No. SCWC-15-0000005, Thursday, August 18, 2016, 11:15 a.m.

BANK OF AMERICA, N.A., Successor by Merger to BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, Respondent/Plaintiff-Appellee, vs. GRISEL REYES-TOLEDO, Petitioner/Defendant-Appellant, and WAI KALOI AT MAKAKILO COMMUNITY ASSOCIATION; and PALEHUA COMMUNITY ASSOCIATION, Respondents/Defendants-Appellees.

The above-captioned case was set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

R. Steven Geshell

Attorneys for Respondent Bank of America:

David B. Rosen, Zachary K. Kondo, David E. McAllister, Lloyd T. Workman, Justin S. Moyer, Jade Lynne Ching, J. Blaine Rogers, and Kee M. Campbell

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 05/24/16.

NOTE: Order assigning Circuit Court Judge Colette Y. Garibaldi, in place of Recktenwald, C.J., recused, filed 05/31/16.

NOTE: Order accepting Application for Writ of Certiorari, filed 06/22/16.

COURT: PAN, Acting C.J.; SSM, RWP, and MDW, JJ., and Circuit Court Judge Garibaldi, in place of Recktenwald, C.J., recused.

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Brief Description:

Respondent filed a complaint for foreclosure in the Circuit Court of the First Circuit (circuit court) on a property owned by Petitioner. In her answer, Petitioner asserted multiple defenses, and she also alleged counterclaims for wrongful foreclosure, declaratory relief, quiet title, and damages for unfair and deceptive trade practices. The circuit court granted Respondent’s motion to dismiss Petitioner’s counterclaims and subsequently denied Petitioner’s motion for reconsideration and request for certification for appeal and a stay pending appeal. The circuit court also granted summary judgment for Respondent entering an “Interlocutory Decree of Foreclosure.” Petitioner appealed the circuit court’s judgment to the Intermediate Court of Appeals (ICA).

Prior to filing the notice of appeal, Petitioner also requested that the circuit court stay the enforcement of the judgment and allow the property to act as a supersedeas bond, and it appears that the circuit court did not resolve Petitioner’s motion to stay prior to the filing of the notice of appeal. Petitioner also filed a motion for stay requesting that the property serve as a superseadeas bond in the ICA. The ICA granted the request in part on the condition that, within twenty days, Petitioner submit to the circuit court for its approval a supersedeas bond issued by a licensed surety in the amount of $300,000.

The ICA affirmed the circuit court’s grant of summary judgment in favor of Respondent, ruling that Respondent provided sufficient evidence documenting its right to foreclose on the property. The ICA determined that it had jurisdiction over the appeal of the judgment of the decree of foreclosure under HRS § 667-51(a)(1), but the ICA ruled that it did not have jurisdiction over Petitioner’s counterclaims and motion for reconsideration because the circuit court did not enter its dismissal of Petitioner’s counterclaims as a separate judgment. As to Petitioner’s argument that the court should have allowed the property to act as a supersedeas bond, the ICA ruled that the issues related to the supersedeas bond were waived, pursuant to HRAP Rule 28(b)(7).

Petitioner presents four questions for review in her application for writ of certiorari: (1) whether the ICA gravely erred in affirming the circuit court’s grant of summary judgment in favor of Respondent; (2) whether the ICA erred in affirming the circuit court’s dismissal of Petitioner’s counterclaims; (3) whether the ICA erred in affirming the circuit court’s refusal to grant Petitioner’s motion for reconsideration and request for certification; and (4) whether the ICA erred in affirming the trial court’s refusal to allow Petitioner to use her home as the supersedeas bond in the stay proceedings. Respondent maintains that the ICA correctly determined that it established its right to foreclose. Respondent further argues that the ICA properly rejected Petitioner’s foreclosure defenses under Hawaiʻi law.