Bank of New York v. Dejos, No. 26534 (Haw. App. 1/31/2007), 26534

• Decision Date: 31 January 2007
• Docket Number: No. 26534,26534
• Citation: Bank of New York v. Dejos, No. 26534 (Haw. App. 1/31/2007), No. 26534 (Haw. App. Jan 31, 2007)
• Parties: THE BANK OF NEW YORK, AS TRUSTEE OF AMRESCO RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1997-3, Plaintiff-Appellee v. ROSA E. DEJOS, JOHN S. ESPANOL, AND JUDITH D. ESPANOL, Defendants-Appellants ROSA E. DEJOS, JOHN S. ESPANOL, AND JUDITH D. ESPANOL, Counterclaimants, v. BANK OF NEW YORK, AS TRUSTEE FOR AMRESCO RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1997-3, Counterclaim-Defendants.
• Court: Hawaii Court of Appeals

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THE BANK OF NEW YORK, AS TRUSTEE OF AMRESCO RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1997-3, Plaintiff-Appellee v. ROSA E. DEJOS, JOHN S. ESPANOL, AND JUDITH D. ESPANOL, Defendants-Appellants ROSA E. DEJOS, JOHN S. ESPANOL, AND JUDITH D. ESPANOL, Counterclaimants, v. BANK OF NEW YORK, AS TRUSTEE FOR AMRESCO RESIDENTIAL SECURITIES CORPORATION LOAN TRUST 1997-3, Counterclaim-Defendants.

No. 26534

Intermediate Court of Appeals of Hawaii.

January 31, 2007.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (Civ. No. 03-1-0114)

On the briefs:

Gary V. Dubin, for Defendants-Appellants.

Robert E. Chapman, and Mary Martin, (Stanton Clay Chapman Crumpton & Iwamura) for Plantiff-Appelee.

SUMMARY DISPOSITION ORDER

BURNS, C.J., NAKAMURA and FUJISE, JJ.

Defendants-Appellants Rosa E. Dejos, John S. Espanol, and Judith D. Espanol (collectively Appellants) appeal from the final judgment entered on April 20, 2004, in the Circuit Court of the Fifth Circuit (circuit court).¹ Final judgment was entered pursuant to the circuit court's April 20, 2004 order granting the motion for summary judgment on all claims filed by Plaintiff-Appellee Bank of New York, as Trustee of Amresco Residential Securities Corporation Loan and Trust 1997-3 (Bank of New York). After a careful review of the issues raised, arguments advanced, law relied upon, and the record in the instant case, we hold that the circuit court did not err. Consequently, we affirm.

1. Appellants' argument that genuine issues of material fact existed regarding whether the power of sale clause found in the mortgage agreement was an adhesion clause is not supported by the record. There is nothing to indicate that Appellants were forced to enter into a mortgage agreement, or that they were forced to do so with Bank of New York. Nacino v. Chandler, 101 Hawaii 473, 483, 71 P.3d 424, 434 (2002), aff'd sub nom. Nacino v. Koller, 101 Hawaii 466, 71 P.3d 417 (2003). Further, the record contains no evidence indicating that Bank of New York was in a better bargaining position, or that the power of sale term unfairly advantaged Bank of New York.

Appellants' argument that genuine issues of material fact regarding bad faith and unfair and deceptive trade practices is also not borne out by the record. Hawaii Leasing v. Klein, 5 Haw. App. 450, 456, 698 P.2d 309, 313 (1985). The terms of the foreclosure auction and sale were fully authorized by the mortgage and by Hawaii Revised Statutes § 667-5 (1993).

Appellants assert that foreclosing mortgagees are required to provide admissible evidence of default to establish a possessory interest in the land. Assuming, arguendo, that this assertion is correct, there is nothing in the record to establish that what was provided by Bank of New York did not meet this requirement.

Finally, Appellants did not raise inadequate advertisement of the non-judicial f reclosure...