Oral Argument Before the Hawaii Supreme Court — SCWC-17-0000387
No. SCWC-17-0000387, Friday, October 2, 2020, 8:45 a.m.
RAY A. DELAPINIA and ROBYN M. DELAPINIA, Petitioners/Plaintiffs-Appellants, vs. NATIONSTAR MORTGAGE LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION; TERRY LOUISE COLE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AMERICAN SAVINGS BANK, F.S.B., Respondents/Defendants-Appellees.
The above-captioned case has been set for argument on the merits at:
The oral argument will be held remotely and will be live-streamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts
Attorneys for Petitioners Delapinias:
James J. Bickerton, Stanley H. Roehrig, and Bridget G. Morgan-Bickerton of Bickerton Law Group LLLP; John F. Perkin of Perkin & Faria LLLC; Van-Alan H. Shima of Affinity Law Group LLLC
Attorneys for Respondent Nationstar Mortgage:
David A. Nakashima, Jade Lynne Ching, and Michelle N. Comeau of Nakashima Ching LLC
Attorneys for Respondent Mortgage Electronic:
Patricia J. McHenry and Janjeera S. Hail of Cades Schutte
Attorneys for Respondent Terry Louise Cole and ASB:
Michael C. Bird, Jonathan W. Y. Lai, Thomas J. Berger, and Summer H. Kaiawe of Watanabe Ing LLP
NOTE: Certificate of Recusal, by Associate Justice Richard W. Pollack, filed 05/04/20.
NOTE: Order assigning Circuit Court Judge Paul B.K. Wong, in place of Pollack, J., recused, filed 05/04/20.
NOTE: Order accepting Application for Writ of Certiorari, filed 06/04/20.
COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Judge Wong, in place of Pollack, J., recused.
Plaintiffs Ray A. Delapinia and Robyn M. Delapinia brought a suit against their mortgagees, defendants Nationstar Mortgage LLC (“Nationstar”) and Federal National Mortgage Association (“Fannie Mae”), for wrongfully foreclosing on their Maui property. They also sued the third-party purchaser of the property, Terry Louise Cole, and her mortgagees, Mortgage Electronic Registration Systems (MERS) and American Savings Bank, F.S.B. (ASB). The plaintiffs sought damages, the return of the subject property, and quiet title in their favor. The Circuit Court for the Second Circuit (“circuit court”) granted Nationstar and Fannie Mae’s motion for judgment on the pleadings or in the alternative summary judgment, and dismissed the complaint as to the other defendants. The Intermediate Court of Appeals (ICA) vacated the judgment as to all defendants except MERS.
Before this court, the plaintiffs argue that the ICA erred in two respects: First, the ICA affirmed the circuit court’s application of the “tender rule,” or the requirement that a plaintiff seeking to quiet title must allege that it can tender the amount owed on the secured debt. Second, the ICA concluded that foreclosures that violate a power of sale clause are voidable, not void.