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Oral Argument before the Intermediate Court of Appeals–CAAP-17-0000174

CAAP-17-0000174, Wednesday, February 12, 2020, 10 a.m.

THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWABS INC., ASSET-BACKED CERTIFICATES, SERIES 2007-11, Plaintiff/Counterclaim Defendant-Appellee, vs. MARY LEE COLTON, Defendant/Counterclaim Plaintiff-Appellant, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; DOE GOVERNMENTAL UNITS 1-50, Defendants.

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

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Defendant/Counterclaim Plaintiff-Appellant:

Margaret (Dunham) Wille and Timothy Vandeveer
 (Margaret Wille and Associates)

Attorneys for Plaintiff/Counterclaim Defendant-Appellee:

Patricia J. McHenry and Allison Mizuo Lee (Cades Schutte)

COURT: Ginoza, C.J., and Hiraoka, J. in place of Nakamura, C.J., retired and Wadsworth, J. in place of Reifurth, J., retired.

Listen to the entire audio recording in mp3 format  ]

Brief Description:

On February 1, 2013, Plaintiff/Counterclaim-Defendant/Appellee The Bank of New York Mellon, As Trustee For The Certificateholders of CWABS, Inc., Asset-Backed Certificates, Series 2007-11 (BONY) filed a complaint to foreclose on a note and mortgage (Foreclosure Complaint) allegedly made by Defendant/Counterclaim-Plaintiff/Appellant Mary Lee Colton (Colton). In response, Colton filed a counterclaim against BONY asserting eight “counts,” or counterclaims.

The Circuit Court dismissed three of the counterclaims, and on July 8, 2014, (1) granted summary judgment against all parties and in favor of BONY and for an interlocutory decree of foreclosure (Foreclosure Decree); and (2) entered the Judgment (Foreclosure Judgment). On July 18, 2014, Colton filed her notice of appeal from the Foreclosure Judgment in appellate court case number CAAP-14-0000984. See The Bank of New York Mellon v. Colton, No. CAAP-14-0000984, 2017 WL 3587949 (Haw. App. Aug. 21, 2017) (Colton I).

Meanwhile, from July 9, 2014 to May 27, 2016, BONY unsuccessfully attempted to obtain discovery from Colton. BONY moved for sanctions for Colton’s failure to comply with the Circuit Court’s order compelling discovery, and for dismissal of Colton’s counterclaims with prejudice. Colton’s untimely response argued that the Foreclosure Complaint should have been dismissed and that discovery should not have been permitted after entry of the Foreclosure Judgment.

On August 1, 2016, the Circuit Court entered its order granting BONY’s motion for sanctions and dismissing all of Colton’s counterclaims “in their entirety with prejudice.” On February 10, 2017, the Circuit Court entered judgment pursuant to Hawai i Rules of Civil Procedure Rule 54(b) in favor of BONY and against Colton, dismissing all of her counterclaims (HRCP Rule 54(b) Judgment).

On March 13, 2017, Colton filed her notice of appeal in appellate case number CAAP-17-0000174 from the February 10, 2017 HRCP Rule 54(b) Judgment.

On August 21, 2017, this court issued the Summary Disposition Order resolving Colton I by vacating the Foreclosure Judgment and remanding the case to the Circuit Court for further proceedings.

In this appeal, Colton contends, among other things, that the Circuit Court abused its discretion in granting BONY’s motion for sanctions, thereby dismissing Colton’s counterclaims with prejudice, on the ground that she failed to comply with the Circuit Court’s prior order to compel her responses to BONY’s written discovery requests.