Collins v. The Association of Apartment Owners of Kemoo by the Lake

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2024
09:13 AM
Dkt. 164 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

GABI K. COLLINS, Plaintiff-Appellant, v.
THE ASSOCIATION OF APARTMENT OWNERS OF KEMOO BY THE LAKE;
EKIMOTO & MORRIS, LLLC, Defendants-Appellees,
and
JOHN DOES 1-100; JANE DOES 1-100; DOE PARTNERSHIPS 1-100;
and DOE CORPORATIONS 1-100, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 13-1-2513-09 VLC)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and Nakasone, JJ.)

Self-represented Plaintiff-Appellant Gabi Kim Collins
(Collins) appeals from the July 2, 2018 Final Judgment as to All
Claims and Parties (Judgment), entered in favor of Defendants-
Appellees The Association of Apartment Owners of Kemoo by the
Lake (the AOAO) and Ekimoto & Morris, LLLC (E&M) (collectively,
Defendants) by the Circuit Court of the First Circuit (Circuit
Court). Collins also appears to challenge the Circuit Court's:
(1) July 20, 2016 "Order Granting . . . [E&M's] Motion
to Dismiss, or in the Alternative, Motion for
Summary Judgment on . . . Collins'[s] Complaint
Filed on September 7, 2013 (Motion Filed November
23, 2015)" (Order Granting E&M's MTD/MSJ);
(2) July 20, 2016 "Order Denying . . . Collins'[s]
Motion to Vacate and Set Aside Wrongful Non-
judicial Foreclosure Sale Under [Hawai#i Rules of
Civil Procedure (HRCP)] Rule 60(b)(3), (4), and
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(6) (Filed July 21, 2015)" (Order Denying Motion
to Vacate Foreclosure);
(3) March 19, 2018 "Order Granting in Part and Denying
in Part [Collins's] Motion to Vacate and Set Aside
Orders Entered July 20, 2016, Under HRCP Rule
60(b)(3), (4), and (6), or in the Alternative,
Revise Decision Under Rule 54(b) (Non-hearing
Motion filed July 20, 2017)" (Order on Motion to
Vacate July 20, 2016 Orders); and
(4) July 2, 2018 "Order Granting [AOAO's] Motion for
Summary Judgment, Filed on May 16, 2018" (Order
Granting AOAO's MSJ).1/
For the reasons explained below, we affirm in part,
vacate in part, and remand.

I. Background

On September 17, 2013, Collins filed a 14-count
Complaint against the AOAO and its counsel E&M, an ex parte
motion for temporary restraining order (TRO), and a motion for
preliminary injunction to prevent Defendants from proceeding with
a pending nonjudicial foreclosure of the AOAO's lien on Collins's
unit (Unit) in the Kemo#o by the Lake condominium project.
Collins alleged, among other things, that in 2009, she began to
withhold payment of monthly assessments to the AOAO, partially
due to the AOAO's failure to address a pest infestation problem
and partially due to Collins's financial inability to pay the
monthly assessments because of the economic downturn. The AOAO's
attempts to collect the past due amounts owed by Collins
allegedly led to a "deficient nonjudicial foreclosure" process
and related "unfair and deceptive collection activities" by
Defendants. The Complaint asserted the following claims: (1)
breach of contract against the AOAO (Count I); (2) breach of
fiduciary duty against the AOAO (Count II); (3) negligence, gross
negligence and violation of Hawaii Revised Statutes (HRS) §§ 514A

1/
The Honorable James C. McWhinnie entered the Judgment and the
Order Granting AOAO's MSJ. The Honorable Virginia L. Crandall entered the
Order Granting E&M's MTD/MSJ, the Order Denying Motion to Vacate Foreclosure,
and the Order on Motion to Vacate July 20, 2016 Orders.

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and 514B against the AOAO (Count III); breach of the covenant of
good faith and fair dealing against the AOAO (Count IV);
violation of HRS § 667 against the AOAO (Count V); violation of
HRS § 480-2 against the AOAO and E&M (Count VI); violation of HRS
§ 480D-1 against E&M (Count VII); violation of the Federal Debt
Collection Practices Act (FDCPA) against E&M (Count VIII); and
civil conspiracy/joint and several liabilities against the AOAO
and E&M (Count IX).
The Circuit Court conducted a two-day evidentiary
hearing on the motion for preliminary injunction. On October 30,
2013, the court entered its order denying the motion (Order
Denying Preliminary Injunction), which included extensive
findings of fact and conclusions of law, dissolved the previously
entered TRO, and allowed the scheduled non-judicial foreclosure
sale of the Unit to go forward.2/
A few hours after the Order Denying Preliminary
Injunction was filed, Collins filed a voluntary Chapter 13
petition in the United States Bankruptcy Court for the District
of Hawaii. After Collins failed to offer a viable Chapter 13
plan, on August 29, 2014, the bankruptcy court dismissed the
Chapter 13 case. On November 7, 2014, a public sale of the Unit
was held, and the Unit was sold, subject to the mortgage and the
AOAO's lien, to the AOAO.
On July 21, 2015, Collins filed a motion to vacate and
set aside the foreclosure sale, pursuant to HRCP Rule
60(b)(3),(4), and (6) (Motion to Vacate Foreclosure), making many
of the same allegations and arguments that were resolved in the
Order Denying Preliminary Injunction. E&M opposed the motion,
arguing that it had followed the relevant procedures required by
then-applicable HRS §§ 667-22, -96(d), and -92(f)(3), and the
AOAO later filed a supplemental brief opposing the motion.
Following hearings on December 8, 2015, and February 16, 2016,
the Circuit Court denied the motion via a May 31, 2016 minute
order and the July 20, 2016 Order Denying Motion to Vacate

2/
On appeal, Collins does not challenge the Order Denying
Preliminary Injunction or any of the findings of fact contained in the order.
See Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai #i 450, 458, 40 P.3d
73, 81 (2002) (unchallenged findings of fact are binding on appeal).

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Foreclosure.
Meanwhile, on November 23, 2015, E&M filed a motion to
dismiss the Complaint or, alternatively, for summary judgment
(E&M's MTD/MSJ). The AOAO joined the motion and Collins opposed
it. Following a February 16, 2016 hearing, the Circuit Court
granted the motion via a May 31, 2016 minute order and the
July 20, 2016 Order Granting E&M's MTD/MSJ.
On July 29, 2016, Collins filed a motion for
reconsideration, which was opposed on August 9, 2016, and denied
on September 30, 2016.
On July 20, 2017, Collins filed a motion to vacate and
set aside the orders entered on July 20, 2016, which was opposed
on August 1 and 2, 2017, and granted in part and denied in part
via the March 19, 2018 Order on Motion to Vacate July 20, 2016
Orders.
On March 21, 2018, Collins filed a motion for equitable
estoppel pertaining to the July 20, 2017 motion to vacate, which
was opposed on March 29 and April 2, 2018, and denied on June 29,
2018.
On May 16, 2018, the AOAO filed a motion for summary
judgment. Following a June 5, 2018 hearing, the Circuit Court
granted the motion via the July 2, 2018 Order Granting AOAO's
MSJ.
On July 2, 2018, the Judgment was entered. On July 12,
2018, Collins filed a motion for reconsideration, styled as a
motion for "new trial," which was opposed by the AOAO on July 24,
2018, and denied on October 2, 2018.

II. Discussion

On appeal, Collins contends that the Circuit Court
erred by: (1) dismissing her claims against E&M with prejudice
based on a finding that E&M was not a "debt collector" for
purposes of HRS §§ 480-2 and 480D-1 and the FDCPA; (2) denying
Collins's Motion to Vacate Foreclosure, where the AOAO violated
HRS Chapter 667, Part VI;3/ (3) entering the Judgment and finding

3/
E&M asserts that the nonjudicial foreclosure of the Unit was
conducted pursuant to HRS Chapter 667, Part VI.

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that all claims were resolved, where the Circuit Court "missed"
Counts I-V of the Complaint; (4) granting summary judgment in
favor of the AOAO; and (5) "applying the wrong pleading standard"
in dismissing all claims against E&M with prejudice and granting
summary judgment in favor of the AOAO. Collins also contends
that one of her former attorneys, James Porter DeVries (DeVries)
violated Rules 1.16, 1.17 and 4.1 of the Hawai#i Rules of
Professional Conduct (HRPC).4/
We address Collins's contentions as they relate to her
claims against the AOAO first. We then turn to her contentions
as they relate to E&M and DeVries.

A. Claims Against the AOAO
Collins's second and fourth contentions (supra) are
dispositive of her claim that the AOAO violated HRS chapter 667
in conducting the nonjudicial foreclosure of its lien on the Unit
(Count V). Collins argues in part that the nonjudicial
foreclosure was invalid under Sakal v. Ass'n of Apartment Owners
of Hawaiian Monarch, 143 Hawai#i 219, 426 P.3d 443 (App. 2018),
aff'd in part, vacated in part, remanded, 148 Hawai#i 1, 466 P.3d
399 (2020), because there was no contract authorizing the
Association's power of sale. In Sakal, this court held that in
order for an association to avail itself of the nonjudicial power
of sale foreclosure procedures set forth in HRS chapter 667, a
power of sale in its favor must have existed in association
bylaws or in another enforceable agreement with unit owners. 143
Hawai#i at 220-21, 426 P.3d at 444-45; see Malabe v. Ass'n of
Apartment Owners of Exec. Ctr., 147 Hawai#i 330, 339, 465 P.3d
777, 786 (2020).
In response, E&M argues in part that the AOAO documents
differ from those in Sakal. E&M contends that the Declaration of
Horizontal Property Regime of Kemoo by the Lake (Declaration)
explicitly provides for foreclosure via the Horizontal Property
Act, HRS chapter 514A, and the By-Laws of the Association of
Apartment Owners of Kemoo by the Lake (Bylaws) discuss the costs
of collecting delinquent assessments and "foreclosing its lien

4/
Collins's points of error have been restated for clarity.

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therefor."
Similar arguments were rejected in Sakal. See 143
Hawai#i at 229-30, 426 P.3d at 453-54. Neither the Declaration
nor the Bylaws unambiguously gave the AOAO a power of sale over
its units. The AOAO's nonjudicial foreclosure of Collins's Unit
was not authorized by an enforceable agreement with unit owners.
E&M further argues that Act 282 of 2019 (Act 282)
"confirms the legislative intent that condominium associations
should be able to use nonjudicial foreclosure to collect
delinquencies regardless of the presence or absence of power of
sale language in an association's governing documents." 2019
Haw. Sess. Laws Act 282, § 1 at 780. In other words, E&M argues
that under Act 282, the legislature "clarified its preexisting
intent to have a power of sale for non-judicial foreclosure
incorporated by law into condominium association documents[.]"
In Malabe, the supreme court instructed that "although
not binding on state courts, the decision of the United States
District Court for the District of Hawai#i that Act 282 is
unconstitutional as violative of the Contracts Clause [of Article
I, § 10 of the United States Constitution] would be entitled to
respectful consideration." 147 Hawai#i at 355, 465 P.3d at 802
(citing State v. Gates, 576 P.2d 1357, 1359 (Ariz. 1978)); see
Galima v. Ass'n of Apartment Owners of Palm Court, 453 F. Supp.
3d 1334, 1355-56 (D. Haw. 2020). In light of Galima and the
supreme court's instruction in Malabe, we cannot say that Act 282
retroactively validated the AOAO's nonjudicial foreclosure of
Collins's Unit and extinguished her ability to recover for the
alleged violation of HRS chapter 667, which we construe at least
in part as a wrongful foreclosure claim. We thus conclude that
the Circuit Court erred in denying the Motion to Vacate
Foreclosure and in entering summary judgment in favor of the AOAO
on Count V.
Our conclusion also undermines the grant of summary
judgment in favor of the AOAO on Counts I through IV and VI.
Each of these claims is based in part on the allegation that the
AOAO breached a legal duty owed to Collins by failing to ensure
that its attorneys' fees and costs were reasonable "before

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passing them off to [Collins]," or by related misrepresentations,
including fees and costs incurred in connection with the
non-judicial foreclosure of the Unit. Defendants do not dispute
that Collins was charged such fees and costs. Because we have
determined that the nonjudicial foreclosure was unauthorized, the
fees and costs related to the foreclosure were not reasonably
charged to Collins. We therefore conclude that the Circuit Court
erred in entering summary judgment in favor of the AOAO on Counts
I through IV and VI.5/
Collins raises no point of error or argument regarding
the dismissal of her civil conspiracy claim (Count IX). See
Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4) and (7)
("Points not argued may be deemed waived.") In any event, based
on our analysis of the civil conspiracy claim against E&M
(infra), we conclude that the Circuit Court did not err in
entering summary judgment in favor of the AOAO on Count IX.
Given our rulings regarding Counts I through VI, we do
not reach Collins's remaining contentions as they relate to her
claims against the AOAO.

B. Claims Against E&M
Collins contends that dismissal of her "consumer
protection claims" against E&M was improper because E&M was a
"debt collector" for purposes of those claims, and the litigation
privilege was inapplicable because the nonjudicial foreclosure
was not a judicial proceeding.
In Count VI, Collins alleged that she was entitled to
relief against the AOAO and E&M under HRS § 480-2, Hawaii's UDAP
statute. In Counts VII and VIII, Collins sought relief against
E&M under HRS chapter 480D and the FDCPA, respectively. The
Circuit Court dismissed these three claims as to E&M in the
July 20, 2016 Order Granting E&M's MTD/MSJ. In so doing, the

5/
Collins contends that the Circuit Court erred in entering the
Judgment and finding that all claims were resolved, where the court "missed"
Counts I-V of the Complaint. The Judgment complied with HRCP Rule 54(b) and
Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai #i 115, 869 P.2d 1334
(1994), because it specifically identifies the parties "for and against whom
the judgment is entered" and identifies all "claims for which it is entered"
and dismisses all claims "not specifically identified." Id. at 116, 869 P.2d
at 1335. Collins's contention therefore lacks merit.

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Circuit Court ruled in part that E&M was not a debt collector for
purposes of Counts VII and VIII. In its March 19, 2018 Order on
Motion to Vacate July 20, 2016 Orders, the court amended the
Order Granting E&M's MTD/MSJ so as to dismiss Counts VII and VIII
"for the additional ground that [Collins's] claims alleging
misrepresentation regarding attorneys' fees and costs are without
merit."
In Hungate v. Law Office of David B. Rosen, 139 Hawai#i
394, 391 P.3d 1 (2017), abrogated on other grounds by State ex
rel. Shikada v. Bristol-Myers Squibb Co., 152 Hawai#i 418, 526
P.3d 395 (2023), a case arising out of a non-judicial
foreclosure, the supreme court declined to recognize a
mortgagor's UDAP claim under HRS § 480-2 against the mortgagee's
attorney, explaining in part that "in foreclosure actions an
attorney's justifiable concern with being sued by the opposing
party for UDAP could compromise the attorney's ability to
zealously represent his or her client." 139 Hawai#i at 413, 391
P.3d at 20. Collins makes no argument distinguishing Hungate,
and we conclude that it applies to Collins's HRS § 480-2 claim
against E&M. Accordingly, the Circuit Court did not err in
dismissing Count VI as to E&M.
HRS Chapter 480D covers "collection activities by debt
collectors in collecting consumer debts." HRS § 480D-1 (2008);
see HRS § 480D-3 (2008) (listing practices prohibited for debt
collectors to engage in while collecting a consumer debt). E&M
argues that the Circuit Court properly ruled that it was not a
"debt collector" within the meaning of HRS chapter 480D. HRS
§ 480D-2 (2008) defines a "debt collector" as "any person, who is
not a collection agency regulated pursuant to chapter 443B, and
who in the regular course of business collects or attempts to
collect consumer debts owed or due or asserted to be owed or due
to the collector." (Emphasis added.)
Collins alleged in the Complaint that E&M "serves as
the AOAO's law firm and agent, engaging in collection activities
on behalf of the AOAO." As such, E&M was working to collect a
debt owed to the AOAO, and was not attempting to collect a debt
owed, or asserted to be owed, to E&M. See HRS § 480D-2. Collins

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did not allege or show she owed a debt to E&M. Thus, Collins
failed to state a claim upon which relief could be granted
against E&M under HRS Chapter 480D, and for purposes of the
alternative summary judgment motion failed to present a genuine
issue of material fact as to the elements of such a claim. See
Au v. Ass'n of Apartment Owners of Royal Iolani, Nos. CAAP-16-
0000464 and CAAP-XX-XXXXXXX, 2021 WL 225936, at *11 (Haw. App.
Jan. 22, 2021) (mem. op.). The Circuit Court did not err in
dismissing Count VII as to E&M.
The FDCPA defines a "debt collector" differently than
HRS Chapter 480D. See 15 U.S.C. § 1692(a)(6). However, we need
not decide whether E&M was a "debt collector" for purposes of the
FDCPA, as the Circuit Court ruled that the allegations on which
the claim is based – alleged misrepresentations by E&M regarding
attorneys' fees and costs – are without merit. Specifically,
E&M's MTD/MSJ relied in part on the Circuit Court's October 30,
2013 Order Denying Preliminary Injunction, which contained
uncontested findings of fact regarding E&M's communications with
Collins, and determined in part that Collins failed to submit any
evidence supporting the alleged violations of the FDCPA.
Collins does not point to any evidence she submitted below to
show that E&M made misrepresentations that violated the FDCPA.
Thus, the Circuit Court did not err in granting summary judgment
in favor of E&M on Count VIII.
Collins raises no point of error or argument regarding
the dismissal of her civil conspiracy claim (Count IX). See HRAP
Rule 28(b)(4) and (7) ("Points not argued may be deemed waived.")
In any event, based on the dismissal of the underlying claims
against E&M and the court's reasoning in Hungate, we conclude
there can be no claim for civil conspiracy against E&M under
these circumstances, and the Circuit Court did not err in
dismissing Count IX.

C. Allegations Against DeVries
Collins contends that DeVries, her former counsel,
violated HRPC Rules 1.16, 1.7 and 4.1 by failing to disclose that
he was employed as a foreclosure commissioner in Kona and by
failing to protect her interest "upon his untimely withdrawal."

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DeVries was not named in the Complaint, was not a party
to the proceedings below, and is not a party to this appeal. Any
claim by Collins against DeVries is not properly before this
court.

III. Conclusion

For the reasons discussed above, the July 2, 2018 Final
Judgment as to All Claims and Parties, entered by the Circuit
Court of the First Circuit, is affirmed in part and vacated in
part. The Circuit Court's dismissals of Counts I through VI as
to Defendant-Appellee The Association of Apartment Owners of
Kemoo by the Lake are vacated. The Final Judgment is otherwise
affirmed. The case is remanded to the Circuit Court for further
proceedings consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, June 27, 2024.

On the briefs:
/s/ Katherine G. Leonard
Gabi K. Collins Acting Chief Judge
Self Represented Plaintiff-
Appellant.
/s/ Clyde J. Wadsworth
James Shin and Associate Judge
Jodie D. Roeca
(Roeca Luria Shin LLP)
for Defendants-Appellees. /s/ Karen T. Nakasone
Associate Judge

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