CourtListener 10740436

Texto completo

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-NOV-2025
07:55 AM
Dkt. 44 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS AS INDENTURE
TRUSTEE FOR THE REGISTERED HOLDERS OF SAXON ASSET SECURITIES
TRUST 2005-1 MORTGAGE LOAN ASSET BACKED NOTES, SERIES 2005-1,
Plaintiff-Appellee, v. YUN RU, Defendant-Appellant, and KAOHE
RANCH SUBDIVISION HOMEOWNERS' ASSOCIATION; KAOHE RANCH ROAD
MAINTENANCE CORPORATION; and MORDEHAI ASAF AND LIORA ASAF,
TRUSTEES OF THE ASAF FAMILY TRUST, DATED JUNE 1, 2015,
Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10, DOE
PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and
DOE GOVERNMENTAL UNITS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CCV-XX-XXXXXXX)

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

Yun Ru appeals from the Order Denying Defendant Yun
Ru's Motion to Set Aside Default Judgments for Foreclosure of
Mortgage and Confirmation of Foreclosure Sale and Related Orders
entered by the Circuit Court of the Third Circuit on November 1,
2023.1 We affirm because Ru has not shown her default was not
the result of inexcusable neglect or a wilful act.
Deutsche Bank National Trust Company Americas sued Ru
to foreclose a mortgage on real property on Hawai#i Island. The
foreclosure complaint was filed on December 30, 2020. Ru was
served on January 31, 2021. She didn't respond to the complaint.

1
The Honorable Robert D.S. Kim presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The record does not show she asked Deutsche Bank's counsel for
more time to respond. Her default was entered on February 26,
2021. She did not retain counsel until March 9, 2021.
Deutsche Bank moved for default judgment on August 27,
2021. It then moved for two loss-mitigation stays under Hawaii
Revised Statutes § 454M-5.5(k). The Circuit Court granted both
motions. The second stay expired by its terms on March 28, 2022.
On April 13, 2022, the Circuit Court entered findings
of fact, conclusions of law, and an order granting the motion for
default judgment. A default judgment and decree of foreclosure
was also entered on April 13, 2022.
The foreclosure commissioner's report was filed on
August 29, 2022. Deutsche Bank was the only bidder at the
foreclosure auction. Deutsche Bank moved to confirm the
commissioner's sale on August 31, 2022. Ru didn't oppose the
motion. The motion was granted. A judgment confirming the sale
and a writ of ejectment were entered on January 11, 2023.
At no point before entry of the judgment confirming the
foreclosure sale did Ru attempt to set aside her default. She
moved to set aside the default judgment and judgment confirming
sale on August 16, 2023. The Order denying the motion was
entered on November 1, 2023. This appeal followed.
Ru sought relief under HRCP Rule 60(b)(6). The rule
provides:

On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: . . . (6) any other reason justifying relief from
the operation of the judgment. The motion shall be made
within a reasonable time[.]

We review a trial court's denial of an HRCP Rule 60(b)
motion for abuse of discretion. James B. Nutter & Co. v.
Namahoe, 153 Hawai#i 149, 162, 528 P.3d 222, 235 (2023). A
"strong showing is required to establish" abuse of discretion by
the trial court. Id.
A party moving to set aside a default judgment must
show three things: (1) the nondefaulting party will not be

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

prejudiced by the reopening; (2) the defaulting party has a
meritorious defense; and (3) the default was not the result of
inexcusable neglect, or a wilful act. Chen v. Mah, 146 Hawai#i
157, 160, 457 P.3d 796, 799 (2020). The elements are cumulative.
Ru has not shown her default wasn't the result of
inexcusable neglect or a wilful act. She submitted a declaration
to support her motion to set aside the default judgment. She did
not deny being served with Deutsche Bank's complaint on
January 31, 2021. She did not state she tried to contact
Deutsche Bank's counsel to ask for more time to respond to the
complaint. She did not explain why she could not have filed a
response to the complaint, representing herself, before it became
due on February 22, 2021. She did not retain an attorney until
after the circuit court clerk entered her default. On this
record, we conclude that Ru's default was the result of
inexcusable neglect, or a wilful act.
Ru argues her attorney didn't set aside the entry of
her default, didn't oppose the motion for default judgment, and
was grossly and inexcusably negligent.2 She contends that
constitutes "exceptional circumstances" warranting relief from
the default judgment.
Ru relies on U.S. Bank Nat'l Ass'n v. Salvacion,
No. 30594, 2011 WL 1574585 (Haw. App. Apr. 26, 2011) (mem. op.).
There, Salvacion's HRCP Rule 60(b) motion to set aside a
foreclosure judgment — not a default judgment — was denied.
Salvacion's former attorney filed her answer to the complaint in
the wrong circuit; didn't file an opposition to U.S. Bank's
motion for summary judgment; appeared at the summary judgment
hearing by telephone without permission; didn't move for

2
Ru's former attorney filed a notice of appearance on May 15, 2021.
The record doesn't reflect what Ru's attorney did after appearing, but
Deutsche Bank's first motion for a loss mitigation stay was filed on
November 29, 2021. We infer that counsel was attempting to negotiate a
settlement with Deutsche Bank on Ru's behalf. At any rate, "the
attorney-client relationship is that of principal and agent and . . . the
client is bound by his or her attorney's acts and/or failures to act within
the scope of [the] attorney's authority." Shin v. Shin, 96 Hawai#i 122, 127,
27 P.3d 398, 403 (App. 2001).

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

reconsideration of the summary judgment despite the circuit
court's invitation to do so; didn't file a notice of appeal from
the foreclosure judgment; and didn't inform Salvacion of the
judgment until the commissioner tried to hold an open house. Id.
at 2011 WL 1574585, at *8.
The circuit court had applied the three-part test for
setting aside a default judgment. We stated:

In this case, there was no default judgment. Therefore,
. . . the proper legal standard to address the alleged gross
misconduct of Salvacion's prior counsel was whether there
were "exceptional circumstances" warranting the
extraordinary relief available under HRCP Rule 60(b)(6).
Because the circuit court failed to apply the correct legal
standard, we vacate that portion of the circuit court's
order denying relief under HRCP Rule 60(b)(6) and remand the
case back to the circuit court to determine whether
Salvacion demonstrated exceptional circumstances sufficient
to warrant relief from the foreclosure judgment under HRCP
Rule 60(b)(6).

Id. at 2011 WL 1574585, at *9 (emphasis added).
This case involves a default judgment. The
"exceptional circumstances" test does not apply; the three-part
Chen v. Mah test does. Ru has not shown her default was not the
result of inexcusable neglect or a wilful act. We need not
address the other two parts of the cumulative test. The Circuit
Court acted within its discretion by denying Ru's HRCP
Rule 60(b)(6) motion.
The November 1, 2023 Order Denying Defendant Yun Ru's
Motion to Set Aside Default Judgments for Foreclosure of Mortgage
and Confirmation of Foreclosure Sale and Related Orders is
affirmed.
DATED: Honolulu, Hawai#i, November 21, 2025.

On the briefs:
/s/ Karen T. Nakasone
Frederick J. Arensmeyer, Chief Judge
for Defendant-Appellant
Yun Ru. /s/ Katherine G. Leonard
Associate Judge
Zachary K. Kondo,
Mary Martin, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge