Wilmington Sav. Fund Soc'y, FSB v. Ryan
| Decision Date | 14 January 2021 |
| Docket Number | SCWC-18-0000071 |
| Citation | 479 P.3d 133 |
| Parties | WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a Christiana Trust, Not Individually but AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, Respondent/Plaintiff-Appellee, v. Terrence RYAN and Lucille Ryan, Petitioners/Defendants-Appellants, and First Light Enterprises LLC; Blue Water Alliance, LLC, Respondents/Defendants-Appellees. |
| Court | Hawaii Supreme Court |
Gary V. Dubin, Frederick J. Arensmeyer, Honolulu, and Matthew K. Yoshida for petitioners
Charles R. Prather, Robin Miller, Sun Young Park, and Peter T. Stone, Honolulu, for respondent
This certiorari proceeding arises out of an appeal from a foreclosure judgment. In their certiorari application, Terrence Ryan ("Terrence") and Lucille Ryan ("Lucille") (collectively, "the Ryans") present the following question:
Did the Intermediate Court of Appeals ("ICA") commit grave errors of law and/or fail to reconcile obvious inconsistencies in its decision with those of the Hawaii Supreme Court when the ICA concluded that the Circuit Court did not abuse its discretion by denying the moving party's motion to extend time to file notice of appeal where the moving party affirmatively inquired directly with the Circuit Court about when the order was filed, and the Circuit Court staff provided incorrect information to the moving party leading the moving party to believe that the thirty days to file the notice of appeal had not yet begun tolling?
We hold as follows: (1) Hawai‘i Rules of Appellate Procedure ("HRAP") Rule 4(a)(4)(B)1 motions to extend time for filing a notice of appeal are not properly filed as ex parte motions; (2) the Rules of the Circuit Courts of the State of Hawai‘i ("RCCH") Rule 7.2(g)(5)(A)2 provision purportedly disallowing appellate review of decisions on motions to advance hearings is inapplicable to decisions on HRAP Rule 4(a)(4)(B) motions, pursuant to HRAP Rule 2.1(a) (2010); (3) under the circumstances of this case, the Ryans’ motion to advance the hearing on their February 2, 2018 HRAP Rule 4(a)(4)(B) hearing motion should have been granted; (4) the Ryans established "excusable neglect," and their HRAP Rule 4(a)(4)(B) hearing motion should have been granted; and (5) thus, the Ryans’ February 6, 2018 notice of appeal was effective as to all issues on appeal over which the Intermediate Court of Appeals ("ICA") has appellate jurisdiction based on the Ryans’ timely appeal of the December 8, 2017 order denying reconsideration of the order granting summary judgment and foreclosure judgment.3
We therefore vacate the ICA's May 7, 2020 judgment on appeal and remand this case to the ICA for further proceedings consistent with this opinion.
On or about February 20, 2009, the Ryans executed a promissory note in the principal amount of $625,000 in favor of Bank of America, N.A. ("Bank of America"). To secure payment, the Ryans executed a mortgage encumbering real property located in Kalaheo, Hawai‘i. The Ryans apparently failed to make timely payments then failed to cure the default despite Bank of America's written notice regarding its intent to accelerate the loan and to foreclose.
On October 30, 2012, Bank of America filed a foreclosure complaint against the Ryans in the Circuit Court of the Fifth Circuit ("circuit court").4 Between November 7, 2012, and April 1, 2013, Bank of America attempted to personally serve the Ryans with the complaint in Kalaheo and in Washington State. After the circuit court authorized service by certified mail, Terrence was served on March 13, 2015, and Lucille was served on March 19, 2015, at different locations within Washington State.
On March 23, 2015, the Ryans filed a pro se motion for a 120-day extension of time to respond to the complaint ("answer extension motion"). On April 7, 2015, the circuit court legal documents branch informed the Ryans that the motion was deficient because it did not include a case type in the caption, was filed without a case type and/or case number, and there was no order submitted at the time of filing. That same day, the Ryans responded to the memorandum, providing a case type and a case number, but did not include an order.
Through several assignments and orders of substitution starting on May 9, 2013, Wilmington Savings Fund Society, FSB, D/B/A Christiana Trust, Not Individually but as Trustee for Pretium Mortgage Acquisition Trust ("Wilmington"), substituted as plaintiff effective December 22, 2016.
On April 27, 2017, at Wilmington's request, the circuit court clerk entered defaults against the Ryans for their failure to plead or otherwise defend.5 Then, on June 21, 2017, Wilmington filed a summary judgment motion for foreclosure.
On July 21, 2017, despite the April 27, 2017 entry of default, the circuit court filed an order granting the Ryans’ March 23, 2015 answer extension motion, but which stated: "THIS MATTER is before the court upon [the Ryans’] Motion for an Extension of Time to Answer Plaintiff's Complaint for an additional 120 days (July 21, 2015) from the date of filing of this motion."6
On August 31, 2017, the Ryans, now represented by counsel, filed a memorandum in opposition to the summary judgment motion for foreclosure.
At the September 5, 2017 hearing on the summary judgment motion, the circuit court noted the April 27, 2017 entry of default and granted Wilmington's motion. On September 20, 2017, the circuit court entered its findings of fact, conclusions of law, and order granting summary judgment ("foreclosure order"), as well as its foreclosure judgment.
On September 29, 2017, the Ryans moved for reconsideration of the foreclosure order and judgment ("foreclosure reconsideration motion"). The Ryans requested an opportunity to answer the complaint and to be reheard on the summary judgment motion. On October 9, 2017, Wilmington responded, arguing the Ryans failed to set forth any basis for setting aside the entry of default or the grant of summary judgment.
On October 20, 2017, the circuit court's law clerk emailed the parties’ counsel, stating:
On November 9, 2017, Wilmington's counsel emailed and mailed the proposed order denying the foreclosure reconsideration motion to the Ryans’ counsel. On November 13, 2017, the circuit court's judicial assistant emailed Wilmington's counsel asking for a status update regarding the order. Wilmington's counsel responded that the proposed order had been sent to the Ryans’ counsel but that it would be submitted to the circuit court in accordance with RCCH Rule 23 (2010)7 if the Ryans’ counsel did not approve it as to form. On November 20, 2017, Wilmington filed a RCCH Rule 23 notice of submission of the proposed order with a certificate of service on the Ryans’ counsel. In the certificate of service, Wilmington's counsel expressly stated, "The undersigned hereby certifies a copy of the foregoing Order will be duly served upon the below parties at their respective addresses by U.S. Mail, postage prepaid, when filed copies are received by this office[.]"
The circuit court filed its order denying the foreclosure reconsideration motion ("order denying foreclosure reconsideration") on December 8, 2017. Despite the previous certification from Wilmington's counsel, as well as the Hawai‘i Rules of Civil Procedure ("HRCP") Rule 5 (2000) requirement of service of "[e]very order required by its terms to be served," Wilmington did not serve a file-stamped copy of the December 8, 2017 order denying foreclosure reconsideration on the Ryans’ counsel until February 26, 2018.
Based on the December 8, 2017 filing of the order, the initial thirty-day deadline for filing a notice of appeal8 or a HRAP Rule 4(a)(4)(A)9 motion to extend time for filing an appeal was to expire on January 8, 2018. The Ryans did not file a notice of appeal or a HRAP Rule 4(a)(4)(A) motion by January 8, 2018.
After the initial thirty-day deadline for filing a notice of appeal expires, HRAP Rule 4(A)(4)(B) allows a party to file a motion to extend the deadline for another thirty days based on "excusable neglect."10 For the Ryans, this second thirty days for filing a motion to extend based on "excusable neglect" began on January 9, 2018, and was to end on February 7, 2018, which was also the deadline for filing a notice of appeal if a thirty-day extension was granted pursuant to HRAP Rule 4(a)(4)(B).
On January 26, 2018, the Ryans submitted an ex parte motion for a thirty-day extension to file a notice of appeal ("ex parte extension motion"), citing HRAP Rule 4(a)(4)(B) and RCCH Rule 7.2(f) (2014).11 They contended the appeal deadline should be extended for thirty days beyond the initial thirty-day deadline because they did not discover until January 25, 2018, that the order denying foreclosure reconsideration had been filed on December 8, 2017.
Attached to the Ryans’ ex parte extension motion were declarations from attorney Matthew K. Yoshida ("Yoshida") and legal assistant Jessica Taiatini ("Taiatini"). Yoshida and Taiatini averred under penalty of perjury as follows. After being informed that the circuit court would be denying the foreclosure reconsideration motion, they checked Ho‘ohiki12 approximately once per week for the status of the order. They did not notice any change to Ho‘ohiki "for some time," so, on January 2, 2018, Taiatini called the circuit court's chambers to ask about the status of the order. A member of the circuit court...
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Wilmington Sav. Fund Soc'y v. Ryan
...P.3d 133, 136 n.3 (2021). The Ryans appeal from: (1) the September 20, 2017 order granting summary judgment in favor of Plaintiff-Appellee Wilmington Savings Fund Society, (Foreclosure Decree); (2) the September 20, 2017 Judgment in favor of Wilmington; and (3) the December 8, 2017 order de......