James B. Nutter & Company v. Namahoe, Sr.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAR-2022
08:34 AM
Dkt. 188 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JAMES B. NUTTER & COMPANY, Plaintiff-Appellee,
v.
ELTON LAKE NAMAHOE, SR., Defendant-Appellant,
and
SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
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-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 12-1-0113)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Elton Lane Namahoe, Sr. (Namahoe)1
appeals from the April 5, 2017 Order Denying [Namahoe's Hawai#i
Rules of Civil Procedure (HRCP) Rule] 60(b) Motion for Relief
From Judgment on Findings of Fact [(FOFs)], Conclusions of Law
1
On November 15, 2020, Namahoe filed a Motion to Substitute a Party
pursuant to Hawai#i Rules of Appellate Procedure (HRAP) Rule 43(a) & (b)
asking this court to substitute Namahoe and William J. Rosdil, as Co-Trustees
of the [Namahoe] Reverse Mortgage Litigation Trust Agreement, dated October
19, 2020, for Namahoe (Motion to Substitute). On December 8, 2020, Nutter
filed an (untimely) Request for Judicial Notice asking this court to notice
the opposition and joinder to the opposition to Namahoe's parallel Motion to
Substitute Party filed in CAAP-17-324. The Motion to Substitute is addressed
herein.
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[(COLs)] and Order Granting Plaintiff's Motion for Summary
Judgment and Decree of Foreclosure Against All Defendants on
Complaint (Order Denying Rule 60(b) Motion), and the June 9, 2017
Decision and Order Denying [Namahoe's] HRCP [Rule] 59(a) & (e)
Motion for Amendment/Additional Evidence/Reconsideration of
[Order Denying Rule 60(b) Motion] (Order Denying Motion for
Reconsideration), both entered by the Circuit Court of the Third
Circuit (Circuit Court).2
I. BACKGROUND
This appeal stems from foreclosure proceedings
involving a reverse mortgage on a home located on #Ôpe#ape#a Road,
in Kurtistown, in the County of Hawai#i (Property). On October
19, 2009, Namahoe executed a promissory note in the maximum
principal amount of $189,000 in favor of James B. Nutter & Co.
(Nutter) and its successors and assigns (Note), along with a Home
Equity Conversion Loan Agreement (Loan Agreement) and an attached
Repair Rider to Loan Agreement (Repair Rider).3 The exhibits to
the Note indicated that the "principal limit" was $67,536.00,
2
The Honorable Greg K. Nakamura presided.
3
The 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.
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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 Note was secured by a Home Equity Conversion Mortgage
(Reverse Mortgage), which was recorded on November 2, 2009, in
the Office of the Assistant Registrar of the Land Court of the
State of Hawai#i (Registrar).
On March 6, 2012, Nutter filed a foreclosure complaint
and summons against Namahoe and the United States Secretary of
Housing and Urban Development (HUD)4 (Complaint), and an
accompanying lis pendens in the Circuit Court. 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 [Repair Rider] in a timely manner."
The Complaint alleged further that Namahoe was given written
notice that failure to timely repair per the 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. Attached to the Complaint was a copy of the Note, Loan
Agreement with attached Repair Rider, and Mortgage.
A Declaration re Attempted Service of Complaint was
filed on May 7, 2012, by Civil Process Server Robert A. Estacion
(Estacion) stating that Estacion attempted thrice to serve the
4
On June 28, 2012, HUD filed a disclaimer of interest in the
Property.
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Complaint on Namahoe at the Property, but that Namahoe "could not
be located for personal service of the Complaint."
On August 28, 2012, Nutter filed an Ex Parte Motion for
First Extension of Time to Serve Complaint (Motion to Extend
Service Time). Counsel's attached Declaration stated that Nutter
sent out Freedom of Information Act (FOIA) requests, apparently
to the U.S. Postal Service (Post Office), for both Namahoe's post
office box and the physical address. The Post Office returned
the FOIA request regarding the post office box and provided the
physical address. With respect to the physical address, the FOIA
request was returned indicating "[n]o such address," presumably
indicating that the Post Office had no records concerning the
address. The Declaration stated further that Nutter "conducted a
skip trace on [Namahoe] that returned the property address as his
current address," and that Nutter was "attempting to send
certified mail to the property address and the post office box."
Copies of the FOIA requests/responses and a LexisNexis Accurint
report, which counsel apparently referred to as the "skip trace,"
were attached to the motion. The court granted the motion,
extending the time to serve the Complaint from September 6, 2012,
until March 6, 2013.
On November 13, 2012, Estacion filed a Return and
Acknowledgment of Service, indicating personal service of the
Summons and Complaint on Namahoe on November 9, 2012, at the
Property. The Acknowledgment of Service appears to contain
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Namahoe's signature, along with the date and time of "11-9-12
10:00 A.M."
On May 20, 2013, Nutter filed a Motion for Summary
Judgment and Decree of Foreclosure Against All Defendants on
Complaint Filed March 6, 2012 (Motion for Summary Judgment). 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 [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 [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[.]
According to the attached Certificate of Service, the
Motion for Summary Judgment and the Notice of Hearing were mailed
to Namahoe at the 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 Property address.
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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
[FOFs, COLs] and Order Granting [Nutter's] Motion for Summary
Judgment and Decree of Foreclosure Against All Defendants on
Complaint Filed March 6, 2012 (Order 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).
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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
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.
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
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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
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.
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 separate allegedly improper
foreclosure proceedings brought by Nutter against a different
defendant (Domingo Foreclosure), as well as the records and files
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in a separate suit brought by Namahoe and the defendant in the
Domingo Foreclosure (Wrongful Foreclosure Action).5
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
time the Judgment was filed on July 2nd, 2013, and the
5
Pursuant to the parties' various requests herein, we take judicial
notice of the court records in these related cases, in accordance with Hawaii
Rules of Evidence (HRE) Rule 201.
The Domingo Foreclosure action, [Nutter] v. Faustino Dasalla
Domingo [Domingo], was initiated in the Circuit Court on April 19, 2012, in
Civil No. 12-1-0226. The Circuit Court proceedings in the Domingo Foreclosure
concluded with an August 10, 2015 Amended Judgment Superceding [Judgments],
which dismissed Nutter's complaint against Domingo with prejudice and entered
a money judgment in favor of Domingo. Nutter filed an appeal in CAAP-15-
0000659; the August 10, 2015 amended judgment against Nutter and in favor of
Domingo was affirmed.
The Wrongful Foreclosure action, [Domingo & Namahoe] v. [Nutter],
was initiated in the Circuit Court on July 5, 2016, in Civil No. 16-1-0249.
The Circuit Court proceedings in the Wrongful Foreclosure action resulted in
various orders which were certified as final pursuant to HRCP Rule 54(b).
Appeals were filed by Nutter in CAAP-17-000324 and by Domingo and Namahoe in
CAAP-XX-XXXXXXX; a cross-appeal was filed in CAAP-XX-XXXXXXX by Robert M.
Ehrhorn, Jr. and Clay Chapman Iwamura Pulice & Nervell (collectively, Clay
Chapman, the attorneys who represented Nutter in the Domingo Foreclosure, as
well as before the Circuit Court in this instant case ( i.e., Nutter's
foreclosure suit against Namahoe)). CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX were
consolidated for decision under CAAP-XX-XXXXXXX.
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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 [6] 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] (Motion for Reconsideration).
Namahoe requested formal discovery under HRCP Rule 26, and argued
that denial of the Rule 60(b) Motion was an abuse of discretion
and contrary to clear and convincing evidence, that
6
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.
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reconsideration was warranted on the basis of recently-decided
supreme court opinion, Hungate v. Law Office of David B. Rosen,
139 Hawai#i 394, 391 P.3d 1 (2017). The Motion for
Reconsideration stated further that "[i]f in fact Namahoe was
ever personally served on November 9, 2012, it was not legal or
effective service since Namahoe was in the medical care of his
daughter, Hernel Tisalona, and Bay Clinic, and incapacitated and
unable to care for himself when allegedly served on November 9,
2012." Nutter opposed the motion.
On June 9, 2017, the Circuit Court entered the Order
Denying Reconsideration, noting that Namahoe "did not file an
answer to the Complaint and did not otherwise appear in the
action." Citing HRCP Rule 5(a), the court stated that Nutter
"was not required to serve [Namahoe] with court filings other
than the Complaint." Accordingly, the court concluded that
Nutter was not required to serve Namahoe with the Motion for
Summary Judgment. On this basis, the court found that Namahoe's
production request to obtain evidence showing that Namahoe
designated his post office box in Hilo as his mailing address
"[did] not serve a useful purpose." Finally, the court stated
that Hungate did not provide a basis to alter or amend the Order
Denying Rule 60(b) Motion.
Namahoe timely filed a Notice of Appeal.
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II. POINTS OF ERROR
Namahoe raises two points of error on appeal,
contending that the Circuit Court: (1) erred in denying the Rule
60(b) Motion because (a) the Foreclosure Judgment against Namahoe
was obtained through fraud, misrepresentation, and misconduct
that prevented Namahoe from fully and fairly presenting his case
or a defense; (b) the Foreclosure Judgment was void; and (c)
fraud on the court was committed by Nutter and/or its attorneys
during the foreclosure proceeding; and (2) abused its discretion
in denying the Motion for Reconsideration.
III. APPLICABLE STANDARDS OF REVIEW
In general,
[a] circuit court's decision on an HRCP Rule 60(b)
motion is reviewed for abuse of discretion:
The trial court has a very large measure of discretion
in passing upon motions under HRCP Rule 60(b) and its
order will not be set aside unless we are persuaded
that under the circumstances of the particular case,
the court's refusal to set aside its order was an
abuse of discretion.
Haw. Hous. Auth. v. Uyehara, 77 Hawai#i 144, 147, 883 P.2d
65, 68 (1994) (citations omitted).
"The burden of establishing abuse of discretion in
denying an HRCP Rule 60(b) motion is on the appellant, and a
strong showing is required to establish it." Ditto v.
McCurdy, 103 Hawai#i 153, 162, 80 P.3d 974, 983 (2003).
PennyMac Corp. v. Godinez, 148 Hawai#i 323, 327, 474 P.3d 264,
268 (2020) (brackets omitted).
Notwithstanding this general rule, "under HRCP Rule
60(b)(4), an order is 'void only if the court that rendered it
lacked jurisdiction of either the subject matter or the parties
or otherwise acted in a manner inconsistent with due process of
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law.'" In re Haw. Elec. Co., 149 Hawai#i 343, 362-63, 489 P.3d
1255, 1274-75 (2021) (quoting Int'l Savings & Loan Ass'n v.
Carbonel, 93 Hawai#i 464, 473, 5 P.3d 454, 463 (App. 2000)).
Accordingly, we review denial of an HRCP Rule 60(b)(4) motion de
novo. See id.; Cvitanovich-Dubie v. Dubie, 125 Hawai#i 128, 139,
254 P.3d 439, 450 (2011) (reviewing analogous family court rule
de novo).
To be clear, we review denial of relief pursuant to
HRCP Rule 60(b)(6), as well as the denial of relief pursuant to
HRCP Rule 60(b)(3), under the abuse of discretion standard. See
Godinez, 148 Hawai#i at 327, 474 P.3d at 268; Dubie, 125 Hawai#i
at 139, 146, 254 P.3d at 450, 457; Uyehara, 77 Hawai#i at 147,
883 P.2d at 68.
"A motion made pursuant to HRCP Rule 59(e) to alter or
amend a judgment is reviewed under the abuse of discretion
standard. An abuse of discretion occurs when the trial court
exceeds the bounds of reason of law or practice to the
substantial detriment of a party." Omerod v. Heirs of
Kaheananui, 116 Hawai#i 239, 273, 172 P.3d 983, 1017 (2007)
(citations, quotation marks, and brackets omitted).
IV. DISCUSSION
A. The HRCP Rule 60(b) Motion
1. HRCP Rule 60(b)(3) Relief
Namahoe challenges the Circuit Court's denial of relief
pursuant to HRCP Rule 60(b)(3) on the ground of untimeliness. As
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set forth above, at the February 28, 2017 hearing on the Rule
60(b) Motion, the Circuit Court stated, in relevant part: "[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 time the Judgment was filed on July
2nd, 2013, and the filing of the Motion for Relief." HRCP Rule
60(b) states in relevant part:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: . . . (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party. . . . The motion shall be
made within a reasonable time, and for reasons (1), (2), and
(3) not more than one year after the judgment, order, or
proceeding was entered or taken. . . . This rule does not
limit the power of a court to entertain an independent
action to relieve a party from a judgment, order, or
proceeding, or to set aside a judgment for fraud upon the
court.
Namahoe argued that the "final act of this case" was
when Nutter sold the Property to a third party for $70,000 on
March 26, 2016, and therefore the January 3, 2017 Rule 60(b)
Motion was timely filed under HRCP Rule 60(b)(3). In support of
his request for relief pursuant to HRCP Rule 60(b)(3), however,
Namahoe argued that Nutter's fraud, misrepresentation, and
misconduct occurred when Nutter sought and obtained foreclosure
against Namahoe on impermissible grounds. Namahoe sought relief
from the Foreclosure Judgment itself, which was entered on July
2, 2013, not from the sale of the Property to a third party after
the Property's sale to Nutter was confirmed. See Bank of Am.,
N.A. v. Reyes-Toledo, 139 Hawai#i 361, 371, 390 P.3d 1248, 1258
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(2017) (stating that judgment of foreclosure is immediately
appealable) (citing HRS § 667-51(a)(1)). Accordingly, we
conclude that the Circuit Court did not clearly err in finding
that the motion was untimely or abused its discretion when it
denied Namahoe relief under HRCP Rule 60(b)(3) based on
untimeliness.
2. HRCP Rule 60(b)(4) Relief
Namahoe challenges the Circuit Court's denial of relief
pursuant to HRCP Rule 60(b)(4), which permits a court to grant
relief from a judgment that is void. In the Rule 60(b) Motion,
Namahoe argued that the Foreclosure Judgment was void because he
was denied due process when Nutter mailed notices and "pleadings"
to the Property when Nutter knew there was no mail delivery to
the Property's address. Namahoe's argument on appeal relies on
Moore's declaration that Namahoe seemed unaware of the
foreclosure proceedings. Namahoe disregards Estacion's filing of
the Return and Acknowledgment of Service, indicating personal
service of the Complaint and Summons on Namahoe on November 9,
2012, at the Property.
It is well settled that "'[i]n the sound interest of
finality, the concept of a void judgment must be narrowly
restricted.'" Dubie, 125 Hawai#i at 141, 254 P.3d at 452(quoting Dillingham Inv. Corp. v. Kunio Yokoyama Tr., 8 Haw. App.
226, 233, 797 P.2d 1316, 1320 (1990)). "[A] judgment is void
only if the court that rendered it lacked jurisdiction of either
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the subject matter or the parties or otherwise acted in a manner
inconsistent with due process of law." In re Haw. Elec., 149
Hawai#i at 362, 489 P.3d at 1274 (citation omitted). Due
process, in turn, requires notice reasonably calculated under the
circumstances to apprise interested parties of the action and
thus afford them an opportunity to defend. See Calasa v.
Greenwell, 2 Haw. App. 395, 399, 633 P.2d 553, 556 (1981) (citing
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950)).
Here, Namahoe's core argument that the Foreclosure
Judgment is void – and therefore he was entitled to relief
pursuant to HRCP Rule 60(b)(4) – asserts that he was not properly
notified of the foreclosure proceedings and therefore denied due
process. We first consider HRCP Rule 4, as Hawai#i courts have
held that improper service of a complaint and summons is a
violation of due process and deprives a court of jurisdiction
over a defendant. See In re Lease Cancellation of Smith, 68 Haw.
466, 471, 719 P.2d 397, 401 (1986); Wagner v. World Botanical
Gardens, Inc., 126 Hawai#i 190, 196, 268 P.3d 443, 449 (App.
2011). HRCP Rule 4 provides, in relevant part:
Rule 4. PROCESS.
(a) Summons: Issuance. Upon the filing of the
complaint the clerk shall forthwith issue a summons.
Plaintiff shall deliver the complaint and summons for
service to a person authorized to serve process. Upon
request of the plaintiff separate or additional summons
shall issue against any defendants.
. . . .
(d) Same: Personal service. The summons and
complaint shall be served together. The plaintiff shall
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furnish the person making service with such copies as
are necessary. Service shall be made as follows:
(1) Upon an individual other than an infant or an
incompetent person, (A) by delivering a copy of the summons
and of the complaint to the individual personally or in case
the individual cannot be found by leaving copies thereof at
the individual's dwelling house or usual place of abode with
some person of suitable age and discretion then residing
therein or (B) by delivering a copy of the summons and of
the complaint to an agent authorized by appointment or by
law to receive service of process.
. . . .
(g) Return. The person serving the process shall make
proof of service thereof to the court promptly and in any
event within the time during which the person served must
respond to process. When service is made by any person
specially appointed by the court, that a person shall make
affidavit of such service.
It appears from the record that Namahoe was personally
served with the Summons and Complaint in accordance with HRCP
Rule 4(a) & (d)(1)(A), and the Return and Acknowledgment of
Service was filed with the Circuit Court in accordance with HRCP
Rule (4)(g).
As set forth in HRS § 634-22 (2016), the return of
service by an authorized process server constitutes prima facie
evidence of the events therein contained.7 See also Tropic
Builders, Ltd. v. Naval Ammunition Depot Lualualei Quarters,
Inc., 48 Haw. 306, 313, 402 P.2d 440, 445 (1965) (construing
predecessor statute). While a party is entitled to challenge
such a prima facie showing of service of process, see id., the
7
The statute lists "any officer of the court or of the police force
or the sheriff, a deputy sheriff, an independent civil process server from the
department of public safety's list under section 353C-11, or any investigator
appointed and commissioned by the director of commerce and consumer affairs
pursuant to section 26-9(j)[.]" HRS § 634-22; see also HRS § 634-21 (2016)
(entitled "Service of process, by whom").
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statute provides that "no further proof thereof shall be required
unless either party desires to examine the sheriff, deputy
sheriff, police officer, independent civil process server, or
investigator making service, in which case the sheriff, deputy
sheriff, police officer, independent civil process server or
investigator shall be notified to appear for examination." HRS
§ 634-22; see also SEC v. Internet Sols. for Bus. Inc., 509 F.3d
1161, 1163 (9th Cir. 2007) (holding "a signed return of service
constitutes prima facie evidence of valid service which can be
overcome only by strong and convincing evidence"); Hicklin v.
Edwards, 226 F.2d 410, 414 (8th Cir. 1955) ("The rule is settled
that the officer's return upon the summons imports verity which
can be overcome only by strong and convincing evidence."); 4B
Charles Alan Wright et al., Fed. Prac. & Proc. § 1130 (4th ed.
2015) ("return of service of the summons and the complaint is
strong evidence of the facts stated therein").
Here, the Return and Acknowledgment of Service filed by
Estacion8 constitutes prima facie evidence that Namahoe was
served and provided notice of the foreclosure proceedings. See
HRS § 634-22; Tropic Builders, 48 Haw. at 313, 402 P.2d at 445.
To wit, the document avers that Namahoe was personally served
with the Complaint, attached Exhibits, Foreclosure Mediation
8
Namahoe does not contest that Estacion is an authorized process
server within the meaning of HRS §§ 634-21 & 634-22. Estacion's filings
indicate that he is a "civil process server authorized to serve process in the
County of Hawaii" and a "Sheriff/Police officer of the State of Hawaii."
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Notice, Foreclosure Mediation Request, and Summons at the
Property at 10:00 AM on November 9, 2012, and contains signatures
of both Estacion and Namahoe.
Neither Namahoe nor Estacion testified at the hearing
on the Rule 60(b) Motion, and at no point did Namahoe request to
examine Estacion per HRS § 634-22. While Namahoe's Declaration
appended to the Rule 60(b) Motion stated that he did not remember
being served with the Complaint or signing the Acknowledgment of
Service, the only other evidence offered in support of Namahoe's
argument regarding service of the Complaint and Summons was the
Commissioner's statement in his Declaration concerning the Motion
for Leave to Waive Open Houses that Namahoe "seemed unaware there
was a foreclosure proceeding against him." These statements,
without more, do not suffice to negate the substantial evidence
that Namahoe was served and signed the Return and Acknowledgment
of Service in the manner and at the date and time therein
stated.9
In addition, Namahoe's principal assertion in the Rule
60(b) Motion was that Nutter's mailing of notices and documents
to him at the Property in the course of the foreclosure
proceedings deprived him of notice that he was in effect being
defaulted. As Namahoe points out, at least by the time that
Namahoe was served, Nutter was well aware that Namahoe's post
9
We note that the complaint filed on behalf of Namahoe in the
Domingo-Namahoe Lawsuit states: "The record reflects NAMAHOE was served and
failed to file an answer or to make an appearance."
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office box was the only mailing address recognized by the Post
Office, and that the Property was not a recognized mailing
address, as Nutter had relied in part on those facts when seeking
more time to serve Namahoe with the Complaint and Summons.
However, as alluded to by the Circuit Court, HRCP Rule 5,
governing Service and Filing of Pleadings and Other Papers
subsequent to the original complaint, provides that "no service
need be made on parties in default for failure to appear, except
that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for
service of summons in Rule 4 of these Rules." HRCP Rule 5(a)
(emphasis added). The Circuit Court stated, regarding "the
notice issue, Mr. Namahoe did not answer and provide a mailing
address." Even after Namahoe was contacted by Moore regarding
the sale of the Property, and Moore's Notice of Hearing was
mailed to Namahoe's post office box, Namahoe did not appear
before the Circuit Court, assert that he was not properly served
with the Complaint and Summons, or otherwise seek relief from the
court.
Under the circumstances here, we conclude that the
Circuit Court did not err in denying Namahoe relief pursuant to
HRCP Rule 60(b)(4).
3. HRCP Rule 60(b)(6) and/or Other Relief
Namahoe contends that, additionally and/or
alternatively, the Circuit Court abused its discretion when it
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denied him relief under HRCP Rule 60(b)(6). Summarily stated,
Namahoe argues that such relief was warranted by the alleged
fraud on the court committed by Nutter and/or Clay Chapman when
they prosecuted the foreclosure claim herein against Namahoe
based on the same impermissible "repair-rider" grounds underlying
the foreclosure against Domingo in the Domingo Foreclosure.
The Hawai#i Supreme Court has recognized competing
policy considerations generally favoring the finality of
judgments, but nevertheless permitting parties to seek relief
when a judgment has been procured through fraud. See In Matsuura
v. E.I. du Pont de Nemours & Co., 102 Hawai#i 149, 157-58, 73
P.3d 687, 695-96 (2003). The court explained that "a judgment or
final order should reflect the true merits of the case." Id. at
157, 73 P.3d at 695. In Matsuura, the supreme court reiterated
that the one-year limitation applicable to, inter alia, HRCP Rule
60(b)(3) is not applicable when the fraud was committed on the
court. Id. at 158, 73 P.3d at 696.
Fraud on the court applies only in "very unusual cases"
and must rise above the ordinary species of fraud and
misrepresentation. See, e.g., Dubie, 125 Hawai#i at 144-46, 254
P.3d at 455-57; Schefke v. Reliable Collection Agency, Ltd., 96
Hawai#i 408, 431, 32 P.3d 52, 75 (2001)). In Dubie, the supreme
court summarized the bounds of fraud-on-the-court relief pursuant
to Rule 60(b)(6):
This court has noted that, "[s]ince the remedy for
fraud on the court is far reaching, it only applies to very
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unusual cases involving 'far more than an injury to a single
litigant[,]' but rather, a 'corruption of the judicial
process itself.'" Schefke v. Reliable Collection Agency,
Ltd., 96 Hawai#i 408, 431 n.42, 32 P.3d 52, 75 n.42 (2001)
(citation omitted) (some brackets in original); see also
Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai #i 149,
171, 73 P.3d 687, 709 (2003) (Acoba, J., concurring and
dissenting) ("fraud on the court is not fraud on a party").
It is generally accepted that fraudulent conduct such as
perjury or non-disclosure by a party, standing alone, is
insufficient to make out a claim for fraud on the court.
See, e.g., Gleason v. Jandrucko, 860 F.2d 556, 559–60 (2d
Cir. 1988) ("[N]either perjury nor nondisclosure, by itself,
amounts to anything more than fraud involving a single
litigant."); Lockwood v. Bowles, 46 F.R.D. 625, 632–34
(D.D.C. 1969) ("[W]here the court or its officers are not
involved, there is no fraud upon the court within the
meaning of [FRCP] Rule 60(b)."); see also 12 James Wm. Moore
et al., Moore's Federal Practice ¶ 60.21 [4][c] (3d ed.
2010) ("Fraud on the court may not be established simply by
showing some misconduct by one of the parties to the suit
. . . . If fraud on the court were to be given a broad
interpretation that encompassed fraudulent misconduct between the parties, a
judgment would always remain subject to challenge, and the one-year time
limitation applicable to motions based on Rule 60(b)(3) would be
meaningless.") (footnotes omitted).
. . . .
Not any fraud connected with the presentation of
a case amounts to fraud on the court. It must be a
"direct assault on the integrity of the judicial
process." . . .
Schefke, 96 Hawai#i at 431, 32 P.3d at 75 (citations
omitted)[.]
Dubie, 125 Hawai#i at 144-45, 254 P.3d at 455-56.
In Matsuura, the supreme court recognized the HRCP Rule
60(b) provision permitting a separate action based upon a fraud
upon a court: "This rule does not limit the power of a court to
entertain an independent action to relieve a party from a
judgment, order, or proceeding, or to set aside a judgment for
fraud upon the court." HRCP Rule 60(b); see Matsuura, 102
Hawai#i at 158, 73 P.3d at 696. The court discussed the various
means available to compensate parties for litigation misconduct
and concluded that "[a]lthough both civil contempt and HRCP Rule
60(b) provide remedies to a party aggrieved by litigation
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misconduct, we believe that 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. The court ultimately concluded that,
notwithstanding the burdens and protracted nature of collateral
proceedings, in certain circumstances, those factors may be
outweighed by, inter alia, the objective of uncovering the truth,
the preference for judgments on the merits, and the court's duty
to discourage abusive litigation practices. Id. at 162, 73 P.3d
at 700.
Here, the Circuit Court was fully apprised of the
nature of Namahoe's contentions that, in more than one instance,
Nutter and/or its attorneys proceeded to foreclose on the home of
an elderly reverse mortgagor based on an alleged failure to
complete arguably minor repairs, without a legal or factual basis
for doing so.10 However, by the time Namahoe filed the Rule
60(b) Motion, the foreclosure proceedings were final and
unappealable, Namahoe had been ejected from his home, and the
Property had been purchased by Nutter and sold to a third party.
Under these circumstances, without addressing the merits of
Namahoe's fraud-on-the-court claim, the Circuit Court determined:
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
10
In this case, although there is no declaration or other evidence
in the record of the particular repairs Namahoe allegedly failed to complete,
the sum total of the repairs specified in the Repair Rider was estimated to
cost $750 (fully fundable by moneys set aside by Nutter).
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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.
The Circuit Court exercised its discretion and denied
relief under HRCP Rule 60(b) without prejudice to Namahoe seeking
appropriate relief in the separate action that had already been
filed, i.e., the Wrongful Foreclosure Action. We conclude that
the Circuit Court did not abuse its discretion when it denied
Namahoe relief under HRCP Rule 60(b)(6) on this basis.
B. Namahoe's Motion for Reconsideration
Namahoe contends that the Circuit Court abused its
discretion in denying his Motion for Reconsideration because he
provided new evidence that Nutter knowingly failed to give
Namahoe proper notice during the foreclosure proceedings and
further because a supreme court decision published during the
post-judgment proceedings supported reconsideration.
"The purpose of a motion for reconsideration is to
allow the parties to present new evidence and/or arguments that
could not have been presented during the earlier adjudicated
motion." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw.
85, 114, 839 P.2d 10, 27 (1992). "Reconsideration is not a
device to relitigate old matters or to raise arguments or
evidence that could and should have been brought during the
earlier proceeding." Sousaris v. Miller, 92 Hawai#i 505, 513,
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993 P.2d 539, 547 (2000). A party seeking reconsideration based
on newly discovered evidence must establish that the evidence
meets the following requirements: "(1) it must be previously
undiscovered even though due diligence was exercised; (2) it must
be admissible and credible; (3) it must be of such a material and
controlling nature as will probably change the outcome and not
merely cumulative or tending only to impeach or contradict a
witness." Kawamata Farms, Inc. v. United Agri Products, 86
Hawai#i 214, 259, 948 P.2d 1055, 1100 (1997) (emphasis in
original) (citations omitted).
The record reveals that many of Namahoe's arguments on
reconsideration concerning proper notice were previously made in
conjunction with the Rule 60(b) Motion and there is no cogent
argument as to why the "new" evidence and arguments concerning
proper notice could not have been presented earlier. Thus, we
conclude that the Circuit Court did not abuse its discretion in
denying the Motion for Reconsideration on this ground.
Namahoe further argues that the Circuit Court abused
its discretion in denying reconsideration of the Order Denying
Rule 60(b) Motion based on the supreme court's decision in
Hungate, which was published the day before the hearing on the
Rule 60(b) Motion. Namahoe argues that Hungate: (1) raised the
issue of notice in foreclosure cases effectively to the level of
due process; (2) was instructive in its discussion concerning
whether a mortgagee's attorney can be held liable for the failure
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to comply with statutory requirements; and (3) effectively
contravened the Circuit Court's decision to deny Namahoe relief
under HRCP Rule 60(b)(3) on the basis of timeliness.
As discussed above in conjunction with our analysis of
Namahoe's request for relief pursuant to HRCP Rule 60(b)(4),
Namahoe was personally served with, inter alia, the Summons and
Complaint and thereafter failed to appear before the Circuit
Court. We have rejected Namahoe's argument that notice of this
foreclosure action was so infirm that it was inconsistent with
due process and rendered the Foreclosure Judgment void. Hungate
is distinguishable. Hungate involved an action for wrongful
foreclosure based on the failure to comply with statutory and
contractual (power of sale) requirements applicable to a notice
of sale (and subsequent notices regarding the postponement of the
sale) in the non-judicial foreclosure at issue in that case,
rather than an HRCP Rule 60(b) motion seeking to void a judgment
in a judicial foreclosure proceeding. See Hungate, 139 Hawai#i
at 5-6, 9-10, 391 P.3d at 398-99, 402-03. Hungate simply does
not address, directly or indirectly, the relief requested herein
pursuant to HRCP Rule 60(b)(4).
Namahoe's second argument regarding the potential
liability of a mortgagee's attorney is equally misplaced in this
case. There is no issue raised herein concerning potential
claims against Nutter's attorneys, Clay Chapman.
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Finally, we reject Namahoe's argument that Hungate
"effectively contravenes" the Circuit Court's decision to deny
relief pursuant to HRCP Rule 60(b)(3) on the basis of timeliness.
Here, we have concluded that the Circuit Court properly
determined that HRCP Rule 60(b)(3) relief was unavailable because
the Rule 60(b) Motion was filed well after the one-year limit;
and the Circuit Court did not preclude Namahoe from seeking
relief in the Wrongful Foreclosure Action, which is more akin to
the suit before the supreme court in Hungate. Hungate did not
involve a request for relief pursuant to HRCP Rule 60(b)(3).
We conclude that the Circuit Court did not abuse its
discretion in entering the Order Denying Motion for
Reconsideration.
V. CONCLUSION
For these reasons, we affirm: (1) the Circuit Court's
April 5, 2017 Order Denying Rule 60(b) Motion; and (2) the
Circuit Court's June 9, 2017 Order Denying Motion for
Reconsideration. All motions pending before the court in this
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appeal, including the Motion to Substitute, are dismissed as
moot.
DATED: Honolulu, Hawai#i, March 28, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Rebecca A. Copeland, LLC,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
David J. Minkin,
Jesse J.T. Smith, /s/ Keith K. Hiraoka
(McCorriston Miller Mukai Associate Judge
MacKinnon LLP),
for Plaintiff-Appellee.
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