The Bank of N.Y. Mellon v. DeShaw
| Docket Number | CAAP-19-0000865,CAAP-22-0000408 |
| Decision Date | 29 November 2023 |
| Parties | THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-32CB), Plaintiff-Appellee, v. DENNIS DUANE DESHAW AND SUSAN KAY BROER-DESHAW, Defendants-Appellants, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, SOLELY AS NOMINEE FOR FIRST MAGNUS FINANCIAL CORPORATION, VILLAGE PARK COMMUNITY ASSOCIATION, Defendants-Appellees, and DOES 1 THROUGH 20, INCLUSIVE, Defendants. THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-32CB), Plaintiff-Appellee, v. DENNIS DUANE DESHAW AND SUSAN KAY BROER-DESHAW, Defendants-Appellants, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, SOLELY AS NOMINEE FOR FIRST MAGNUS FINANCIAL CORPORATION; VILLAGE PARK COMMUNITY ASSOCIATION; AND DOES 1 THROUGH 20, INCLUSIVE, Defendants-Appellees, and SUSAN KAY BROER-DESHAW, Counterclaim Plaintiff-Appellant, v. THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-32CB), Counterclaim Defendant-Appellee. |
| Court | Hawaii Court of Appeals |
1
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-32CB), Plaintiff-Appellee,
v.
DENNIS DUANE DESHAW AND SUSAN KAY BROER-DESHAW, Defendants-Appellants,
and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, SOLELY AS NOMINEE FOR FIRST MAGNUS FINANCIAL CORPORATION, VILLAGE PARK COMMUNITY ASSOCIATION, Defendants-Appellees, and DOES 1 THROUGH 20, INCLUSIVE, Defendants. THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-32CB), Plaintiff-Appellee,
v.
DENNIS DUANE DESHAW AND SUSAN KAY BROER-DESHAW, Defendants-Appellants,
and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, SOLELY AS NOMINEE FOR FIRST MAGNUS FINANCIAL CORPORATION; VILLAGE PARK COMMUNITY ASSOCIATION; AND DOES 1 THROUGH 20, INCLUSIVE, Defendants-Appellees, and SUSAN KAY BROER-DESHAW, Counterclaim Plaintiff-Appellant,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-32CB), Counterclaim Defendant-Appellee.
Nos. CAAP-19-0000865, CAAP-22-0000408
Intermediate Court of Appeals of Hawaii
November 29, 2023
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Appeal from the Circuit Court of the First Circuit Civil No. 1CC161001821
Dennis Duane DeShaw Self-Represented Defendant- Appellant.
Susan Kay Broer-DeShaw Self-Represented Defendant- Appellant/Counterclaim Plaintiff-Appellant.
Frederick J. Arensmeyer for Defendant-Appellant Dennis Duane DeShaw and Defendant-Appellant/Counterclaim Plaintiff- Appellant Susan Kay Broer-DeShaw.
David B. Rosen (Aldridge Pite, LLP) for Plaintiff-Appellee.
Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.
MEMORANDUM OPINION
In this consolidated appeal,[1] Defendants-Appellants Dennis Duane DeShaw (DeShaw) and Susan Kay Broer-DeShaw (Broer-DeShaw) (collectively, DeShaws) appeal in CAAP-19-0000865 (Foreclosure Appeal)[2] from the: (1) December 11, 2019 "Findings of Fact and Conclusions of Law [(FOFs/COLs)]; Order Granting Plaintiff's Renewed Motion for Summary Judgment and for Interlocutory Decree of Foreclosure filed November 14, 2018" (Foreclosure Decree), and (2) December 11, 2019 Judgment (Foreclosure Judgment); and appeal in CAAP-22-0000408 (Fees Appeal) from the May 23, 2022 "Findings of Fact and Conclusions of Law; Order Granting Plaintiff's Motion for Attorney's Fees and Costs and Additional Amounts Owed" (Fees Order). The
Foreclosure Decree, Foreclosure Judgment, and the Fees Order, were all filed and entered by the Circuit Court of the First Circuit (Circuit Court).[3]
In the Foreclosure Appeal, Broer-DeShaw raises the following nine points of error (POEs)[4] regarding the Foreclosure Decree:
[1]. The Trial Court has a Duty to Explain its Findings
[2]. The Trial Court Erred in Finding that [Plaintiff-Appellee The Bank of New York Mellon FKA The Bank of New York, as Trustee (CWALT 2006-32CB) (BONYM)] Owned the Note at Any Time, because [BONYM] Does Not Exist
[3]. The Trial Court Erred in Finding that [BONYM] Owned the Note at Any Time, because the Endorsements on the Note Convey Nothing to [BONYM].
[4]. The Trial Court Erred in Finding that [BONYM] Owned the Note at Any Time, because the First Purported "Assignment" Conveys Nothing to [BONYM].
[5]. The Trial Court Erred in Finding that [BONYM] Owned the Note at Any Time, because the Second Purported "Assignment" Conveys Nothing to [BONYM].
[6]. The Trial Court Erred in Finding that [BONYM] Owned the Note at Any Time, because [BONYM] Paid Nothing for the Note.
[7]. The Trial Court Erred in Concluding that a Plaintiff that Pays Nothing for a Loan in [sic] Entitled to Take the Collateral that Secures the Loan.
[8]. There is No Evidence that the Notice of Default Actually was Mailed to [Brower-DeShaw].
[9]. The Circuit Court's Judgment Amount is Based on Evidence that it Held to be Inadmissible.
In the Fees Appeal,[5] the DeShaws contend that the Circuit Court lacked jurisdiction to enter the Fees Order, which awarded fees and additional amounts to BONYM after a notice of appeal had been filed from the April 12, 2022 order and judgment confirming the sale of the property in CAAP-22-0000266 (Confirmation Appeal).
We hold in the Foreclosure Appeal that Broer-DeShaw's challenges to the Foreclosure Decree are not moot under the collateral consequences exception despite the sale of the property; but the challenges are nevertheless without merit. We hold in the Fees Appeal that the Circuit Court retained jurisdiction to enter the Fees Order even after the Confirmation Appeal was filed, where the Fees Order determined the final amounts owed to BONYM incidental to the enforcement of the Foreclosure Decree and distributed the proceeds of the sale. We thus affirm.
I. BACKGROUND
On September 27, 2016, BONYM filed a Verified Complaint to Foreclose Mortgage (Complaint), alleging that the DeShaws defaulted on a promissory note (Note) secured by a mortgage (Mortgage) on real property on Ka'aholo Street, Waipahu, Hawai'i 96797 (Subject Property).
On May 9, 2018, Broer-DeShaw filed an Answer and Counterclaim (Counterclaim) alleging wrongful foreclosure,
declaratory judgment, quiet title, and damages for unfair and deceptive trade practices.[6]
On November 14, 2018, BONYM filed a "Renewed Motion for Summary Judgment and for Interlocutory Decree of Foreclosure" (Renewed MSJ).[7] Attached was a declaration by Brian Nwabara (Nwabara) as an "employe[e]" and "custodian" of Bayview Loan Servicing, LLC (Bayview), "the authorized loan servicing agent for BONYM"; and a declaration by BONYM's counsel, declaring that BONYM was in possession of the Note at the time the foreclosure action was commenced. Also attached were a copy of the Note, an acknowledgement document reflecting that BONYM's counsel received possession of the Note on September 16, 2016, a June 4, 2015 Notice of Default letter mailed to the DeShaws at the Subject Property address, copies of the records that Nwabara relied on and the account and payment history of the loan, a copy of the Mortgage, and a copy of a 2011 "Assignment of Mortgage" (First Assignment) and 2015 "Assignment of Mortgage" (Second Assignment).
On March 27, 2019, Broer-DeShaw filed a "Response in Opposition to [BONYM]'s Renewed [MSJ]" (Opposition), arguing, among other things, that BONYM "may not exist"; Nwabara's declaration was "hearsay under U.S. Bank v. Mattos"; the endorsement on the Note did not "convey anything to" BONYM;
there was "no evidence that the Notice of Default was mailed" to the DeShaws; the First Assignment was from "a party with no interest in the Note," was a "legal nullity," and "forged"; "a Note cannot be conveyed in a separate document"; the Second Assignment did not "convey the Note"; and there was "no evidence of payment" for the Note.
On March 29, 2019, BONYM filed a "Reply in Support of its Renewed [MSJ]" (Reply). Attached to the Reply were declarations by BONYM's counsel of record, Aldridge Pite, LLP, and Aldridge Pite, LLP's Compliance Manager, Valerie Lacava (Lacava), declaring that Aldrige Pite, LLP received the Note on September 16, 2016.
On April 3, 2019, a hearing on the Renewed MSJ was held.[8]
On December 11, 2019, the Circuit Court granted the Renewed MSJ and filed its Foreclosure Decree and Foreclosure Judgment. The Foreclosure Decree determined the amount due and owing to BONYM from the DeShaws as of July 8, 2018;[9] and pertinent to the Fees Appeal, the decree awarded per diem interest on the Note "from and after July 8, 2018", along with other fees, expenses and amounts that the Circuit Court "shall subsequently determine[.]"[10] On December 21, 2019, Broer-DeShaw
timely filed the Foreclosure Appeal.[11]
On January 26, 2022, BONYM filed a "Renewed Motion for Confirmation of Foreclosure Sale, Allowance of Costs, Commissions and Fees, Distribution of Proceeds, Directing Conveyance and for Writ of Possession/Ejectments" (Renewed Motion for Confirmation of Sale), which the Circuit Court orally granted at a March 4, 2022 hearing.
On March 17, 2022, BONYM filed a "Motion for Attorney's Fees and Costs and Additional Amounts Owed" (Motion for Fees), requesting an additional $201,345.73 for "legal fees and costs and additional amounts owed" on the Note and Mortgage. The DeShaws did not file an opposition.
On April 12, 2022, the Circuit Court filed its "Order Approving Commissioner's Report and Granting [BONYM]'s Renewed Motion for Confirmation of Foreclosure Sale, Allowance of Costs, Commissions and Fees, Distribution of Proceeds, Directing Conveyance and for Writ of Possession/Ejectments, Filed January 26, 2022" (Confirmation Order). The Confirmation Order named Zhuping Ye (Ye) as the purchaser of the Subject Property, and pertinent to the Fees Appeal, the Confirmation Order "reserve[d] jurisdiction" for "any determination of any additional amounts due and owing to [BONYM], including attorney's fees/costs."[12]
Also on April 12, 2022, the Circuit Court entered Judgment on the Confirmation Order (Confirmation Judgment) pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b).[13]
Also on April 12, 2022, the DeShaws filed an appeal from the Confirmation Order and Confirmation Judgment, generating the Confirmation Appeal.[14]
On April 13, 2022, the day after the Confirmation Appeal had been filed, the Circuit Court heard BONYM's Motion for Fees, and orally granted the motion.
On May 23, 2022, while the Foreclosure Appeal and Confirmation Appeal were pending, the Circuit Court filed the Fees Order. The Fees Order awarded $201,345.73, consisting of, among other things, attorney's fees, costs, and additional interest on the Note from "July 8, 2018, through March 16, 2022,"[15] in addition to the $609,002.91 previously awarded to BONYM from the sale proceeds.
On June 22, 2022, the DeShaws appealed from the Fees Order, generating the Fees Appeal.
On...
To continue reading
Request your trial