The Bank of New York Mellon v. Deshaw

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-NOV-2022
07:59 AM
Dkt. 43 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
THE BANK OF NEW YORK MELLON, fka THE BANK OF NEW YORK AS TRUSTEE
(CWALT 2006-32CB), Plaintiff-Appellee, v. DENNIS DUANE DESHAW;
SUSAN KAY BROER-DESHAW, Defendants-Appellants, and
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, SOLELY AS NOMINEE FOR
FIRST MAGNUS FINANCIAL CORPORATION; VILLAGE PARK COMMUNITY
ASSOCIATION; and DOES 1-20, inclusive, Defendants-Appellees, and
SUSAN KAY BROER-DESHAW, Counterclaimant-Appellant, v.
THE BANK OF NEW YORK MELLON, fka THE BANK OF NEW YORK,
AS TRUSTEE (CWALT 2006-32CB), Counterclaim Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC161001821)
ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Leonard, Presiding Judge, Nakasone and Chan, JJ.)
Upon consideration of Plaintiff-Appellee Bank of New
York Mellon FKA the Bank of New York, as Trustee (CWALT
2006-32CB)'s motion to dismiss the appeal (Motion), filed
October 21, 2022, the papers in support and in opposition, and
the record, it appears that we lack subject matter jurisdiction
over Defendants-Appellants Dennis Duane Deshaw and Susan Kay
Broer-Deshaw (Deshaws) appeal from the Circuit Court of the First
Circuit's (Circuit Court) April 12, 2022 Judgment because the
Deshaws failed to obtain a stay of the April 12, 2022 "Order
Approving Commissioner's Report and Granting Plaintiff's Motion
for Confirmation of Foreclosure Sale, Allowance of Costs,
Commissions and Fees, Distribution of Proceeds, Directing
Conveyance and for Writ of Possession/Ejectments [sic], Filed
January 26, 2022," and the foreclosed property was sold to a bona
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
fide purchaser. See Bank of New York Mellon v. R. Onaga, Inc.,
140 Hawai i 358, 370, 400 P.3d 559, 570 (2017) ("[I]f a stay is
not obtained and the property is sold to a bona fide purchaser,
the appeal should be dismissed as moot because no effective
relief can be granted."); Hamilton ex rel. Lethem v. Lethem, 119
Hawai i 1, 4, 193 P.3d 839, 842 (2008) ("It is axiomatic that
mootness is an issue of subject matter jurisdiction.").
Therefore, IT IS HEREBY ORDERED that the Motion is
granted and the appeal is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai i, November 4, 2022.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Karen T. Nakasone
Associate Judge
/s/ Derrick H.M. Chan
Associate Judge
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