Domingo v. James B. Nutter & Company. Consolidated with CAAP-17-0000859. ICA Order Granting the January 8, 2019 Motion to Dismiss with Prejudice, filed 01/25/2019 [ada]. ( 2023 )


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  • FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    20-DEC-2023
    08:01 AM
    Dkt. 201 OP
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    ---o0o---
    NO. CAAP-XX-XXXXXXX
    FAUSTINO DASALLA DOMINGO and ELTON LANE NAMAHOE, SR.,
    Plaintiffs-Appellees/Cross-Appellees,
    v.
    JAMES B. NUTTER & COMPANY,
    Defendant-Appellant/Cross-Appellee,
    and
    ROBERT M. EHRHORN, JR.; CLAY CHAPMAN IWAMURA PULICE & NERVELL,
    Attorneys at Law, a Law Corporation,
    Defendants-Appellees/Cross-Appellants,
    and
    JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
    DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and
    DOE GOVERNMENTAL UNITS 1-10, Defendants
    ____________________
    NO. CAAP-XX-XXXXXXX
    FAUSTINO DASALLA DOMINGO and ELTON LANE NAMAHOE, SR.,
    Plaintiffs-Appellants/Cross-Appellees,
    v.
    JAMES B. NUTTER & COMPANY,
    Defendant-Appellee/Cross-Appellee,
    and
    ROBERT M. EHRHORN, JR.; CLAY CHAPMAN IWAMURA PULICE & NERVELL,
    Attorneys at Law, a Law Corporation,
    Defendants-Appellees/Cross-Appellants,
    and
    JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
    DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and
    DOE GOVERNMENTAL UNITS 1-10, Defendants
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
    APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
    (CIVIL NO. 16-1-0249)
    DECEMBER 20, 2023
    GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ.
    OPINION OF THE COURT BY LEONARD, J.
    This consolidated appeal concerns wrongful-foreclosure-
    related claims brought in Civil No. 16-1-0249 by Plaintiffs-
    Appellees/Cross-Appellees/Appellants Faustino Dasalla Domingo
    (Domingo) and Elton Lane Namahoe, Sr. (Namahoe) (collectively,
    Plaintiffs) against Defendant-Appellant/Cross-Appellee/Appellee
    James B. Nutter & Company (Nutter), as well as related claims
    brought against Nutter's attorneys.
    In CAAP-XX-XXXXXXX, Nutter appealed from the March 6,
    2017 Order Denying [Nutter's] Motion for Judgment on the
    Pleadings as to Plaintiffs' Complaint filed July 5, 2016 (Order
    Denying Nutter MJOP), entered by the Circuit Court of the Third
    Circuit (Circuit Court).1     Nutter later moved to dismiss its
    appeal from the Order Denying Nutter MJOP.            On January 25, 2019,
    this court entered an order granting Nutter's motion and
    dismissing its appeal with prejudice.
    In CAAP-XX-XXXXXXX, Defendants-Appellees/Cross-
    Appellants/Appellees Robert M. Ehrhorn, Jr. (Ehrhorn) and Clay
    Chapman Iwamura Pulice & Nervell Attorneys at Law, a Law
    1
    The Honorable Greg K. Nakamura presided.
    2
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Corporation, (Clay Chapman) (collectively, Attorney Defendants)
    cross-appeal from:   (1) the Order Denying Nutter MJOP; (2) the
    March 6, 2017 Order Denying [Attorney Defendants'] Substantive
    Joinder to [the Nutter MJOP]; and (3) the March 6, 2017 Order
    Denying [Attorney Defendants'] MJOP (Order Denying Attorney
    Defendants' MJOP).
    In CAAP-XX-XXXXXXX, Plaintiffs appeal from the November
    15, 2017 Final Judgment on Order Granting Plaintiffs' Motion for
    HRCP 54(b) Certification of (1) Decision and Order on [Attorney
    Defendants'] Motion to Dismiss Plaintiffs' Complaint with
    Prejudice, . . . and (2) Order Granting in Part and Denying in
    Part Plaintiffs' Motion for Partial Summary Judgment Number One
    Against [Nutter and Attorney Defendants] (HRCP Rule 54(b)
    Judgment) entered by the Circuit Court.   Plaintiffs also
    challenge (or appeal from) the following three orders:     the
    December 15, 2016 Decision and Order on [Attorney Defendants']
    Motion to Dismiss Plaintiffs' Complaint with Prejudice (Partial
    Dismissal Order); the March 6, 2017 Order Granting in Part and
    Denying in Part Plaintiffs' Motion for Partial Summary Judgment
    Number One Against [Nutter] and [Attorney Defendants] (Order
    Granting/Denying MPSJ); and the October 19, 2017 Order Granting
    [Plaintiffs'] Motion for HRCP 54(b) Certification of (1) the
    [Partial Dismissal Order]; and (2) the [(Order Granting/Denying
    MPSJ] (Order Granting HRCP Rule 54(b) Certification).
    In CAAP-XX-XXXXXXX, Attorney Defendants cross-appeal
    from the HRCP Rule 54(b) Judgment.   Attorney Defendants
    challenge:   (1) the Partial Dismissal Order; (2) the Order
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Granting/Denying MPSJ; and (3) the Order Granting HRCP 54(b)
    Certification.
    Notably, on March 31, 2023, the Hawai#i Supreme Court
    issued an opinion in a closely-related case, James B. Nutter &
    Co. v. Namahoe, 153 Hawai#i 149, 
    528 P.3d 222
     (2023) (generally
    referred to as the Namahoe Appeal).2         Of significance here, the
    supreme court held that Namahoe was entitled to relief from the
    foreclosure judgment against him on two grounds, including that
    Nutter and its attorneys, Attorney Defendants herein, committed
    fraud on the court in the foreclosure action against Namahoe's
    home.    Id. at 153, 528 P.3d at 226.
    Here, in sum, we hold that:        (1) the Circuit Court did
    not err in concluding that Plaintiffs' action against Attorney
    Defendants was not a strategic lawsuit against public
    participation (SLAPP) filed in violation of Hawaii Revised
    Statutes (HRS) Chapter 634F (2016) (repealed 2022); (2) this
    court has appellate jurisdiction to review the Partial Dismissal
    Order, but not the Order Granting/Denying MPSJ; and (3) the
    Circuit Court erred in part in granting the Partial Dismissal
    Order.    In doing so, we further hold that:         (1) the litigation
    privilege is not an absolute bar against an action by a borrower
    against a foreclosing lender's attorney arising out of the
    attorney's fraud on the court in a prior foreclosure action; (2)
    a private cause of action against an attorney for committing a
    fraud on the court through an egregious, legally and factually
    2
    We take judicial notice of the court records in the Namahoe
    Appeal, in accordance with Hawai#i Rules of Evidence (HRE) Rule 201 (1993), as
    well as rely on the court's opinion.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    deficient, inaccurate and incomplete, materially false and
    misleading HRS § 667-17 affirmation, with respect to a
    foreclosure on a reverse mortgage, is hereby recognized; (3) a
    wrongful foreclosure claim per se is not cognizable against a
    lender's attorney, even though certain wrongful-foreclosure-
    related claims may lie against the attorney for the attorney's
    own wrongful conduct in limited circumstances; (4) the litigation
    privilege bars Plaintiffs' claims for intentional infliction of
    emotional distress (IIED) in this case, but does not in every
    circumstance shield attorneys from defending a claim that they
    intentionally acted to defraud elderly borrowers out of their
    homes; (5) although we recognize Plaintiffs' cause of action
    against Attorney Defendants for committing a fraud on the court
    through an egregious, legally and factually deficient, inaccurate
    and incomplete, materially false and misleading HRS § 667-17
    affirmation under the circumstances of this case, the Circuit
    Court did not err in dismissing Plaintiffs' additional fraud
    claims without prejudice; and (6) although Domingo and Namahoe
    are consumers based on their reverse mortgages with Nutter, and
    thus are consumers vis à vis Attorney Defendants, we decline to
    recognize a claim against Attorney Defendants pursuant to HRS
    chapters 480 and 481A here.
    I.   RELEVANT BACKGROUND
    On July 5, 2016, Domingo and Namahoe filed a complaint
    against Nutter and Attorney Defendants asserting the following
    thirteen counts (the Complaint):       (I) & (II) legal malpractice
    and gross legal malpractice (against Attorney Defendants only);
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    (III) breach of fiduciary duty; (IV) wrongful foreclosure; (V)
    intentional infliction of emotional distress (IIED); (VI) unfair
    and deceptive trade practices (Chapters 480 and 481A Claims or
    UDAP Claims); (VII) abuse of process; (VIII) fraud (which the
    Circuit Court construed as including fraud on the court); (IX)
    fraud in the inducement (against Nutter only); (X) elder abuse;
    (XI) a prayer for injunctive relief (against Nutter only); (XII)
    slander of title; and (XIII) punitive damages.
    The Complaint states factual allegations relating to
    two separate underlying foreclosure actions undertaken by Nutter,
    through then-counsel Attorney Defendants, against Domingo and
    Namahoe, respectively.
    A.     The Allegations Regarding the Domingo Foreclosure
    With respect to Domingo, the Complaint alleges that on
    December 11, 2007, Domingo executed an Adjustable Rate Note
    (Domingo Note), Home Equity Conversion Loan Agreement (Domingo
    Loan Agreement), with an attached Repair Rider to Loan Agreement
    (Domingo Repair Rider), and an Adjustable Rate Home Equity
    Conversion Mortgage (Domingo Reverse Mortgage), which was
    assigned to Nutter on the same day.         The Domingo Repair Rider
    contained a provision requiring Nutter to set aside $24,000 from
    the initial principal limit to be used for certain required
    repairs.3   The Complaint alleges that on November 3, 2009, nearly
    3
    The Domingo Repair Rider provided, in relevant part:
    I.    Lender's Promises
    A.    The Lender [Nutter] shall set aside $24,000.00
    from the initial Principal Limit under the Loan
    Agreement to be used for the purpose of bringing
    (continued...)
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    two years after Domingo executed the Domingo Reverse Mortgage,
    Nutter first communicated by letter to Domingo regarding the
    repairs identified in the Domingo Repair Rider, asking to be
    advised of the progress to date and to complete the required
    repairs as soon as possible, if not already completed.              Domingo
    advised Nutter via letter on or about December 7, 2009, that he
    had completed and paid for the required repairs and requested the
    $24,000 set aside to complete additional upgrades in progress.
    The Domingo Loan Agreement provided that if the
    mortgagor failed to make the repairs, the reverse mortgage lender
    could access the property to make the repairs utilizing the funds
    withheld to make the repairs, and that foreclosure was not
    permitted under the "standard reverse mortgage" unless "the Loan
    Agreement was recorded contemporaneously with the Reverse
    Mortgage."       The United States Department of Housing and Urban
    Development (HUD) regulations and best practices "prohibited
    foreclosure as a remedy for failure to timely repair, especially
    where funds were withheld from loan proceeds for repairs."
    Nevertheless, on April 19, 2012, through Attorney Defendants,
    Nutter filed a foreclosure complaint against Domingo, based
    solely on Domingo's alleged failure to timely make the repairs
    required per the Domingo Loan Agreement and Domingo Repair Rider.
    (...continued)
    the Property up to the property standards
    required by the [HUD] Secretary by repairing:
    Peeling/Scraping Paint, Roof Repair/Replacement,
    General Cleanup, Replace Stove/Hood, Toilet
    Inspection/Repair, Cabinet Repair, Hot Water
    Heater Insp[ection]/Repair.
    7
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Nutter filed a motion for summary judgment, which
    Domingo opposed, arguing that Nutter did not have a legal right
    to foreclosure under these circumstances.          Specifically, Domingo
    argued that foreclosure was not a remedy for failure to timely
    repair where, as was the case here, the loan agreement
    (containing the repair rider) was not simultaneously recorded
    with the reverse mortgage; where Nutter held reserves to pay for
    said repairs; where the repairs were so "manini", i.e.
    inconsequential, as to not constitute a substantial breach of
    contract; and where HUD regulations prohibited foreclosure as a
    remedy.   Nutter's motion for summary judgment was denied.
    The Complaint further alleges that Domingo, through
    counsel William J. Rosdil (Rosdil),4 contacted Nutter and
    Attorney Defendants to request that they stipulate to a HUD-
    approved inspection of Domingo's property to determine if all of
    the required repairs had been completed.          Neither Nutter nor
    Attorney Defendants agreed to the inspection.           Nevertheless,
    Rosdil "contacted a HUD approved inspector who made the
    inspection and approved not only the repairs but the overall
    condition of the [Domingo] residence."          Upon notification of the
    inspection, Attorney Defendants "conceded [that] Domingo was due
    the $24,000 refund [set aside in the Repair Rider] and not in
    default."     However, Nutter allegedly "refused to acknowledge
    [that] Domingo had satisfactorily completed the repairs per HUD
    inspection and was not now or ever in default[.]"
    4
    Domingo was self-represented until December 29, 2013.
    8
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    On August 7, 2014, Domingo moved for summary judgment
    on Nutter's foreclosure complaint, for an award of $24,000, and
    for attorney's fees and costs, arguing, inter alia, that he
    completed the required repairs, and that, even if he had not,
    failure to do so would not, as a matter of law, give Nutter a
    legal right to accelerate the Domingo Note and seek foreclosure.
    On November 14, 2014, the Circuit Court granted summary
    judgment in favor of Domingo, dismissing Nutter's foreclosure
    complaint with prejudice and ordering Nutter to pay Domingo the
    $24,000 set aside, as well as attorney's fees.           The court
    concluded that Nutter was unable to show default under the terms
    of the Domingo Loan Agreement and that there was no genuine issue
    of material fact precluding summary judgment in favor of Domingo.
    Judgment was entered on January 15, 2015.5
    The Complaint further alleges that despite the
    foregoing judgment being entered in favor of Domingo, Nutter
    and/or Attorney Defendants notified Domingo by mail on or about
    February 26, 2015, that he remained in default for non-payment of
    $6,674 and threatened Domingo with foreclosure if Domingo did not
    sign a Repayment Plan Agreement for monthly repayments of
    $278.08.6   Plaintiffs allege that this default notice did not
    disclose that Nutter's claims had been dismissed with prejudice
    5
    A second judgment was entered on February 4, 2015, concerning the
    Circuit Court's award of attorney's fees and costs.
    6
    Plaintiffs allege that Nutter was directed by Rosdil on two
    separate occasions to "communicate with Domingo through Rosdil only, and to
    send Domingo's $24,000.00 [judgment award] through Rosdil[.]" Nevertheless,
    the Complaint states that on or about February 24, 2015, Nutter and/or
    Attorney Defendants mailed the $24,000 check to Domingo directly without
    advising Rosdil.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    and that Domingo did not "appreciate the same."            Domingo signed
    the Repayment Plan Agreement "under duress, fear and serious
    emotional distress caused by the continued threat of foreclosure
    and years of litigation."7
    Thereafter,8 the Circuit Court entered an August 10,
    2015 Amended Judgment Superceding Judgments (Amended Judgment),
    which made clear that all claims for foreclosure in Nutter's
    complaint were dismissed with prejudice and expressly directed
    judgment in favor of Domingo for the $24,000 repair set aside and
    $39,179.24 in attorney's fees and costs.9          On September 4, 2015,
    Nutter appealed the Amended Judgment in CAAP-XX-XXXXXXX.             Domingo
    cross-appealed, arguing that the Circuit Court abused its
    discretion in refusing to impose sanctions on Nutter.
    Upon review, we concluded that Nutter did not provide
    any evidence showing that Domingo failed to comply with the terms
    of the Domingo Repair Rider.        We also upheld the Circuit Court's
    conclusion that the entry of final judgment on Nutter's complaint
    before Domingo's Hawaii Rules of Civil Procedure (HRCP) Rule 11
    motion was filed precluded the Circuit Court from entering
    7
    Upon notifying Rosdil of the letter, Domingo abrogated the payment
    contract.
    8
    On April 24, 2015, Domingo filed an HRCP Rule 11 motion for
    sanctions against Nutter and Attorney Defendants based on the filing and
    prosecution of the foreclosure complaint. The court denied the motion on
    procedural grounds, finding that the summary judgment entered in favor of
    Domingo and against Nutter resolved the challenged conduct. Domingo then
    filed a motion to correct/reconsider the order denying the HRCP Rule 11
    motion, which the court also denied.
    9
    On May 1, 2015, Nutter moved for correction and/or reconsideration
    per HRCP Rules 54, 58, 60(a), and 60(b) of the judgments granting Domingo's
    motion for summary judgment and for attorney's fees and costs. Although the
    motion was granted in part and denied in part, the August 10, 2015 Amended
    Judgment is essentially identical in substance to the earlier judgments in
    favor of Domingo.
    10
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    sanctions against Nutter.   We therefore affirmed the trial
    court's rulings.
    Finally, Plaintiffs alleged that Nutter continues to
    threaten Domingo with foreclosure, and that Nutter's conduct is
    intended to cause Domingo anxiety and worry and to hasten his
    demise, and that Nutter has been successful.   Domingo has been
    hospitalized about four times since Nutter's first post-judgment
    threat to foreclose again and/or render Domingo in default.    The
    Complaint states that on June 14, 2016, through different
    counsel, Nutter again filed for foreclosure against Domingo, and
    "[t]he pleading and affirmation of counsel are intentionally
    vague and ambiguous but certainly frivolous, fraudulent, elder
    abuse, and wrongful foreclosure."
    B.   The Allegations Regarding the Namahoe Foreclosure
    The allegations regarding Nutter's foreclosure action
    against Namahoe mirror in many respects those regarding Nutter's
    foreclosure against Domingo, the main differences being that
    Namahoe's alleged repair failure was for only $500 worth of
    repairs, and Namahoe failed to defend himself in the case.
    Namahoe lost his home.
    On October 19, 2009, Namahoe executed a promissory note
    in favor of Nutter and its successors and assigns (Namahoe Note),
    along with a Home Equity Conversion Loan Agreement (Namahoe Loan
    Agreement) and an attached Repair Rider to Loan Agreement
    11
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    (Namahoe Repair Rider).10      The exhibits to the Namahoe Note
    indicated that the "principal limit" was $67,536.00, with Namahoe
    receiving an "advance" of $52,462.48, with a $750.00 "line of
    credit" designated for repairs, and the balance of the $67,536.00
    going to closing costs and servicing fee set asides.             The Namahoe
    Note was secured by a Home Equity Conversion Mortgage (Namahoe
    Reverse Mortgage).
    On March 6, 2012, Nutter filed a foreclosure complaint
    and summons against Namahoe, also naming HUD.11           The complaint
    alleged that Namahoe "defaulted in the observance and performance
    of the terms, covenants and conditions by failing to repair the
    property as required by the [Namahoe Repair Rider] in a timely
    manner."     The complaint further alleged that Namahoe was given
    written notice that failure to timely repair per the Namahoe
    Repair Rider "required immediate payment in full of all
    outstanding principal and accrued interest due on the loan," and
    that Namahoe failed to so pay.
    On May 20, 2013, Nutter filed a Motion for Summary
    Judgment and Decree of Foreclosure Against All Defendants on
    10
    The Namahoe Repair Rider provided, inter alia:
    I.    Lender's Promises
    A.    The Lender shall set aside $750.00 from the
    initial Principal Limit under the Loan Agreement
    to be used for the purpose of bringing the
    Property up to the property standards required
    by the Secretary by repairing:
    The hall and carport ceiling shows evidence of
    water stains due to roof leak. The Front stair
    rail showed evidence of water rot. All to be
    repaired.
    11
    On June 28, 2012, HUD filed a disclaimer of interest in the
    Property.
    12
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Complaint Filed March 6, 2012.12       The memorandum in support of
    the motion stated, inter alia:
    [Namahoe] defaulted in the observance and performance
    of the terms, covenants and conditions by failing to repair
    the property, as required by the [Namahoe Repair Rider], in
    a timely manner. A true and correct copy of the approval by
    [HUD] for immediate payment in full of all outstanding
    principal and accrued interest as required by paragraph
    7(b)(iii) of the Note is attached hereto. . . . Written
    notice was given to [Namahoe] that because of the failure to
    repair the property as required by the [Namahoe Repair
    Rider] in a timely manner [Nutter] required immediate
    payment in full of all outstanding principal and accrued
    interest due on the loan. A true and correct copy of this
    notice with all personal and confidential information
    redacted is attached hereto. . . . However, despite said
    notice the default was not cured and the loan has not been
    paid off. Consequently, [Nutter] exercised its option under
    the terms and covenants of the Note and Mortgage to declare
    the entire unpaid principal balance of the loan, together
    with interest immediately due and payable[.] 13
    On June 25, 2013, a one-minute hearing was held on
    Nutter's motion for summary judgment, with Nutter's attorney
    appearing by telephone and no other appearances noted; the motion
    was granted.    On July 2, 2013, the Circuit Court entered the
    Findings of Fact, Conclusions of Law and Order Granting
    [Nutter's] Motion for Summary Judgment and Decree of Foreclosure
    Against All Defendants on Complaint Filed March 6, 2012 (Order
    12
    According to the attached certificate of service, the motion for
    summary judgment and the notice of hearing were mailed to Namahoe at the
    subject property. Based on an August 28, 2012 filing by Nutter, it does not
    appear that the U.S. Postal Service delivers mail to the physical location of
    the subject property. The notice of hearing stated that a hearing would be
    held at 8:30 a.m. in the Circuit Court's courtroom at 777 Kilauea Avenue, in
    Hilo; no hearing date was included in the Notice of Hearing, although a date
    was written on the first page of the Motion for Summary Judgment. A November
    16, 2011 Notice of Intent to Foreclose and an April 6, 2012 debt collection
    notice, both attached in support of the motion, indicated that they were
    mailed to Namahoe's post office box in Hilo, rather than the subject
    property's physical address.
    13
    With the motion for summary judgment, Ehrhorn submitted an
    affirmation pursuant to HRS § 667-17 (2016) (repealed 2017) stating that he
    was "fully aware" of the underlying action and that based, inter alia, "upon
    [his] own inspection and other reasonable inquiry" to the best of his
    knowledge, information, and belief, the motion contained no false statements
    of fact or law, that he understood his continuing obligation to amend the
    affirmation in light of newly discovered material facts, and that the
    allegations in the motion were warranted by existing law and have evidentiary
    support.
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    Granting Summary Judgment), as well as a Judgment on the Order
    Granting Summary Judgment (Foreclosure Judgment).
    On July 24, 2013, Foreclosure Commissioner Michael W.
    Moore (Moore) filed a Motion for Leave to Waive Open Houses.             The
    attached Declaration states:
    2. On July 18, 2013, I visited the subject property
    in Hawaiian Acres. . . . I knocked on the front door, but
    there was no response. . . . It appeared that someone was
    residing in the house.
    3. . . . I found Defendant Namahoe's telephone number
    in the phone book and called. Mr. Namahoe answered. He
    seemed unaware there was a foreclosure proceeding against
    him. He said he is 70 years old, has no car, so he can't
    check his post office box in Hilo where he receives his
    mail. He told me no one can take his house because he owns
    it. I explained to him it was my responsibility to sell his
    property at public auction.
    4. He became quite upset. He said he has nowhere
    else to live, no family or friends he can stay with. He
    said his income is only $700 a month, and he can barely
    afford to buy food. He told me that he would shoot the next
    person to come to his house so he could go to jail and get
    fed.
    5. Based on these circumstances, I believe Mr.
    Namahoe will not cooperate in conducting open houses of the
    property, and that any person who attempts to enter his home
    would risk injury, possibly serious injury.
    (Emphasis added).
    Also on July 24, 2013, Moore mailed a Notice of Hearing
    to Namahoe's Hilo post office box.       The Circuit Court's October
    2, 2013 Order Granting Commissioner's Motion for Leave to Waive
    Open Houses states that the motion "came on for hearing before
    this Court on August 29, 2013, with the Commissioner present and
    [Nutter] having filed a statement of no opposition . . . and no
    other parties appearing."
    The Commissioner's Report on Sale of Property indicates
    that the property was sold at public auction on November 13,
    2013, with the highest bid being presented by Nutter.           The
    14
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    attached certificate of service, dated November 25, 2013,
    contains the following addendum:
    NOTE: We do not have a current mailing address for
    [Namahoe]. His last known mailing address was P.O. Box
    4686, HILO HI 96721. By return mail notice dated 10/4/13,
    the U.S. Postal Service advised that Mr. Namahoe's post
    office box has been closed and they are unable to forward
    his mail.
    On February 11, 2014, the Circuit Court entered an
    Order Approving Report of Commissioner, Confirming Commissioner's
    Sale of Property at Public Auction, Directing Distribution of
    Proceeds and for a Writ of Ejectment, along with a corresponding
    Judgment, Writ of Ejectment, and Notice of Entry (Confirmation
    Judgment).     A Return of Service as to Writ of Ejectment was filed
    on June 23, 2014, indicating personal service on Namahoe.
    Approximately two and a half years later, on January 3,
    2017, Namahoe filed an HRCP Rule 60(b) Motion for Relief from
    [Foreclosure Judgment] (Rule 60(b) Motion).            The motion
    challenged the substantive basis for the foreclosure, averring
    that Nutter was not entitled to pursue a reverse mortgage
    foreclosure based upon failure to timely repair, and further,
    that Namahoe made the repairs set forth in the Namahoe Repair
    Rider but that, although he recalled two separate inspections of
    the Property by Nutter's agents, neither inspector checked the
    repairs to the roof and neither indicated there was any problem
    with the repairs.
    The Rule 60(b) Motion and Namahoe's attached
    Declaration also challenged whether Namahoe had notice of the
    foreclosure proceedings, stating, inter alia:
    7.    I do not remember the sheriff, [Estacion]
    handing me the foreclosure Complaint on November 9, 2012.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Not [sic] do I recall signing any paper that I received the
    Complaint. I would not have understood it anyway.
    8.    My first memory about the foreclosure was a
    telephone call from an attorney who said he wanted to
    inspect my house and property because it was his job to sell
    my house at a foreclosure action. I was shocked! I did not
    know of any foreclosure. How come no one wrote me,
    telephoned me, or came to the house. I was always there
    because I had no car, very little money and only a few
    neighbors and relatives. I had to hitch rides from my house
    in remote Hawaiian Acres to shop for food and collect my
    mail at my post office box in Hilo. I was angry and upset
    and never heard again from the attorney.
    In the Rule 60(b) Motion, Namahoe further argued that
    Nutter committed fraud and fraud upon the court in pursuing the
    improper foreclosure, and requested the court take judicial
    notice of the records and files in the separate allegedly
    improper foreclosure proceedings brought by Nutter against
    Domingo, as well as the records and files in Civil No. 16-1-0249,
    the Circuit Court case underlying the instant appeal.
    Nutter opposed the Rule 60(b) Motion, arguing that:
    (1) it was untimely and Namahoe failed to establish a meritorious
    claim or defense; (2) Namahoe's fraud allegations were
    unsupported; (3) the Foreclosure Judgment was not void; (4)
    Namahoe waived all claims against Nutter related to the
    foreclosure in exchange for $5,000; and (5) the Property had
    already been sold to a third party.       Namahoe filed a reply to
    Nutter's opposition, contesting Nutter's first four arguments.
    A hearing on the Rule 60(b) Motion was held on February
    28, 2017, wherein the Circuit Court orally denied the motion.
    The Circuit Court explained its ruling:
    [T]he Court will deny the motion to the extent that
    the motion proceeds under Rule 60(b)(3), [because] the
    motion is untimely. More than one year passed between the
    16
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    time the Judgment was filed on July 2nd, 2013, and the
    filing of the [Rule 60(b) Motion].
    To the extent that proceeding under Rule 60(b)(4), the
    motion is denied. If we're talking about the notice issue,
    Mr. Namahoe did not answer and provide a mailing address.
    And if you look at the note and mortgage, all notices were
    to be given by mail to that 16-2218 Opeapea Road in
    Kurtistown unless Mr. Namahoe designated otherwise. And
    there's no indication that he designated another address to
    the lender.
    Regarding the fraud on the court type theories I'm
    going to think that that's more properly addressed in Civil
    number 16-1-249. I see that case as being that independent
    action that's mentioned under Rule 60(b). And my impression
    is that independent action is not really a 60(b) type
    motion.
    There's still a fraud on the court type claim for
    relief by Mr. Namahoe against Clay Chapman. And Mr. Namahoe
    would have at least the opportunity to attempt to amend the
    pleadings in that case to state, let's say, clear claims for
    relief against Nutter. So that's what the Court's belief
    is.
    Namahoe's attorney asked if the court's ruling was with
    prejudice, and the court replied:
    On the (b)(3), (b)(4), I think so.
    But the [fraud on the] court stuff [14] is still out
    there; right, in your other action. Cause you still have --
    I think Mr. Namahoe still has a claim for relief against
    Nutter -- not Nutter -- Clay Chapman. And then you have the
    opportunity to amend. I'm thinking that you already have
    that action already, you know, so it's not as if you needed
    this action to address the [fraud on the] court issue[.]
    On April 5, 2017, the Circuit Court entered the Order
    Denying Rule 60(b) Motion.
    On April 13, 2017, Namahoe filed an HRCP Rule 59(a) &
    (e) Motion for Amendment/Additional Evidence/Reconsideration of
    [Order Denying Rule 60(b) Motion].          Nutter opposed the motion.
    On June 9, 2017, the Circuit Court entered an order denying
    reconsideration.
    Namahoe timely filed a Notice of Appeal to this court
    (the ICA).     We affirmed.     Namahoe filed a petition for writ of
    certiorari to the supreme court, which was accepted and which
    14
    The transcript reads "form of court stuff," but in context, it is
    clear that the Circuit Court was referring to Namahoe's assertion that there
    had been a fraud on the court.
    17
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    resulted in the Namahoe Appeal, which is discussed at length
    herein.     In short, the supreme court affirmed the ICA's decision
    with respect to Namahoe's requests for relief under HRCP Rule
    60(b)(3) and (4), but held that Namahoe was entitled to relief
    under HRCP Rule 60(b)(6).    Namahoe, 153 Hawai#i 149, 
    528 P.3d 222
    .
    C.   Other Relevant Proceedings Below
    1.    Attorney Defendants' Motion to Dismiss
    On July 27, 2016, Attorney Defendants filed a Motion to
    Dismiss Plaintiffs' Complaint with Prejudice (Motion to Dismiss),
    arguing that:    (1) they owe no duty of care or fiduciary duty to
    Plaintiffs that could give rise to liability for legal
    malpractice or breach of fiduciary duty; (2) the litigation
    privilege provides them with immunity for legal malpractice,
    breach of fiduciary duty, wrongful foreclosure, intentional
    infliction of emotional distress, and elder abuse; (3) Plaintiffs
    failed to allege a claim for abuse of process because the
    Complaint did not allege "willful acts" distinct from the use of
    process; (4) Plaintiffs failed to allege a claim for fraud
    because the Complaint failed to allege detrimental reliance or,
    in the case of Domingo, substantial pecuniary damage; (5)
    Plaintiffs failed to allege a claim for violation of HRS Chapter
    481A because the Complaint did not allege conduct that would
    likely lead to confusion or misunderstanding; and (6) Plaintiffs
    lacked the consumer standing required to bring a claim under HRS
    Chapter 480.
    18
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Attorney Defendants further argued that because the
    claims against Ehrhorn fail to state a claim for relief, any and
    all allegations of respondeat superior liability against Clay
    Chapman must be dismissed with prejudice, and, similarly, that
    Plaintiffs had no cause of action on which to premise a request
    for punitive damages.
    Plaintiffs raised numerous arguments in opposition to
    the Motion to Dismiss, and Attorney Defendants filed a reply
    memorandum.
    Following a September 29, 2016 hearing, on December 15,
    2016, the Circuit Court entered the Partial Dismissal Order.     The
    Partial Dismissal Order dismissed Counts I, II, III, IV, V, VI,
    VII, VIII (only in part), X, and XIII of the Complaint without
    prejudice, as well as dismissed Count XII of the Complaint with
    prejudice.15    The Partial Dismissal Order is discussed further in
    Section IV.B.2. and IV.C. below.
    2.    Plaintiffs' Motion for Partial Summary Judgment
    On August 24, 2016, Plaintiffs filed a Motion for
    Partial Summary Judgment Number One Against [Nutter and Attorney
    Defendants] (MPSJ), seeking a determination that, as a matter of
    law, Nutter did not have the right to foreclosure on either
    Domingo or Namahoe for failure to timely make the required
    repairs.   Plaintiffs argued that Nutter was prevented from
    seeking foreclosure by the terms of the loan documents, the HUD
    mortgage loan servicing handbook, and Nutter's own reverse
    mortgage manual.
    15
    Counts IX and XI state claims against Nutter only.
    19
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Nutter and Attorney Defendants filed oppositions to the
    Motion for Partial Summary Judgment.    On March 6, 2017, the court
    entered the Order Granting/Denying MPSJ, granting the MPSJ as to
    Domingo and denying it as to Namahoe.   For the reasons set forth
    in Section IV.B.1. below, we conclude that we lack appellate
    jurisdiction to review the Order Granting/Denying MPSJ.
    D.   Attorney Defendants' Anti-SLAPP Motion
    On November 23, 2016, Attorney Defendants filed a
    motion for judgment on the pleadings "on the basis that
    [Plaintiffs'] claims against the Attorney Defendants represent an
    impermissible strategic lawsuit against public participation."
    Plaintiffs filed a memorandum in opposition, Attorney Defendants
    filed a reply memorandum, and the Circuit Court held a hearing on
    January 26, 2017.   The Circuit Court concluded that Plaintiffs'
    sole surviving claim against Attorney Defendants for fraud on the
    court had substantial and sufficient justification to warrant
    denial of the motion for judgment on the pleadings.   On March 6,
    2017, the Circuit Court entered an Order Denying Attorney
    Defendants' MJOP, and the court later denied Attorney Defendants'
    renewed anti-SLAPP motion for judgment on the pleadings.
    These appeals were timely filed.
    II.   POINTS OF ERROR
    In CAAP-XX-XXXXXXX, Nutter raised three points of
    error, all of which contended, in one manner or other, that the
    Circuit Court erred in failing to conclude that this action
    constitutes a SLAPP filed in violation of HRS Chapter 634F (2016)
    20
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    (repealed 2022).16     As noted above, Nutter's appeal has been
    dismissed with prejudice.
    In CAAP-XX-XXXXXXX, Attorney Defendants raise three
    points of error, contending that the Circuit Court erred in:              (1)
    denying their substantive joinder to Nutter's MJOP; (2) denying
    Attorney Defendants' MJOP, pursuant to HRS Chapter 634F; and (3)
    ruling that Attorney Defendants were not afforded protection by
    the anti-SLAPP statute, based on (a) the attorney affirmations
    filed by them during their representation of Nutter in the
    foreclosure actions against Namahoe and Domingo, and (b) the
    fraud on the court claim by Namahoe, which was not dismissed in
    the Partial Dismissal Order.
    In CAAP-XX-XXXXXXX, Attorney Defendants raise three
    points of error,17 contending that the Circuit Court erred in:
    (1) entering the Order Granting HRCP 54(b) Certification, as the
    orders subject to certification did not resolve any claims; (2)
    entering the Partial Dismissal Order inasmuch as it denied
    Attorney Defendants' motion to dismiss Namahoe's claim for relief
    based on fraud on the court; and (3) entering the Order
    Granting/Denying MPSJ to the extent that it granted any relief in
    favor of Namahoe.
    In CAAP-XX-XXXXXXX, Plaintiffs raise two points of
    error, contending that the Circuit Court erred in:            (1) granting
    in part Attorney Defendants' Motion to Dismiss, which was filed
    16
    Act 96 of 2022 repealed HRS chapter 634F and instead adopted HRS
    chapter 634G, the Hawaii Public Expression Protection Act.
    17
    Although Attorney Defendants cross-appealed in CAAP-XX-XXXXXXX, we
    address their contentions first here because they argue that this court lacks
    appellate jurisdiction.
    21
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    pursuant to HRCP Rule 12(b)(6); and (2) denying in part
    Plaintiffs' Motion for Partial Summary Judgment, given that
    Nutter had no right to foreclose against their homes.
    III. APPLICABLE STANDARDS OF REVIEW
    A ruling on a motion for judgment on the pleadings
    pursuant to HRS § 634F, regarding SLAPP cases, is reviewed de
    novo.   Perry v. Perez-Wendt, 129 Hawai#i 95, 98, 
    294 P.3d 1081
    ,
    1084 (App. 2013).    Pursuant to the anti-SLAPP statute, when a
    motion to dispose of a purported SLAPP claim is filed, the burden
    of proof and persuasion rests with the non-moving party.            HRS
    § 634F–2(4)(B) (Supp. 2012); see also Perry, 129 Hawai#i at 100,
    
    294 P.3d 1086
    .
    Statutory interpretation and the existence of
    jurisdiction are questions of law that are reviewed under the
    right/wrong standard.     Deutsche Bank Nat'l Tr. Co. v. Greenspon,
    143 Hawai#i 237, 243, 
    428 P.3d 749
    , 755 (2018).
    A trial court's ruling on a motion to dismiss is
    reviewed de novo.    Kamaka v. Goodsill Anderson Quinn & Stifel,
    117 Hawai#i 92, 104, 
    176 P.3d 91
    , 103 (2008).
    A complaint should not be dismissed for failure to
    state a claim unless it appears beyond a doubt that the
    plaintiff can prove no set of facts in support of his or her
    claim that would entitle him or her to relief. This court
    must, therefore, view a plaintiff's complaint in a light
    most favorable to him or her in order to determine whether
    the allegations contained therein could warrant relief under
    any alternate theory. Consequently, in reviewing the
    circuit court's order dismissing the plaintiffs' complaint
    in this case, our consideration is strictly limited to the
    allegations of the complaint, and we must deem those
    allegations to be true.
    Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113
    Hawai#i 251, 266, 
    151 P.3d 732
    , 747 (2007) (citation and internal
    quotation marks omitted).
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    IV.   DISCUSSION
    A.    Attorney Defendants' Anti-SLAPP Arguments
    Attorney Defendants argue that Plaintiffs' Complaint
    should have been dismissed as an impermissible SLAPP, filed in
    violation of HRS Chapter 634F.        We conclude that Plaintiffs
    carried their burden of showing that their Complaint is not a
    SLAPP.     Namahoe and Domingo are elderly individuals who allegedly
    suffered injury and/or loss in conjunction with the wrongful
    foreclosures of the reverse mortgages on their homes.
    Plaintiffs' action to seek redress was not filed in violation of
    HRS Chapter 634F.     The Circuit Court did not err in rejecting
    Attorney Defendants' arguments that this case should be dismissed
    as a SLAPP.18
    HRS Chapter 634F sought to, inter alia, "[p]rotect and
    encourage citizen participation in government to the maximum
    extent permitted by law" and "[c]reate a more equitable balance
    between the rights of persons to file lawsuits and to trial by
    jury, and the rights of persons to petition, speak out,
    associate, and otherwise participate in their governments" by
    prohibiting strategic lawsuits against such public participation.
    See 2002 Haw. Sess. Laws Act 187, § 1 at 822 (setting forth
    purposes of HRS Chapter 634F).        HRS § 634F-1 (2016) provided that
    SLAPP "refers to a lawsuit that lacks substantial justification
    or is interposed for delay or harassment and that is solely based
    on the party's public participation before a governmental body."
    18
    Our affirmation of the Circuit Court's SLAPP rulings is not a
    decision on the merits of Plaintiffs' claims against Attorney Defendants.
    23
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    (Emphasis added).   Attorney Defendants argue that the claims
    against them lack substantial justification, are based solely on
    their participation before a government body, and therefore,
    should have been dismissed under the anti-SLAPP statute.
    Attorney Defendants generally contend, inter alia,
    that:   every one of Plaintiffs' claims against them arise out of
    Nutter's foreclosures on both Namahoe's and Domingo's reverse
    mortgages; Nutter had a right to initiate the foreclosure actions
    and participate in those actions by way of giving written and/or
    oral testimony; and Attorney Defendants' actions in the
    foreclosures against Namahoe and Domingo constitute precisely the
    type of conduct that Hawaii's anti-SLAPP Law is designed to
    protect.   Given the allegations in Plaintiffs' Complaint, this is
    an incorrect interpretation of Hawaii's anti-SLAPP law,
    especially in light of the supreme court's opinion in the Namahoe
    Appeal, as set forth below.
    Attorney Defendants more specifically argue that
    Plaintiffs do not assert a valid claim against them because
    Namahoe's claim for fraud on the court is not a cause of action
    upon which damages may be awarded to an individual.   However, as
    Plaintiffs note, this argument was not raised in their anti-SLAPP
    arguments to the Circuit Court, and therefore it is waived.     See
    Hawaii Rules of Appellate Procedure Rule 28(b)(4); see also,
    e.g., Kemp v. CSEA, 111 Hawai#i 367, 391, 
    141 P.3d 1014
    , 1038
    (2006).
    Attorney Defendants next argue that Plaintiffs' fraud
    on the court claim lacks substantial justification because the
    24
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    alleged conduct is not a sufficiently egregious or widespread
    fraud upon the judicial process to constitute a fraud on the
    court.   In the Namahoe Appeal, in the supreme court's discussion
    of what constitutes fraud on the court in the context of an HRCP
    Rule 60(b) motion, the court explained:
    Attorneys representing foreclosing lenders must verify
    and affirm to the court the accuracy of documents proffered
    by the lender/client in order to prevent unwarranted
    foreclosures. HRS § 667-17. Attorney affirmations in
    foreclosure proceedings are a statutory means of protecting
    homeowners from wrongful foreclosure, as they prevent the
    courts from advancing fraud by lenders in foreclosure
    actions. Id. According to the statutory mandate, attorneys
    shall file an affirmation with the court "that the attorney
    has verified the accuracy of the documents submitted, under
    penalty of perjury and subject to applicable rules of
    professional conduct." Id. The purpose of the statute "is
    to prevent unwarranted foreclosure actions on residential
    property by requiring an attorney who files a judicial
    foreclosure . . . to also submit a signed affidavit to the
    court . . . stating that the attorney has verified the
    accuracy of the document submitted." H. Stand Comm. Rep.
    No. 697-14, in 2014 House Journal, at 1127. The statute
    specifically notes that:
    During and after August 2010, numerous and
    widespread insufficiencies in foreclosure filings in
    various courts around the nation were reported by
    major mortgage lenders and other authorities,
    including failure to review documents and files to
    establish standing and other foreclosure requisites;
    filing of notarized affidavits that falsely attest to
    such review and to other critical facts in the
    foreclosure process; and "robosignature" of documents.
    HRS § 667-17.
    Failure to submit adequate documentation, including
    the attorney affirmation, has been determined to be an
    adequate basis for denial of a motion for summary judgment.
    Wells Fargo Bank, N.A. v. Fong, 149 Hawai#i 249, 252,
    255—56, 
    488 P.3d 1228
    , 1231, 1234—35 (2021). It is
    reasonably inferred that to require attorney affirmations is
    to also require them to be accurate and complete. Anything
    less would render the statutory requirement meaningless.
    See In re City & Cnty. of Honolulu Corp. Counsel, 
    54 Haw. 356
    , 373, 
    507 P.2d 169
    , 178 (1973) ("It is a cardinal rule
    of statutory construction that a statute ought upon the
    whole be so construed that, if it can be prevented, no
    clause, sentence or word shall be superfluous, void, or
    insignificant."); Korean Buddhist Dae Won Sa Temple of Haw.
    v. Sullivan, 87 Hawai#i 217, 230, 
    953 P.2d 1315
    , 1328 (1998)
    (courts can consider "[t]he reason and spirit of the law,
    and the cause which induced the legislature to enact it
    . . . to discover its true meaning.") (bracket and ellipsis
    points in original). Because attorney affirmations are
    representations to the court, an inaccurate, incomplete, or
    otherwise misleading HRS § 667-17 affirmation may constitute
    25
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    a misrepresentation to the court. Accordingly, an
    inadequate attorney affirmation may rise to the level of
    fraud on the court. In these instances, relief from the
    Decree of Foreclosure is justified. 24
    24
    The circuit court in the Domingo and Namahoe
    foreclosure action in Domingo v. James B. Nutter &
    Co., Civil No. 16-1-0249, CAAP-XX-XXXXXXX, highlighted
    the importance of the attorney affirmation:
    If the representations contained in the
    affirmation required under HRS § 667-17 are not
    directed to the mortgagor, then to whom are they
    directed? Quite clearly they are directed to
    the Court presiding over the foreclosure case.
    The Court implicitly relies upon the attorney
    affirmation. The attorney affirmation "helps
    ensure that Hawai#i's courts are not used as
    instruments of fraud in foreclosure actions."
    Conf. Comm. Rep. No. 62-12, in 2013 House
    Journal, 27th Leg., Reg. Sess. at 1632 (Haw.
    2013).
    Since the attorney affirmation contains
    representations to the Court, if the attorney
    affirmation contains misrepresentations they are
    misrepresentations to the Court. Sanctions and
    remedies may be available as a result of these
    misrepresentations to the Court.
    Here, the attorney affirmation submitted in support of
    the foreclosure of Namahoe's home was inaccurate and
    incomplete in several respects. [Nutter] appears to have
    initiated foreclosure despite having knowledge that it
    failed to comply with the Repair Rider — the violation of
    which triggered the foreclosure. According to the Repair
    Rider attached to [Nutter's] complaint, the burden was on
    [Nutter] to certify "that the repairs which are funded under
    this Repair Rider will be completed in a manner to meet HUD
    property standards required by the Secretary as determined
    by a HUD-approved inspector." However, the record is devoid
    of any admissible evidence of Namahoe's alleged failure to
    carry out the repairs. As the ICA stated in its Memorandum
    Opinion, "there is no declaration or other evidence in the
    record of the particular repairs Namahoe allegedly failed to
    complete." No. CAAP-XX-XXXXXXX, 
    2022 WL 899896
     at *11 n.10
    (App. March 28, 2022) (emphasis added). Furthermore,
    nowhere in the record does [Nutter] confirm that Namahoe's
    property had been inspected by a HUD-certified inspector. 25
    Pursuant to the Repair Rider, [Nutter] had the independent
    duty to ensure that a HUD-approved inspector had inspected
    Namahoe's property prior to initiating foreclosure
    proceedings.
    25
    Based on the current record, it is unknown whether any
    inspectors were sent to survey the state of repairs on
    Namahoe's property. Namahoe attests that two
    individuals inspected his property, but that none
    indicated any problems with Namahoe's repairs.
    By submitting an attorney affirmation in support of
    foreclosure against Namahoe, without first verifying that
    there was an adequate factual and legal basis for
    foreclosure pursuant HRS § 667-17, the attorney affirmation
    falsely affirmed the sufficiency of the basis for the
    26
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    foreclosure. This failure by [Nutter] and its attorneys
    supports a finding of fraud on the court.
    James B. Nutter & Co., 153 Hawai#i at 167-68, 528 P.3d at 240-41
    (emphasis added).
    The supreme court clearly rejected the argument that
    the alleged conduct of Attorney Defendants in the foreclosure
    action against Namahoe does not constitute a fraud on the court.
    The supreme court's ruling shows that Plaintiffs' claim for fraud
    in this case does not "lack[] substantial justification."           See
    HRS § 634F-1 (definition of SLAPP).      Further, the Complaint and
    the supreme court's opinion show that Plaintiffs' claims do not
    just flow from the filing of the false attorney affirmation and
    other pleadings in the foreclosure case, but the failure to
    verify – outside the participation in the court proceedings –
    that there was an adequate factual and legal basis for
    foreclosure.   Indeed, Plaintiffs' allegations assert that
    Attorney Defendants conducted due diligence and similar
    responsibilities "prior to, during and subsequent to the
    foreclosures."   Thus, the allegations in Plaintiffs' Complaint
    are based in part on the conduct of Attorney Defendants outside
    of their appearances before the court and are not "solely based
    on [Attorney Defendants'] public participation before a
    governmental body."    Id.   Therefore, Defendant Attorneys are not
    entitled to SLAPP relief based on that argument.
    Domingo's claims against Nutter are similarly based on
    allegations of wrongful foreclosure and further claims arising,
    in the first instance, out of a factually and legally deficient
    foreclosure on the reverse mortgage on Domingo's home based on
    27
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    repairs that Domingo supposedly failed to complete.            Domingo,
    like Namahoe, argued that, as a matter of law, Nutter did not
    have a legal right to foreclosure under the circumstances.
    Domingo moved for summary judgment on Nutter's
    foreclosure complaint in Civil No. 12-1-0226, arguing, inter
    alia, that he completed the required repairs, and that even if he
    had not, failure to complete the repairs would not, as a matter
    of law, give Nutter the legal right to accelerate the subject
    note and seek foreclosure.       The Circuit Court granted Domingo's
    summary judgment motion and entered judgment in favor of Domingo,
    inter alia, dismissing the foreclosure complaint with prejudice.
    The Complaint herein further alleges, inter alia, that
    despite the foregoing order and judgment thereon, Nutter and/or
    Attorney Defendants notified Domingo by mail on or about February
    26, 2015, that he remained in default for non-payment of $6,674
    and threatened Domingo with another foreclosure, if Domingo did
    not sign a Repayment Plan Agreement for monthly repayments and
    make monthly payments of $278.08.          Plaintiffs allege that this
    default notice did not disclose that Nutter's claims had been
    dismissed with prejudice and that Domingo did not "appreciate the
    same."     Domingo signed the Repayment Plan Agreement "under
    duress, fear and serious emotional distress caused by the
    continued threat of foreclosure and years of litigation."19
    Thereafter, the Circuit Court entered the August 10,
    2015 Amended Judgment, superceding the previous judgments, which
    19
    Upon notifying his counsel of the letter, Domingo abrogated the
    repayment contract.
    28
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    made clear that all claims for foreclosure were dismissed with
    prejudice and expressly directed judgment in favor of Domingo for
    the $24,000 repair set aside and $39,179.24 in attorney's fees
    and costs.20      The Circuit Court's rulings in favor of Domingo in
    the foreclosure action against him were affirmed on appeal in
    CAAP-XX-XXXXXXX.
    Although ultimately Domingo did not end up losing his
    home to foreclosure, it appears that by submitting an egregiously
    inaccurate and incomplete, materially false and misleading,
    attorney affirmation in support of the foreclosure action against
    Domingo, without first verifying that there was an adequate
    factual and legal basis for foreclosure pursuant to HRS § 667-17,
    Attorney Defendants fraudulently affirmed the sufficiency of the
    basis for the foreclosure.          This egregious failure to comply with
    HRS § 667-17, facilitated an unwarranted foreclosure action
    against Domingo.        Thus, Plaintiffs' Complaint does not "lack[]
    substantial justification," and it is not "solely based on
    [Attorney Defendants'] public participation before a governmental
    body."     See HRS § 634F-1.       We conclude that Defendant Attorneys
    are not entitled to SLAPP relief based on Domingo's action to
    seek redress.
    Attorney Defendants next argue that Plaintiffs'
    Complaint against them lacks substantial justification because
    Namahoe's claims are barred by res judicata and collateral
    estoppel in light of the judgment on the merits in favor of
    20
    This judgment was later modified, but the substance of it was
    undisturbed.
    29
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Nutter and against Namahoe in the foreclosure action (Civil No.
    12-1-0113).    However, the supreme court vacated the Foreclosure
    Decree insofar as it would preclude Namahoe from asserting a
    wrongful foreclosure claim against Nutter.          James B. Nutter &
    Co., 153 Hawai#i at 153, 166-69, 528 P.3d at 226, 239-42.             We
    conclude that the vacated judgment is not a bar to claims against
    Defendant Attorneys, and therefore, we reject the argument that
    Plaintiffs' Complaint against them lacks substantial
    justification because Namahoe's claims are barred by res judicata
    and collateral estoppel.
    Finally, Attorney Defendants argue that the supreme
    court's decision in Hungate v. Law Office of David B. Rosen, 139
    Hawai#i 394, 
    391 P.3d 1
     (2017),21 bars all direct claims against a
    mortgagee's attorney for wrongful foreclosure, and as a result,
    Plaintiffs' Complaint lacks substantial justification under HRS
    chapter 634F.     We conclude that Hungate is distinguishable, and
    this argument is without merit.
    Attorney Defendants specifically argue that Hungate
    bars all HRS § 480-2 claims against the lender's attorney in the
    context of foreclosure cases.        However, the supreme court's
    decision was based on the specific allegations against the
    mortgagee's attorney in that case (Rosen), and set forth examples
    of circumstances beyond that decision.          The supreme court stated,
    inter alia:
    In contrast [to the role of a real estate broker], the
    role of an attorney involves representing a client's
    interests against those of an opposing party within an
    21
    Hungate was abrogated on other grounds by State ex rel. Shikada v.
    Bristol-Myers Squibb Co., 152 Hawai#i 418, 
    526 P.3d 395
     (2023).
    30
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    adversary system. Attorneys bear a duty to zealously
    represent clients "within the bounds of the law." Giuliani
    v. Chuck, 
    1 Haw. App. 379
    , 384, 
    620 P.2d 733
    , 737 (1980);
    see also Hawai#i Rules of Professional Conduct, "Preamble,"
    ¶ 2; ¶ 8; ¶ 9. 22 In other settings, we have declined to
    recognize a duty in favor of a plaintiff adversely affected
    by an attorney's performance of legal services on behalf of
    the opposing party. In Boning, we noted that "creation of a
    duty in favor of an adversary of the attorney's client would
    create an unacceptable conflict of interest. Not only would
    the adversary's interests interfere with the client's
    interests, the attorney's justifiable concern with being
    sued for negligence would detrimentally interfere with the
    attorney-client relationship." Boning, 114 Hawai #i at 220,
    159 P.3d at 832.
    22
    Our desire to avoid creating unacceptable conflicts of
    interest in this context, to protect attorney-client
    counsel and advice from the intrusion of competing
    concerns, and to allow adequate room for zealous
    advocacy, does not encompass, for example, allowing
    attorneys to conduct patently illegal activities on
    behalf of clients.
    Permitting a party to sue his or her opponent's
    attorney for UDAP under HRS § 480-2 in foreclosure actions
    presents a similar issue in that an attorney's concern with
    being sued by a party opponent could compromise his or her
    representation of the client. In a UDAP action, an attorney
    would be especially vulnerable to suit because, for example,
    under HRS § 480-2 "actual deception need not be shown; the
    capacity to deceive is sufficient." Keka, 94 Hawai #i at
    228, 11 P.3d at 16 (emphasis added) (citations omitted).
    Accordingly, a plaintiff would need only to allege that
    opposing counsel has breached the statutory duty under HRS
    § 480-2 "not to engage in unfair or deceptive acts or
    practices in the conduct of any trade or commerce . . . in a
    way that caused private damages[ ] in order to state a claim
    under" HRS chapter 480. Compton, 761 F.3d at 1056. Given
    that UDAP lacks a more rigorous or precise state of mind
    requirement, "even a carefully rendered opinion could, if
    incorrect, have the capacity to deceive." Short v.
    Demopolis, 
    103 Wash.2d 52
    , 
    691 P.2d 163
    , 172 (1984)
    (Pearson, J., concurring). The attorney would therefore
    "have to insure the correctness of his [or her] opinions and
    strategies," rendering it "virtually impossible for an
    attorney to effectively perform the traditional role of
    legal counselor." 
    Id.
     Similar to the negligence issue in
    Boning, in foreclosure actions an attorney's justifiable
    concern with being sued by the opposing party for UDAP could
    compromise the attorney's ability to zealously represent his
    or her client. Consequently, based on the allegations
    against Rosen, we decline to recognize a UDAP claim against
    him by Hungate under HRS § 480-2 in the instant foreclosure
    action.23
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    23
    We do not now decide whether the 2012 amendments to
    the foreclosure statute create potential UDAP
    liability under some circumstances for attorneys
    conducting nonjudicial foreclosures. See HRS § 667-60
    (2016) (imposing UDAP liability on "any foreclosing
    mortgagee" for violating a series of provisions
    governing nonjudicial foreclosure); HRS § 667-1 (2016)
    (defining "mortgagee" to include "the current
    mortgagee's or lender's duly authorized agent").
    Accordingly, the circuit court properly dismissed
    Hungate's complaint alleging Rosen violated HRS § 480-2 by
    engaging in unfair or deceptive acts or practices.
    Hungate, 139 Hawai#i at 413, 
    391 P.3d at 20
    .
    In short, Hungate expressly leaves open potential for
    HRS § 480-2 claims against an attorney, for example, if the
    attorney conducts patently illegal activities on behalf of a
    client; and the supreme court declined to decide whether the
    amendments to the nonjudicial foreclosure statute at issue in
    Hungate create potential HRS chapter 480 liability for attorneys
    under some circumstances.
    Our conclusion that Hungate does not support Attorney
    Defendants' SLAPP argument is further informed by the supreme
    court's discussion and rationale for concluding that the former
    HRS §§ 667-5 and 667-7 did not create a private cause of action
    against a foreclosing mortgagee's attorney.         See Hungate, 139
    Hawai#i at 405-08, 
    391 P.3d at 12-15
    .       The supreme court
    reiterated the factors it considered in determining whether
    statutory duties give rise to a private cause of action:
    In determining whether a private cause of action
    should be recognized based on statutory requirements, we
    consider the following factors: (1) whether the plaintiff
    is one of the class for whose especial benefit the statute
    was enacted; (2) whether there is any indication of
    legislative intent, explicit or implicit, either to create
    such a remedy or to deny one; and (3) whether a private
    cause of action would be consistent with the underlying
    purposes of the legislative scheme to imply such a remedy
    for the plaintiff.
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    Id. at 406, 
    391 P.3d at 13
     (citation and internal quotation marks
    omitted).
    Finally, we note that in the Namahoe Appeal, the
    supreme court discussed, at some length, the vulnerability of
    seniors who have taken out reverse mortgages, the legislative
    intent to combat predatory lending and foreclosure practices, and
    the expansive legislative and regulatory framework intended to
    prevent abuse of borrowers like Namahoe and Domingo.    James B.
    Nutter & Co., 153 Hawai#i at 163-64, 528 P.3d at 236-37.
    Accordingly, we reject Attorney Defendants' arguments
    that the Complaint lacks substantial justification under Hawai#i
    law or that the Complaint is solely based on Attorney Defendants'
    participation before a governmental body.    Therefore, we conclude
    that the Circuit Court did not err in rejecting Attorney
    Defendants' arguments that the Complaint should have been
    dismissed under the anti-SLAPP statute.
    B.     The Issues Raised in CAAP-XX-XXXXXXX
    1.   Appellate Jurisdiction
    As a threshold matter, Attorney Defendants argue that
    this court lacks appellate jurisdiction in CAAP-XX-XXXXXXX
    because the Circuit Court erred in entering the Order Granting
    HRCP Rule 54(b) Certification and the HRCP Rule 54(b) Judgment.
    Attorney Defendants submit that neither the Order
    Granting/Denying MPSJ nor the Partial Dismissal Order were
    eligible for HRCP Rule 54(b) certification.
    HRS § 641-1 (2016) sets forth the jurisdiction of this
    court in civil matters and provides in relevant part:
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    § 641-1 Appeals as of right or interlocutory, civil
    matters. (a) Appeals shall be allowed in civil matters from
    all final judgments, orders, or decrees of circuit and
    district courts and the land court to the intermediate
    appellate court, subject to chapter 602. [22]
    HRCP Rule 54(b) provides in pertinent part:
    Judgment upon multiple claims or involving multiple
    parties. When more than one claim for relief is presented
    in an action, whether as a claim, counterclaim, cross-claim,
    or third-party claim, or when multiple parties are involved,
    the court may direct the entry of a final judgment as to one
    or more but fewer than all of the claims or parties only
    upon an express determination that there is no just reason
    for delay and upon an express direction for the entry of
    judgment.
    In addition, HRCP Rule 58 requires that "[e]very
    judgment shall be set forth on a separate document."
    On August 2, 2018, this court entered an order raising
    the issue of appellate jurisdiction, and temporarily remanding
    the case to the Circuit Court (Temporary Remand Order).            In the
    Temporary Remand Order, the court stated, inter alia:
    Although Domingo and Namahoe asserted thirteen
    separate counts against multiple parties in their July 5,
    2016 complaint, the [HRCP Rule 54(b) Judgment] purports to
    enter judgment by merely incorporating the following two
    interlocutory orders by reference:
    (1)   [Partial Dismissal Order], and
    (2)   [Order Granting/Denying MPSJ].
    The [HRCP Rule 54(b) Judgment] does not specifically
    identify the parties in favor of whom and against whom the
    Circuit Court intends to enter judgment. The [HRCP Rule
    54(b) Judgment] also does not specifically identify the
    claim or claims on which the Circuit Court intends to enter
    judgment. In other words, we cannot determine exactly how
    the Circuit Court is entering judgment by reading the face
    of the [HRCP Rule 54(b) Judgment]. Therefore, the [HRCP
    Rule 54(b) Judgment] does not satisfy the specificity
    22
    HRS § 602-57 (2014) provides, in relevant part:
    § 602-57 Jurisdiction. Notwithstanding any other law
    to the contrary, the intermediate appellate court shall have
    jurisdiction . . . .
    (1)   To hear and determine appeals from
    any court or agency when appeals are
    allowed by law[.]
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    requirements for an appealable final judgment under
    HRS § 641-1(a), HRCP Rule 58, and the holding in Jenkins.
    The Supreme Court of Hawai#i now
    hold[s] that when a party to a circuit court civil
    case timely appeals a purportedly appealable final
    judgment later determined not to meet Jenkins
    requirements, rather than dismiss the appeal, the ICA
    must temporarily remand the case to the circuit court
    "in aid of its jurisdiction" pursuant to HRS §
    602-57(3) (2016) for entry of an appealable final
    judgment with a direction to the circuit court to
    supplement the record on appeal with the final
    judgment.
    State v. Joshua, 141 Hawai#i 91, 93, 
    405 P.3d 527
    , 529 (2017)
    (footnote omitted). Under the circumstances of the instant case,
    a temporary remand is necessary under the holding in Joshua for
    the entry of a judgment that comports with the specificity
    requirements in Jenkins.
    Therefore, pursuant to HRS § 602-57(3) (2016) and the
    holding in Joshua, IT IS HEREBY ORDERED AND DECREED as
    follows:
    1.    . . . CAAP-XX-XXXXXXX is temporarily remanded to
    the Circuit Court of the Third Circuit in Civil No. 16-1-
    0249 where, within twenty (20) days after entry of this
    temporary remand order, the Circuit Court shall
    (a)   enter a new judgment that amends the [HRCP
    Rule 54(b) Judgment] by specifically
    identifying the appropriate parties in
    favor of whom and against whom the Circuit
    Court intends to enter judgment, and by
    specifically identifying the claim or
    claims on which the Circuit Court intends
    to enter judgment, or
    (b)   enter a written explanation as to why it is not
    possible or appropriate for the Circuit Court to
    do so.
    After further submittals from the parties, on September
    4, 2018, the Circuit Court entered:       (1) the Final Judgment
    Entered Pursuant to the [Partial Dismissal Order] (2018
    Judgment); and (2) an Explanation as to Why Judgment Is Not Being
    Entered as to the [Order Granting/Denying MPSJ] (2018
    Explanation).
    In the 2018 Explanation, the Circuit Court concluded
    that the Order Granting/Denying MPSJ did not dispose of any claim
    for relief, and therefore, judgment was not being entered
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    thereon.   In the absence of a compliant judgment, we lack
    appellate jurisdiction to review the Order Granting/Denying MPSJ.
    See generally Jenkins v. Cades Schutte Fleming & Wright, 76
    Hawai#i 115, 
    869 P.2d 1334
     (1994).
    In the 2018 Judgment, as directed by this court, the
    Circuit Court specifies the parties in favor of and against whom
    judgment is entered and the claims on which judgment is entered
    pursuant to the Partial Dismissal Order.    Although the 2018
    Judgment does not resolve all claims as to all parties, it
    includes the certification language required under HRCP Rule
    54(b) that "there is no just reason for delay."    Accordingly, we
    conclude that we have appellate jurisdiction to review the
    Partial Dismissal Order.
    2.   Attorney Defendants' Arguments on the Partial
    Dismissal Order
    a.   Litigation Privilege
    Attorney Defendants argue that Namahoe's claims against
    them are barred as a matter of law pursuant to the litigation
    privilege and the supreme court's decision in Hungate.    The
    gravamen of Attorney Defendants' argument is that the litigation
    privilege operates as an absolute bar against a borrower seeking
    to sue opposing counsel for counsel's conduct within the scope of
    representation in a prior foreclosure.   They argue, inter alia,
    "Hungate emphatically quashed the last ambiguity that existed for
    the litigation privilege regarding foreclosure cases" and "the
    Hawai#i Supreme Court has completely shut the door on the ability
    of a borrower to sue opposing counsel in a foreclosure action."
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Under Hawai#i law, the litigation privilege is robust,
    and for good reason, but it is not an absolute bar against an
    action by a borrower against a foreclosing lender's attorney(s).
    The reasons for this robust privilege, as discussed in the
    Hungate passages quoted above, include the attorney's duty to
    zealously represent his or her client, the lack of a common law
    duty in favor of an adversary's interest, the strong policy
    considerations against creating a conflict of interest, the
    protection of attorney-client counsel and advice from competing
    concerns, and the vulnerability of an attorney to such suits.
    See Hungate, 139 Hawai#i at 413, 
    391 P.3d at 20
    ; Matsuura v. E.I.
    du Pont de Nemours & Co., 102 Hawai#i 149, 155-61, 
    73 P.3d 687
    ,
    693-99 (2003) (explaining the policy rationale underlying the
    litigation privilege);23 Isobe v. Sakatani, 127 Hawai#i 368, 
    279 P.3d 33
     (App. 2012) (applying the attorney's absolute privilege
    for defamation in judicial proceeding to slander of title claims,
    23
    In Matsuura, the supreme court explained:
    [T]he interrelated policies associated with the litigation
    privilege include: (1) promoting the candid, objective, and
    undistorted disclosure of evidence; (2) placing the burden
    of testing the evidence upon the litigants during trial; (3)
    avoiding the chilling effect resulting from the threat of
    subsequent litigation; (4) reinforcing the finality of
    judgments; (5) limiting collateral attacks upon judgments;
    (6) promoting zealous advocacy; (7) discouraging abusive
    litigation practices; and (8) encouraging settlement.
    Therefore, in order to determine whether the litigation
    privilege should bar a subsequent collateral proceeding for
    civil damages based on litigation misconduct, including
    fraud, we must first address the policies associated with
    the privilege.
    102 Hawai#i at 155, 73 P.3d at 693.
    After examining each of these policy considerations in the context
    of the case, the supreme court concluded that, under Hawai #i law, a party was
    not immunized by the litigation privilege against liability for damages based
    on fraud engaged in during prior litigation proceedings. Id. at 162, 73 P.3d
    at 700. Attorney liability was not at issue.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    citing policy reasons); Buscher v. Boning, 114 Hawai#i 202, 218-
    19, 
    159 P.3d 814
    , 830-31 (2007) (discussing policy reasons
    supporting bar to suit against adversary's attorney for
    negligence and that attorney owed no actionable duty to the
    opposing party).
    That said, none of these cases hold that the litigation
    privilege provides an absolute bar to claims against the opposing
    party's attorney for the attorney's actions in judicial
    foreclosure proceedings.    Indeed, as highlighted above, in
    Hungate the supreme court recognized that attorneys' zealous
    representation of their clients must be conducted within the
    bounds of the law, zealous advocacy does not include illegal
    activities on behalf of clients, and the supreme court would not
    rule out potential UDAP liability for attorneys in all
    circumstances other than those at issue in Hungate.      139 Hawai#i
    at 412-13, 
    391 P.3d at 19-20
    .    In Matsuura, the supreme court
    stated that the scope of any privilege is based on policy
    considerations.    102 Hawai#i at 155, 73 P.3d at 693.   In Kahala
    Royal Corp. v. Goodsill Anderson Quinn & Stifel, the supreme
    court reiterated the conclusion in Matsuura that "'a party is not
    immune from liability for civil damages based upon that party's
    fraud engaged in during prior litigation proceedings .'"      113
    Hawai#i 251, 269, 
    151 P.3d 732
    , 750 (2007) (quoting Matsuura, 102
    Hawai#i at 162, 73 P.3d at 700).
    In this light, we consider whether the litigation
    privilege operates as a bar against claims against Attorney
    Defendants for their fraud on the court in conjunction with the
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    judicial foreclosure proceedings at issue here.    As directed in
    Matsuura, 102 Hawai#i at 155, 73 P.3d at 693, we consider the
    policies associated with the privilege in such circumstances:
    Promoting the candid, objective, and undistorted
    disclosure of evidence:    As discussed in Matsuura, the litigation
    privilege is based, in part, on an assumption that exposing a
    declarant or witness to liability may result in distorted
    evidence.    Id.   Here, however, (like the defendants in Matsuura),
    Attorney Defendants' conduct was fraudulent and extreme.
    Attorney Defendants provided the Circuit Court with an inadequate
    and materially misleading HRS § 667-17 attorney affirmation,
    which was so egregious that the supreme court in the Namahoe
    Appeal concluded that it constituted a fraud on the court.      James
    B. Nutter & Co., 153 Hawai#i at 167, 528 P.3d at 240.    The
    supreme court further held that Namahoe had demonstrated
    extraordinary circumstances warranting relief under HRCP Rule
    60(b)(6) in that case.    Id. at 170, 528 P.3d at 243.   This
    conduct is directly contrary to the policy of promoting the
    candid, objective, and undistorted disclosure of evidence.
    Accordingly, this policy does not favor limiting liability in a
    subsequent proceeding based on commission of a fraud on the court
    in a prior proceeding.    See Matsuura, 102 Hawai#i at 156, 73 P.3d
    at 694.
    Placing the burden of testing the evidence upon the
    litigants during trial:    The litigation privilege promotes
    diligent and timely investigation and testing of the evidence by
    the parties, and relatedly, it helps secure the finality of
    39
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    judgments.    Id.   An attorney's egregious, false, and materially
    misleading failure to carry out their statutory obligations under
    HRS § 667-17 frustrates the purpose of the affirmation, but here
    Namahoe did not diligently and timely test this evidence.
    Therefore, this policy consideration slightly weighs in favor of
    limiting liability in subsequent proceedings.
    Avoiding the chilling effect resulting from the threat
    of subsequent litigation:       There is a strong policy in Hawai$i
    against opening the door to subsequent litigation every time
    someone loses a lawsuit, in large part because it can deter
    access to justice.      Id. at 157, 73 P.3d at 695.        In most
    instances, that policy favors limiting liability in subsequent
    proceedings.    Id.   Here, however, assuming that justiciable
    claims can ever be brought against an opposing party's attorney
    for the attorney's commission of a fraud on the court in a prior
    proceeding, the only avenue for access to justice would be via
    subsequent litigation.24      Thus, under the circumstances here,
    this policy does not weigh against allowing the subsequent suit.
    Reinforcing the finality of judgments:          As discussed in
    Matsuura, and as demonstrated in the Namahoe Appeal, Hawai#i
    courts favor reaching a judgment on the merits over preserving
    the finality of a judgment procured by fraud, including fraud on
    the court.    Matsuura, 102 Hawai$i at 157-58, 73 P.3d at 695-96;
    James B. Nutter & Co., 153 Hawai#i at 166-68, 528 P.3d at 239-41.
    This policy favors permitting relief in a subsequent proceeding
    24
    Any chilling effect of potential subsequent litigation should
    operate as a deterrent to the commission of fraud on the court in the first
    instance.
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    in limited circumstances.       Here, permitting suit against the
    Attorney Defendants for their fraud on the court in the prior
    foreclosure proceedings does not directly impact the finality of
    the prior foreclosure proceedings.         We conclude that when there
    is an allegation of fraud on the court in prior proceedings, the
    policy of reinforcing the finality of judgments does not favor
    limiting liability in a subsequent proceeding.           See Matsuura, 102
    Hawai$i at 158, 73 P.3d at 696.
    Limiting collateral attacks upon judgments:           A
    collateral attack upon a judgment rendered by a court of
    competent jurisdiction is strongly disfavored and is permitted
    only in very limited circumstances, which can include a fraud
    upon the court.     See id. at 158-59, 73 P.3d at 696-97.          Here,
    however, a suit against the Attorney Defendants for their fraud
    on the court in the prior proceedings is not an attack on a
    judgment entered in favor of their client, and this policy is not
    implicated.
    Promoting zealous advocacy:       Clearly, permitting
    subsequent suit against a party's attorney could impede this
    important interest.      However, as the supreme court explained in
    Matsuura:
    Litigation misconduct that amounts to a fraud on the court
    directly conflicts with the pursuit of justice and never
    results from a reasonable advocate's best judgment. Thus,
    the policy of promoting zealous advocacy is counterbalanced
    by the need to adequately punish and discourage such
    misconduct. Consequently, the policy of promoting zealous
    advocacy does not favor limiting liability in subsequent
    collateral proceedings for fraud.
    Id. at 159, 73 P.3d at 697.
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    We conclude that this rationale is fully applicable
    here to the subsequent proceedings based upon fraud on the court
    in the prior proceedings.
    Discouraging abusive litigation practices:           As
    discussed in Matsuura, remedies such as criminal contempt,
    attorney discipline, and criminal prosecution might act as
    deterrents to litigation misconduct, but they provide limited
    means to compensate the victims of such misconduct, and "the
    existence of these remedies does not oblige us to limit victims
    of fraud solely to these established remedies, given the nature
    and effect of fraud."      Id. at 160, 73 P.3d at 698.        Again, we
    conclude that this rationale is fully applicable to subsequent
    proceedings based on fraud on the court in the prior
    proceedings.25
    The attorney's litigation privilege:         Although not at
    issue in Matsuura, here, the important policy considerations
    favoring the protection of attorneys from claims against them for
    their actions in prior judicial proceedings must be carefully
    weighed.    We will not recount each of these policy considerations
    again, but in the vast majority of circumstances, they should and
    do act as a bar against suit by an opposing party in prior
    litigation.    However, here, the supreme court has determined that
    there was a fraud on the court committed by Attorney Defendants
    through the submission of a legally and factually deficient,
    inaccurate and incomplete, materially misleading affirmation that
    25
    The policy of encouraging settlement, which is discussed in
    Matsuura, 102 Hawai$i at 161, 73 P.3d at 699, is not implicated here.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    is mandated by Hawai$i statute in order to prevent unwarranted
    foreclosures.   None of the important and substantial policy
    reasons for shielding an attorney from suit, in the vast majority
    of circumstances, warrant applying the litigation privilege to
    bar the victims of such misconduct from seeking a remedy.
    Weighing all of the policies underlying the litigation
    privilege, specifically including the litigation privilege for
    attorneys, and in light of the supreme court's determination in
    Matsuura that a party is not immune from liability for damages
    based upon that party's fraud engaged in during prior
    proceedings, we hold that an attorney is not immune from
    liability or civil damages based upon the attorney's own fraud
    upon the court in prior litigation proceedings.
    b.   Damages Based on Attorney Defendants' Fraud
    on the Court
    Attorney Defendants argue that, as a matter of law,
    fraud on the court is a ground upon which a court may set aside a
    judgment, but it is not a cause of action for which damages can
    be awarded.   We consider that argument in the context of the
    fraud on the court at issue here, i.e., Attorney Defendants'
    legally and factually deficient, inaccurate and incomplete,
    materially misleading affirmation, which falsely affirmed the
    sufficiency of the basis of Nutter's foreclosure on the reverse
    mortgage on Namahoe's home, based on an alleged failure to make a
    $500 repair, which led to Namahoe being evicted and homeless.
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    In the Namahoe Appeal, the supreme court explained the
    legal framework that has been put in place to protect borrowers
    like Namahoe and Domingo.     It is relevant here, and worth
    repeating:
    Reverse mortgages are distinct from conventional mortgages
    both in their function and purpose. Reverse mortgages, of
    which home equity conversion mortgages (HECMs) make up a
    significant portion, 16 are loans that allow senior
    homeowners to withdraw a portion of their home's equity in
    the form of cash. Consumer Financial Protection Bureau,
    Reverse Mortgages: Report to Congress 5—6 (June 2012).
    This provides seniors with capital to pay for living
    expenses and other costs, with the loan only reaching
    maturity when the borrower dies, sells the home or moves
    out, or fails to maintain the property or pay necessary fees
    and taxes. Id. at 5—6, 22; see also HRS § 506-10 (2008)
    (listing the events that make a reverse mortgage loan due).
    This transaction for cash at the expense of ownership of
    one's home — the largest and most significant asset most
    Americans possess — has significant ramifications for senior
    citizens, their families, and the communities in which they
    live. Protecting Seniors: A Review of the FHA's Home
    Equity Conversion Mortgage (HECM) Program: Hearing Before
    the Subcomm. on Housing, Community Development, and
    Insurance of the H. Comm. on Financial Services, 116th Cong.
    2 (2019) (statement of Rep. Wm. Lacy Clay, Chairman, H.
    Subcomm. on Hous., Cmty. Dev., and Ins.) ("The racial wealth
    gap is exacerbated as countless families[, largely racial
    minorities,] are deprived of the chance to pass on their
    homes and other property to their children and other heirs,
    leading to . . . gutted city blocks, and less overall
    wealth.")
    16
    The mortgage at issue in this case is specifically a
    home equity conversion mortgage. HECMs are only
    available for seniors above 62 years of age who own a
    property and occupy it as their principal residence.
    For consistency with the briefs, circuit court
    documents, and ICA Memorandum Opinion, this court uses
    the broader term "reverse mortgage."
    Seniors face a significant risk of abuse by lenders,
    and the consequences of reverse mortgages can be unclear at
    the time of signing, but disastrous for mortgagors. See
    Reverse Mortgages: Polishing Not Tarnishing the Golden
    Years: Hearing Before the Senate Special Comm. on Aging,
    110th Cong. 1 (2007) (statement of Senator Herb Kohl,
    Chairman, Special Comm. on Aging) ("[Reverse mortgage]
    [a]gents are targeting seniors aggressively in ways that
    this Committee has seen before: through direct mail,
    celebrity endorsements, and free lunch seminars. Marketers
    often gloss over the risks of a reverse mortgage, but they
    convey the pay-off quite clearly."); Sarah B. Mancini &
    Odette Williamson, Reversing Course: Stemming the Tide of
    Reverse Mortgage Foreclosures Through Effective Servicing
    and Loss Mitigation, 
    26 Elder L.J. 85
    , 86—87, 119—20 (2018)
    ("[o]lder adults who have taken out reverse mortgages are
    particularly resource-constrained. They tend to take out
    these loans as a last resort, motivated by a lack of
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    sufficient income to cover rising medical costs and other
    essential expenses."). Namahoe appears to have been
    targeted in a similar manner; according to his declaration:
    "some folks came to my door and told me I could obtain a
    loan and not pay back anything while I lived and resided at
    the property. I believed them and I obtained what I
    understand was a reverse mortgage. . . . I spent the money
    over the years paying bills and buying food."
    Due to the significant risks of abuse by lenders and
    inadequate understanding of reverse mortgage agreements by
    many senior citizens, reverse mortgages and foreclosures are
    subject to stringent rules and regulations promulgated by
    both federal and state authorities. Lenders offering loans
    backed by HUD, of which reverse mortgages and HECMs are one
    type, are required to make reasonable efforts to conduct
    face-to-face interviews with delinquent mortgagors, 
    24 C.F.R. § 203.604
     (2009), conduct loss mitigation efforts to
    cure defaults, 
    24 C.F.R. §§ 203.605
     (2009) and 203.501
    (2009), conduct pre-foreclosure review, 
    24 C.F.R. § 203.606
    (2009), and facilitate reinstatement of the mortgage, 
    24 C.F.R. § 203.608
     (2009). Failure to comply with these
    regulations may result in civil penalties or the withdrawal
    of a mortgagee's HUD approval. 
    24 C.F.R. § 203.500
     (2009).
    Our state legislature has also acted to combat
    predatory lending in the context of reverse mortgages.
    Lenders are required to refer borrowers to HUD-approved
    counselors, and must be presented with a signed
    certification confirming that the borrower has received
    counseling prior to accepting an application for a reverse
    mortgage loan. HRS § 506-10.
    Further, in the aftermath of economic crash and
    foreclosure crisis in the early-2010s, the legislature
    passed HRS § 667-17. The language of the attorney
    affirmation even refers to the conditions that gave rise to
    the statute:
    During and after August 2010, numerous and widespread
    insufficiencies in foreclosure filings in various
    courts around the nation were reported . . .,
    including failure to review documents and files to
    establish standing and other foreclosure requisites;
    filing of notarized affidavits that falsely attest to
    such review and to other critical facts in the
    foreclosure process; and "robosignature" of documents.
    HRS § 667-17.
    Importantly for [the Namahoe Appeal,] [as well as this
    appeal now before the ICA], HRS § 667-17 requires attorneys
    filing on behalf of mortgagees seeking foreclosure to sign
    and submit an affirmation that the attorney has verified the
    accuracy of filed documents, and confirm that the lender has
    an adequate factual and legal basis for pursuing
    foreclosure.17 As officers of the court, attorneys for
    mortgagees seeking foreclosure must affirm not only the
    accuracy of the factual allegations underlying foreclosure,
    but also the legal sufficiency of foreclosure claims. 18 Id.
    Attorneys are also under a "continuing obligation to amend"
    the affirmation in the event of newly discovered material
    facts after filing. Id.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    17
    HRS § 667-17 states, "[a]ny attorney who files on
    behalf of a mortgagee seeking to foreclose on a
    residential property under this part shall sign and
    submit an affirmation that the attorney has verified
    the accuracy of the documents submitted, under penalty
    of perjury and subject to applicable rules of
    professional conduct." HRS § 667-17.
    18
    One of the form affirmations in § 667-17 states:
    Based upon my communication with [the
    foreclosing entity], as well as upon my own
    inspection and other reasonable inquiry under
    the circumstances, I affirm that, to the best of
    my knowledge, information, and belief, the
    Summons, Complaint, and other papers filed or
    submitted to the Court in this matter contain no
    false statements of fact or law and that
    plaintiff has legal standing to bring this
    foreclosure action.
    It is within this expansive legislative and regulatory
    framework that [Nutter] and its attorneys at Clay Chapman
    pursued foreclosure on Namahoe's only home — all on the
    basis of a $500.00 repair obligation.
    James B. Nutter & Co., 153 Hawai#i at 163-64, 528 P.3d at 236-37
    (emphasis omitted).
    This framework is critical here because the supreme
    court has also held:
    In determining whether a private cause of action
    should be recognized based on statutory requirements, we
    consider the following factors: (1) whether the plaintiff
    is "one of the class for whose especial benefit the statute
    was enacted"; (2) whether there is "any indication of
    legislative intent, explicit or implicit, either to create
    such a remedy or to deny one"; and (3) whether a private
    cause of action would be "consistent with the underlying
    purposes of the legislative scheme to imply such a remedy
    for the plaintiff."
    Whitey's Boat Cruises, Inc. v. Napali-Kauai Boat Charters, Inc.,
    110 Hawai#i 302, 312, 
    132 P.3d 1213
    , 1223 (2006).
    In Hungate, the supreme court considered these factors
    in determining whether certain former provisions of the
    nonjudicial foreclosure statute, including the former HRS § 667-
    5, created a private cause of action against a mortgagee's
    attorney.     139 Hawai#i at 406-07, 
    391 P.3d at 13-14
    .         Hungate, as
    a party in breach of a mortgage contract, fell within the class
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    for whom the statute was enacted.        Id. at 406, 
    391 P.3d at 13
    .
    As to the second factor, the statute was silent as to whether the
    legislature intended to create a private cause of action.               
    Id.
    Turning to whether a private right of action would be consistent
    with the underlying purpose, the supreme court emphasized:
    [A] close reading of the legislative history of the
    2008 amendment shows it was enacted to set additional
    burdens on the mortgagee to protect the mortgagor; the
    statute was not amended to regulate attorneys representing
    mortgagees. The amendment's structure or scheme attempted
    "to streamline and ensure transparency in the non-judicial
    foreclosure process by requiring a foreclosure mortgagee to
    provide pertinent information regarding the property to'
    interested parties."
    Id. at 407, 
    391 P.3d at 14
     (citation omitted).
    Although the legislature tapped Hawaii-based attorneys
    to provide useful information that could be obtained locally, the
    supreme court reiterated that "the underlying structure and
    intent of the amendment was to enable interested parties to
    request and receive information in a timely manner from
    mortgagees, and not to regulate attorneys' conduct."           
    Id.
          In
    addition, the Hungate court considered whether additional
    remedies were unnecessary to protect the interests of the
    borrower in light of the available remedies against the lender,
    i.e., a claim for wrongful foreclosure.        
    Id.
       Based on these
    factors, the supreme court concluded that recognizing a cause of
    action against a lender's attorney based on the former HRS § 667-
    5 was not warranted.
    We turn to HRS § 667-17 (Supp. 2012) (repealed 2017),
    and the broader statutory framework enacted to combat predatory
    lending and foreclosure practices related to reverse mortgages.
    Vulnerable, elderly borrowers such as Namahoe and Domingo are
    47
    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    certainly among the class of persons for whose special benefit
    the statute was enacted.      See James B. Nutter & Co., 153 Hawai#i
    at 163-64, 528 P.3d at 236-37.       Thus, the first Whitey's Boat
    factor is met.
    The second factor looks for any indication of
    legislative intent, explicit or implicit, to create or deny a
    remedy against the attorney responsible for communicating with a
    lender's representative, conducting reasonable inquiry, verifying
    the accuracy of documents, and submitting an affirmation with the
    court.    Unlike the statute examined in Hungate, HRS § 667-17 was
    plainly and specifically enacted to put additional burdens on the
    foreclosing attorney, not his or her mortgagee client.26            The
    26
    HRS § 667-17 provided, in pertinent part:
    § 667-17 Attorney affirmation in judicial
    foreclosure. Any attorney who files on behalf of a
    mortgagee seeking to foreclose on a residential property
    under this part shall sign and submit an affirmation that
    the attorney has verified the accuracy of the documents
    submitted, under penalty of perjury and subject to
    applicable rules of professional conduct. The affirmation
    shall be filed with the court at the time that the action is
    commenced and shall be in substantially the following form:
    . . . .
    Note: During and after August 2010, numerous
    and widespread insufficiencies in foreclosure
    filings in various courts around the nation were
    reported by major mortgage lenders and other
    authorities, including failure to review
    documents and files to establish standing and
    other foreclosure requisites; filing of
    notarized affidavits that falsely attest to such
    review and to other critical facts in the
    foreclosure process; and "robosignature" of
    documents.
    [____________], Esq., pursuant to Hawaii Revised
    Statutes § 667-17 and under the penalties of perjury,
    affirms as follows:
    1.    I am an attorney at law duly licensed to practice in
    the State of Hawaii and am affiliated with the Law
    Firm of __________________, the attorneys of record
    for Plaintiff in the above-captioned mortgage
    foreclosure action. As such, I am fully aware of the
    (continued...)
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    substantially-required form included a recitation regarding
    widespread insufficiencies in foreclosure filings and
    specifically called out false attestations regarding the review
    of documents and critical facts.              The statute does not explicitly
    create or deny a remedy for failure to comply with its mandate,
    and the legislative history states that the purpose of the
    legislation is "to prevent unwarranted foreclosure."                H. Stand.
    Comm. Rep. No. 697-14, in 2014 House Journal, at 1127.                 Thus,
    this is a neutral factor.
    26
    (...continued)
    underlying action, as well as the proceedings had
    herein.
    2.    On [date], I communicated with the following
    representative or representatives of Plaintiff, who
    informed me that he/she/they (a) personally reviewed
    plaintiff's documents and records relating to this
    case for factual accuracy; and (b) confirmed the
    factual accuracy of the allegations set forth in the
    Complaint and any supporting affidavits or
    affirmations filed with the Court, as well as the
    accuracy of the notarizations contained in the
    supporting documents filed therewith.
    Name                            Title
    _____________________           _____________________
    _____________________           _____________________
    _____________________           _____________________
    3.    Based upon my communication with [persons specified in
    item 2], as well as upon my own inspection and other
    reasonable inquiry under the circumstances, I affirm
    that, to the best of my knowledge, information, and
    belief, the Summons, Complaint, and other papers filed
    or submitted to the Court in this matter contain no
    false statements of fact or law and that plaintiff has
    legal standing to bring this foreclosure action. I
    understand my continuing obligation to amend this
    Affirmation in light of newly discovered material
    facts following its filing.
    4.     I am aware of my obligations under Hawaii Rules of
    Professional Conduct.
    __________________________
    DATED:
    N.B.: Counsel may augment this affirmation to provide
    explanatory details, and may file supplemental affirmations
    or affidavits for the same purpose.
    (Bold emphasis added).
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    The third factor to be examined is whether a private
    cause of action would be consistent with the underlying purposes
    of the legislative scheme.       Under the language of the statute and
    the legislative scheme here, it is palpably clear that the
    legislature did not view additional duties and remedies directed
    solely at foreclosing mortgagees as sufficient to stem the tide
    of wrongful foreclosures.       HRS § 667-17 was directed at
    foreclosing attorneys.      Recognizing a private cause of action
    against attorneys for committing a fraud on the court through an
    egregious, legally and factually deficient, inaccurate and
    incomplete, materially false and misleading HRS § 667-17
    affirmation, particularly with respect to a foreclosure on a
    reverse mortgage, would be consistent with the purposes of the
    legislative scheme at issue here.27
    Finally, we consider the additional factor weighed by
    the supreme court in Hungate, that is, whether additional
    remedies are unnecessary, as we determine whether to recognize a
    cause of action against attorneys for committing a fraud on the
    court through an egregious, legally and factually deficient,
    inaccurate and incomplete, materially false and misleading HRS
    § 667-17 affirmation, particularly with respect to a foreclosure
    on a reverse mortgage.      Arguably, an additional cause of action
    against attorneys was not strictly necessary to protect the
    interests of the mortgagor because the mortgagor can file a claim
    against the mortgagee for wrongful foreclosure.           See Hungate, 139
    27
    This analysis is intended to be construed narrowly and should not
    be construed to be applicable to a non-material or less egregious failure to
    comply with HRS § 667-17.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Hawai#i at 407, 
    391 P.3d at 14
    .    Yet, the whole purpose of HRS
    § 667-17 was to provide stringent, additional safeguards and
    failsafes, to be carried out by foreclosing attorneys, to address
    the plague of wrongful foreclosures, particularly against
    vulnerable members of our community.       The existence of other
    remedies does not preclude an additional remedy against a
    Hawai#i-licensed attorney who not only fails to comply with the
    statute, but who commits a fraud on the court by submitting a
    materially false HRS § 667-17 affirmation.       See Matsuura, 102
    Hawai$i at 160, 73 P.3d at 698.    Here, we hold that the weighing
    of these factors favors recognition of a cause of action against
    attorneys for committing a fraud on the court through an
    egregious, legally and factually deficient, inaccurate and
    incomplete, materially false and misleading HRS § 667-17
    affirmation, with respect to a foreclosure on a reverse mortgage.
    C.   Attorney Defendants' Rule 12(b)(6) Motion to Dismiss
    In their first point of error in CAAP-XX-XXXXXXX,
    Plaintiffs contend that in the Partial Dismissal Order, the
    Circuit Court erred in granting in part Attorney Defendants' HRCP
    Rule 12(b)(6) Motion to Dismiss.       In the Complaint, Plaintiffs
    asserted 13 counts, including the following against the Attorney
    Defendants:   Count I, Legal Malpractice; Count II, Gross Legal
    Malpractice; Count III, Breach of Fiduciary Duty; Count IV,
    Wrongful Foreclosure; Count V, IIED; Count VI, UDAP Claims; Count
    VII, Abuse of Process; Count VIII, Fraud, including fraud on the
    court; Count X, Elder Abuse; Count XII, Slander of Title; and
    Count XIII, Punitive Damages.     After briefing and a September 29,
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    2016 hearing, the Circuit Court dismissed all of Domingo's claims
    against Attorney Defendants, and dismissed all of Namahoe's
    claims except the fraud on the court claim.28
    It is well-established that:
    [A] complaint should not be dismissed for failure to state a
    claim unless it appears beyond doubt that the plaintiff can
    prove no set of facts in support of his or her claim that
    would entitle him or her to relief. The appellate court
    must therefore view a plaintiff's complaint in a light most
    favorable to him or her in order to determine whether the
    allegations contained therein could warrant relief under any
    alternative theory. For this reason, in reviewing a circuit
    court's order dismissing a complaint . . . the appellate
    court's consideration is strictly limited to the allegations
    of the complaint, and the appellate court must deem those
    allegations to be true.
    Kealoha v. Machado, 131 Hawai#i 62, 74, 
    315 P.3d 213
    , 225
    (2013) (citation and brackets omitted); see also Bank of Am.,
    N.A. v. Reyes-Toledo, 143 Hawai#i 249, 257-63, 
    428 P.3d 761
    , 769-
    75 (2018) (Reyes-Toledo II) (discussing standards applicable to
    HRCP Rule 12(b)(6) motions to dismiss).
    Our review is conducted accordingly.
    1.    Counts I and II - Legal Malpractice Claims
    It is undisputed that Plaintiffs were not in an
    attorney-client relationship with Attorney Defendants; in fact,
    Attorney Defendants represented Plaintiffs' litigation adversary.
    As previously held by the ICA, as well as the supreme court:
    [C]reation of a duty in favor of an adversary of the
    attorney's client would create an unacceptable conflict of
    interest. Not only would the adversary's interests
    interfere with the client's interests, the attorney's
    justifiable concern with being sued for negligence would
    28
    Count XII, Slander of Title, was dismissed with prejudice.   All of
    the other dismissals were without prejudice.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    detrimentally interfere with the attorney-client
    relationship.
    Myers v. Cohen, 
    5 Haw. App. 232
    , 246, 
    687 P.2d 6
    , 16 (1984)
    (citations omitted), reversed on other grounds by 
    67 Haw. 688
    P.2d 1145 (1984); see also Buscher, 114 Hawai#i at 220, 
    159 P.3d at 832
    ).
    In Blair v. Ing, 95 Hawai#i 247, 253-63, 
    21 P.3d 452
    ,
    458-68 (2001), the supreme court examined the legal theories
    underlying legal malpractice claims and the various reasons that
    other jurisdictions have created narrow exceptions to the general
    rule disallowing a legal malpractice action by a non-client
    against an attorney based on either a negligence or third-party
    beneficiary (contract-based) claim.29         While the entire
    discussion is illuminating and informs our decision here, the
    bottom line is that under Hawai#i law, legal malpractice is
    viewed as a hybrid of tort and contract, permitting claims to
    proceed under either negligence or contract theories of recovery,
    and "[t]he class of individuals who may bring a malpractice
    action is limited to a client's intended beneficiaries, provided
    no other remedy exists to prevent future harm."            Id. at 258, 259,
    261, 
    21 P.3d at 463, 464, 466
    ; see also Buscher, 114 Hawai#i at
    220, 159 P.2d at 831 (reiterating that the Blair holding did not
    create a duty of care to all non-client beneficiaries).
    29
    The starting place for this discussion was a nineteeth century
    United States Supreme Court case that held "a third party not in privity of
    contract with an attorney may not maintain a legal malpractice action against
    an attorney for negligence absent fraud or collusion." Blair, 95 Hawai #i at
    253, 
    21 P.3d at
    458 (citing Nat'l Sav. Bank v. Ward, 
    100 U.S. 195
    , 205-06
    (1879)).
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    We decline to expand the narrow conditions in which a
    non-client can bring a legal malpractice action to the
    circumstances here.    Clearly, foreclosure defendants are not
    intended beneficiaries of the legal services an attorney is
    contracted to provide to his or her lender clients.           The sound
    policies against creating conflicts of interests are particularly
    germane in the context of adversaries in litigation proceedings.
    In addition, other remedies exist to address the
    alleged harm and any future harm.        Perhaps most important here is
    the well-recognized principle noted in Buscher:
    Unlike a claim [by a non-client against an attorney]
    for negligence, an attorney can be held liable for
    fraudulent misrepresentation. See Kahala Royal Corp., 113
    Hawai#i at 268–69, 
    151 P.3d at
    749–50 (citing caselaw from
    other jurisdictions stating that it is well settled that an
    attorney can be sued by an adverse party for fraud);
    Matsuura v. E.I. du Pont, 102 Hawai#i 149, 162, 
    73 P.3d 687
    ,
    700 (2003) ("Under Hawai#i law, a party is not immune from
    liability for civil damages based upon that party's fraud
    engaged in during prior litigation proceedings."); Giuliani
    v. Chuck, 
    1 Haw. App. 379
    , 383–84, 
    620 P.2d 733
    , 736–37
    (1980) ("The rule of law that an attorney representing a
    client may be held personally liable to an adverse party or
    a third person who sustains injury as a result of an
    attorney's intentional tortious acts is well settled."
    (Citations omitted.)).
    Buscher, 114 Hawai#i at 220 n.13, 
    159 P.3d at
    833 n.13.
    In Kahala Royal Corp., the supreme court pointed to a
    California case that stated:
    [A] fraud claim against a lawyer is no different from
    a fraud claim against anyone else. If an attorney commits
    actual fraud in his dealings with a third party, the fact he
    did so in the capacity of attorney for a client does not
    relieve him of liability. While an attorney's professional
    duty of care extends only to his own client and intended
    beneficiaries of his legal work, the limitations on
    liability for negligence do not apply to liability for
    fraud.
    113 Hawai#i at 269, 
    151 P.3d at
    750 (citing Vega v. Jones, Day,
    Reavis & Pogue, 
    121 Cal.App.4th 282
    , 
    17 Cal.Rptr.3d 26
    , 31–35
    (2004)) (citation form altered).
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    For these reasons, we conclude that the Circuit Court
    did not err in dismissing Plaintiffs' legal malpractice claims
    against Attorney Defendants.
    2.     Count III - Breach of Fiduciary Duty
    To prove a breach of fiduciary duty, Plaintiffs must
    show that a fiduciary relationship existed between them and
    Attorney Defendants, Attorney Defendants breached a fiduciary
    duty to Plaintiffs, and the breach proximately caused injury to
    the Plaintiffs.    See 37 C.J.S. Fraud § 15 (2023) (elements of
    cause of action for breach of fiduciary duty); Cochrane v. Azman,
    No. 29562, 
    2001 WL 661714
    , *5 (Haw. App. Feb. 22, 2011) (mem.
    op.).   A fiduciary duty exists when there is a relationship of
    trust and confidence.    Meheula v. Hausten, 
    29 Haw. 304
    , 314 (Haw.
    Terr. 1926).
    Plaintiffs make no argument that a relationship of
    trust and confidence existed between them and Attorney
    Defendants, instead arguing that HRS § 667-17 supports the
    existence of a statutory duty owed by attorneys under the
    circumstances here.    We addressed the issue of whether a cause of
    action should be recognized based on the requirements of HRS
    § 667-17 in conjunction with Attorney Defendants' cross-appeal
    from the Partial Dismissal Order.      However, viewing the Complaint
    in the light most favorable to Plaintiffs, it appears beyond
    doubt that Plaintiffs can prove no set of facts supporting that a
    relationship of trust and confidence exists between them and
    Attorney Defendants.    Therefore, we conclude that the Circuit
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Court did not err in dismissing Plaintiffs' claim for breach of
    fiduciary duty.
    3.     Counts IV, V, X & XII - Litigation Privilege
    Plaintiffs argue that the Circuit Court erred in
    dismissing Counts IV (Wrongful Foreclosure), V (IIED), X (Elder
    Abuse), and XII (Slander of Title) as to Attorney Defendants
    based on the litigation privilege.        In the HRCP Rule 12(b)(6)
    motion filed in the Circuit Court, Attorney Defendants cited,
    inter alia, Kahala Royal Corp. for the proposition that the
    litigation privilege is generally applicable to bar a claim for
    damages against the opposing party's attorney if the alleged acts
    occurred in the course of the prior litigation.           Attorney
    Defendants argued that the allegations pertaining to Counts IV,
    V, X, and XII "are limited to conduct that occurred in the scope
    of the Attorney Defendants' representation of [Nutter]," and
    therefore, they are barred by the litigation privilege.30
    In the Partial Dismissal Order, the Circuit Court
    reviewed the policy considerations underlying the litigation
    privilege, which were set forth in Matsuura, wherein the supreme
    court explained that
    the interrelated policies associated with the litigation
    privilege include: (1) promoting the candid, objective, and
    undistorted disclosure of evidence; (2) placing the burden
    of testing the evidence upon the litigants during trial; (3)
    avoiding the chilling effect resulting from the threat of
    subsequent litigation; (4) reinforcing the finality of
    judgments; (5) limiting collateral attacks upon judgments;
    (6) promoting zealous advocacy; (7) discouraging abusive
    litigation practices; and (8) encouraging settlement.
    Therefore, in order to determine whether the litigation
    privilege should bar a subsequent collateral proceeding for
    30
    Attorney Defendants argue that the litigation privilege also bars
    Counts I, II, and III. However, as we have already concluded that the Circuit
    Court did not err in dismissing those counts, we need not address them
    further.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    civil damages based on litigation misconduct, including
    fraud, we must first address the policies associated with
    the privilege.
    102 Hawai#i at 155, 73 P.3d at 693.
    The Circuit Court noted that the litigation privilege
    applies when statements were made or conduct was undertaken in
    judicial proceedings, but that certain claims for relief are
    clearly not covered, such as abuse of process and malicious
    prosecution.   The Circuit Court explained its dismissal without
    prejudice of Counts IV, V, and X based on the litigation
    privilege as follows:
    Case law does not expressly except the claims
    contained in the counts from the application of the
    litigation privilege. Also, there is no allegation that
    [Attorney Defendants] acted with a specific desire to harm
    Plaintiffs or acted for the purpose of personal gain or with
    ill will toward Plaintiffs. Accordingly, Counts IV, V, and
    X are dismissed without prejudice.
    We first consider Count IV (Wrongful Foreclosure).
    Under Hawai#i jurisprudence, a mortgagor can bring a wrongful
    judicial foreclosure claim against a mortgagee, even when no
    foreclosure or sale has yet occurred, if the foreclosing
    mortgagee had no right to foreclosure at the time the foreclosure
    proceedings were commenced, and the mortgagor suffered an injury
    in fact and damages as a result.          Reyes-Toledo II, 143 Hawai#i at
    263-64, 428 P.3d at 775-76.      The wrongful act in the wrongful
    foreclosure is the lender's attempt, for its own benefit, to
    foreclose the borrower's rights, title, and interest in the
    property being foreclosed upon without a lawful basis for doing
    so.   See generally id.    No Hawai#i case has recognized a wrongful
    foreclosure cause of action against the lender's attorney.
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    As discussed above, in Hungate the supreme court
    recognized the generally unacceptable policy implications of
    creating a cause of action against a lender's attorney in favor
    of an adverse party, so long as the attorney's actions were
    within the bounds of the law.   Hungate, 139 Hawai#i at 412-13,
    
    391 P.3d at 19-20
    .   In Hungate, the supreme court declined to
    permit Hungate to sue the lender's attorney for, inter alia, UDAP
    under HRS § 480-2 in the foreclosure action because allowing a
    UDAP claim could compromise the attorney's zealous representation
    of his or her client.   Id. at 413, 
    391 P.3d at 20
    .   In addition,
    the court noted that an attorney is particularly vulnerable to
    such suit because, under HRS § 480-2 a plaintiff need only allege
    that the attorney's actions had a capacity to deceive, rather
    than meeting a more rigorous state of mind, such as actual
    deception.   Id.   Broadly recognizing a wrongful foreclosure cause
    of action against attorneys poses similar pitfalls.   A wrongful
    foreclosure claim can be brought, regardless of a lender's state
    of mind, if the lender cannot establish that it had the right to
    proceed at the commencement of the foreclosure proceedings, and
    the borrower-defendant suffered injuries and damages as a result.
    See Reyes-Toledo II, 143 Hawai#i at 263-64, 428 P.3d at 775-76.
    To allow a parallel wrongful foreclosure claim against
    the lender's attorney in every case wherein the lender's right to
    sue might be at issue could severely compromise the attorney's
    ability to zealously represent lender clients.   To impose
    liability on an attorney for wrongful foreclosure would have the
    undesirable effect of creating a duty to third parties that might
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    take precedence over the attorney's duty to his or her client.
    Thus, we conclude that the supreme court's policy concerns
    disfavor recognizing a wrongful foreclosure cause of action
    against a lender's attorney.   In most circumstances, the
    mortgagor's interests can be protected from the wrongful acts of
    the mortgagee through filing a claim against the mortgagee,
    without permitting a wrongful foreclosure claim against the
    lender's attorney.   Hungate, 139 Hawai#i at 412, 
    391 P.3d at 19
    .
    We further conclude that, while a wrongful foreclosure claim per
    se should not be permitted against the lender's attorney, based
    on the policy considerations underlying the litigation privilege,
    certain wrongful-foreclosure-related claims may lie against the
    attorney for the attorney's own wrongful conduct in certain
    circumstances, as discussed in the context of Plaintiffs' fraud
    on the court claims against Attorney Defendants.
    Accordingly, even accepting the allegations of the
    Complaint as true and viewing the Complaint in a light most
    favorable to Plaintiffs, we conclude that the Circuit Court did
    not err in dismissing the wrongful foreclosure claims against
    Attorney Defendants.
    The Circuit Court also dismissed without prejudice
    Count V, IIED, purportedly based on the Attorney Defendants'
    litigation privilege, but further stating that "there is no
    allegation that [Attorney Defendants] acted with a specific
    desire to harm Plaintiffs or acted for the purpose of personal
    gain or with ill will toward Plaintiffs."   Thus, it appears that
    dismissal of Count V was on alternative grounds of litigation
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    privilege and failure to state a claim for IIED.          The supreme
    court has held:
    The elements of the tort of IIED are: 1) that the
    conduct allegedly causing the harm was intentional or
    reckless; 2) that the conduct was outrageous; and 3) that
    the conduct caused 4) extreme emotional distress to another.
    Hac v. Univ. of Hawaii, 102 Hawai#i 92, 106–07, 
    73 P.3d 46
    ,
    60–61 (2003). "The term 'outrageous' has been construed to
    mean without just cause or excuse and beyond all bounds of
    decency." Enoka v. AIG Hawai#i Ins. Co., Inc., 109 Hawai#i
    537, 559, 
    128 P.3d 850
    , 872 (2006) (citations and some
    internal quotation marks omitted). Additionally, "[t]he
    question whether the actions of the alleged tortfeasor are
    unreasonable or outrageous is for the court in the first
    instance, although where reasonable people may differ on
    that question it should be left to the jury." Young v.
    Allstate Ins. Co., 119 Hawai#i 403, 429, 
    198 P.3d 666
    , 692
    (2008) (citation omitted).
    Goran Pleho, LLC v. Lacy, 144 Hawai#i 224, 237, 
    439 P.3d 176
    , 189
    (2019).
    The allegations of the Complaint include, inter alia,
    the following.    Namahoe was "knowingly, purposely [sic],
    wrongfully, fraudulently, conspiratorially, and criminally
    expelled" from his home via a wrongful foreclosure.          Attorney
    Defendants filed multiple reverse mortgage foreclosures while
    representing Nutter against elderly mortgagors, including the
    foreclosures against Domingo and Namahoe, to further Nutter's
    wrongful, tortious, illegal, and criminal conduct toward Domingo
    and Namahoe in the foreclosure actions, with various degrees of
    culpability including, for example, knowing (or they should have
    known) that Nutter had no right to foreclose under the
    circumstances.    Attorney Defendants refused to agree to a HUD
    inspection of the completed repairs by Domingo, while admitting
    that a HUD inspection was determinative of the issue of whether
    repairs were satisfactory.     After service of a writ of ejectment
    on Namahoe, in order to cover-up and further defraud Namahoe,
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    Attorney Defendants (and Nutter) offered Namahoe $5,000 to sign a
    paper Namahoe did not understand, under extreme duress.    Newly
    homeless, Namahoe took the $5,000, used it to purchase a van to
    live in, and Namahoe was left unhoused, helpless, ill, depressed,
    shamed, and physically, emotionally, and psychologically impaired
    for life.
    With respect to Domingo, the Complaint additionally
    alleges the following.    Even after judgment was entered in favor
    of Domingo in the Domingo Foreclosure Action, Attorney Defendants
    (and/or Nutter) notified Domingo, without advising Domingo's
    attorney, that Domingo remained in default for $6,674, and if he
    did not enter into a repayment agreement, a new foreclosure
    action would be filed.    Domingo was frightened, fatigued, frail,
    feeble and impaired when he signed a Repayment Plan Agreement
    under duress, fear, and serious emotional distress caused by the
    continued threat of baseless foreclosure.
    Taking these allegations as true for the purposes of
    evaluating the dismissal of Plaintiffs' IIED claims under HRCP
    Rule 12(b)(6), we cannot say that Namahoe and Domingo have failed
    to state claims for IIED.    See Goran Pleho, LLC, 144 Hawai#i at
    238, 
    439 P.3d at 190
    .
    Turning to the question of whether the litigation
    privilege bars the IIED claims at issue in this case, Attorney
    Defendants argue that the litigation privilege has been held to
    bar other intentional tort claims, pointing to Kahala Royal
    Corp., 113 Hawai#i at 269-73, 
    151 P.3d at 750-54
    , which applied
    the litigation privilege to bar claims of intentional
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    interference with contractual relations (IICR) and intentional
    interference with prospective economic advantage (IIPEA) for
    conduct occurring during the course of the attorney's
    representation of his or her client.           In so doing, the supreme
    court noted that the complainants failed to allege that the
    attorney defendants were acting outside of the scope of their
    attorney-client relationship, and they failed to allege facts
    from which actual malice might reasonably said to exist.              Id. at
    271, 
    151 P.3d at 752
    .      Accordingly, the supreme court concluded
    that there were no allegations indicating that the attorneys
    "possessed a desire to harm which is independent of the desire to
    protect their clients."        
    Id.
     (citation omitted).      The supreme
    court further concluded that there were no allegations that the
    attorneys were acting for personal gain or with ill will toward
    the opposing party.      
    Id.
    Similarly, in the case at bar, Plaintiffs do not allege
    attorney defendants were acting outside of the scope of their
    attorney-client relationship, they do not allege facts from which
    actual malice might reasonably be said to exist,31 and they do
    not allege that Attorney Defendants acted for personal gain or
    with ill-will toward Plaintiffs.           Attorney Defendants' alleged
    conduct occurred during and in conjunction with their
    representation of Nutter in judicial foreclosure proceedings.
    31
    Actual malice was not an element of either the IICR or IIPEA
    claims at issue in Kahala Royal Corp. Kahala Royal Corp., 113 Hawai #i at 267
    n.17 & n.18, 
    151 P.3d at
    748 n.17 & n.18 (setting forth the elements of IICR
    and IIPEA). However, the supreme court's litigation privilege analysis
    embraced cases from other jurisdictions that have held that the privilege is
    lost only if the attorney acts with bad faith, personal ill-will, malice, or
    actual intent to harm. Id. at 270-72, 
    151 P.3d at 751-53
    .
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    Thus, based on the allegations of the Complaint, we conclude that
    the Circuit Court did not err in dismissing Plaintiffs' IIED
    based on the litigation privilege.
    Count X (Elder Abuse) asserts that Attorney Defendants
    (and Nutter) wrongfully appropriated and/or assisted in
    appropriating Plaintiffs' residences with the intent to defraud,
    they knew or should have known that Plaintiffs had the right to
    retain ownership of their residences, and that this conduct
    constituted elder abuse.         It is unclear, and the parties have not
    addressed, whether Hawai#i recognizes a cause of action for elder
    abuse (and what elements must be established), although
    additional civil penalties may be imposed in a government action
    for a violation of HRS § 480-2 that is "directed toward, targets
    or injures an elder."        HRS § 480-13.5 (2008).       However,
    Plaintiffs' Elder Abuse claims were dismissed based on Attorney
    Defendants' litigation privilege on an HRCP Rule 12(b)(6) motion,
    and we confine our review to that issue.32
    We accept Plaintiffs' allegations as true and view them
    in the light most favorable to plaintiff, including the
    allegation that Attorney Defendants' intended to defraud them out
    of their residences.        As stated above, in Kahala Royal Corp., the
    supreme court pointed favorably to a California case that stated:
    [A] fraud claim against a lawyer is no different from
    a fraud claim against anyone else. If an attorney commits
    actual fraud in his dealings with a third party, the fact he
    did so in the capacity of attorney for a client does not
    relieve him of liability. While an attorney's professional
    duty of care extends only to his own client and intended
    beneficiaries of his legal work, the limitations on
    32
    We do not reach the question of whether an elder abuse claim lies
    in Hawai#i.
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    liability for negligence do not apply to liability for
    fraud.
    13 Hawai#i at 269, 
    151 P.3d at
    750 (citing Vega v. Jones, Day,
    Reavis & Pogue, 
    121 Cal.App.4th 282
    , 
    17 Cal.Rptr.3d 26
    , 31–35
    (2004)) (citation form altered).
    While Count X may ultimately be found to be otherwise
    infirm, applying the standards applicable to a review of
    dismissal on an HRCP Rule 12(b)(6) motion, we cannot conclude
    that the litigation privilege shields Attorney Defendants from
    defending a claim that they intentionally acted to defraud these
    elderly Plaintiffs out of their homes.        Accordingly, we conclude
    that the Circuit Court erred in dismissing Count X on this basis.
    Finally, the Circuit Court dismissed Count XII, Slander
    of Title, on the ground that the litigation privilege expressly
    applies to slander of title claims, based on this court's
    decision in Isobe, 127 Hawai#i at 368, 279 P.3d at 33.             In Isobe,
    we held that an absolute litigation privilege applies to claims
    for slander of title.    Id. at 383, 279 P.3d at 48.        Here,
    Plaintiffs' claim for slander of title against Attorney
    Defendants is based on the filing of a Notice of Pendency of
    Action (NOPA) with respect to both the Domingo Foreclosure and
    the Namahoe Foreclosure.     The NOPAs were filed in the course of
    judicial proceedings and were related to those proceedings.
    Therefore, based on Isobe, we conclude that the Circuit Court did
    not err in dismissing Plaintiffs' slander of title claims in
    Count XII with prejudice.
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    4.    Count VII - Abuse of Process
    Plaintiffs argue that the Circuit Court erred in
    dismissing without prejudice Count VII for failure to state a
    claim for abuse of process.      Count VII states:
    57.    Plaintiffs Domingo and Namahoe re-allege and
    re-state the allegations of paragraphs 1-56 above.
    58.   [Nutter and Attorney Defendants] initiated the
    Namahoe Foreclosure for a measly $500.00 worth of cosmetic
    repairs that had been completed, but not approved by a HUD
    inspector and never disclosed to the Court.
    59.   [Nutter and Attorney Defendants] initiated the
    Domingo Foreclosure for the improper purpose of an
    inspection of Domingo's residence by Nutter's inspectors and
    appraisers rather than a HUD approved inspector, to which
    Nutter vehemently objected.
    60.   [Nutter and Attorney Defendants] insidiously
    devised the strategy to foreclose reverse mortgages with
    repair riders, targeting the impaired, marginal, and
    improverished elderly who are unaware of the HUD inspection
    requirement to satisfy the repair rider and also unaware
    foreclosure was never a remedy per the loan documents and
    HUD regulations, rules and standard practices.
    61.   The acts and omissions of [Nutter and Attorney
    Defendants] alleged herein and such other conduct as may be
    established at trial, constitute abuse of process .
    (Format altered).
    The Circuit Court dismissed Plaintiffs' claims for
    abuse of process based on Young v. Allstate Ins. Co., 119 Hawai#i
    403, 
    198 P.3d 666
     (2008).      In Young, the supreme court reiterated
    that "there are two essential elements in a claim for abuse of
    process:   (1) an ulterior purpose and (2) a wilful act in the use
    of the process which is not proper in the regular conduct of the
    proceeding."    Id. at 412, 
    198 P.3d at 675
     (citation and internal
    quotation marks omitted).      With respect to the second element,
    the supreme court emphasized that the defendant must be alleged
    to have committed a willful act that is not proper in the regular
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    conduct of the proceeding.     
    Id.
        The willful act alleged in
    Young, using lowball settlement offers to punish the claimant in
    that case and "send a message" to other claimants, did not
    satisfy the second element because offers to settle are "proper"
    in the regular conduct of proceedings.         Id. at 414-15, 
    198 P.3d at 677-78
    .   Noting that the only other willful act alleged was
    the use of process itself, the supreme court pointed to the
    following:
    The most recent edition of Professor Prosser's treatise on
    torts teaches that "[s]ome definite act or threat not
    authorized by the process, or aimed at an objective not
    legitimate in the use of the process, is required; and there
    is no liability where the defendant has done nothing more
    than carry out the process to its authorized conclusion,
    even though with bad intentions." Prosser and Keeton on
    Torts § 121, at 898 (5th ed., W. Page Keeton et al. eds.,
    1984) (emphases added) (footnotes omitted). Thus, more is
    required than the issuance of the process itself. See
    Coleman, 41 Cal.3d at 802, 718 P.2d at 89, 226 Cal.Rptr. at
    101–02, Simone v. Golden Nugget Hotel & Casino, 
    844 F.2d 1031
    , 1038, 1040 (3d Cir. 1988) (applying New Jersey law);
    Clermont Environmental Reclamation Co. v. Hancock, 
    16 Ohio App.3d 9
    , 
    474 N.E.2d 357
    , 361 (1984); Kaminske v. Wisconsin
    Cent. Ltd., 
    102 F.Supp.2d 1066
    , 1078–79 (E.D.Wis. 2000).
    Young, 119 Hawai#i at 414-15, 
    198 P.3d at 677-78
     (footnote
    omitted; emphasis altered).
    Here, the Circuit Court's dismissal without prejudice
    of Plaintiffs' abuse of process claims rested on the second
    element, and the court's determination that there was no
    allegation that Attorney Defendants committed a willful act
    distinct from the use of process.         On appeal, Plaintiffs argue
    that the willful act committed by Attorney Defendants was the act
    of filing the foreclosure complaints knowing that Nutter had no
    right to proceed in the first place, and proceeding in the
    Namahoe Foreclosure despite the fact that documents mailed to
    Namahoe were returned.    As in Young, while Plaintiffs'
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    allegations satisfied the first element of an abuse of process
    claim, the Complaint did not allege the type of improper act upon
    which a claim of abuse of process may be founded.               Therefore, we
    conclude that the Circuit Court did not err in dismissing Count
    VII without prejudice.
    5.    Count VIII - Fraud
    Plaintiffs argue that the Circuit Court erred in
    dismissing Domingo and Namahoe's fraud claims, except for
    Namahoe's fraud on the court claims.         Count VIII states:
    62.   Plaintiffs re-allege and re-state the
    allegations of paragraphs 1-61 above.
    63.   The acts and omissions of [Nutter and Attorney
    Defendants] alleged herein and such other conduct as may be
    established at trial, constitute clear and convincing
    evidence of fraud practiced upon Plaintiffs.
    In the Partial Dismissal Order, the Circuit Court
    dismissed Count VIII, in relevant part as follows:
    To the extent that the claims for relief seek recovery
    of damages and they are based upon violations of HRS § 667-
    17, consistent with the discussion in Subsection A[ 33] they
    are dismissed.
    In regard to [Domingo's] claim for relief for fraud
    based upon the Repayment Agreement, it does not have the
    requisite specificity required by Rule 9 of the HRCP and
    Larsen v. Pacesetter Systems, Inc., 
    74 Haw. 1
    , 30-31 (1992).
    Of particular concern, the element of detrimental reliance
    is not clearly articulated. Also, in light of the
    allegation that the Repayment Agreement has been rescinded,
    it is not clear what substantial pecuniary damage was
    suffered by [Domingo]. See Ellis v. Crockett, 
    51 Haw. 45
    ,
    52-53 (1969).
    33
    In Subsection A of the Partial Dismissal Order, inter alia, the
    Circuit Court rejected Plaintiffs' argument that a claim for damages may be
    brought against Attorney Defendants pursuant to HRS § 667-17. The Circuit
    Court reasoned that attorney affirmations are directed at the court, and that
    sanctions and other remedies might be available as a result of
    misrepresentations to the court, but that no direct cause of action against
    Attorney Defendants was permissible. We did not reach this issue in
    conjunction with our review of the Circuit Court's dismissal of Counts I, II,
    and III of the Complaint, as the Circuit Court did. However, it is discussed
    in conjunction with our review of Attorney Defendants' appeal.
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    Regarding [Namahoe's] claim for relief for fraud based
    on paragraphs 18, 19 and 20, [Namahoe] characterizes it as a
    fraud on the court.
    Plaintiffs' claims for relief for damages based upon
    fraud are dismissed without prejudice. [Namahoe's] claim
    for relief for fraud on the court is not dismissed.
    On appeal, Plaintiffs argue that the fraud claims were
    sufficient to withstand dismissal under HRCP Rule 12(b)(6),
    particularly since the facts must be deemed as true.          Plaintiffs
    further argue that the essence of their fraud claim against
    Attorney Defendants was based on HRS § 667-17, and Attorney
    Defendants' materially false and misleading HRS § 667-17
    affirmations.   As we held above, applying the standards set forth
    in the supreme court's jurisprudence, an action for damages is
    hereby recognized in Hawai#i against an attorney for committing a
    fraud on the court through an egregious, legally and factually
    deficient, inaccurate and incomplete, materially false and
    misleading HRS § 667-17 affirmation under the circumstance of
    this case, which involves wrongful foreclosures on Plaintiffs'
    reverse mortgages.
    Thus, we conclude that the Circuit Court erred in
    dismissing Plaintiffs' fraud claims to the extent that they seek
    a recovery of damages based upon the egregious violations of HRS
    § 667-17 that are alleged in this case, which have been held to
    constitute fraud on the court.      See James B. Nutter & Co., 153
    Hawai#i at 166-69, 528 P.3d at 239-42.
    Plaintiffs argue that its allegations of fraud are
    stated with the required particularity.        They submit that, in
    addition to Attorney Defendants' materially deficient and
    misleading HRS § 667-17 affirmations, the claim for fraud was
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    based on the failure to amend the necessary affirmations, the law
    and facts particular to reverse mortgages and the HUD rules and
    regulations applicable thereto, as well as Attorney Defendants'
    further actions in seeking summary judgment against Domingo and
    Namahoe in the foreclosure suits.        It seems, however, based on
    the allegations of the complaint, that these allegations are part
    of the fraud on the court claim grounded in HRS § 667-17.
    As discussed above, we have recognized a cause of
    action against attorneys arising out of a fraud on the court
    through an egregious, legally and factually deficient, inaccurate
    and incomplete, materially false and misleading HRS § 667-17
    affirmation under the circumstances of this case, which involved
    foreclosure on the Plaintiffs' reverse mortgages.          On remand,
    both Plaintiffs are able to seek damages from Attorney Defendants
    for their injuries and losses caused by such egregious
    misconduct.    However, Plaintiffs' assertion that there were
    additional, independent fraudulent acts and/or omissions is
    unclear, and Plaintiffs do not point to any specific additional
    fraud.   We therefore conclude that the Circuit Court did not err
    in dismissing such additional fraud claims without prejudice.
    6.     Count VI - Unfair or Deceptive Acts or Practices
    Plaintiffs contend that the Circuit Court erred in
    dismissing their UDAP Claims on the grounds that they do not have
    standing as consumers to sue Attorney Defendants under HRS
    chapters 480 and 481A.    The Circuit Court's ruling on Count VI
    states, in relevant part:
    HRS § 480-2(d) states: "[n]o person other than a
    consumer, the attorney general or the dirctor of the office
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    FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    of consumer protection may bring an action based upon unfair
    or deceptive acts or practices declared unlawful by this
    section." Under HRS § 480-1, "'[c]onsumer' means a natural
    person who, primarily for personal, family, or household
    purposes, purchases, attempts to purchase, or is solicited
    to purchase goods or services or who commits money,
    property, or services in a personal investment." Under the
    allegations of the Complaint, Plaintiffs did not receive or
    pursue legal services from [Attorney Defendants].
    Therefore, the claims for relief under Chapter 480, HRS,
    should be dismissed.
    Regarding Plaintiffs' claims for relief under Chapter
    481A, HRS, Plaintiffs contend that they relate to the
    likelihood of Plaintiffs' confusion or misunderstanding.
    Under Hawai#i law, a:
    likelihood of confusion exists when consumers
    confronted with products or services bearing one label
    or mark would be likely to assume that the source of
    the products or services is the same as or associated
    with the source of a different product or service
    identified by a similar mark. (Citation omitted)
    Carrington v. Sears, Roebuck & Co., 
    5 Haw. App. 194
    , 199
    (1984).
    The point is that a claim under Chapter 481A, HRS,
    relates to the sale or provision of goods or services. In
    this case, [Attorney Defendants] may have provided legal
    services, but not to Plaintiffs. Plaintiffs do not have
    standing to bring an action against [Attorney Defendants]
    under Chapter 481A, HRS.
    Plaintiffs' claims for relief based upon Chapters 480
    and 481A are dismissed without prejudice.
    On appeal, Plaintiffs argue that, even though Attorney
    Defendants did not provide legal services to them, they are
    third-party beneficiaries of the protections afforded by the HRS
    § 667-17 affirmation obligations/duties.        We have already
    recognized a direct cause of action against attorneys arising out
    of a fraud on the court through an egregious, legally and
    factually deficient, inaccurate and incomplete, materially false
    and misleading HRS § 667-17 affirmation under the circumstances
    of this case.   It is unclear how Plaintiffs' argument concerning
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    third-party beneficiary status under HRS § 667-17 entitles them
    to further relief under the UDAP statutes.34
    As Attorney Defendants point out, in Hungate the
    supreme court declined to recognize a UDAP claim against the
    lender's attorney, although the court stated:           "[a]s Hungate
    asserts, he is a consumer based on the mortgage with Deutsche
    Bank, and is thus also a 'consumer vis à vis the mortgagee's
    lawyer for the same transaction.'"         Hungate, 139 Hawai#i at 412,
    
    391 P.3d at 19
    ; see also HRS § 480-1 (defining "consumer").                The
    supreme court examined the unique nature of the attorney-client
    relationship, and with respect to UDAP claims the court stated:
    Permitting a party to sue his or her opponent's
    attorney for UDAP under HRS § 480-2 in foreclosure actions
    presents a similar issue in that an attorney's concern with
    being sued by a party opponent could compromise his or her
    representation of the client. In a UDAP action, an attorney
    would be especially vulnerable to suit because, for example,
    under HRS § 480-2 actual deception need not be shown; the
    capacity to deceive is sufficient. Accordingly, a plaintiff
    would need only to allege that opposing counsel has breached
    the statutory duty under HRS § 480-2 not to engage in unfair
    or deceptive acts or practices in the conduct of any trade
    or commerce in a way that caused private damages in order to
    state a claim under HRS chapter 480. Given that UDAP lacks
    a more rigorous or precise state of mind requirement, even a
    carefully rendered opinion could, if incorrect, have the
    capacity to deceive. The attorney would therefore have to
    insure the correctness of his [or her] opinions and
    strategies, rendering it virtually impossible for an
    attorney to effectively perform the traditional role of
    legal counselor. Similar to the negligence issue in Boning,
    in foreclosure actions an attorney's justifiable concern
    with being sued by the opposing party for UDAP could
    compromise the attorney's ability to zealously represent his
    or her client. Consequently, based on the allegations
    against Rosen, we decline to recognize a UDAP claim against
    him by Hungate under HRS § 480-2 in the instant foreclosure
    action.
    34
    Plaintiffs cite no authority for the proposition that they have
    rights as a third-party beneficiary of a statute, as opposed to a third-party
    beneficiary of a contract. As discussed above, we have rejected the argument
    that an adverse party is a third-party beneficiary of the legal services
    contract between their litigation adversary and their adversary's attorney.
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    Id. at 413, 
    391 P.3d at 20
     (citations and footnote omitted;
    punctuation altered).
    Although Domingo and Namahoe are consumers based on
    their reverse mortgages with Nutter, and thus are consumers vis à
    vis Attorney Defendants, the supreme court's rationale for
    declining to recognize a UDAP claim against the lender's attorney
    in Hungate is equally applicable to Plaintiffs' Chapters 480 and
    481A Claims against Attorney Defendants here.35           Thus, we affirm
    the Circuit Court's dismissal of Count VI without prejudice, on
    this alternative ground.
    7.    Count XIII - Punitive Damages
    Plaintiffs argue that the Circuit Court erred in
    dismissing their claims for punitive damages on the basis that it
    had dismissed the other tort claims against Attorney Defendants.
    In light of our conclusion that Plaintiffs may prosecute claims
    in the nature of fraud for Attorney Defendants' fraud on the
    court, the Circuit Court erred to the extent that it barred
    Plaintiffs' pursuit of punitive damages, which was set forth in
    the Complaint's prayer for relief, as well as in Count XIII.
    However, "a claim for punitive damages is not an independent
    tort, but is purely incidental to a separate cause of action."
    35
    In Hungate, the supreme court did not decide whether attorneys
    could be held liable under HRS § 667-60 (2016), which imposes UDAP liability
    on certain foreclosing mortgagees in nonjudicial foreclosures. 139 Hawai #i at
    413 n.23, 
    391 P.3d at
    20 n.23. We similarly are not addressing other
    potential arguments; rather, we are applying Hungate's holding to the
    allegations of the Complaint in this case. We further note that we have
    examined the majority opinion in Goran Pleho, LLC, which held that Hungate's
    holding concerning UDAP claims against opposing counsel did not apply because
    the issue in that case was whether a lawyer who engaged in unfair or deceptive
    practices against his own client was subject to civil liability under HRS
    § 480-2, and we conclude that Goran Pleho, LLC does not affect the application
    of Hungate to this case. Goran Pleho, LLC, 144 Hawai #i at 245-52, 
    439 P.3d at 197-203
    .
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    Ross v. Stouffer Hotel Co. (Haw.), Inc., 76 Hawai#i 454, 466, 
    879 P.2d 1037
    , 1049 (1994) (citation omitted).     Thus, on this
    alternative ground, we conclude that the Circuit Court did not
    err in dismissing Count XIII as a separate cause of action.
    D.   Plaintiffs' Partial Summary Judgment Motion
    As discussed in Section IV.B.1. above, we lack
    appellate jurisdiction to review the Order Granting/Denying MPSJ.
    Therefore, we do not reach Plaintiffs' arguments on their second
    point of error in CAAP-XX-XXXXXXX.
    V.   CONCLUSION
    As set forth above, Nutter's appeal in CAAP-XX-XXXXXXX
    was dismissed with prejudice.     With respect to Attorney
    Defendants' cross-appeal, we conclude that Plaintiffs' Complaint
    does not constitute a SLAPP and thus affirm the Circuit Court's
    Order Denying Attorney Defendants' MJOP, as well as the Order
    Denying Attorney Defendants' Substantive Joinder to the Nutter
    MJOP.
    In CAAP-XX-XXXXXXX, the appeal from the Order
    Granting/Denying MPSJ is dismissed for lack of appellate
    jurisdiction.     For the reasons stated herein, the Partial
    Dismissal Order is affirmed in part and vacated in part; the
    Circuit Court's dismissal of Counts I, II, III, IV, V, VI, VII,
    and XIII without prejudice is affirmed; the Circuit Court's
    dismissal of Count XII with prejudice is affirmed; the Circuit
    Court's dismissal of Plaintiffs' fraud claims in Count VIII to
    the extent that they seek a recovery based upon the egregious
    violations of HRS § 667-17 that are alleged in this case is
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    vacated, but the Circuit Court's dismissal without prejudice of
    Plaintiffs' fraud claims other than fraud on the court is
    otherwise affirmed; the Circuit Court's dismissal of Count X is
    vacated.
    This case is remanded to the Circuit Court for further
    proceedings consistent with this Opinion.
    On the briefs:                       /s/ Lisa M. Ginoza
    Chief Judge
    David J. Minkin,
    Jesse J.T. Smith,                    /s/ Katherine G. Leonard
    (McCorriston Miller Mukai            Associate Judge
    MacKinnon LLP),
    for Defendant-Appellant/             /s/ Karen T. Nakasone
    Cross-Appellee/Appellee.            Associate Judge
    William J. Rosdil, AAL,
    and
    Rebecca A. Copeland,
    (Law Office of Rebecca A.
    Copeland, LLC),
    for Plaintiffs-Appellees/
    Cross-Appellees/Appellants.
    A. Bernard Bays,
    Matthew C. Shannon,
    (Bays Lung Rose & Holmas),
    for Defendants-Appellees/
    Cross-Appellants.
    74
    

Document Info

Docket Number: CAAP-17-0000324

Filed Date: 12/20/2023

Precedential Status: Precedential

Modified Date: 12/20/2023