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Oral Argument Before the Hawaii Supreme Court — SCWC-14-0000426

No. SCWC-14-0000426, Thursday, March 9, 2017, 10 a.m.

THE BANK OF NEW YORK MELLON, fka THE BANK OF NEW YORK, not in its individual capacity but solely as Trustee for the Benefit of the Certificate Holders of the CWMBS, 2006-10 Trust, Mortgage Pass Through Certificates, Series 2006-10, Respondent/Plaintiff-Appellee, vs. R. ONAGA, INC., a Hawai i corporation, Respondent/Defendant-Appellant, and ROBERT NISPEROS MARQUEZ; MARLYN MIRANDA MARQUEZ; MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS, INC., solely as nominee for CASTLE & COOKE MORTGAGE, LLC, a Hawai i corporation; DEPARTMENT OF TAXATION, STATE OF HAWAI I; UNITED STATES OF AMERICA, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, Respondents/Defendants-Appellees, and LYLE ANTHONY FERRARA and LINDA SUSAN FERRARA, Petitioners/Intervenors.

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

Attorney for Petitioners Ferraras:

Richard Naiwieha Wurdeman

Attorney for Respondent R. Onaga, Inc.:

Lloyd Y. Asato

Attorneys for Respondent Bank of New York:

Peter T. Stone, Daisy Lynn B. Hartsfield, and Jenny J.N.A. Nakamoto

NOTE: Certificate of Recusal, by Associate Justice Sabrina S. McKenna, filed 10/21/16.

NOTE: Order assigning Circuit Court Judge Glenn J. Kim, in place of McKenna, J., recused, filed 10/27/16.

NOTE: Order accepting Application for Writ of Certiorari, filed 11/03/16.

COURT: MER, C.J.; PAN, RWP, and MDW, JJ., and Circuit Court Judge Kim, in place of McKenna, J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioners-Intervenors Lyle Anthony Ferrara and Linda Susan Ferrara (the Ferraras) applied for certiorari from the Intermediate Court of Appeals’ (ICA) July 20, 2016 Judgment, which vacated the Circuit Court of the First Circuit’s February 21, 2014 Judgment.

This case arises from a dispute over a residence once owned by Robert Nisperos Marquez and Marlyn Miranda Marquez (the Marquezes). Bank of New York Mellon, fka Bank of New York (BONY) filed a complaint for mortgage foreclosure in the circuit court, naming the Marquezes and several of their creditors as defendants. The circuit court granted summary judgment in favor of BONY. The Ferraras purchased the home at the subsequent foreclosure sale, and the circuit court issued an order confirming the sale.

In two separate appeals to the ICA, one of the creditors, R. Onaga, Inc. (Onaga), challenged the circuit court’s grant of summary judgment in favor of BONY and its order confirming the foreclosure sale. With respect to the first appeal, the ICA filed a summary disposition order on September 18, 2014, vacating the grant of summary judgment in the foreclosure proceeding.

With respect to Onaga’s appeal of the order confirming the foreclosure sale, the Ferraras filed a motion to intervene on September 28, 2014, which the ICA granted. The Ferraras filed a motion to dismiss the appeal as moot and a renewed motion to dismiss on the same grounds, both of which the ICA denied. On June 21, 2016 ICA filed a memorandum opinion vacating the circuit court’s order confirming the foreclosure sale.

The Ferraras’ application presents the following question:

Whether the ICA gravely erred when it denied the Petitioners’ motions to dismiss the appeal on mootness grounds.