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No. SCWC-18-0000099 (consolidated with SCWC-18-0000712), Thursday, June 20, 2024, 2 p.m.

No. SCWC-18-0000099 (consolidated with SCWC-18-0000712), Thursday, June 20, 2024, 2 p.m.

WILMINGTON SAVINGS FUND SOCIETY, FSB, Doing Business as CHRISTIANA TRUST, Not in its Individual Capacity, But Solely as Trustee for BCAT 2015-14BTT, Respondent/Plaintiff-Appellee, vs. ISABELO PACPACO DOMINGO and MICHELE ELANOR DOMINGO, Petitioners/Defendants-Appellants, and BANK OF AMERICA, N.A. and HALEWILI PLACE COMMUNITY ASSOCIATION, Respondents/Defendants-Appellees.  

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The above-captioned case has been set for oral argument on the merits at:

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television.

Attorney for Petitioners/Defendants-Appellants ISABELO PACPACO DOMINGO and MICHELE ELANOR DOMINGO:

Frederick J. Arensmeyer of The Law Office of Frederick J. Arensmeyer, LLLC

Attorneys for Respondent/Plaintiff-Appellees WILMINGTON SAVINGS FUND SOCIETY, FSB, Doing Business as CHRISTIANA TRUST:  

David B. Rosen, Justin S. Moyer, David E. McAllister, and Christina C. MacLeod of Aldridge Pite, LLP  

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 01/29/24.

NOTE:    Order consolidating CAAP-18-0000099 and CAAP-18-0000712 for disposition, filed 02/02/24.

NOTE:    Certificate of Recusal, by Associate Justice Vladimir P. Devens, filed 02/02/24.

NOTE:    Order assigning Circuit Judge Catherine H. Remigio and Circuit Judge Kevin A.K. Souza, in place of Ginoza, J., recused, and Devens, J., recused, filed 02/27/24.

NOTE:    Order accepting Application for Writ of Certiorari, filed 03/19/24.

COURT:    Recktenwald, C.J., McKenna, and Eddins, JJ., and Circuit Judge Remigio and Circuit Judge Souza, in place of Ginoza, J., recused, and Devens, J., recused

Brief Description:

This appeal arises out of a foreclosure action between Petitioners/Defendants-Appellants Isabelo Pacpaco Domingo and his wife, Michele Elanor Domingo (collectively, “the Domingos”) and Respondent/Plaintiff-Appellee Wilmington Savings Fund Society, FSB (“Wilmington”).  This is the second time this case has come to our court on an application for writ of certiorari.

After the Domingos defaulted on their mortgage refinance loan for their Kailua-Kona property, in 2018, the Circuit Court of the Third Circuit for the State of Hawai‘i (“third circuit”) entered a foreclosure judgment and ordered the property to be sold at public auction.  The Domingos appealed.  The Intermediate Court of Appeals (“ICA”) granted a motion to stay conditioned upon the Domingos posting a supersedeas bond of $300,000.  No supersedeas bond was ever filed.

A foreclosure sale ensued.  At public auction, Wilmington placed the highest bid.  The third circuit confirmed the sale. The Domingos again appealed.  Months later, the Domingos filed a complaint for wrongful foreclosure and quiet title in the Circuit Court of the First Circuit for the State of Hawai‘i and a lis pendens in the Land Court of the State of Hawai‘i. In 2022, Wilmington sold the property to BBNY REO LLC (“BBNY”).

In their first application for certiorari, we remanded the case to the third circuit for an evidentiary hearing to determine whether BBNY was a third-party good faith purchaser. In 2023, the third circuit found BBNY to be a third-party good faith purchaser.  The ICA then deemed the Domingos’ appeals moot because they did not post the previously ordered supersedeas bond.  The ICA also ruled the Domingos’ lis pendens invalid and that no exception to the mootness doctrine applied.

In this second application for writ of certiorari, the Domingos allege the ICA erred in its interpretation of: (1) the supersedeas bond requirement set forth in City Bank v. Saje Ventures II, 7 Haw. App. 130, 748 P.2d 812 App. (1988), and adopted by this court in Bank of New York Mellon v. R. Onaga, Inc., 140 Hawaiʻi 358, 400 P.3d 559 (2017), when it determined the Domingos’ appeals moot based on their failure to post the bond; (2) the lis pendens doctrine codified in Hawai‘i Revised Statutes § 501-151; and (3) the “collateral consequences” exception to the mootness doctrine.