U.S. Bank National Association v. Wright ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-JUN-2023
08:18 AM
Dkt. 155 SO
NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE
LOAN TRUST, 2006-NC1, Plaintiff-Appellee,
v.
DANEFORD MICHAEL WRIGHT, ELLAREEN UILANI WRIGHT,
Defendants-Appellants,
and
COUNTY OF MAUI, WAILUKU COUNTRY ESTATES COMMUNITY
ASSOCIATION, INC., FINANCE FACTORS, LTD.,
Defendants-Appellees,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10,
DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, AND GOVERNMENTAL
UNITS 1-10, Defendants
AND
CAAP-XX-XXXXXXX
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE
LOAN TRUST, 2006-NC1, Plaintiff-Appellee,
v.
DANEFORD MICHAEL WRIGHT, ELLAREEN UILANI WRIGHT,
Defendants-Appellants,
and
COUNTY OF MAUI, WAILUKU COUNTRY ESTATES COMMUNITY
ASSOCIATION, INC., FINANCE FACTORS, LTD.,
Defendants-Appellees,
and
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10,
DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, AND GOVERNMENTAL
UNITS 1-10, Defendants
AND
CAAP-XX-XXXXXXX
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE
LOAN TRUST, 2006-NC1, Plaintiff-Appellee,
v.
DANEFORD MICHAEL WRIGHT, ELLAREEN UILANI WRIGHT,
Defendants-Appellants,
and
COUNTY OF MAUI, WAILUKU COUNTRY ESTATES COMMUNITY
ASSOCIATION, INC., FINANCE FACTORS, LTD.,
Defendants-Appellees,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10,
DOE CORPORATIONS 1-10, DOE ENTITIES 1-10, AND GOVERNMENTAL
UNITS 1-10, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC091000961)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
In this consolidated foreclosure appeal,1 self-
represented Defendants-Appellants Daneford Michael Wright and
Ellareen Wright (collectively, the Wrights), appeal from:
(1) the July 16, 2019 Final Judgment (Final Judgment) in
CAAP-XX-XXXXXXX; (2) the November 29, 2019 "Order Denying Ex
Parte Motion to Shorten Time for Hearing on Emergency Rule 62(b)
Motion of Defendants Daneford Michael Wright and Ellareen Uilani
Wright to Stay Any Further Attempts to Execute the August 21,
2018 Writ of Possession Pending Appeal to the Intermediate Court
of Appeals Filed Concurrently with Motion for Relief from Writ of
1
We consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX by a January
13, 2020 order, followed by a May 22, 2020 order consolidating the third case,
CAAP-XX-XXXXXXX.
2
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Possession Under Rules 60(b)(4) and 60(b)(6) and Setting Time for
Hearing" (Order Denying Ex Parte Motion to Shorten Time) in
CAAP-XX-XXXXXXX;2 and (3) the April 28, 2020 "Order Denying
Without Prejudice Defendants' Motion for Relief from Judgment
Pursuant to [Hawai#i Rules of Civil Procedure (HRCP)] 60(b)(2),
(3), (4), and (6) and Vacate Plaintiff's Writ of Possession Dated
July 15, 2019, Filed 2/25/20" (Order Denying Motion for 60(b)
Relief and Vacate Writ of Possession) in CAAP-XX-XXXXXXX; all
filed and entered by the Circuit Court of the Second Circuit
(Circuit Court).
On appeal, the Wrights raise the following points of
error contending that the Circuit Court erred: (1) by
"calendar[ing] a trial on September 15, 2014" when Plaintiff-
Counterclaim-Defendant-Appellee U.S. Bank National Association,
as Trustee for the Structured Asset Securities Corporation
Mortgage Loan Trust, 2006-NC1 (US Bank) "never filed a pretrial
statement"; (2) by denying the Wrights their due process right to
a jury trial; (3) by failing "to recognize the gap in the chain
of title when [US Bank] [sic] only witness had no knowledge of
the NCMC sale to LBB"; (4) by failing "to require [US Bank] to
provide documentation to establish the path of the Wright [sic]
collateral after the NCMC Transfer to NCC and finally a sale to
LBB which had been established by Wrights [sic] excepted [sic]
Trial evidence D-18 Sale Documents to Lehman Brothers which was
not even considered by the court"; (5) by allowing "the trial to
continue without the Note, Mortgage and alleged collateral file
to be brought back into court on the 2nd day of the trial which
was admitted into evidence which the Wrights had no chance to
cross[-]examine the documents and testify in court to bring forth
the Wrights [sic] Original Note received by the Bankruptcy Court
of Delaware which was excepted [sic] into evidence by [the
2
The Wrights provide no discernible argument on this order in their
Opening Brief, and we do not address it. See Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(7).
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Circuit Court]"; (6) by granting the April 8, 2015 "Findings of
Fact, Conclusions of Law, Judgment, and Decree of Foreclosure"
(Foreclosure Decree) where "Wells Fargo admitted at trial that
apparently LBB held the Wright [sic] collateral in controversy to
WF [sic] as attorney-in-fact for NCMC who allegedly created the
(7) by failing "to consider the weight of the NCMC bankruptcy
Trustee Affidavit and Bankruptcy Court orders against the false
and deceptive AOM and LPOA in its decision that the AOM was a
viable transfer/sale document which [US Bank] claimed in its
January 23, 2010 Complaint which [US Bank] claims how [US Bank]
became owner and holder of the Wrights [sic] Mortgage and Note";
(8) by failing "to allow Mr. Wright to testify before ending the
trial after Mr. Wright stated he wanted an opportunity"; (9) by
denying the Wrights' "reconsideration and a [sic] request for new
trial . . . [w]hen there were many material issues brought forth
by the Wrights"; and (10) by denying the Wrights' "motion to
vacate."
The Wrights' Opening Brief does not comply with HRAP
Rule 28. The points do not cite to "where in the record the
alleged error[s] occurred" and "where in the record the alleged
error was objected to or the manner in which the alleged error
was brought to the attention of the court" as required by HRAP
Rule 28(b)(4)(ii) and (iii). The Opening Brief does not contain
discernible record references pursuant to HRAP Rule 28(b)(3),
(4), and (7). While the Wrights appear to quote from transcripts
of trial proceedings, no transcripts are part of the record of
this consolidated appeal. See HRAP Rules 10(a), 10(b), and
28(b)(3). However, to promote access to justice, we interpret
pleadings prepared by self-represented litigants liberally and
attempt to afford them appellate review even though they fail to
comply with court rules. See Erum v. Llego, 147 Hawai#i 368,
380-81, 465 P.3d 815, 827-28 (2020). We consider the Wrights'
arguments to the extent we can discern them.
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Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve the
Wrights' points of error as follows, and affirm.
The underlying case has a lengthy procedural history,
which we set forth in the first of two prior dispositions by this
court. See U.S. Bank Nat. Ass'n, as Tr. for the Structured Asset
Sec. Corp. Mortg. Loan Tr., 2006-NC1 v. Wright, No. CAAP-15-
0000714, 2017 WL 1829680, at *1 (App. May 5, 2017) (mem.) (Wright
I). Pertinent to this appeal, following a January 2015 bench
trial, the Circuit Court entered its April 8, 2015 Foreclosure
Decree in favor of US Bank and against the Wrights, granting
foreclosure of mortgaged property for the Wrights' default on a
promissory note secured by the mortgage. On September 28, 2015,
the Circuit Court entered a judgment on its "Order Denying in
Part and Granting in Part Amended Plaintiff's Motion to Reduce
Bid to Total Debt Bid and for Confirmation of Sale by
Commissioner, Filed July 10, 2015" (Judgment on Order Confirming
Sale).
In the first appeal, Wright I, both US Bank and the
Wrights appealed from the April 8, 2015 Foreclosure Decree, and
we consolidated their four appeals under CAAP-XX-XXXXXXX. In
Wright I, we concluded that US Bank was entitled to per diem
interest for the reasonable amount of time it should have taken
US Bank to obtain payment of the outstanding principal and was
entitled to attorneys' fees and costs. Id. at *3-5.
In the second appeal, U.S. Bank Nat. Ass'n, as Tr. for
the Structured Asset Sec. Corp. Mortg. Loan Tr., 2006-NC1 v.
Wright, No. CAAP-XX-XXXXXXX, 2017 WL 2735634, at *1 (App. June
26, 2017) (SDO) (Wright II), both US Bank and the Wrights
appealed from the September 28, 2015 Judgment on Order Confirming
Sale. In Wright II, we concluded that the Circuit Court erred in
granting an order staying the sale of the subject property at
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issue and in failing to grant a motion for reconsideration
regarding the stay of the sale of the subject property. Id. at
*3-5.
Here, in this third appeal, it appears that the first
nine out of the Wrights' ten points of error arise out of the
2015 trial and the April 8, 2015 Foreclosure Decree, which were
the subject of both parties' appeals in Wright I. A litigant who
wishes to challenge a decree of foreclosure must do so "within
the thirty day period following entry of the decree or will lose
the right to appeal that portion of the foreclosure proceeding."
Beneficial Hawaii, Inc. v. Casey, 98 Hawai#i 159, 165, 45 P.3d
359, 365 (2002) (citation omitted). The Wrights' appeal in
Wright I, however, was dismissed on October 11, 2016 for the
Wrights' failure to file an Opening Brief. The April 8, 2015
Foreclosure Decree is not eligible for appellate review, and we
do not address the Wrights' contentions regarding the 2015 trial
and April 8, 2015 Foreclosure Decree. See Mortg. Elec.
Registration Sys. Inc. v. Wise, 130 Hawai#i 11, 17, 304 P.3d
1192, 1198 (2013) (holding that a foreclosure judgment becomes
"final and binding" when the time for appealing the judgment
passes without an appeal being taken).
As to the Wrights' tenth point of error on the denial
of the "motion to vacate," it appears that the Wrights are
referring to the April 28, 2020 Order Denying Motion for 60(b)
Relief and Vacate Writ of Possession. While the Opening Brief
does not provide discernible legal argument on why the Wrights
are entitled to relief under HRCP Rule 60(b)(2), (3), or (4), the
Reply Brief contains a brief argument in response to the
Answering Brief's arguments on the Rule 60(b) motion. Citing
PennyMac Corp. v. Godinez, 148 Hawai#i 323, 474 P.3d 264 (2020),
the Wrights argue that "[t]he Circuit Court's refusal to consider
the motion before issuing a denial because it viewed the
arguments as res judicata is in error." The Circuit Court's
Order Denying Motion for 60(b) Relief and Vacate Writ of
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Possession, however, does not contain any reasoning or
explanation for the denial of the motion; and the Wrights have
not provided a transcript of the March 4, 2020 hearing on that
motion. Without a transcript, there is no basis upon which to
review the alleged error. See HRAP Rule 10(b)(1)(A) (requiring a
transcript for any error "that requires consideration of the oral
proceedings before the court appealed from"); Bettencourt v.
Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995)
(citation and internal brackets omitted) ("The burden is upon
appellant in an appeal to show error by reference to matters in
the record, and he or she has the responsibility of providing an
adequate transcript.").
Finally, while not raised as a point of error, the
Wrights argue that the ineffectiveness of their prior retained
counsel, for failing to file an opening brief, led to the
dismissal of the Wrights' prior appeal of the foreclosure
judgment. The Wrights acknowledge that "there is no due process
right to 'competent' counsel in civil cases under the Sixth
Amendment" of the United States Constitution, but nevertheless
argue for relief based on loss of property under the Fourteenth
Amendment. As there is no federal constitutional right to the
assistance of counsel in civil cases, this argument lacks merit.
See U.S. Const. amend. VI; Chong v. Anderson, No. 29367, 2011 WL
1574735, at *3 (App. Apr. 26, 2011) (SDO) ("[Appellant] does not
have a right to effective assistance of counsel because there is
no right to counsel in a civil case." (citing Norton v. Haw.
Admin. Dir. of Court State of Haw., 80 Hawai#i 197, 200, 908 P.2d
545, 548 (1995))).
For the foregoing reasons, we affirm : (1) the July
16, 2019 Final Judgment in CAAP-XX-XXXXXXX; (2) the November 29,
2019 "Order Denying Ex Parte Motion to Shorten Time for Hearing
on Emergency Rule 62(b) Motion of Defendants Daneford Michael
Wright and Ellareen Uilani Wright to Stay Any Further Attempts to
Execute the August 21, 2018 Writ of Possession Pending Appeal to
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the Intermediate Court of Appeals Filed Concurrently with Motion
for Relief from Writ of Possession Under Rules 60(b)(4) and
60(b)(6) and Setting Time for Hearing" in CAAP-XX-XXXXXXX; and
(3) the April 28, 2020 "Order Denying Without Prejudice
Defendants' Motion for Relief from Judgment Pursuant to HRCP
60(b)(2), (3), (4), and (6) and Vacate Plaintiff's Writ of
Possession Dated July 15, 2019, Filed 2/25/20" in CAAP-20-
0000364; all filed and entered by the Circuit Court of the Second
Circuit.
DATED: Honolulu, Hawai#i, June 21, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Daneford Michael Wright Presiding Judge
Ellareen Uilani Wright
Self-Represented /s/ Clyde J. Wadsworth
Defendants-Appellants. Associate Judge
Deirdre Marie-Iha /s/ Karen T. Nakasone
(Goodsill Anderson Quinn & Associate Judge
Stifel, a Limited Liability
Law Partnership LLP)
for Plaintiff-Appellee.
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