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Electronically Filed
Supreme Court
SCWC-11-0001104
08-NOV-2013
10:08 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
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CAAP-11-0001104
(DC-CIVIL NO. 11-1-2370)
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE
HOLDERS OF THE ASSET BACKED SECURITIES CORPORATION HOME EQUITY
LOAN TRUST, SERIES NC 2005-HE8, ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES NC 2005-HE8,
Petitioner/Plaintiff-Appellee,
vs.
HERMINA CASTRO, STEVEN CASTRO,
CHRISTOPHER CASTRO, and ESTEBAN CASTRO,
Respondents/Defendants-Appellants.
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CAAP-11-0001105
(DC-CIVIL NO. 11-1-2365)
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE
HOLDERS OF THE ASSET BACKED SECURITIES CORPORATION HOME EQUITY
LOAN TRUST, SERIES NC 2005-HE8, ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES NC 2005-HE8,
Petitioner/Plaintiff-Appellee,
vs.
HERMINA CASTRO, STEVEN CASTRO,
CHRISTOPHER CASTRO, and ESTEBAN CASTRO,
Respondents/Defendants-Appellants.
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SCWC-11-0001104
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0001104; DC-CIVIL NO. 11-1-2370;
CAAP-11-0001105; DC-CIVIL NO. 11-1-2365)
November 8, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY POLLACK, J.
This appeal arises out of an ejectment action
instituted by Petitioner/Plaintiff-Appellee U.S. Bank National
Association (U.S. Bank), as Trustee on behalf of the holders of
the Asset Backed Securities Corporation Home Equity Loan Trust,
Series NC 2005-HE8, Asset Backed Pass-Through Certificates,
Series NC 2005-HE8, against Respondents/Defendants-Appellants
Herminia Castro,1 Steven Castro, Christopher Castro, and Esteban
Castro (collectively, “Castros”). On December 13, 2011, the
District Court of the Second Circuit (district court)2 entered a
judgment for possession and a writ of possession (Judgment) in
favor of U.S. Bank, as well as a separate order 1) granting
summary judgment in favor of U.S. Bank; 2) granting Steven and
Christopher’s motion to set aside entry of default; 3) denying
Herminia’s motion for leave to file an answer and counterclaim
1
Herminia’s name is spelled alternatively as “Herminia” and
“Hermina” in the record on appeal. “Herminia” is used in this opinion to
remain consistent with the defendants’ pleadings.
2
The Honorable Kelsey T. Kawano presided.
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against U.S. Bank; and 4) denying Herminia’s motion to dismiss
for lack of subject matter jurisdiction (Order).
In its application for writ of certiorari, U.S. Bank
seeks review of the April 16, 2013 Judgment on Appeal of the
Intermediate Court of Appeals (ICA) filed pursuant to its March
14, 2013 Memorandum Opinion, vacating the district court’s
Judgment and Order, and remanding to the district court with
instructions to dismiss the case for lack of jurisdiction.3 For
the reasons set forth herein, we hold that the district court
properly exercised subject matter jurisdiction over the case
because the Castros failed to demonstrate that the action was one
in which title to the subject property would come into question.
I. BACKGROUND
A.
In 2002, Herminia and her husband purchased a property
located in Kahului, Hawai#i (Property). Herminia and her husband
owned the Property in fee simple as tenants by the entirety.
After the death of her husband in 2005, Herminia decided to
refinance the existing mortgage on the Property. She and her
son, Sonny Castro, applied for a loan with New Century Mortgage
Corporation (New Century). On August 9, 2005, Herminia and Sonny
3
The Honorable Daniel R. Foley, Lawrence M. Reifurth, and Lisa M.
Ginoza presided.
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executed a promissory note (Note) for the amount that was
borrowed.
On August 10, 2005, Herminia and Sonny also executed
and delivered to New Century a mortgage (Mortgage) encumbering
the Property. The Mortgage was recorded on August 13, 2005 with
the State of Hawai#i Bureau of Conveyances (Bureau). Herminia
and Sonny thereafter claimed a shared interest in the Property as
joint tenants.
On August 18, 2005, the Mortgage was assigned to U.S.
Bank. The Assignment of Mortgage was recorded with the Bureau on
December 8, 2006.
On March 3, 2009, due to Herminia and Sonny’s failure
to make the scheduled payments as set forth in the Mortgage and
Note, a letter titled “Demand Letter - Notice of Default” was
sent to Herminia and Sonny by Select Portfolio Servicing, Inc.
(SPS), a loan servicing company employed by U.S. Bank. The
letter provided that it constituted “formal notice of default”
under the terms of the Note and Mortgage. The letter described
the actions required to cure the default and to dispute
delinquency.
Subsequently, a “Notice of Mortgagee’s Non-Judicial
Foreclosure Under Power of Sale,” stating U.S. Bank’s intention
to foreclose and sell the Property at a foreclosure auction on
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January 25, 2011, was sent to the Castros by U.S. Certified Mail.
The notice was signed for and received by Herminia on November
24, 2010,4 and by the Director of Taxation on November 29, 2010.
In addition, the notice was posted on the Property on December
21, 2010, more than twenty-one days prior to the scheduled
foreclosure sale. On December 1, 8, and 15, 2010, more than
fourteen days prior to the foreclosure sale, notice of
foreclosure was published in The Maui News.
The foreclosure sale was thereafter rescheduled to
March 29, 2011. Notice of the rescheduled date and time was
published in The Maui News, posted on the Property, and sent to
the Director of Taxation, Herminia, and Sonny via U.S. Certified
Mail. The notice was signed for and received by the Director and
Herminia on February 25 and February 26, 2010, respectively.
On March 29, 2011, the foreclosure auction was held and
the Property was purchased by U.S. Bank. On April 8, 2011, the
Mortgagee’s Affidavit of Foreclosure Under Power of Sale
(Mortgagee’s Affidavit of Foreclosure) was recorded with the
Bureau.
4
In separate mailings, similar notices were sent to Sonny and
Rolando Taasan, one of the co-owners of the Property, via U.S. Certified Mail
on November 24, 2010.
Rolando Taasan was named as a grantee in a quitclaim deed recorded
on November 5, 2007 in the Bureau. He is listed as “an unmarried man, as
tenant in severalty, as to an undivided one percent (1%) interest, as tenants
in common.” His relationship to the Castros is not explained in the record.
After a second unsuccessful delivery attempt on December 2, 2010,
both mailings were returned unclaimed on December 10, 2010.
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On April 26, 2011, U.S. Bank sent a letter addressed to
“Former Owner And/or Tenant, Known or Unknown [at the Property],”
instructing the recipients to vacate the Property within ten
calendar days. On July 29, 2011, U.S Bank recorded a Quitclaim
Deed with the Bureau, identifying U.S. Bank as the grantee of the
Property.
B.
Following Herminia and Sonny’s failure to vacate the
Property as instructed, U.S. Bank filed two Verified Complaints
for Summary Possession and Ejectment (collectively, “Complaint”)
in the district court on August 24, 2011.5 The Complaint alleged
that U.S. Bank was the fee simple owner of the Property, and the
Castros were “one or more of the . . . persons still occupying
the Property without consent and permission of U.S. Bank.”
On September 12, 2011, the district court conducted a
Return Hearing wherein Herminia was present and entered a general
denial to the Complaint. Default was entered as to Steven and
Christopher, Herminia’s sons, who did not appear at the hearing.
On October 27, 2011, U.S. Bank filed a Motion for
Summary Judgment and Writ of Possession (Motion for Summary
5
U.S. Bank filed two separate actions because the Property contains
a “main house,” which was the subject of Civil No. 11-1-2365, and a “cottage,”
which was the subject of Civil No. 11-1-2370. These matters were consolidated
pursuant to the ICA’s May 17, 2012 order granting the Castros’ motion to
consolidate the cases. The record only contains the Complaint filed for Civil
No. 11-1-2370.
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Judgment), requesting that the court enter a judgment for
possession and writ of possession in favor of U.S. Bank and
against the Castros, enter a final judgment under District Court
Rules of Civil Procedure (DCRCP) Rule 54(b), and schedule a trial
on damages to be proved after the Castros vacated the Property.
Attached as exhibits to the motion were certified copies of the
following documents recorded in the Bureau: (1) April 8, 2011
Mortgagee’s Affidavit of Foreclosure; (2) July 29, 2011 Quitclaim
Deed; (3) August 18, 2005 Mortgage; and (4) December 8, 2006
Assignment of Mortgage.
In support of its Motion for Summary Judgment, U.S.
Bank argued that it had established its superior title to the
Property, as evidenced by the attached Mortgagee’s Affidavit of
Foreclosure and Quitclaim Deed. U.S. Bank contended that it had
been the record title holder of the Property since July 29, 2011
pursuant to the Quitclaim Deed, and the Castros had continued to
occupy the premises rent free. U.S. Bank also argued that the
Castros had failed to raise a legitimate issue of a title dispute
under DCRCP Rule 12.1.
On November 7, 2011, the Castros filed four pleadings
in response to U.S. Bank’s Motion for Summary Judgment.
First, Herminia filed a Motion for Leave to File Answer
and Counterclaim against U.S. Bank (Motion for Leave). Herminia
sought to “assert counterclaims against Plaintiff seeking to set
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aside the foreclosure as being invalid and void, seeking damages
for a wrongful foreclosure, and to quiet title.” U.S. Bank
opposed the motion, arguing that “[a]ny leave afforded the
Defendant would be an act of futility inasmuch as Defendant
admits its claim is an action to quiet title action and is
therefore outside this court’s jurisdiction.”
Second, Steven and Christopher filed a Motion to Set
Aside Entry of Default. They conceded that they did not appear
at the September 12, 2011 Return Hearing, but argued that they
were not aware that they were required to appear personally
before the court, as they believed Herminia could enter a general
denial on their behalf. They therefore sought to set aside the
default. A declaration by Herminia in support of the motion was
also submitted.
Third, Herminia filed a Motion to Dismiss Plaintiff’s
Complaint for Lack of Subject Matter Jurisdiction (Motion to
Dismiss) pursuant to DCRCP Rules 7 and 12.1. Herminia argued
that the Castros disputed the validity of U.S. Bank’s title to
the Property. Specifically, Herminia contended that “the
underlying [loan] transaction is void based on fraud in the
inducement or unfair and deceptive acts and practices in
violation of Hawai#i Revised Statutes [(HRS)], Chapters 480 and
481” because Herminia should not have qualified for the Mortgage
based on her income.
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Additionally, Herminia argued that U.S. Bank was not
the real party in interest because the original loan had been
taken with New Century. Herminia contended that there was
“likely a break in the chain of title to the note and mortgage,
making this loan unsecured, and voiding any foreclosure on the
Property.” Accordingly, Herminia argued that “title is in
dispute” and the district court lacked subject matter
jurisdiction over the case.
Attached to the Motion to Dismiss was Herminia’s
declaration, which purported to set forth the source, nature, and
extent of the title claimed.6 Herminia expressed her belief that
U.S. Bank may not own the Note and Mortgage and that U.S Bank may
not be able to foreclose due to defects in the transfer of the
loan documents. Herminia also stated that she had requested a
loan modification from SPS and the company refused to consider
her request for relief.
Fourth, Herminia filed a Memorandum in Opposition to
U.S. Bank’s Motion for Summary Judgment. Herminia requested
additional time to respond to the motion and to conduct discovery
related to the underlying loan transaction with New Century. She
stated that she intended to conduct a title search and to obtain
an expert report concerning the securitization, sale, and
6
The declaration attached to the Motion to Dismiss was not signed.
The original signed declaration was later submitted on November 18, 2011.
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transfer of the Note and Mortgage in order to demonstrate that
U.S. Bank was not the real party in interest.
At a hearing held on November 18, 2011, the district
court granted U.S. Bank’s Motion for Summary Judgment and granted
Steven and Christopher’s Motion to Set Aside Entry of Default.7
The court denied Herminia’s Motion for Leave and Motion to
Dismiss.
On December 13, 2011, the district court entered a
judgment for possession and a writ of possession in favor of U.S.
Bank, concluding that U.S. Bank was entitled to possession of the
Property. On the same day the district court entered an order 1)
granting U.S. Bank’s Motion for Summary Judgment; 2) granting
Steven and Christopher’s Motion to Set Aside Entry of Default; 3)
denying Herminia’s Motion for Leave; and 4) denying Herminia’s
Motion to Dismiss.
7
A transcript of the hearing was not included in the record on
appeal. The Castros, as appellants, had the burden of providing the relevant
transcripts. Hous. Fin. & Dev. Corp. v. Ferguson, 91 Hawai#i 81, 92, 979 P.2d
1107, 1118 (1999) (“We have stated that ‘the burden is upon appellant in an
appeal to show error by reference to matters in the record, and he has the
responsibility of providing an adequate transcript.’”) (quoting Bettencourt v.
Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995)) (brackets
omitted).
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II. APPEAL
A.
On appeal to the ICA, the Castros argued in relevant
part that the district court erred in denying Herminia’s Motion
to Dismiss because Herminia’s declaration in support of the
motion had demonstrated that the action was one in which title to
real estate would come into question.8
In this regard, the Castros argued that they properly
raised a defense to the district court’s subject matter
jurisdiction pursuant to DCRCP Rule 12.1, by submitting
Herminia’s declaration in support of the Motion to Dismiss, which
set forth the source, nature, and extent of the title in a manner
that fully apprised the court of the nature of the Castros’
claim. Specifically, the Castros argued that Herminia’s
declaration established that she and her husband purchased the
Property from prior owners in 2002, that they owned the property
in fee simple as tenants by the entirety, that after her husband
died in 2005 she obtained title by succession, and that when she
refinanced the loan with her son, she was “misled” regarding her
ability to make the loan payments. Additionally, the declaration
8
The Castros also argued that the district court erred by granting
summary judgment: 1) without granting them additional time for discovery prior
to the hearing; 2) despite “the insufficiency of [U.S. Bank’s] moving papers,”
and U.S. Bank’s failure to carry its burden of proof on all affirmative
defenses; and 3) without affording due process to Christopher and Steven.
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established that Herminia was not aware that the loan was sold to
U.S. Bank, and “based on information and belief US Bank did not
own the note and mortgage and would not be able to foreclose due
to defects in the transfer of the loan documents.”
U.S. Bank argued in response that the district court
appropriately granted its Motion for Summary Judgment and denied
Herminia’s Motion to Dismiss because the declarations submitted
by the Castros failed to state the source, nature and extent of
the Castros’ title claim with the requisite details and
specificity.9 Rather, U.S. Bank contended that the declarations
“were merely an attempt to challenge the underlying foreclosure,
not to affirmatively state [the Castros’] claim to title.”
B.
On March 14, 2013, the ICA issued its Memorandum
Opinion. U.S. Bank Nat’l Ass’n v. Castro, Nos. CAAP-11-0001104,
CAAP-11-0001105, 2013 WL 1091714 (Haw. App. Mar. 14, 2013)
(mem.).
The ICA determined that Herminia’s declaration
adequately “apprised the court that Herminia Castro acquired
title by succession after her husband’s death, that she
refinanced the mortgage on the Property with her son, and that
9
U.S. Bank refers to Herminia’s declaration submitted in support of
Steven and Christopher’s Motion to Set Aside Entry of Default, as well as
Herminia’s declaration submitted in support of her Motion to Dismiss. The ICA
only addressed the latter declaration. See 2013 WL 1091714, at *3.
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she claims an undivided interest in fee simple with her son.”
Id. at *3. In addition, the ICA concluded that Herminia’s
declaration and Motion to Dismiss, which alleged that “the
underlying transactions involving the Property were void” because
they were “based on fraud in the inducement or unfair and
deceptive acts and practices,” sufficiently “apprised the court
of Defendants’ claim that the non-judicial foreclosure was void
and that Defendants retained title.” Id.
Accordingly, the ICA held that the “declaration
contained sufficient information regarding the source, nature,
and extent of title claimed by Defendants” in satisfaction of
DCRCP Rule 12.1, and the district court therefore lacked subject
matter jurisdiction. Id. In light of its conclusion, the ICA
did not address the Castros’ remaining points of error on
appeal.10 Id. The court vacated the district court’s Judgment
and Order, and remanded the case with instructions to dismiss for
lack of jurisdiction. Id. at *1.
C.
In its application to this court, U.S. Bank contends
that the Castros failed to satisfy the requirements of DCRCP Rule
12.1 by sufficiently setting forth the source, nature, and extent
of the title claimed in the Property. U.S. Bank argues that
10
See supra note 8.
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Hawai#i courts have “consistently recognized that vague and
conclusory claims to title will not support a defense to the
District Court’s jurisdiction in suits concerning real property.”
Rather, “a defendant must ‘show affirmatively’ in his affidavit
that he or she has a basis for claiming superior title.”
U.S. Bank argues that Herminia’s declarations failed to
meet the above standard for showing a claim to title, as they
“allege only that she was given a loan that she could not afford
and that [U.S. Bank] may not have standing to foreclose.”
III. DISCUSSION
A.
“‘The existence of subject matter jurisdiction is a
question of law’ that is ‘reviewable de novo under the
right/wrong standard.” Aames Funding Corp. v. Mores, 107 Hawai#i
95, 98, 110 P.3d 1042, 1045 (2005) (quoting Lester v. Rapp, 85
Hawai#i 238, 241, 921 P.2d 502, 505 (1997)) (brackets omitted).
HRS § 604-5(d) (Supp. 2011) “precludes the district
courts of this state from exercising jurisdiction in ‘real
actions . . . in which the title to real estate comes into
question.’”11 Deutsche Bank Nat’l Trust Co. v. Peelua, 126
11
HRS § 604-6 (1993), governing ejectment proceedings, provides that
“[n]othing in section 604-5 shall preclude a district court from taking
jurisdiction in ejectment proceedings where the title to real estate does not
come in question at the trial of the action.”
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Hawai#i 32, 36, 265 P.3d 1128, 1132 (2011) (quoting HRS § 604-
5(d)) (brackets omitted). “Pursuant to DCRCP Rule 12.1, where a
defendant seeks to assert, as a defense to the jurisdiction of a
district court, that the action is one in which title to real
estate will come into question, the defendant must raise such a
defense in a written answer or written motion, and must attach an
affidavit thereto.”12 Id. The affidavit must “set[] forth the
source, nature and extent of the title claimed by [the] defendant
to the land in question, and such further particulars as shall
fully apprise the court of the nature of defendant’s claim.”
DCRCP Rule 12.1.
“This court has explained that DCRCP Rule 12.1 is
derived from an order to district courts that was issued on March
1, 1895.” Peelua, 126 Hawai#i at 36, 265 P.3d at 1132. Prior to
the issuance of that order, mere “entry of a plea to
12
DCRCP Rule 12.1 (2011) provides:
Rule 12.1. Defense of title in district courts.
Pleadings. Whenever, in the district court, in
defense of an action in the nature of an action of trespass
or for the summary possession of land, or any other action,
the defendant shall seek to interpose a defense to the
jurisdiction to the effect that the action is a real action,
or one in which the title to real estate is involved, such
defense shall be asserted by a written answer or written
motion, which shall not be received by the court unless
accompanied by an affidavit of the defendant, setting forth
the source, nature and extent of the title claimed by
defendant to the land in question, and such further
particulars as shall fully apprise the court of the nature
of defendant’s claim.
(Emphasis added).
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jurisdiction, without more, ousted a district court of
jurisdiction.” Monette v. Benjamin, 52 Haw. 246, 247, 473 P.2d
864, 865 (1970). “Such situation was fraught with opportunity
for abuse, and gave considerable concern to the court, which
stated in [Coney v. Manele, 4 Haw. 154 (Haw. Kingdom 1879)], ‘If
dishonest pleas should be set up by defendants, undoubtedly
effectual means will be found to obviate the effects of such
dishonesty.’” Monette, 52 Haw. at 247, 473 P.2d at 865.
In Ward v. Kamanaoulu, 9 Haw. 619, 621 (Haw. Rep.
1895), the court followed precedent and held that the district
court was divested of jurisdiction when the defendant admitted to
digging a ditch on the plaintiff’s land but asserted, without
explanation, that he claimed title to the plaintiff’s land. The
court explained that it felt “obliged to follow the precedents of
this court and sustain such pleas without further proof—there
being no statute nor rule requiring more.” Id. However, the
court acknowledged that it was “aware of the mischiefs that are
likely to occur where reckless or dishonest pleas of this
character may be set up, compelling parties in the maintenance of
their possession of land to resort to the higher courts for
pursuit of their remedies.” Id. at 621. The court therefore
declared that “[a] rule will be made to apply to future cases.”
Id.
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The 1895 order from which DCRCP Rule 12.1 is derived
was issued four days after the court’s opinion in Ward. Monette,
52 Haw. at 248, 473 P.2d at 865.
In Monette, this court considered the defendants’ claim
that the district court lacked jurisdiction over a summary
possession action based on a question of title, pursuant to HRS §
604-5. 52 Haw. 246, 473 P.2d 864. The court considered the
sufficiency of the defendant’s affidavit setting forth the
source, nature, and extent of the title claimed by the defendant.
Id. at 247-49, 473 P.2d at 864-66. The court held that the
affidavit “set forth all of the information called for in the
rule,”13 where the affidavit demonstrated that the defendant
claimed title to the land through intestate succession:
A fair reading of the affidavit show[ed] that [the
defendant] claimed title to the land in question by
inheritance from her father, who in turn had inherited from
his father, and that the title claimed by her was an
undivided one-sixth interest in fee simple, which descended
to her by intestate succession from the immediately
preceding sole owner.
Id. at 248, 473 P.2d at 865. Although the court noted that the
defendant’s claim of title “could have been described more
precisely,” the affidavit adequately “put in issue the title to
the land involved.” Id. at 248-49, 473 P.2d at 865.
13
At the time, the rule was contained in Rule 14 of the district
court rules. Id. at 247, 473 P.2d at 865.
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On the contrary, in Aames Funding Corp., 107 Hawai#i at
98-100, 110 P.3d at 1045-47, the court held that the defendants’
joint declaration objecting to the district court’s exercise of
jurisdiction pursuant to Rule 12.1 was insufficient. Similar to
this case, the plaintiff in Aames acquired title to the property
through a non-judicial foreclosure sale. Id. at 96-97, 110 P.3d
at 1043-44. The defendants refused to surrender possession of
the property, and the plaintiff subsequently filed an action for
ejectment against the defendants in the district court. Id. at
97, 110 P.3d at 1044. The defendants filed a “Rule 12.1 Joint
Declaration . . . Objecting to Subject Matter Jurisdiction,” in
which the defendants declared, “[T]his action involves a dispute
as to title to real property,” and “We claim that we have title
to the Property.” Id. at 97, 99, 110 P.3d at 1044, 1046(brackets omitted). The defendants also filed a motion to
dismiss based on lack of subject matter jurisdiction. Id. at 97,
110 P.3d at 1044.
On appeal, this court held that the defendants’
declaration did not satisfy Rule 12.1 because the declaration
“merely asserts that title was at issue, and fails to provide
information as to the source, nature, and extent of the claim.”
Id. at 99, 110 P.3d at 1046 (quotation marks omitted). The court
noted that the defendants’ declaration and memorandum of law
“include[d] statements objecting to the manner in which the
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Mortgage was consummated[,] such as the purported lack of an
explanation of the ‘power of sale’ clause or of an appended copy
of the [federal Truth-In-Lending Act] ‘Notice of Right to
Cancel.’” Id. However, the court explained that “[n]one of
these matters . . . are germane to informing the court as to the
source, nature, and extent of the title claimed by the
[defendants] as to the land in question.” Id. (quotation marks
omitted) (emphases added).
Most recently in Peelua, this court clarified the level
of specificity required by Rule 12.1. 126 Hawai#i at 36-37, 265
P.3d at 1132-33. The court first explained that “[u]nder the
plain language of Rule 12.1, an affidavit that raises a defense
to the court’s jurisdiction must set forth ‘the source, nature,
and extent of the title claimed by defendant’ and ‘further
particulars’ sufficient ‘to fully apprise the court of the nature
of defendant’s claim.’” Id. at 36, 265 P.3d at 1132. The court
then reasoned that the phrase “further particulars” in the rule
suggests that the affidavit “must include some details or
specificity regarding the nature of the defendant’s claim”:
The phrase “further particulars” indicates that the
reference to “source, extent, and nature” of the claim are
“particulars” of the defense, whose purpose is to “fully
apprise” the court of the defendant's claim to title.
Although DCRCP Rule 12.1 does not define the term
“particulars,” that term suggests that the affidavit must
include some details or specificity regarding the nature of
the defendant's claim.
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Id. at 36-37, 265 P.3d at 1132-33 (citations omitted). Based on
the plain language of Rule 12.1, the court concluded that “the
source, nature, and extent of title claimed by the defendant,
must be described to the court with some detail and specificity.”
Id. at 376, 265 P.3d at 1132 (emphasis added). Additionally,
“the defendant may also include in the affidavit any other
particulars, the objective being to apprise the court fully of
the nature of the defendant’s claim.” Id. at 37, 265 P.3d at
1133 (emphasis added).
In Peelua, the plaintiff alleged that it was the fee
simple owner of the subject property by virtue of a non-judicial
foreclosure sale. Id. at 34, 265 P.3d at 1128. The defendant
refused to relinquish the property, and the plaintiff
subsequently filed a complaint requesting immediate possession of
the property. Id. The defendant alleged that the district court
lacked jurisdiction pursuant to Rule 12.1 and attached an
affidavit to the motion to dismiss providing in relevant part:
5. I am the owner of the Property identified in the
Complaint filed in this matter. Because of time constraints,
I cannot file a copy of my Deed to the property with this
affidavit, but I will furnish a copy of the Deed as soon as
I can.
6. The Property identified in the Complaint consists of
lands which have been owned by [the defendant’s] family for
generations, going back to the time of the Great Mahele.
8. The Property has passed down though [sic] my family over
time, and it was eventually deeded to me by my family.
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10. I was defrauded, duped, coerced and tricked into
engaging in transaction which involve[d] the Property in the
Complaint.
Id. at 35, 265 P.3d at 1131 (ellipses and brackets omitted).
On appeal, the Peelua court held that “[s]imilar to the
affidavit in Aames, [the defendant] states only in a vague and
conclusory fashion that he owns the Property and that title was
deeded to him by his family.” Id. at 38, 265 P.3d at 1134. The
court explained that the defendant’s affidavit was deficient in
several respects. First, as compared to the affidavit in
Monette, the defendant’s affidavit “lack[ed] any specificity with
respect to the source of title.” Id. Second, as to the nature
of the claim, the defendant merely asserted that he had a deed to
the property but did not “describe the contents of the deed or
the type of deed he acquired.” Id. In comparison, the court in
Monette “was able to discern that [the defendant] was claiming an
interest ‘in fee simple’ by virtue of ‘intestate succession.’”
Id. Finally, the affidavit “lack[ed] detail or information
regarding the extent of title claimed.” Id. In Monette, the
court was able to deduce that the defendant was claiming an
undivided one-sixth interest in title. Id.With respect to the defendant’s claim that he was
“‘defrauded, duped, coerced and tricked’ into engaging in
transactions involving the Property,” the court held that
“without further detail,” the court could not ascertain “how or
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whether the allegation has any bearing on title to the Property.”
Id. Accordingly, the court concluded that the defendant had
failed to establish that title was in question. Id. at 39, 265
P.3d at 1135.
In this case, the ICA held that Herminia’s declaration
attached to her Motion to Dismiss satisfied the requirements of
DCRCP Rule 12.1 because the declaration apprised the district
court that Herminia “acquired title by succession after her
husband’s death, that she refinanced the mortgage on the Property
with her son, and that she claims an undivided interest in fee
simple with her son.” 2013 WL 1091714, at *3. The ICA based its
decision on the following portions of the declaration:
3. Herminia Castro and her husband purchased the Property
from the prior owners in 2002.
4. She and her husband owned the property in fee simple as
tenants by the entirety.
5. Her husband died in 2005.
6. She owned the property after her husband died.
. . . .
13. She and her son made a mortgage refinance loan with New
Century Mortgage Corporation.
. . . .
22. She and her son hold title as joint tenants having
acquired the property from Herminia Castro, who acquired
title from Herminia Castro and her husband, now deceased,
and title was recorded in the names of Herminia Castro [and
Sonny Castro] as Joint Tenants.
Id. (brackets omitted). Based on these provisions, the ICA
likened Herminia’s affidavit to the defendant’s affidavit in
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Monette and concluded that “the declaration contained sufficient
information regarding the source, nature, and extent of title
claimed by Defendants.” Id.However, the nature of the claim of title asserted by
Herminia in her declaration and in her Motion to Dismiss is
completely unlike the nature of the claim of title asserted in
Monette. In Monette, the defendant claimed title to the land by
inheritance and intestate succession. 52 Haw. at 248, 473 P.2d
at 865. In this case, Herminia is not seeking to establish her
claim of title to the Property based on lineal descent or based
on a superior claim to another party. Herminia’s claim is only
that there may have been problems with the refinanced loan
transaction with New Century and with the assignment of the Note
and Mortgage from New Century to U.S. Bank.
Specifically, Herminia’s claim, as argued in her Motion
to Dismiss, is that U.S. Bank does not have a claim of title to
the Property because 1) the underlying loan transaction is void
because Herminia should not have qualified for the Mortgage in
the first instance and only obtained the loan through predatory
lending practices; 2) U.S. Bank is not the “real party in
interest,” as Herminia’s original loan was with New Century and
there was “likely a break in the chain of title to the note and
mortgage” due to the manner in which loans are typically
“securitized and sold”; and 3) the foreclosure was wrongful
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because Herminia’s request for a loan modification upon
refinancing was denied despite her financial hardship.
Accordingly, the relevant portions of Herminia’s
declaration are not those paragraphs cited by the ICA, but the
paragraphs related to Herminia’s loan with New Century and the
subsequent assignment of the Note and Mortgage to U.S. Bank:
7. She had difficulty paying the mortgage and wanted to
refinance.
8. She and her son, Sonny, applied for a loan with [New
Century].
9. She understood her loan payment was $2600.
10. She relied on her income of $3300 and contribution from
her son to make the payments.
11. She did not know and was not told that her loan payment
would adjust to $3600.
12. If she had known or been told her payment was more than
her income and knowing her son was not able to contribute
more money to her to pay the mortgage, she would not have
refinanced with New Century.
. . . .
15. At no time was she informed her loan was sold to [U.S.
Bank] . . . .
16. She had no dealings with US Bank.
17. She asked [SPS] for a loan modification and they would
not consider her for relief.
18. She is currently informed and believes that US Bank may
not own her note and mortgage and may not be able to
foreclose due to defects in transfer of the loan documents.
. . . .
21. She has been informed she should obtain a securitization
expert report and that it is believed such a report will
establish a break in the chain of title of the loan
documents which should invalidate the ability of Plaintiff
US Bank to foreclose. The original loan was sold. The note
and mortgage had to be sold and transferred between the
originator to an Issuing Entity who accumulates loans from
different entities in order to be bundled and sold to
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investors, and after enough loans are accumulated, the loans
are sold to a sponsor who combines the loans into a pool and
sells them to a depositor. . . . The pools are supposedly
represented by a Trustee who monitors servicing . . . . The
servicer collects payments from borrowers and passes the
cash flows to the trustee. The servicer advances payments
due from borrowers. The assets need to be properly
transferred into the trust prior within 90 days of the
closing date of the trust, and this requires a proper chain
of endorsements of the note and proper assignments of the
mortgage or deed of trust. Based on information and belief,
there is a genuine issue as to who owns the note and has the
right to enforce the note.
(Emphases added).
Contrary to the ICA’s holding, the above paragraphs of
Herminia’s declaration are not sufficient to apprise the court of
the source, nature and extent of Herminia’s claim of title.
Rather, similar to the defendant’s affidavit in Peelua,
Herminia’s declaration “states only in a vague and conclusory
fashion” that she claims title to the Property, fails to describe
the nature of her claim with any specificity, and is generally
lacking in “detail or information regarding the extent of title
claimed.” 126 Hawai#i at 38, 265 P.3d at 1134.
In Peelua, the court held that the defendant’s claim
that he was “defrauded, duped, coerced, and tricked” into
engaging in transactions involving the subject property, without
further detail, was insufficient to establish a claim of title
because it could not “be ascertained how or whether the
allegation has any bearing on title to the Property.” 126
Hawai#i at 38, 265 P.3d at 1134. In Aames Funding Corp., the
court held that “statements objecting to the manner in which the
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Mortgage was consummated” are not “germane to informing the court
as to the source, nature, and extent of the title claimed[.]”
107 Hawai#i at 99, 110 P.3d at 1046 (quotation marks omitted).
Here, Herminia’s allegations of fraud in the underlying loan
transaction are lacking in detail, and the Castros have failed to
demonstrate what bearing the allegations, even if true, would
have on title to the Property.14
With respect to Herminia’s claim that she is “informed
and believes” that “U.S. Bank may not own her note and mortgage
and may not be able to foreclose due to defects in transfer of
the loan documents,” (emphases added), the assertion is
speculative and lacking the type of “detail and specificity”
required by Rule 12.1. See Peelua, 126 Hawai#i at 37, 265 P.3d
at 1133. Herminia’s declaration describes a general process by
which loans are typically securitized and sold, and provides that
“it is believed” that a “securitization expert report . . . will
14
In any event, Herminia’s mere allegation that she qualified for a
loan she could not afford, does not establish fraud in the underlying loan
transaction. Neither Herminia’s declaration nor the Motion to Dismiss
“provide[d] a discernible factual or legal argument” demonstrating that the
loan with New Century involved any of the three types of fraud recognized in
the mortgage context; fraud in the factum, fraud in the inducement, or
constructive fraud. Aames Funding Corp., 107 Hawai#i at 103-04, 110 P.3d at
1050-51.
Similarly, Herminia’s declaration and Motion to Dismiss lacked any
facts or legal arguments supporting her claims of unfair or deceptive trade
practices with respect to the underlying loan transaction. She argued only
that New Century “had to know” that she could not afford the refinanced loan.
Cf. Haw. Cmty. Fed. Credit Union v. Keka, 94 Hawai#i 213, 217, 228-29, 11 P.3d
1, 5, 16-17 (2000) (finding genuine issue of material fact as to whether loan
officer negotiated loan with consumers in a deceptive manner, based on
consumers’ allegation that officer represented that it would be “no problem”
to later change the interest rate on mortgage).
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establish a break in the chain of title of the loan documents.”
(Emphasis added). This general description does not establish
how or whether the manner in which the Note and Mortgage were
assigned to U.S. Bank affects Herminia’s claim of title to the
Property. See Peelua, 126 Hawai#i at 38, 265 P.3d at 1134(assertion of fraud in underlying transaction insufficient to
establish claim of title where it could not “be ascertained how
or whether the allegation has any bearing on title to the
Property”).
Finally, Herminia’s claim that the foreclosure was
wrongful because she was denied a loan modification is also
stated in a vague and conclusory manner. Her declaration does
not establish how the lack of a loan modification would affect
her claim of title.
Thus, Herminia’s declaration in support of her Motion
to Dismiss for lack of jurisdiction did not contain the detail
and specificity of the source, nature and extent of the title
claimed that is required by DCRCP Rule 12.1. Permitting the type
of vague, speculative hypotheticals of a defect in the chain of
title that the Castros assert would contravene the purpose of the
rule, which is to “apprise the court fully of the nature of the
defendant’s claim,” Peelua, 125 Hawai#i at 37, 265 P.3d at 1133.
Accordingly, the ICA erred in determining that the district court
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lacked subject matter jurisdiction over the case pursuant to
DCRCP Rule 12.1.
B.
In light of our conclusion, we address the remaining
points of error raised by the Castros in their appeal to the ICA,
see supra note 8, which the ICA did not address. See 2013 WL
1091714, at *3.
1.
The Castros argued to the ICA that the district court
erred by failing to grant them additional time for discovery
prior to granting summary judgment in favor of U.S. Bank.
Herminia’s memorandum in opposition to the Motion for Summary
Judgment sought additional time for discovery related to “issues
with regard to the underlying transaction.”
The Castros argued to the ICA that additional discovery
was required to conduct “a title search and [to] obtain[] an
expert report concerning the securitization, sale and transfer of
the underlying promissory note and mortgage.” The Castros
contended that there are “problems inherent” in the
“securitization, sale and transfer of notes and mortgages,” such
as “predatory lending practices,” and that these problems “should
invalidate the underlying transaction based upon fraud . . . or
on unfair and deceptive acts and practices.” The Castros argued
that an “expert report would establish if the loan was in fact
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sold on the secondary market, and through whom these loans were
sold such that we could then track whether or not . . . there
were proper assignments of the mortgage and endorsement, transfer
and receipt of the notes.”
Hawai#i Rules of Civil Procedure (HRCP) Rule 56(f)
(2000) pertaining to motions for summary judgment provides that
the court may order a continuance to permit discovery if “it
appear[s] from the affidavits of a party opposing the motion that
the party cannot for reasons stated present by affidavit facts
essential to justify the party’s opposition[.]” This court has
held that
[a] trial court's decision to deny a request for a
continuance pursuant to HRCP Rule 56(f) . . . will not be
reversed absent an abuse of discretion. Additionally, the
request must demonstrate how postponement of a ruling on the
motion will enable him or her, by discovery or other means,
to rebut the movants' showing of absence of a genuine issue
of fact.
Acoba v. Gen. Tire, Inc., 92 Hawai#i 1, 9-10, 986 P.2d 288, 296-
97 (1999) (quotation marks, citations and brackets omitted)
(emphasis added).
In this case, the Castros failed to show how the
proposed discovery, the purpose of which was to contest the
underlying loan transaction and foreclosure, would demonstrate a
genuine issue of material fact as to U.S. Bank’s entitlement to a
judgment for possession and writ of possession.
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This court has recognized that nonjudicial foreclosure
statutes have a three-fold purpose:
First, the nonjudicial foreclosure process should protect
the debtor from a wrongful loss of property; second, the
process should ensure that properly conducted sales are
final between the parties and conclusive as to bona fide
purchasers; and third, the process should give creditors a
quick, inexpensive remedy against defaulting debtors.
Lee v. HSBC Bank USA, 121 Hawai#i 287, 291, 218 P.3d 775, 779
(2009) (citation and quotation marks omitted) (underline emphasis
added). Therefore, a significant purpose of the nonjudicial
foreclosure process is to ensure that the sale that results is
final between the parties.
In this case, the record demonstrates that U.S. Bank
properly conducted a nonjudicial foreclosure sale. U.S. Bank’s
Motion for Summary Judgment included certified copies of the
Mortgagee’s Affidavit of Foreclosure, Quitclaim Deed, Mortgage,
and Assignment of Mortgage. These documents established a direct
chain of title from the original lender, New Century, to U.S.
Bank, which became the holder of the Note and Mortgage on the
Property. When Herminia failed to make the loan payments, notice
of default was sent to the Castros in compliance with the
requirements of the Mortgage, and a Notice of Mortgagee’s Non-
Judicial Foreclosure Under Power of Sale was served by certified
mail on all relevant parties, posted on the property, and
published in The Maui News. U.S. Bank was the highest bidder at
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the foreclosure sale. The Quitclaim Deed conveying the Property
to U.S. Bank in fee simple was then recorded.
Thus, U.S. Bank produced documents demonstrating that
it owned the Property in fee simple as a result of the
nonjudicial foreclosure sale. In particular, the Mortgagee’s
Affidavit of Foreclosure was statutorily required to “set[] forth
the mortgagee’s acts in the premises fully and particularly.”15
Lee, 121 Hawai#i at 292, 218 P.3d at 780. HRS § 667-8 (1993)
provides that the certified copy of the Mortgagee’s Affidavit of
Foreclosure “shall be admitted as evidence that the power of sale
was duly executed.”16 “That the affidavit shall be admitted as
evidence that the power of sale was duly executed demonstrates
the legislature’s intent to promote the finality of properly
conducted sales.” Lee, 121 Hawai#i at 292, 218 P.3d at 780(emphasis added).
15
HRS § 667-5(d) (Supp. 2011) provides that “[t]he mortgagee, within
thirty days after selling the property in pursuance of the power, shall file a
copy of the notice of sale and the mortgagee’s affidavit, setting forth the
mortgagee’s acts in the premises fully and particularly, in the bureau of
conveyances.” (Emphasis added). The affidavit “may lawfully be made by any
person duly authorized to act for the mortgagee, and in such capacity
conducting the foreclosure.” HRS § 667-7 (Supp. 2011).
16
HRS § 667-8 (1993) provides,
If it appears by the affidavit that the affiant has in all
respects complied with the requirements of the power of sale
and the statute, in relation to all things to be done by the
affiant before selling the property, and has sold the same
in the manner required by the power, the affidavit, or a
duly certified copy of the record thereof, shall be admitted
as evidence that the power of sale was duly executed.
(Emphases added).
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The Castros have not contested that Herminia defaulted
on the loan and have not argued that U.S. Bank violated the
statute governing the process for nonjudicial foreclosures. See
HRS § 667-5 (Supp. 2011). Rather, the Castros’ main contention
involves the validity of Herminia’s refinanced loan with New
Century and the validity of the assignment of the Mortgage to
U.S. Bank. However, as noted, the Castros merely alluded to
predatory lending and the process of selling and pooling loans
generally throughout the country, rather than specifically
alleging that U.S. Bank was not the holder of the Note and
Mortgage or lacked title to the Property. On the other hand,
U.S. Bank produced all of the relevant documents demonstrating
that it properly conducted the nonjudicial foreclosure sale.
Accordingly, the Castros failed to “demonstrate how postponement
of a ruling on the motion [for summary judgment]” would have
enabled them to “rebut [U.S. Bank’s] showing of absence of a
genuine issue of fact.” Acoba, 92 Hawai#i at 9-10, 986 P.2d at296-97 (citing Josue v. Isuzu Motors Am., Inc., 87 Hawai#i 413,
416, 958 P.2d 535, 538 (1998)) (quotation marks omitted). The
district court did not abuse its discretion in denying the
Castros’ request for a continuance under HRCP Rule 56(f).
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2.
The Castros also argued to the ICA that the district
court erred in granting summary judgment due to “the
insufficiency of the moving papers,” “genuine issues of fact
raised by the Castro declaration,”17 and the denial of due
process with respect to Herminia’s sons, Steven and Christopher.
“We review a circuit court’s award of summary judgment
de novo under the same standard applied by the circuit court.”
Fujimoto v. Au, 95 Hawai#i 116, 136, 19 P.3d 699, 719 (2001)
(citing Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85,
104, 839 P.2d 10, 22 (1992)) (brackets omitted). “Summary
judgment is appropriate ‘if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law.’” Amfac, 74 Haw. at 104, 839 P.2d at 22 (citing
Gossinger v. Ass’n of Apt. Owners of Regency of Ala Wai, 73 Haw.
412, 416, 835 P.2d 627, 630 (1992)).
First, the Castros argued that the district court erred
in granting summary judgment because the only declaration
submitted in support of the Motion for Summary Judgment was a
declaration by U.S. Bank’s counsel, which “purport[ed] to
17
The Castros cited Herminia’s memorandum in opposition to the
Motion for Summary Judgment, which did not include Herminia’s declaration, but
included counsel’s declaration.
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authenticate and verify facts and documents relative to this
transaction.” The Castros argued that counsel’s declaration was
“deficient as a matter of law” because it failed to show that
counsel was “competent to testify, and [did] not set forth
admissible evidence based on personal knowledge.” However, U.S.
Bank included a certified copy of the Mortgagee’s Affidavit of
Foreclosure with its Motion for Summary Judgment in accordance
with HRS § 667-5(d). The affidavit was self-authenticating under
Hawai#i Rules of Evidence (HRE) Rule 902(4)18 and admissible “as
evidence that the power of sale was duly executed” pursuant to
HRS § 667-8. Additionally, U.S. Bank attached other documents
establishing a direct chain of title from New Century to U.S.
Bank in its Motion for Summary Judgment. Thus the Castros have
failed to demonstrate that the moving papers were insufficient.
Second, the Castros argued that U.S. Bank failed to
carry its burden of proving that the Castros could not prevail as
18
HRE Rule 902 (Supp. 2011) provides in relevant part:
Extrinsic evidence of authenticity as a condition precedent
to admissibility is not required with respect to the
following:
. . . .
(4) Certified copies of public records. A copy of an official
record or report or entry therein, or of a document authorized by
law to be recorded or filed and actually recorded or filed in a
public office, including data compilations in any form, certified
as correct by the custodian or other person authorized to make the
certification, by certificate complying paragraph (1), (2), or (3)
or complying with any statute or rule prescribed by the supreme
court.
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to all affirmative defenses against summary judgment. However,
“a plaintiff-movant is not required to disprove affirmative
defenses asserted by a defendant in order to prevail on a motion
for summary judgment.” GECC Fin. Corp. v. Jaffarian, 80 Hawai#i
118, 119, 905 P.2d 624, 625 (1995) [hereinafter Jaffarian I].
The plaintiff is only obligated to disprove an affirmative
defense on a motion for summary judgment when “the defense
produces material in support of an affirmative defense.”19 GECC
Fin. Corp. v. Jaffarian, 79 Hawai#i 516, 526, 904 P.2d 530, 540
(App. 1995) (Acoba, J., concurring). “Generally, the defendant
has the burden of proof on all affirmative defenses, which
includes the burden of proving facts which are essential to the
asserted defense.” Id. at 526 n.3, 904 P.2d at 540 n.3.
In this case, the only evidence produced by the Castros
in support of their defense of lack of jurisdiction was
Herminia’s declaration. However, as noted, the declaration
contained only vague, conclusory, and irrelevant allegations of
misconduct in the underlying loan transaction and in the
assignment of the Mortgage to U.S. Bank. The Castros therefore
did not meet their burden of proving facts essential to their
defense.
For the same reason, Herminia’s declaration did not
19
The Jaffarian I court adopted the analysis of the ICA concurring
opinion. 80 Hawai#i at 119, 905 P.2d at 625.
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demonstrate the existence of genuine issues of material fact as
to whether U.S. Bank was a real party in interest. See HRCP Rule
56(e) (“an adverse party may not rest upon the mere allegations
or denials of the adverse party’s pleading, but the adverse
party’s response, by affidavits . . . must set forth specific
facts showing that there is a genuine issue for trial”).
Finally, the Castros argued to the ICA that Christopher
and Steven were denied due process because the district court’s
order setting aside the entry of default was entered at the same
time as the order granting summary judgment to U.S. Bank. Thus,
the Castros appeared to argue that Christopher and Steven were
not afforded an adequate opportunity to contest the Motion for
Summary Judgment. This issue was not raised before the district
court and the Castros submitted that it should be addressed as
plain error.
In civil cases, the plain error rule is only invoked when
“justice so requires.” We have taken three factors into
account in deciding whether our discretionary power to
notice plain error ought to be exercised in civil cases: (1)
whether consideration of the issue not raised at trial
requires additional facts; (2) whether its resolution will
affect the integrity of the trial court's findings of fact;
and (3) whether the issue is of great public import.
Montalvo v. Lapez, 77 Hawai#i 282, 290, 884 P.2d 345, 353 (1994)
(quoting State v. Fox, 70 Haw. 46, 56 n.2, 760 P.2d 670, 676 n.2
(1988)).
In this case, the record is factually undeveloped with
respect to the due process claim. See Montalvo, 77 Hawai#i at
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290-91, 884 P.2d at 353-54 (“The first factor is based on the
tenet that an appellate court should not review an issue based
upon an undeveloped factual record.”). The Castros did not
include any transcripts of the district court proceedings in the
record on appeal. The Castros also did not specify the manner in
which Christopher and Steven were allegedly denied due process,
other than claiming that they did not have the opportunity to
contest the merits of summary judgment.
It is undisputed that the Castros received notice of
the hearing on the Motion for Summary Judgment and were
represented by counsel throughout the district court proceedings.
The Castros conceded that “[c]learly, [Christopher and Steven]
would have known of the pending summary judgment.” Consequently,
there is no indication in the record that Christopher and Steven
were denied “notice and an opportunity to be heard at a
meaningful time and in a meaningful manner.” Bank of Haw. v.
Kunimoto, 91 Hawai#i 372, 388, 984 P.2d 1198, 1214 (1999) (citing
Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai#i
217, 243, 953 P.2d 1315, 1341 (1998)) (quotation marks omitted).
Therefore, we decline to recognize plain error in this matter.
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IV.
Based on the foregoing, we hold that the district court
properly exercised subject matter jurisdiction over this case and
granted summary judgment in favor of U.S. Bank. The ICA’s April
16, 2013 Judgment on Appeal is vacated and the district court’s
December 13, 2011 Judgment and Order are affirmed.
Charles R. Prather and /s/ Mark E. Recktenwald
Sofia Hirosane McGuire,
for petitioner /s/ Paula A. Nakayama
Robin R. Horner, /s/ Simeon R. Acoba, Jr.
for respondents
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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