Green Tree Servicing LLC. v. Thomas

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-MAR-2023
07:51 AM
Dkt. 184 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

GREEN TREE SERVICING LLC,
Plaintiff/Counterclaim Defendant-Appellee, vs.
ROSY ESPRECION THOMAS,
Defendant/Counterclaim Plaintiff-Appellant, and
APRIL ROSE ANUHEA THOMAS; BRADLEY SCOTT THOMAS;
UNITED STATES OF AMERICA, Defendants-Appellees, and
JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;
DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; AND
DOE GOVERNMENTAL UNITS 1-50, Defendants,

AND

ROSY ESPRECION THOMAS; APRIL ROSE ANUHEA (THOMAS) GARCIA;
AND BRADLEY SCOTT THOMAS, Counterclaim Plaintiffs-Appellees, vs.
GREEN TREE SERVICING, LLC NOW KNOWN AS DITECH FINANCIAL, LLC;
RCO HAWAII, LLC; BLUE KAANEHE; STEVEN IDEMOTO; TMLF HAWAII,
LLC; CHARLES R. PRATHER; PETER T. STONE; ANYA M. PEREZ;
SKYLAR G. LUCAS; DEREK W.C. WONG; JASON L. COTTON;
STARN O'TOOLE; MARCUS & FISHER; STEPHANIE E.W. THOMPSON;
KUKUI CLAYDON; JEANETTE H. CASTAGNETTI; DENNIS P.
SIMONCELLI; MERS; AND DOES 1-50,
Counterclaim Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 13-1-2392)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

Self-represented Defendant-Appellant Rosy Esprecion

Thomas (Thomas) appeals from the November 7, 2018 Judgment

(Judgment on Confirmation Order) entered by the Circuit Court of

the First Circuit (Circuit Court).1 Thomas also challenges 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 Writ of Ejectment (Writ of Ejectment), both entered on

November 7, 2018, as well as the Circuit Court's decision to

strike several of her motions due to noncompliance with the Rules

of the Circuit Courts of the State of Hawai#i (RCCH) and the

Hawai#i Rules of Civil Procedure (HRCP).

Thomas purports to additionally challenge the Circuit

Court's September 30, 2016 Judgment (Foreclosure Judgment) and

its Findings of Fact, Conclusions of Law, Order Granting

Plaintiff's Motion for Summary Judgment Against All Parties and

for Interlocutory Decree of Foreclosure, which were entered on

September 30, 2016 (Foreclosure Decree).

Thomas's opening brief fails to state where in the

record each error allegedly occurred and where in the record the

1
The Honorable Bert I. Ayabe (Judge Ayabe) presided and entered the
Foreclosure Order and Foreclosure Judgment. The Honorable Jeannette H.
Castagnetti (Judge Castagnetti) was assigned to the case on January 6, 2017,
and presided until October 9, 2018, when the case was reassigned back to Judge
Ayabe.

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alleged error was objected to. See Hawai#i Rules of Appellate

Procedure (HRAP) Rule 28(b)(4). Thomas also largely failed to

cite pertinent authorities, statutes, and parts of the record

that her arguments relied upon. See HRAP Rule 28(b)(7).

Nevertheless, we interpret self-represented claims liberally and

will address Thomas's arguments to the extent we are able to

discern them. See, e.g., Erum v. Llego, 147 Hawai#i 368, 380,

465 P.3d 815, 827 (2020).

Thomas appears to assert eight points of error on

appeal. The first seven points of error seek to challenge or

appear to challenge the Foreclosure Judgment and Foreclosure

Decree, which were entered in favor of Plaintiff-Appellee Green

Tree Servicing, LLC (Green Tree). In her final point of error,

Thomas contends that the foreclosure commissioner (Commissioner)

unlawfully auctioned the subject property to fictitious

characters he created or persons he conspired with.

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 Thomas's arguments as

follows:

We have appellate jurisdiction over the instant appeal

for the limited purpose of reviewing the Judgment on Confirmation

Order and the Circuit Court rulings made reviewable pursuant

thereto. The Judgment on Confirmation Order is certified under

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HRCP Rule 54(b) and appealable pursuant to Hawaii Revised

Statutes (HRS) § 667-51(a)(2) (2016), and Thomas's October 26,

2018 notice of appeal timely invoked our appellate jurisdiction

to review it under HRAP Rule 4(a)(1).

Thomas's 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, 304 P.3d at 1199. The failure of an

aggrieved party to timely appeal from a judgment on the decree of

foreclosure pursuant to HRS § 667-51(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, 304 P.3d at 1198-99.

Thomas failed to timely appeal from the Foreclosure

Judgment and Foreclosure Decree, and the merits of the

Foreclosure Decree are not reviewable in this appeal. See id. 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

"[o]rders confirming sale are separately appealable from the

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decree of foreclosure.") (brackets and citation omitted); Royce

v. Plaza Home Mortg., Inc., No. CAAP-XX-XXXXXXX, 2022 WL

17335413, at *2-3 (Haw. App. Nov. 30, 2022) (SDO) (holding that

res judicata precluded self-represented plaintiffs from

challenging the foreclosure judgment after they did not timely

appeal the judgment).

Thomas's first seven points of error appear to pertain

to the entry of the Foreclosure Decree and therefore, they are

not properly before this court on appeal.

Thomas's final point of error is related to the

Confirmation Order and Judgment on Confirmation Order inasmuch as

she argues that the Commissioner unlawfully auctioned the subject

property to fictitious persons. Thomas attaches certain exhibits

to the opening brief that she asserts are supportive of this

argument. However, Thomas did not raise this argument or offer

these exhibits in the Circuit Court proceedings on the

confirmation of sale, either in her October 10, 2018 opposition

to the motion for confirmation of the sale of the subject

property or in Thomas's October 25, 2018 motion seeking, inter

alia, to vacate the (then pending) Confirmation Order. "Legal

issues not raised in the trial court are ordinarily deemed waived

on appeal." Assn of Apartment Owners of Wailea Elua v. Wailea

Resort Co., 100 Hawai#i 97, 107, 58 P.3d 608, 618 (2002).

Therefore, Thomas's argument that the Commissioner unlawfully

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auctioned the subject property to fictitious persons will be

disregarded. See also HRAP Rule 28(b)(4).2

For these reasons, the Circuit Court's November 7, 2018

Judgment on Confirmation Order is affirmed.

DATED: Honolulu, Hawai#i, March 3, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Rosy Sotto Esprecion Thomas,
Pro Se Defendant-Appellant/ /s/ Keith K. Hiraoka
Counterclaimant-Appellant. Associate Judge

Patricia Ohara, /s/ Karen T. Nakasone
Robyn B. Chun, Associate Judge
Deputy Attorneys General,
for Counterclaim Defendants-
Appellees the Honorable
Jeannette Castagnetti and
Dennis P. Simoncelli.

Charles R. Prather,
Skylar G. Lucas,
Peter T. Stone,
(TMLF Hawaii LLLC),
for Plaintiff-Appellee/
Counterclaim Defendant-Appellee
Green Tree Servicing LLC.

2
As they are not properly before this court on appeal from the
November 7, 2018 Judgment on Confirmation Order, we do not have jurisdiction
to review the Order Granting Counterclaim Defendants the Honorable Jeannette
H. Castagnetti and Dennis P. Simoncelli's Motion to Dismiss with Prejudice
filed on January 25, 2019, or the March 11, 2019 Judgment. We note that
neither of these are part of the record on appeal in this case.

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