The Bank of New York Mellon v. Ward

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JUL-2022
07:56 AM
Dkt. 156 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, (CWABS 2006-ABC1), Plaintiff-Appellee,
v.
DALE ALLEN WARD; MELANIE RENEE WARD, Defendants-Appellants,
and
UNITED STATES OF AMERICA; DEPARTMENT OF TAXATION, STATE OF
HAWAI#I; SUSAN JILL HOOVER; ISLAND PROPERTY INVESTMENTS;
DESCHUTES RIVER PROPERTIES; PIILANI HOMEOWNERS ASSOCIATION;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., SOLELY AS
NOMINEE FOR ENCORE CREDIT CORP., A CALIFORNIA CORPORATION,
Defendants-Appellees,
and
JOHN and MARY DOES 1-20; DOE PARTNERSHIPS, CORPORATIONS or
OTHER ENTITIES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CC161000209(3))

ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Upon review of the "Motion to Dismiss Defendants-
Appellant's [sic] Appeals Filed December 30, 2019 and Filed
May 11, 2022" filed by Plaintiff-Appellee The Bank of New York
Mellon (BONY) on June 30, 2022, the papers in support, the
memorandum in opposition filed by Defendants-Appellants Dale
Allen Ward and Melanie Renee Ward (the Wards) on July 7, 2022,
and the record, it appears that:
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

1. BONY filed a mortgage foreclosure action against
the Wards, among others, docketed in the Judiciary Information
Management System as 2CC161000209 (the Foreclosure Action);
2. The circuit court entered a Judgment of
Foreclosure in the Foreclosure Action in favor of BONY and
against the Wards on December 2, 2019;
3. The Wards appealed from the Judgment of
Foreclosure, creating CAAP-XX-XXXXXXX (the Foreclosure Appeal);
4. The Wards did not obtain a stay of the Foreclosure
Action pending the Foreclosure Appeal;
5. The property which was the subject of the
Foreclosure Action (the Property) was sold to a third party,
Michael Wick, at the foreclosure auction;
6. BONY filed a motion to confirm the sale of the
Property to Wick;
7. The Wards' memorandum in opposition to BONY's
motion to confirm sale did not argue that Wick was not a good
faith purchaser1 of the Property;
8. The circuit court entered a judgment in the
Foreclosure Action confirming the sale of the Property to Wick on
April 5, 2022 (Judgment Confirming Sale);
9. The Wards appealed from the Judgment Confirming
Sale, creating CAAP-XX-XXXXXXX (the Confirmation of Sale Appeal);
10. The Wards did not obtain a stay of the Foreclosure
Action pending the Confirmation of Sale Appeal;
11. The Property was conveyed to Wick by
Commissioner's Deed recorded in the State of Hawai#i Bureau of
Conveyances on May 10, 2022;2

1
A "good faith purchaser is one who, by an honest contract or
agreement, purchases property or acquires an interest therein, without
knowledge, or means of knowledge sufficient to charge him in law with
knowledge, of any infirmity in the title of the seller." Bank of New York
Mellon v. R. Onaga, Inc., 140 Hawai#i 358, 367 n.13, 400 P.3d 559, 568 n.13
(2017) (cleaned up).
2
We may consider this new evidence because it relates to
mootness. Queen Emma Found. v. Tatibouet, 123 Hawai#i 500, 507 n.8, 236 P.3d
1236, 1243 n.8 (App. 2010).

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

12. In response to the Motion to Dismiss, the Wards
submitted no evidence tending to show that Wick was not a good
faith purchaser of the Property;
13. The Foreclosure Appeal and the Confirmation of
Sale Appeal are moot because the Wards did not obtain a stay of
the Foreclosure Action pending the Foreclosure Appeal or the
Confirmation of Sale appeal, and the Property has been sold to
Wick, a good faith purchaser. R. Onaga, Inc., 140 Hawai#i at
367, 400 P.3d at 568;
14. The Wards cite Ally Bank v. Hochroth, Nos. CAAP-
XX-XXXXXXX and CAAP-XX-XXXXXXX (consolidated), 2020 WL 1929172
(Haw. App. April 21, 2020) (SDO) for the proposition that their
appeals are not moot, but Hochroth did not involve the sale of
the foreclosed property to a good faith purchaser; and
15. The Wards argue that "they are seeking damages
against" BONY, and "when this case is remanded to the trial
court, the Wards will be entitled to recover treble damages from"
BONY; however, there are no remaining claims in the Foreclosure
Action because the Wards did not assert a counterclaim against
BONY, see Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai#i 249,
264, 428 P.3d 761, 776 (2018), as corrected (Oct. 15, 2018)
(holding that mortgagor may assert a counterclaim for wrongful
foreclosure based on the underlying facts of the pending
foreclosure case).
Therefore, IT IS HEREBY ORDERED that the Motion to
Dismiss is granted, CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX are both
dismissed as moot, and any pending motions in either appeal are
dismissed.
DATED: Honolulu, Hawai#i, July 22, 2022.

/s/ Lisa M. Ginoza
Chief Judge

/s/ Katherine G. Leonard
Associate Judge

/s/ Keith K. Hiraoka
Associate Judge

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