Deutsche Bank National Trust Company v. Lani Pacific

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2023
08:13 AM
Dkt. 102 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for
the Pooling and Servicing Agreement Dated as of
November 1, 2006 Securitized Asset Backed Receivables LLC
Trust 2006 FR4, Plaintiff-Appellee,
v.
LANI PACIFIC, Defendant-Appellant,
and
LORI J. HAWTHORNE, formerly known as LORI J. BAUER also known as
LORI S. BAUER, Defendant-Appellee,
and
DOES 1 through 20, Inclusive, Defendants
(CIVIL NO. 3CC19100014K)

AND
CAAP-XX-XXXXXXX
LANI PACIFIC, a registered business entity, Plaintiff-Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for
the Pooling and Servicing Agreement Dated as of
November 1, 2006 Securitized Asset Backed Receivables LLC
Trust 2006-FR4, Defendant-Appellee,
and
DOES 1-20, inclusive, Defendants
(CIVIL NO. 3CCV-XX-XXXXXXX)

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)

In this consolidated appeal,1 Defendant-Appellant/Plaintiff-
Appellant Lani Pacific, a registered business entity (LP), self-
represented,2 appeals from (1) the March 12, 2021 Judgment
(Foreclosure Judgment) in CAAP-XX-XXXXXXX, a foreclosure
proceeding (Foreclosure case);3 and (2) the July 6, 2021 Judgment
(Quiet Title Judgment) in CAAP-XX-XXXXXXX, a quiet title action
(Quiet Title case),4 both entered by the Circuit Court of the
Third Circuit (Circuit Court),5 in favor of Bank
LP's opening brief does not fully comply with Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b), and some portions
are difficult to comprehend. Despite non-compliance with the
HRAP, we endeavor to afford "litigants the opportunity to have
their cases heard on the merits, where possible." Marvin v.
Pflueger, 127 Hawai#i 490, 496, 280 P.3d 88, 94 (2012) (cleaned
up). To promote access to justice, we interpret pleadings
prepared by self-represented litigants liberally, and attempt to

1
We consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX by a May 2,
2022 order.
2
LP is represented on appeal by David Paul Biesemeyer (Biesemeyer),
the "Registrant/Sole Proprietor" of LP. On July 21, 2021, we denied a motion
to dismiss the first appeal, CAAP-XX-XXXXXXX, filed by Plaintiff-Appellee
Deutsche Bank National Trust Company, as Trustee for the Pooling and Servicing
Agreement Dated as of November 1, 2006 Securitized Asset Background
Receivables LLC Trust 2006-FR4 (Bank), on the grounds that LP was not
represented by a Hawai#i-licensed attorney, and that Biesemeyer could not
represent LP. Citing Garcia v. Fernandez, No. CAAP-XX-XXXXXXX, 2020 WL
2991784, at *2 (App. June 4, 2020) (SDO), the order denied dismissal because
"'Lani Pacific' [is] a trade name, and the circuit court found that 'Lani
Pacific is registered by Biesemeyer in the Department of Commerce and Consumer
Affairs of the State of Hawaii, Business Registration Division as a Trade
Name.'" (Brackets omitted). Garcia held that a sole proprietorship may
litigate pro se, because the firm name and the sole proprietor's name are but
two names for one person and are not separate legal identities. Id.
3
The Foreclosure case involves Bank's claim that a promissory note
and mortgage that was secured by real property located at 79-7250 Saint Paul
Road in Kealakekua, Hawai#i (Property), of which LP was the record owner, was
in default and that Bank was entitled to foreclose on the Property.
4
The Quiet Title case involves LP's claim that Bank had no interest
in the Property, LP was the rightful owner of the Property, and LP was
entitled to enjoin Bank from claiming any interest in the Property.
5
The Honorable Robert D.S. Kim presided.

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

afford them appellate review even though they fail to comply with
court rules. See Erum v. Llego, 147 Hawai#i 368, 380-81, 465
P.3d 815, 827-28 (2020). Accordingly, we address LP's
contentions to the extent we can discern them.
On appeal, LP contends as "Assignment[s] of Error[,]"
that (1) in the Foreclosure case, the Circuit Court erroneously
granted Bank's "Motion for Summary Judgment and/or Default
Judgment and for Interlocutory Decree of Foreclosure" filed
October 15, 2020, that resulted in the March 12, 2021 Foreclosure
Judgment; and (2) in the Quiet Title case, the Circuit Court
erroneously granted Bank's "Motion for Summary Judgment" filed
March 26, 2021, that resulted in the July 6, 2021 Quiet Title
Judgment. We also address two additional discernible assertions
made by LP, that: (3) in the Foreclosure case, the Circuit Court
failed to "adjudicate" and enter an order for "[LP]'s Motion for
Reconsideration or, New Trial From the 30 November, 2020 Order
Denying [LP]'s Motion to Correct All Clerical and Ministerial
Mistakes and Errors in the Above-Entitled Court's Minute Order
Dated 18 May, 2020" (Motion for Reconsideration) and "[LP]'s
Motion for: Ratification of Commencement" (Motion for
Ratification); and (4) in the Quiet Title case, the Circuit Court
failed to enter a final judgment for the "Order Granting in Part
and Denying in Part [Bank]'s Motion for Judgment on the Pleadings
or, Alternatively, for Summary Judgment, Filed July 20, 2020"
(Order GIP and DIP Bank's First Quiet Title MSJ).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we affirm.
Foreclosure case
On March 12, 2021, the Circuit Court filed its
"Findings of Fact and Conclusions of Law; Order Granting [Bank]'s
Motion for Summary Judgment and/or Default Judgment and for
Interlocutory Decree of Foreclosure Filed October 15, 2020"
(Order Granting Foreclosure MSJ), and also entered the March 12,
2021 Foreclosure Judgment in favor of Bank, from which LP timely
appealed.

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Quiet Title case
On October 14, 2020, the Circuit Court filed its Order
GIP and DIP Bank's First Quiet Title MSJ.
On October 26, 2020, LP filed a Motion for
Reconsideration from the Order GIP and DIP Bank's First Quiet
Title MSJ, which was denied by a March 23, 2021 order.
On March 26, 2021, Bank filed a Motion for Summary
Judgment (Bank's Second Quiet Title MSJ), and LP filed a May 10,
2021 opposition.
On May 17, 2021, a hearing was held on Bank's Second
Quiet Title MSJ, and the Circuit Court granted the motion.
On July 6, 2021, the Circuit Court filed the Order
Granting Bank's Second Quiet Title MSJ and dismissed the Quiet
Title case with prejudice. The Circuit Court also entered the
July 6, 2021 Quiet Title Judgment in favor of Bank and against
LP, from which LP timely appealed.
(1) LP provides no argument why the Circuit Court erred
in granting summary judgment and the interlocutory decree of
foreclosure in the Foreclosure Case. LP's contention is waived.
See HRAP Rule 28(b)(7) ("Points not argued may be deemed
waived.").
(2) LP contends that the Circuit Court erroneously
granted summary judgment in the Quiet Title case because LP's
quiet title complaint sufficiently pled a quiet title claim, and
the Circuit Court misapplied quiet title laws by relying on the
"false premise" that Hawai#i's judicial and non-judicial
foreclosure statutory laws "trumps and [are] superior" to
Hawai#i's quiet title statutory laws. LP provides no discernible
argument beyond these assertions, and it is waived. See HRAP
Rule 28(b)(7). LP also did not file a request for the May 17,
2021 transcript of the hearing on Bank's Second Quiet Title MSJ.6
See HRAP Rule 10(b)(1)(A) (requiring a transcript request "[w]hen

6
The Order Granting Bank's Second Quiet Title MSJ states, "The
Court having considered [Bank]'s MSJ, being fully advised of the record and
files herein, for the reasons stated by the Court at the hearing and on the
record, and for good cause appearing therefor, it is hereby ordered that
[Bank]'s MSJ is GRANTED." (Emphasis added).

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an appellant desires to raise any point on appeal that requires
consideration of the oral proceedings before the court appealed
from . . . ."); Bettencourt v. Bettencourt, 80 Hawai#i 225, 230,
909 P.2d 553, 558 (1995) ("The burden is upon appellant in an
appeal to show error by reference to matters in the record, and
he or she has the responsibility of providing an adequate
transcript." (brackets, citation, and internal quotation marks
omitted)).
(3) Regarding LP's assertion in the Foreclosure case
that the case should be "remanded back" to the Circuit Court for
the court to "adjudicate" LP's Motion for Reconsideration and
Motion for Ratification, Bank argues that both motions "re-
assert[] the same basic arguments that LP has asserted
(unsuccessfully) without factual or legal support throughout" the
Foreclosure case.
The lack of orders disposing of the Motion for
Reconsideration and Motion for Ratification was harmless error,
see Hawai#i Rules of Civil Procedure (HRCP) Rule 61,7 where the
record reflects that both motions attempted to relitigate matters
that were already disposed of.8 See Cho v. State, 115 Hawai#i
373, 384, 168 P.3d 17, 28 (2007) (explaining that a motion for
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." (quoting Sousaris v.
Miller, 92 Hawai#i 505, 513, 993 P.2d 539, 547 (2000))).

7
Under HRCP Rule 61, the "Harmless Error" rule, this court
disregards any error that "does not affect the substantial rights of the
parties."
8
The December 10, 2020 Motion for Reconsideration requested that
the Circuit Court reconsider and vacate its prior November 3, 2020 Order
Denying LP's October 3, 2020 "Motion to Correct All Clerical and Ministerial
Mistakes and Errors in the [Circuit] Court's Minute Order Dated 18 May, 2020"
(Motion to Correct Minute Order). The Motion for Reconsideration
substantially repeated the argument previously raised in the Motion to Correct
Minute Order.
The December 11, 2020 Motion for Ratification, filed after the
Circuit Court granted summary judgment at a November 30, 2020 hearing,
substantially repeated the arguments previously raised in LP's November 23,
2020 "Objection" to Bank's summary judgment motion.

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(4) LP's assertion in the Quiet Title case that the
Circuit Court "failed to enter a Final Judgment" for its Order
GIP and DIP Bank's First Quiet Title MSJ is not supported by
argument, and it is waived. See HRAP Rule 28(b)(7). To the
extent LP was seeking to challenge this order here, LP could do
so, because the July 6, 2021 Quiet Title Judgment was a final
judgment that "brings up for review all interlocutory orders not
appealable directly as of right which deal with issues in the
case." Ueoka v. Szymanski, 107 Hawai#i 386, 396, 114 P.3d 892,
902 (2005) (citation and internal quotation marks omitted).
For the foregoing reasons, we affirm the March 12, 2021
Judgment in CAAP-XX-XXXXXXX, and the July 6, 2021 Judgment in
CAAP-XX-XXXXXXX, both entered by the Circuit Court of the Third
Circuit.
DATED: Honolulu, Hawai#i, June 23, 2023.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
David Paul Biesemeyer,
dba LANI PACIFIC, a registered /s/ Karen T. Nakasone
business entity, Self- Associate Judge
Represented Defendant-
Appellant in CAAP-XX-XXXXXXX; /s/ Sonja P. McCullen
and Plaintiff-Appellant in Associate Judge
CAAP-XX-XXXXXXX.

Lloyd T. Workman,
for DEUTSCHE BANK NATIONAL
TRUST COMPANY,
Plaintiff-Appellee in
CAAP-XX-XXXXXXX; and
Defendant-Appellee in
CAAP-XX-XXXXXXX.

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