Oral Argument Before the Hawaii Supreme Court
No. SCAP-13-0005234 (Consolidated with SCAP-14-0000772) Thursday, June 18, 2015, 10 a.m.
RUSSELL L. HUNGATE, Respondent/Plaintiff-Appellant, vs. THE LAW OFFICE OF DAVID B. ROSEN, A LAW CORPORATION, DAVID B. ROSEN, DEUTSCHE BANK NATIONAL TRUST COMPANY, and DOE DEFENDANTS 1-50, Petitioners/Defendants-Appellees.
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 Rosen, et al.:
David B. Rosen, Peter W. Olson, and Christopher T. Goodin
Attorneys for Petitioner Deutsche Bank:
Judy A. Tanaka and Clyde J. Wadsworth
Attorneys for Respondent Hungate:
James J. Bickerton, Stanley H. Roehrig, Steven M. Tannanbaum, Raymond C. Cho, and Van-Alan H. Shima
NOTE: Order granting Application for Transfer (in SCAP-13-0005234), filed 08/29/14.
NOTE: Order granting Application for Transfer (in SCAP-14-0000772), filed 12/31/14.
NOTE: Order granting motion to consolidate SCAP-13-0005234 and SCAP-14-0000772, filed 02/25/15.
COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.
[ Listen to the entire audio recording in mp3 format ]
In SCAP-13-5234, Russell L. Hungate (“Hungate”) and the Law Offices of David B. Rosen, et al (“Rosen”) filed Application for Transfer from the Intermediate Court of Appeals to this court on July 25 and July 28th, 2014, which this court granted on August 29, 2014. Subsequently, in SCAP-14-0772, Deutsche Bank National Trust Company (“Deutsche Bank”) filed an Application for Transfer on December 8, 2014 which was granted on December 31, 2014. Accordingly, a Motion to Consolidate filed by Deutsche Bank was granted on February 25, 2015, and the case was consolidated in SCAP-13-5234.
The present appeal arises out of the nonjudicial foreclosure sale involving Hungate’s property on Kaua#i. The nonjudicial foreclosure sale was performed by Rosen on behalf of Deutsche Bank, allegedly in accordance with Part I of Hawai#i Revised Statute (“HRS”) ‘ 667 (2008). To foreclosure on the property, Rosen published a notice of sale on March 20, 27, and April 3, 2009 and proposed a sale date of April 17, 2009. The proposed sale date of April 17, 2009 was on the 28th day from the first notice of sale published on April 17, 2009. The sale date was postponed a total of three times: from April 3 to May 15, from May 15 to June 12, from June 12 to July 17, and from July 17 to August 14, 2009. These dates were not published, but publicly announced at each sale date. At the August 14, 2009 sale, Deutsche Bank purchased the property with a winning bid of $161,250, the amount due and owing on the Mortgage.
Hungate appeals from the Circuit Court of the First Circuit’s (circuit court) November 5, 2013 “Order Granting Defendants The Law Office of David B. Rosen, a Law Corporation, and David B. Rosen’s Motion to Dismiss August 6, 2013 Complaint” as well as the circuit court’s April 8, 2014 “Order (1) Granting In Part Defendant Deutsche Bank National Trust Company’s Motion to Dismiss First Amended Complaint, Filed December 19, 2010; and (2) Staying Remaining Chapter 480 Claim Re Quitclaim Deed”
Hungate’s Opening Briefs raise the following issues: (1) Whether the circuit court erred in granting Rosen’s and Deutsche Bank’s motions to dismiss because it erroneously concluded that Hungate lacked standing to maintain unfair and/or deceptive trade practice claims against Rosen under HRS ‘ 480; (2) Whether the circuit court erred in concluding that Rosen complied with HRS Chapter 667; (3) Whether the circuit court erred in concluding that Paragraph 22 of Hungate’s mortgage did not require sale on a published date as a matter of law; and (4) Whether the circuit court erred in concluding that Rosen did not owe or breach common law duties to Hungate.