MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., solely as nominee, Respondent/Plaintiff-Appellee, vs. SHARON KEHAULANI WISE and BLOSSOM ILIMA NIHIPALI, Petitioners/Defendants-Appellants, and EWA BY GENTRY COMMUNITY ASSOCIATION, Respondent/Defendant-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorneys for Petitioners:
Gary Victor Dubin, Frederick J. Arensmeyer, and Zeina Jafar of Dubin Law Offices
Attorney for Respondent Mortgage Electronic Registration Systems:
David B. Rosen
NOTE: Certificate of recusal, by Chief Justice Mark E. Recktenwald, filed 03/13/13.
NOTE: Order assigning Circuit Court Judge Rhonda A. Nishimura, in place of CJ Recktenwald, recused, filed 03/18/13.
NOTE: Order accepting Application for Writ of Certiorari, filed 04/10/13.
COURT: PAN, Acting CJ; SRA, SSM, & RWP, JJ; Circuit Court Judge Nishimura, in place of CJ Recktenwald, recused.
Petitioners Sharon Wise and Blossom Nihipali signed a mortgage and promissory note secured by real property in favor of Flexpoint Funding Corporation. Respondent Mortgage Electronic Registration Systems (MERS) was listed on the mortgage as “nominee.” Subsequently, the mortgage and promissory note were transferred to the JP Morgan Chase Bank. MERS initiated a judicial foreclosure action in the first circuit court alleging that Petitioners had defaulted on their mortgage.
Subsequently, MERS secured entry of default against Petitioners, and on May 12, 2010 the court entered final judgment against Petitioners and appointed a commissioner to sell Petitioners’ property. Petitioners then moved to set aside the defaults. On April 29, 2011, the court issued an order confirming the sale of Petitioners’ residence, and on May 10, 2011, the court denied Petitioners’ motion to set aside the defaults. Petitioners appealed to the Intermediate Court of Appeals (ICA), arguing that MERS lacked standing to bring the foreclosure action.
The ICA affirmed the court’s orders, holding that ratification by Chase pursuant to Hawai`i Rules of Civil Procedure Rule 17 cured any defect in Respondent’s standing. In their Application, Petitioners ask whether the ICA erred in holding Chase could ratify Respondent’s standing when Chase did not demonstrate that it held the mortgage and promissory note when MERS brought the foreclosure action, and thus, was the real party in interest.