Deutsche Bank National Trust Company v. Amasol.

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Electronically Filed
Supreme Court
SCWC-13-0000040
14-APR-2015
08:52 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY,
a National Banking Association, as Trustee of the IndyMac INDX
Mortgage Loan Trust 2006-AR12, Mortgage Pass-Through
Certificates Series 2006-AR12, Under the Pooling and Servicing
Agreement Dated July 1, 2006,
Respondent/Plaintiff-Appellee,
vs.
RONALD PAJELA AMASOL and JEAN LOUISE MORALES AMASOL,
Petitioners/Defendants-Appellants.
________________________________________________________________
SCWC-13-0000040
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000040; CIV. NO. 11-1-2129)
APRIL 14, 2015
McKENNA AND POLLACK, JJ., WITH RECKTENWALD, C.J., CONCURRING,
AND NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM CIRCUIT
JUDGE CHANG, IN PLACE OF ACOBA, J., RECUSED, JOINS
OPINION OF THE COURT BY McKENNA, J.
Petitioners/Defendants-Appellants Ronald Pajela Amasol
and Jean Louise Morales Amasol (collectively, “the Amasols”)
seek review of the November 20, 2013 Order Dismissing Appeal for
Lack of Appellate Jurisdiction” (“Dismissal Order”) issued by
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the Intermediate Court of Appeals (“ICA”). In light of our
decision in Association of Condominium Homeowners of Tropics at
Waikele v. Sakuma, 131 Hawaii 254, 318 P.3d 94 (2013), which was
issued about one month after the Dismissal Order, we hold that
the ICA erred in dismissing as untimely the Amasols’ appeal from
the December 31, 2012 order denying their April 16, 2012 motion
for reconsideration and the decisions for which reconsideration
had been sought. Clarifying our opinion in Sakuma, however, we
also hold that the ICA did not err in dismissing as premature
any attempted appeal of the Amasols’ July 13, 2012 amended
reconsideration motion, because the circuit court has not
entered an order disposing of that motion. We therefore vacate
the ICA’s Dismissal Order in part, and remand to the ICA for
further proceedings consistent with this opinion.
I. Background
The Amasols fell behind on their mortgage payments,
and their lender, “Deutsche Bank National Trust Company, a
National Banking Association, as Trustee of the Indymac INDX
Mortgage Loan Trust 2006-AR12, Mortgage Pass-Through
Certificates Series 2006-AR12, Under the Pooling and Servicing
Agreement Dated July 1, 2006” (“the Bank”) commenced a non-
judicial foreclosure sale of the property. The Bank
subsequently acquired the property at auction, and filed an
ejectment action in the district court. The district court
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denied the Bank’s summary judgment motion for lack of
jurisdiction in light of a title challenge raised by the
Amasols, and the action was re-filed in the Circuit Court of the
First Circuit (“circuit court”).
On April 12, 2012, the circuit court1 entered an order
granting summary judgment in favor of the Bank, Judgment for
Possession, and a Writ of Possession (collectively, “the April
12th orders”). On April 16, 2012, the Amasols, proceeding pro
se, timely filed a “Motion to Reconsider Ruling” (“Motion to
Reconsider”). On July 13, 2012, the Amasols, represented by
counsel, filed their “Defendants’ Amended Rule 60(b) Motion for
Relief from Judgment; for Evidentiary Hearing and for Leave To
File Amended Answer” (“Amended Rule 60(b) Motion”). On December
31, 2012, approximately 260 days after the Motion to Reconsider
was filed, the circuit court entered an “Order Denying
Defendant’s [sic] Motion to Reconsider Ruling.” The circuit
court has not, however, entered any order disposing of the
Amended Rule 60(b) Motion.
On January 23, 2013, the Amasols filed their notice of
appeal. On November 20, 2013, the ICA filed its Dismissal
Order. The ICA determined that the appeal from the April 12th
orders and the Motion to Reconsider was untimely because the
appeal was not filed within 30 days of the date the motion was
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The Honorable Patrick W. Border presided.
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deemed denied under Rule 4(a)(3) (2012) of the Hawaii Rules of
Appellate Procedure (“HRAP”). With respect to the Amended Rule
60(b) Motion, the ICA ruled that the appeal was premature
because the circuit court had not entered a written order
denying the motion.
II. Standard of Review
“The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard.” State
v. Bohannon, 102 Hawaii 228, 232, 74 P.3d 980, 984 (2003)
(citations omitted).
III. Discussion
The time for filing a notice of appeal is governed by
HRAP Rule 4, which provides in relevant part:
Rule 4. APPEALS - WHEN TAKEN.
(a) Appeals in civil cases.
(1) TIME AND PLACE OF FILING. When a civil appeal is permitted
by law, the notice of appeal shall be filed within 30 days after
entry of the judgment or appealable order. . . .
(2) PREMATURE FILING OF APPEAL. If a notice of appeal is filed
after announcement of a decision but before entry of the judgment
or order, such notice shall be considered as filed immediately
after the time the judgment or order becomes final for the
purpose of appeal.
(3) TIME TO APPEAL AFFECTED BY POST-JUDGMENT MOTIONS. If any party
files a timely motion for judgment as a matter of law, to amend
findings or make additional findings, for a new trial, to
reconsider, alter or amend the judgment or order, or for
attorney’s fees or costs, the time for filing the notice of
appeal is extended until 30 days after entry of an order
disposing of the motion; provided, that the failure to dispose of
any motion by order entered upon the record within 90 days after
the date the motion was filed shall constitute a denial of the
motion.
On December 17, 2013, shortly after the ICA issued its
Dismissal Order, we announced our opinion in Sakuma, 131 Hawaii
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254, 318 P.3d 94. In Sakuma, we held that when a timely post-
judgment tolling motion is deemed denied, the 30-day deadline
for filing a notice of appeal is not triggered until entry of
the judgment or appealable order pursuant to HRAP Rule 4(a)(1)
(2012) and (a)(3). 131 Hawaii at 256, 318 P.3d at 96.
In the instant case, the written order disposing of
the Motion to Reconsider was filed on December 31, 2012, and the
Amasols filed their appeal of that order within 30 days, on
January 23, 2013. Therefore, pursuant to Sakuma, the ICA had
appellate jurisdiction over the denial of the Motion to
Reconsider, as well as of the underlying April 12th orders. We
therefore vacate that portion of the ICA’s Dismissal Order that
ruled to the contrary, and remand to the ICA for consideration
of the relevant issues on appeal.
There was, however, no order disposing of the Amasols’
July 13, 2012 Amended Rule 60(b) Motion. In addition, there was
no announcement of a decision on that motion that could have
triggered HRAP Rule 4(a)(2) (2012). Therefore, the ICA properly
ruled that the notice of appeal was premature with respect to
the Amended Rule 60(b) Motion.
We also write to clarify Sakuma to the extent the
dictum that the “ICA had jurisdiction,” 131 Hawaii at 255, 318
P.3d at 95, may have caused confusion. In Sakuma, as in this
case with respect to the Amended Rule 60(b) Motion, the notice
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of appeal was premature. The ICA therefore properly held that
it lacked jurisdiction over this portion of the appeal.
IV. Conclusion
We vacate the portion of the ICA Dismissal Order
holding that it lacked appellate jurisdiction over the appeal of
the April 12th orders and the Motion to Reconsider. We affirm
the portion of the ICA Dismissal Order dismissing any appeal of
the Amended Rule 60(b) Motion, and remand for further
proceedings consistent with this opinion.
Sandra D. Lynch /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Charles R. Prather and
Sofia Hirosane McGuire
for respondent
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