P.3d at 1193. The supreme court held that "a

borrower with no pre-foreclosure rights in property except as
encumbered by a mortgage bears the burden of accounting for the

effect of the mortgage in establishing the element of harm." Id.

at 469, 494 P.3d at 1202.

Eileen argues that Lima is distinguishable on its

facts. There, the borrowers had no pre-foreclosure rights in

property except as encumbered by a mortgage, while Eileen

contends "she absolutely had pre-foreclosure rights in the

[P]roperty, including the right to make monthly payments towards

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her debt under the mortgage loan, which she absolutely could do."

Her opening brief asserts: "She is not asking for a free house,

release of mortgage, or to be excused from her obligations under

the mortgage loan contract. Instead, she is asking that her

rights under the parties' contract be upheld."

A supreme court case decided after briefing was

completed lends credence to her argument. In Llanes v. Bank of

Am., N.A., 154 Hawai#i 423, 555 P.3d 110 (2024), several

borrowers sued their lenders for nonjudicial foreclosures that

didn't comply with statutory requirements. The foreclosed

properties were sold to third parties. Id. at 426, 555 P.3d at

113. Discussing Lima, the supreme court explained:

Accounting for the effect of the mortgage in
establishing the element of harm means . . . factoring in
the mortgage's value[.] This reading comports with the
general rule in measuring damages, which is to give a sum of
money to the person wronged which as nearly as possible,
will restore him or her to the position he or she would be
in if the wrong had not been committed. . . .

Moreover, under Borrowers' own theory, they did not
walk away empty-handed — their initial "invested debt" was
returned to them on the backend when it was forgiven. The
satisfaction of Borrowers' mortgage debts, which they do not
contest here, represents a return of their "investment" on
their own theory. If the "invested debt" was theirs on the
front end, it was also theirs on the backend.

Id. at 432-33, 555 P.3d at 119-20 (cleaned up).

The supreme court contrasted the facts in Llanes and

Lima with those in Santiago v. Tanaka, 137 Hawai#i 137, 366 P.3d

612 (2016). There, the Santiagos bought a tavern from Tanaka

with a purchase money mortgage that didn't contain a power of

sale. Tanaka had misrepresented the tavern's sewer costs during

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negotiations. The Santiagos initially withheld payments from

Tanaka after discovering the sewer fees, but later cured their

default. Four months later, Tanaka sold the tavern to herself in

a nonjudicial foreclosure, then resold it to a third party. In

Llanes, the supreme court summarized its Santiago decision:

We held that Tanaka improperly foreclosed upon the
Santiagos' tavern because (1) her misrepresentations and
non-disclosures induced the Santiagos to purchase the
tavern, (2) the mortgage altogether lacked a power of sale,
and (3) the Santiagos cured their default. Because the
tavern could not be returned to the Santiagos, having been
resold, we concluded that they were entitled to
out-of-pocket losses of $1,412,790.79 as a result of the
seller's wrongful foreclosure of the mortgage and subsequent
sale of the tavern.

. . . .

Here [in Llanes], Borrowers were in different pre-
foreclosure positions than were the Santiagos for two
reasons. First, Lender had the right to foreclose upon
their properties under powers of sale. Thus, their pre-tort
position still includes a looming foreclosure. Second,
Borrowers were not current on their mortgages. Thus, to the
extent that they were improper at all, the foreclosures at
issue here appear from the record to have been merely
procedurally defective. Indeed, the circuit court noted in
its summary judgment order that Borrowers claim that Lender
conducted the foreclosures in a wrongful manner by not
complying with the technical requirements of the nonjudicial
foreclosure statute and power of sale, instead of claiming
that the foreclosures were wrongful because they should not
have happened at all.

154 Hawai#i at 430, 431, 555 P.3d at 117, 118 (cleaned up).

Here, Eileen's declaration — which we must view in the

light most favorable to her — showed that the nonjudicial

foreclosure was not "looming." Not only was she current on her

mortgage, she tried to stay current after her mortgage was

assigned to Wells Fargo. The nonjudicial foreclosure would not

have happened but for Fremont's, Litton's, and Deutsche Bank's

alleged breaches of the Mortgage, alleged statutory violations,

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and alleged breaches of the Repayment Plan Agreement. Eileen's

declaration states she tried to timely pay what she was told she

owed, even incurring pay-by-phone and Western Union fees to do

so, and had "the ability to pay the reinstatement charges if we

could ever get an exact amount in writing." Thus, as in

Santiago, assuming Eileen's allegations are true "the

foreclosures were wrongful because they should not have happened

at all." Llanes, 154 Hawai#i at 431, 555 P.3d at 118.

In addition, in Llanes and Lima, the mortgaged

properties had been sold to good-faith purchasers. The

foreclosure sales, even if wrongful, could not be set aside and

the borrowers could not recover their properties. Wilmington

Sav. Fund Soc'y, FSB v. Domingo, 155 Hawai#i 1, 10, 556 P.3d 347,

356 (2024) (noting that "vacatur or reversal of a foreclosure

judgment cannot affect title conveyed to the good faith

purchaser"). But the borrowers' loan debts were also discharged.

That is why they had to account "for the effect of the mortgage

in establishing the element of harm." Lima, 149 Hawai#i at 469,

494 P.3d at 1202.

Here, the record does not show that Deutsche Bank sold

the Kapa#a property to a third party. If Eileen invalidated the

nonjudicial foreclosure, she would regain the property. Llanes,
154 Hawai#i at 434, 555 P.3d at 121. She would still be liable

to repay her mortgage loan over time, but she would be entitled

to some recovery under "the general rule in measuring damages,

which is to give a sum of money to the person wronged which as

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nearly as possible, will restore . . . her to the position . . .

she would be in if the wrong had not been committed." Id. at

432, 555 P.3d at 119 (brackets omitted). The Circuit Court erred

by granting summary judgment on Eileen's wrongful foreclosure

counterclaim.

D. The Circuit Court erred by granting summary
judgment for Deutsche Bank on Eileen's quiet
title claim.

Deutsche Bank argued to the Circuit Court that Eileen

had to allege she paid, or tendered, what she owed on her

mortgage loan to maintain her quiet title counterclaim, citing

Delapinia v. Nationstar Mortgage LLC, 146 Hawai#i 218, 228, 458

P.3d 929, 939 (App. 2020) (Delapinia I), vacated in part by

Delapinia v. Nationstar Mortgage LLC, 150 Hawai#i 91, 497 P.3d

106 (2021) (Delapinia II).

A week before the hearing on Deutsche Bank's motion for

partial summary judgment, the supreme court decided Delapinia II.
The party who asserted the tender rule in Delapinia II was the

mortgagee of the third party who had purchased the property in an

allegedly wrongful nonjudicial foreclosure. The supreme court

"decline[d] to opine whether the tender rule applies in Hawai#i

wrongful foreclosure cases generally." 150 Hawai#i at 92, 497

P.3d at 107. It then held "that the tender rule is not an

absolute bar to a quiet title action against a party to whom the

plaintiff is not indebted[.]" Id. at 100, 497 P.3d at 115.

A quiet title action "may be brought by any person

against another person who claims, or who may claim adversely to

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the plaintiff, an estate or interest in real property, for the

purpose of determining the adverse claim." HRS § 669-1(a)

(2016). "Hawai#i case law explicitly provides that a plaintiff

seeking relief under HRS Chapter 669 must demonstrate that he or

she has title to the land, either via paper title or adverse

possession, and that he or she has superior title compared to the

defendant." Ibbetson v. Kaiawe, 143 Hawai#i 1, 17, 422 P.3d 1,

17 (2018).

Deutsche Bank incorrectly argues that Eileen's quiet

title claim "was premised solely upon alleged defects in the

foreclosure process." Eileen actually claimed her default was

caused by Fremont's, Litton's, and Deutsche Bank's breaches of

the Mortgage, statutory violations, and Litton's and Deutsche

Bank's breaches of the Repayment Plan Agreement. She contends

the nonjudicial foreclosure was wrongful because it should never

have happened. She seeks reinstatement of her loan and title to

the Kapa#a Property, subject to Deutsche Bank's mortgage.

Deutsche Bank did not show why the tender rule should apply under

these circumstances. We hold it does not. On this record, the

Circuit Court erred by granting summary judgment for Deutsche

Bank on Eileen's quiet title claim.

IV. CONCLUSION

We vacate in part the Circuit Court's March 23, 2021

order granting Deutsche Bank's motion for partial dismissal of

Eileen's counterclaim; November 19, 2021 order granting Deutsche

Bank's motion for partial summary judgment; and January 18, 2022

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Final Judgment, all as against Eileen Marie Winters individually

and as Trustee under that certain unrecorded Revocable Living

Trust dated August 30, 1993, made by Eileen Marie Winters. This

case is remanded for further proceedings consistent with this

opinion.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Frederick J. Arensmeyer,
for Defendant-Appellant /s/ Keith K. Hiraoka
Eileen Marie Winters. Associate Judge

Jade Lynne Ching, /s/ Clyde J. Wadsworth
David A. Nakashima, Associate Judge
Ryan B. Kasten,
for Plaintiff-Appellee
Deutsche Bank National Trust
Company.

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