Greenspon v. CIT Bank, N.A.

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-NOV-2024
08:07 AM
Dkt. 100 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

MICHAEL C. GREENSPON, Plaintiff-Appellant, v.
CIT BANK, N.A. f/k/a ONEWEST BANK FSB; DAVID B. ROSEN, ESQ.;
THE LAW OFFICE OF DAVID B. ROSEN, ALC, Defendants-Appellees,
DOES 1-10, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CC141000379(1))

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Self-represented Plaintiff-Appellant Michael C.

Greenspon appeals from the Circuit Court of the Second Circuit's

August 11, 2020 Final Judgment, dismissing his case for failure

to prosecute. 1

In 2003, Greenspon obtained a $650,000.00 mortgage

loan for a property in Ha‘ikū, Maui (the Ha‘ikū Property). In

2006, Greenspon modified the loan, increasing the principal

1 The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

amount to $800,000.00. In 2008, Greenspon was sent a notice

stating that his loan was "in serious default" and that he must

pay $27,664.44 on or before December 6, 2008 to cure the

default. In 2010, the Ha‘ikū Property was sold at a public non-

judicial foreclosure auction to Deutsche Bank National Trust

Company, as Trustee.

In June 2014, Greenspon filed a complaint under the

pseudonym "Charles M. Brown" against Defendants-Appellees

David B. Rosen, Esq. and Law Offices of David B. Rosen, ALC

(together, Rosen Parties) claiming improper and illegal

collection efforts following the non-judicial foreclosure. In

December 2014, Greenspon filed a First Amended Complaint naming

Defendant-Appellee CIT Bank N.A., f.k.a. Onewest Bank N.A.,

f.k.a. Onewest Bank, FSB (CIT) as an additional defendant, and

raising nine claims: (1) negligent and intentional

misrepresentation; (2) violation of Federal Fair Debt Collection

Practices Act under 15 U.S.C. § 1692; (3) violation of HRS

Chapter 480D; (4) unfair and deceptive acts and practices under

HRS Chapter 480; (5) negligence; (6) abuse of process;

(7) intentional/negligent infliction of emotional distress;

(8) damages; and (9) punitive and exemplary damages.

In January 2015, CIT and Rosen Parties moved for a

protective order, to stay the case, and to sanction Greenspon

for his "improper, harassing, and abusive conduct" in refusing

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to withdraw his discovery requests (Motion for Stay). CIT and

Rosen Parties further argued the case overlapped with the issues

on appeal in CAAP-XX-XXXXXXX (Related Appeal), and they asked

the circuit court to stay proceedings until the Related Appeal

was resolved. 2

In March 2015 the circuit court stayed the case,

ordering in a written order that:

"this case is STAYED pending a final resolution in
that appeal currently pending before the [Hawaiʻi]
Intermediate Court of Appeals in [the Related Appeal].
Consequently, all pending hearings are hereby removed
from the Court's calendar, but may be re-scheduled
upon the entry of an Order lifting this Stay."

(Emphasis added.) See State v. Milne, 149 Hawai‘i 329, 335, 489

P.3d 433, 439 (2021) (explaining that "a trial court's written

order controls over its oral statements"). This court decided

the Related Appeal in June 2016, and Greenspon's application for

writ of certiorari was rejected in November 2016. See Greenspon

v. Deutsche Bank Nat'l Tr. Co., 138 Hawai‘i 52, 375 P.3d 1290,

No. CAAP-13-00001432, 2016 WL 3280366 (App. June 14, 2016) (mem.

op.); Greenspon v. Deutsche Bank Nat'l Tr. Co., SCWC-13-

0001432, 2016 WL 6879563 (Haw. Nov. 22, 2016) (Order).

2 We take judicial notice of the files and records in CAAP-XX-XXXXXXX.
See State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) (explaining
that the court may take judicial notice of its own records in interrelated
proceedings).

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Almost two years later, in October 2018, Rosen Parties

filed a "Notice" of Greenspon's failure to comply with the Rules

of the Circuit Court of the State of Hawaiʻi (RCCH) Rule 12(q),

and requested the circuit court dismiss the case for lack of

prosecution due to Greenspon's failure to file a pretrial

statement or seek an extension, which the circuit court granted.

The circuit court later granted Greenspon's motion for

reconsideration, set aside the RCCH Rule 12(q) dismissal, and

extended the deadline for Greenspon's pretrial statement to

July 1, 2019, which Greenspon timely filed.

In April 2020, CIT moved to dismiss the case for

failure to prosecute pursuant to Hawaiʻi Rules of Civil Procedure

(HRCP) Rule 41(b)(1) and RCCH Rules 7, 12(c)(2), and 12(q). CIT

argued Greenspon failed to request a trial setting conference

within 60 days of filing his pretrial statement, as required

under RCCH Rule 12(c)(2), and he had not done anything to

advance the case besides filing a pretrial statement. Rosen

Parties joined CIT's motion to dismiss.

CIT also moved to designate Greenspon a vexatious

litigant, arguing that: (1) Greenspon initiated and maintained

thirteen separate civil actions arising from the same non-

judicial foreclosure that raised overlapping claims against

overlapping defendants; (2) Greenspon's related consolidated

cases 2CC141000395 and 2CC141000560 were dismissed due to

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Greenspon's intentional disruption of discovery efforts; and

(3) Greenspon was deemed a vexatious litigant in Florida for

similar behavior.

On June 7, 2020, Greenspon moved to (1) lift the stay

and set the matter for trial or, in the alternative,

(2) continue the stay pending the resolution of his other

"related" cases in CAAP-XX-XXXXXXX, 2CC171000090, 2CC141000395,

and 2CC141000560.

In July 2020, the circuit court entered written orders

denying Greenspon's motion to lift the stay, granting CIT's

motion to dismiss (Dismissal Order), and granting CIT's motion

to designate Greenspon a vexatious litigant. The circuit court

then entered a final judgment in favor of CIT and Rosen Parties

and against Greenspon as to all claims in the first amended

complaint. Greenspon timely appealed.

On appeal, Greenspon raises five points of error

(POE). 3 Of these points, only Greenspon's challenge to the

3 Greenspon's five POE are as follows:

1. "The circuit court's March 10, 2015 Stay order, R 46, premised on
wrong conclusions, is legal error that caused years of prejudicial
delay and obstruction of Appellant's meritorious claims in this
case";

2. "The circuit court reversibly erred as a matter of law by its
failure to grant [his] motions to consolidate, and to either lift
the stay and set the case for trial or, alternatively, to continue
the stay pending 'final resolution' of the related case appeals, and
by ruling that [his] motion is 'moot'";
(continued . . .)

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circuit court's dismissal of his first amended complaint (POE 3)

has merit.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve the

points of error as discussed below, and vacate and remand.

The Dismissal Order dismissed all claims against CIT

and Rosen Parties "for the reasons stated on the record at the

hearing[.]" At the hearing, the circuit court found that

Greenspon "failed to timely request a trial setting status

conference pursuant to [RCCH] Rule 12(c)(2) and failed to move

for relief from the stay or do anything else in the case, thus

prejudicing the defendants," due to "almost four years of

plaintiff being idle despite the active status of the case."

The Dismissal Order also stated that Greenspon

repeatedly failed to comply with deadlines, including the

(. . . continued)

3. "The circuit court reversibly erred as a matter of law by unjustly
dismissing [his] entire FAC with prejudice premised on a[n]
inadvertent oversight of RCCH Rule 12(c) and by making false and
clearly erroneous findings and conclusions";

4. "The circuit court reversibly erred as a matter of law and grossly
abused its discretion by granting Appellee's HRS § 634J motion"; and

5. "The circuit court's conduct and systematic errors shows a pattern
of bias[.]"

(Formatting altered.) As to POE 1, the circuit court did not abuse its
discretion in ordering a stay of the proceedings as there appear to be
overlapping claims and parties, and based on our decision as to POE 3, we
need not reach POE 2, 4, and 5.

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deadlines to file a pretrial statement under RCCH Rule 12(b),

and to request a trial setting conference under RCCH

Rule 12(c)(2); the case had not been stayed since the resolution

of the Related Appeal, but to the extent Greenspon believed a

stay was in place, he failed to move for relief from the stay or

take any action in the case; Greenspon's delay prejudiced CIT

and the Rosen Parties "as explained in their memoranda and

supporting declarations, and is inexcusable"; and dismissal was

proper under HRCP Rule 41(d). 4

HRCP Rule 41(b)(1) provided that "a defendant may move

for dismissal of an action or of any claim against it" if the

plaintiff fails "to prosecute or to comply with these rules or

any order of the court[.]" RCCH Rule 12(q), entitled "Dismissal

for want of prosecution," provided that

[a]n action may be dismissed sua sponte with written notice
to the parties if a pretrial statement has not been filed
within 8 months after a complaint has been filed (or within
any further period of extension granted by the court) or if
a trial setting status conference has not been scheduled as
required by Rule 12(c).

RCCH Rule 12(c)(2) required the plaintiff to schedule a trial

setting status conference within sixty days of the pretrial

statement.

Here, the circuit court concluded no stay was in

place. However, the stay order stated that "all pending

4 Although the circuit court referred to HRCP Rule 41(d), entitled
"Costs of previously-dismissed action," it appears HRCP Rule 41(b), entitled
"Involuntary dismissal: Effect thereof," applies.

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hearings are hereby removed from the Court's calendar, but may

be re-scheduled upon the entry of an Order lifting this Stay."

(Emphasis added.) The parties do not point to, and we could not

find, where in the record there was entry of an order lifting

the stay. As no order lifting the stay was entered, the stay

remained in place. And, because the stay remained in place, the

pretrial deadlines did not run and all filings (besides a motion

for entry of an order to lift the stay) were improper. The

circuit court thus abused its discretion in determining there

was no stay in place and dismissing the case for failure to meet

pretrial deadlines.

Based on the foregoing, we vacate the circuit court's

August 11, 2020 Final Judgment, and remand this case for further

proceedings consistent with this summary disposition order.

DATED: Honolulu, Hawai‘i, November 19, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Michael C. Greenspon,
Plaintiff-Appellant, pro se. /s/ Keith K. Hiraoka
Associate Judge
Judy A. Tanaka,
Jenny J.N.A. Nakamoto, /s/ Sonja M.P. McCullen
(Dentons), Associate Judge
for Defendant-Appellee.

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