The Bank of New York Mellon v. Cummings Jr. ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-APR-2021
07:54 AM
Dkt. 79 SO
NO. CAAP-XX-XXXXXXX
(Consolidated with No. CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK,
AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC.,
ALTERNATIVE LOAN TRUST 2007-14T2, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-14T2, Plaintiff-Appellee,
v.
OLIVER HAROLD CUMMINGS JR. and KATHLEEN MARIE CUMMINGS,
Defendants-Appellants
and
DOES 1 through 20, Inclusive, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC151000516)
and
CAAP-XX-XXXXXXX
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK,
AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC.,
ALTERNATIVE LOAN TRUST 2007-14T2, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-14T2, Plaintiff-Appellee,
v.
OLIVER HAROLD CUMMINGS JR. and KATHLEEN MARIE CUMMINGS,
Defendants-Appellants
and
DOES 1 through 20, Inclusive, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC151000516)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
These appeals arise from a mortgage foreclosure action.
In CAAP-XX-XXXXXXX, self-represented Defendants-Appellants Oliver
Harold Cummings, Jr. (Oliver) and Kathleen Marie Cummings
(Kathleen) (collectively, the Cummingses) appeal from the
Judgment entered by the Circuit Court of the Second Circuit1 on
March 1, 2017 (Judgment of Foreclosure). In CAAP-XX-XXXXXXX, the
Cummingses appeal from the Judgment entered by the circuit court
on June 21, 2019 (Judgment Confirming Foreclosure Sale). We
consolidated these appeals on March 19, 2021. For the reasons
explained below, we affirm the Judgment of Foreclosure and the
Judgment Confirming Foreclosure Sale.
Background
The following findings of fact by the circuit court are
unchallenged on appeal and are binding on the parties and the
appellate court. Bremer v. Weeks, 104 Hawai#i 43, 63, 85 P.3d
150, 170 (2004). On April 10, 2007, the Cummingses executed a
$650,000 promissory note (Note) in favor of Countrywide Home
Loans, Inc. The Note was secured by a mortgage (Mortgage) on
real property located in Ha#ikū, Maui (Mortgaged Property). The
Mortgage was assigned to Plaintiff-Appellee The Bank of New York
Mellon FKA the Bank of New York, as Trustee for the Certificate-
holders of CWALT, Inc., Alternative Loan Trust 2007-14T2,
Mortgage Pass-Through Certificates, Series 2007-14T2 (BONY). The
Cummingses defaulted on the Note.
Procedural History
On September 29, 2015, BONY filed a complaint to
foreclose on the Mortgage. The Cummingses did not answer BONY's
complaint; instead, a memorandum of law questioning the circuit
court's subject matter jurisdiction was filed on their behalf.
1
The Honorable Peter T. Cahill presided.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Neither of the Cummingses signed the memorandum; it was signed by
a person who does not appear to be licensed to practice law in
the State of Hawai#i.
BONY filed a motion for summary judgment and inter-
locutory decree of foreclosure on May 9, 2016. The Cummingses
did not file an opposition. The motion was heard on January 18,
2017. The record on appeal does not contain a transcript of the
hearing, but it appears the circuit court orally granted BONY's
motion for summary judgment because the Cummingses filed a
"Notice To Appeal" on February 7, 2017, that referred to the
January 18, 2017 hearing date. That filing initiated CAAP-17-
0000066.2 The circuit court entered findings of fact,
conclusions of law and an order granting BONY's motion for
summary judgment on March 1, 2017. The Judgment of Foreclosure
was also entered on March 1, 2017.
The foreclosure commissioner filed a report on the
auction of the Mortgaged Property with the circuit court on
October 18, 2018. BONY moved to confirm the foreclosure sale.
The circuit court entered an order approving the commissioner's
report and confirming the foreclosure sale, and the Judgment
Confirming Foreclosure Sale, on June 21, 2019. A notice of
appeal was filed on July 16, 2019.
CAAP-XX-XXXXXXX
The Cummingses both signed the notice of appeal that
resulted in CAAP-XX-XXXXXXX. The opening brief for that appeal
was conventionally filed on July 26, 2017. Neither of the
Cummingses signed the opening brief, despite the requirements of
Rule 32(c) of the Hawai#i Rules of Appellate Procedure (HRAP).
The failure of a self-represented party to sign a pleading,
motion, or other paper is also a violation of Rule 11 of the
2
See Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a)(2).
("If a notice of appeal is filed after announcement of a decision but before
entry of the judgment or order, such notice shall be considered as filed
immediately after the time the judgment or order becomes final for the purpose
of appeal.").
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Hawai#i Rules of Civil Procedure (HRCP), made applicable to
appeals by HRAP Rule 2.1(a). The opening brief bears the
typewritten names of five persons where the Cummingses signatures
should have been. None of the five appear to be licensed to
practice law in the State of Hawai#i; those persons are not
permitted to represent the Cummingses in this case. Oahu
Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372,
377, 590 P.2d 570, 573 (1979) (first citing HRS § 605-14
(prohibiting unauthorized practice of law); and then citing
HRS § 605-2 (requiring attorney's license to represent another in
court)).
In addition, the opening brief in CAAP-XX-XXXXXXX does
not comply with the requirements of HRAP Rule 28(b). Generally,
the failure to comply with HRAP Rule 28(b) is alone sufficient to
dismiss the appeal. See Hous. Fin. & Dev. Corp. v. Ferguson, 91
Hawai#i 81, 85, 979 P.2d 1107, 1111 (1999) (noting that
self-represented appellant's failure to comply with various
sections of HRAP Rule 28(b) were "sufficient grounds for
dismissal of the appeal") (citation omitted). Nevertheless, the
Hawai#i Supreme Court has instructed that:
[P]leadings prepared by [self-represented] litigants should
be interpreted liberally. Underlying this principle of law
is the promotion of equal access to justice — a [self-
represented] litigant should not be prevented from
proceeding on a pleading or letter to an agency if a
reasonable, liberal construction of the document would
permit [them] to do so.
. . . .
This court additionally has long adhered to the policy
of affording litigants the opportunity to be heard on the
merits whenever possible. In view of this longstanding
policy, we believe that [self-represented] litigants should
not automatically have their access to appellate review in
this court foreclosed because of failure to conform to
requirements of the procedural rules. Indeed, we have
instructed the lower courts to liberally interpret the
filings of [self-represented] litigants if possible, and
this court is equally obligated to interpret applications
for certiorari liberally in order to facilitate access to
justice.
Erum v. Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28
(2020) (cleaned up). Although the opening brief does not comply
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with the applicable court rules, we will consider the Cummingses'
appeal in CAAP-XX-XXXXXXX on the merits.
The Cummingses' sole argument on appeal is that the
circuit court lacked subject matter jurisdiction over BONY's
foreclosure proceeding because of the continuing existence of the
Hawaiian Kingdom and the illegitimacy of the government of the
State of Hawai#i. They cite our order dismissing Alexander &
Baldwin, LLC v. Armitage, No. CAAP-XX-XXXXXXX, 2016 WL 3349070(Haw. App. June 14, 2016) as precedent. The Armitage dismissal
was not based upon the existence of the Hawaiian Kingdom or the
illegitimacy of the Hawai#i state government. We dismissed the
appeal because the judgment being appealed was not "an appealable
final judgment under Hawaii Revised Statutes (HRS) 641-1(a) (1993
& Supp. 2015), HRCP Rule 54(b), HRCP Rule 58[,] and the holding
in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai#i 115,
119, 869 P.2d 1334, 1338 (1994)." Armitage, 2016 WL 3349070, at
*1. After the dismissal, the circuit court entered an amended
judgment which we considered on the merits in a subsequent
appeal. Alexander & Baldwin, LLC v. Armitage, No. CAAP-16-
0000667, 2020 WL 1227517 (Haw. App. Mar. 12, 2020) (SDO), cert.
accepted, No. SCWC-XX-XXXXXXX, 2020 WL 4558352 (Haw. Aug. 7,
2020).
In State v. Kaulia, 128 Hawai#i 479, 291 P.3d 377(2013), the Hawai#i Supreme Court held:
Kaulia appears to argue that he is immune from the
court's jurisdiction because of the legitimacy of the
Kingdom [of Hawai#i] government. In that regard, we
reaffirm that "[w]hatever may be said regarding the
lawfulness" of its origins, "the State of Hawai#i . . . is
now, a lawful government." State v. Fergerstrom, 106
Hawai#i 43, 55, 101 P.3d 652, 664 (App. 2004), aff'd, 106
Hawai#i 41, 101 P.3d 225 (2004). Individuals claiming to be
citizens of the Kingdom and not of the State are not exempt
from application of the State's laws. See id. at 55, 101
P.3d at 664; State v. Lorenzo, 77 Hawai#i 219, 883 P.2d 641(App. 1994); State v. French, 77 Hawai#i 222, 883 P.2d 644(App. 1994); Nishitani v. Baker, 82 Hawai#i 281, 921 P.2d
1182 (App. 1996); State v. Lee, 90 Hawai#i 130, 976 P.2d 444(1999).
Id. at 487, 291 P.3d at 385. The circuit court had subject
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matter jurisdiction over BONY's mortgage foreclosure action. See
First Hawaiian Bank v. Timothy, 96 Hawai#i 348, 356, 31 P.3d 205,
213 (App. 2001) (noting the state legislature vested circuit
courts with general jurisdiction over civil actions and proceed-
ings, and specific jurisdiction over mortgage foreclosure
actions). The Judgment of Foreclosure, entered by the circuit
court on March 1, 2017, is affirmed.
CAAP-XX-XXXXXXX
Neither of the Cummingses signed the notice of appeal
that resulted in CAAP-XX-XXXXXXX; Oliver, but not Kathleen,
signed a certificate of service appended to the notice of appeal.
Thus, even if we construe Oliver's signature on the certificate
of service to be a signature on the notice of appeal as required
by HRAP Rule 32(c) and HRCP Rule 11, there is nothing we can
construe as a notice of appeal filed by Kathleen. See HRAP
Rule 4(a)(1) ("When a civil appeal is permitted by law, the
notice of appeal shall be filed within 30 days after entry of the
judgment or appealable order."). Kathleen is not a party to this
appeal. The Judgment Confirming Foreclosure Sale was entered
more than 30 days ago; it is final and non-appealable as to
Kathleen.
Oliver did not sign the opening brief filed in CAAP-19-
0000513. He did, however, sign the certificate of service
appended to the opening brief. The opening brief, like the
opening brief filed in CAAP-XX-XXXXXXX, does not comply with the
requirements of HRAP Rule 28(b). Nevertheless, although the
opening brief does not comply with the applicable court rules, we
will consider Oliver's appeal in CAAP-XX-XXXXXXX on the merits
consistent with Erum.
Oliver's sole argument in this appeal, as in CAAP-17-
0000066, is that the circuit court lacked subject matter
jurisdiction over BONY's foreclosure proceeding because of the
continuing existence of the Hawaiian Kingdom and the illegitimacy
of the government of the State of Hawai#i. For the reasons
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explained above, Oliver's argument lacks merit. The Judgment
Confirming Foreclosure Sale, entered by the circuit court on
June 21, 2019, is affirmed.
DATED: Honolulu, Hawai#i, April 12, 2021.
On the brief:
/s/ Keith K. Hiraoka
Oliver Harold Cummings, Jr. Presiding Judge
and Kathleen Marie Cummings,
Self-represented Defendants- /s/ Clyde J. Wadsworth
Appellants. Associate Judge
David B. Rosen, /s/ Karen T. Nakasone
David E. McAllister, Associate Judge
Justin S. Moyer,
for Plaintiff-Appellee.
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