Aurora Loan Services, LLC v. Currier

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-APR-2024
08:04 AM
Dkt. 52 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

AURORA LOAN SERVICES, LLC, A DELAWARE LIMITED LIABILITY
COMPANY, Plaintiff-Appellee,
v.
RANDOLPH GOODWIN CURRIER, STACEY MARIE CURRIER,
Defendants-Appellants,
and
KENNETH A. SMITH, Defendant-Appellee,
and
JOHN and MARY DOES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 11-1-0371(3))

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

Defendants-Appellants Randolph Goodwin Currier and
Stacey Marie Currier (collectively, Curriers) appeal from the
July 1, 2019 "Order Denying Defendants Randolph Goodwin Currier
and Stacey Marie Currier's [Hawai‘i Rules of Civil Procedure
(HRCP)] Rule 60(b) Motion for Relief from Judgment" (Order
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Denying Motion for 60(b) Relief) filed by the Circuit Court of
the Second Circuit (Circuit Court). 1
On appeal, the Curriers contend that the Circuit Court
erred in denying their Motion for 60(b) Relief, 2 "where the
underlying nonjudicial foreclosure relied upon by [Plaintiff-
Appellee Aurora Loan Services, LLC (Aurora)] in pursuing
judgment was invalid and void, due to Aurora's failure to
publish notice of its rescheduled foreclosure auction," under
Hungate v. Law Off. of David B. Rosen, 139 Hawai‘i 394, 391 P.3d

1 (2017), abrogated on other grounds by State ex rel. Shikada v.
Bristol-Myers Squibb Co., 152 Hawai‘i 418, 526 P.3d 395 (2023). 3
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issue raised, we affirm.

1 The Honorable Joseph E. Cardoza presided.

2 HRCP Rule 60(b) entitled "Mistakes; inadvertence; excusable
neglect; newly discovered evidence; fraud, etc." states in pertinent part:

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: . . . (4) the judgment is void; . . . or (6) any
other reason justifying relief from the operation of the
judgment. . . .

While the Curriers contend they are entitled to relief
under subsections (b)(4) and (b)(6) of HRCP Rule 60, they fail to
provide argument pertinent to (b)(6). "A party seeking relief under
HRCP Rule 60(b)(6) after the time of appeal has run must establish the
existence of 'extraordinary circumstances' that prevented or rendered
him unable to prosecute an appeal." Application of Hana Ranch Co.,
Ltd., 3 Haw. App. 141, 147, 642 P.2d 938, 942 (1982) (citations
omitted). The Curriers' claim of error under HRCP Rule 60(b)(6) is
waived. See Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7).

3 In Hungate, which also involved a nonjudicial foreclosure as
here, the Hawai‘i Supreme Court held that because the power of sale clause in
the mortgage required the bank to publish postponements of the foreclosure
sale, the circuit court erroneously dismissed the plaintiff's claims that the
foreclosure was wrongful for failure to publish postponements of the sale
through a new notice. 139 Hawai‘i at 403-04, 391 P.3d at 10-11.
2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

On April 3, 2014, the Curriers appealed the Circuit
Court's March 4, 2014 order, judgment for possession, and writ
of possession in favor of Aurora and against the Curriers on
Aurora's June 22, 2011 "Complaint for Ejectment." After the
Curriers failed to submit an opening brief, this court dismissed
the appeal on March 2, 2015.
On May 30, 2019, five years after the entry of the
March 4, 2014 judgment and writ of possession, the Curriers
filed their Motion for 60(b) Relief relevant to this appeal. On
June 10, 2019, Aurora filed an opposition to the Motion, the
Curriers filed a reply on June 17, 2019, and the Circuit Court
denied the motion on July 1, 2019.
"A circuit court's decision on an HRCP Rule 60(b)
motion is reviewed for abuse of discretion[.]" PennyMac Corp v.
Godinez, 148 Hawai‘i 323, 327, 474 P.3d 264, 268 (2020) (quoting
Haw. Hous. Auth. v. Uyehara, 77 Hawai‘i 144, 147, 883 P.2d 65, 68
(1994)). "The burden of establishing abuse of discretion in
denying an HRCP Rule 60(b) motion is on the appellant, and a
strong showing is required to establish it." Id. (cleaned up).
The Curriers' sole argument on appeal is that the
"nonjudicial foreclosure is void as a matter of law" because
under Hungate, "[n]o evidence was produced showing that notice
of rescheduling [the auction sale] had been published, which was
required under the power of sale." Aurora responds, inter alia,
that under Hawai‘i law, "even where it is determined that a
nonjudicial foreclosure of a mortgage is somehow wrongful, the
sale of the property may be 'voidable' at the timely election of
the mortgagor——as opposed to 'void as a matter of law.'"
Aurora's argument has merit.
HRCP Rule 60(b)(4) provides for relief from a judgment
when "the judgment is void[.]" In Delapinia v. Nationstar

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Mortg. LLC, 150 Hawai‘i 91, 101-02, 497 P.3d 106, 116-17 (2021),
the Hawai‘i Supreme Court held that:
a wrongful foreclosure that violates the power of sale is
voidable, not void. This conclusion flows from our cases
that make clear that if a foreclosure violates a statute
governing the nonjudicial foreclosure scheme, or other law
extrinsic to the mortgage itself, the sale is "voidable at
the election of the mortgagor," and in turn, "where the
property has passed into the hands of an innocent purchaser
for value, an action at law for damages is generally the
appropriate remedy."

(emphasis added) (cleaned up). Thus, even where a nonjudicial
foreclosure may be wrongful due to failure to strictly comply
with the power of sale, the remedy recognized under Hawai‘i law
is to render such a foreclosure voidable, not void as the
Curriers contend. As the Curriers do not raise any other
argument why the March 4, 2014 Judgment is void under HRCP Rule
60(b)(4), we conclude the Circuit Court did not abuse its
discretion by denying the Curriers' Motion for 60(b) Relief.
See PennyMac Corp., 148 Hawai‘i at 327, 474 P.3d at 268; HRAP
Rule 28(b)(7).
For the foregoing reasons, we affirm the July 1, 2019
"Order Denying Defendants Randolph Goodwin Currier and Stacey
Marie Currier's HRCP Rule 60(b) Motion for Relief from Judgment"
filed by the Circuit Court of the Second Circuit.
DATED: Honolulu, Hawai‘i, April 9, 2024.
On the briefs:
/s/ Katherine G. Leonard
Frederick J. Arensmeyer,
Acting Chief Judge
for Defendants-Appellants.
/s/ Keith K. Hiraoka
Nainoa Watson,
Associate Judge
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge

4