Deutsche Bank National Trust Company v. Winters

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-MAY-2025
08:35 AM
Dkt. 76 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER
THE POOLING AND SERVICING AGREEMENT DATED AS OF DECEMBER 1,
2006, GSAMP TRUST 2006-FM3, Plaintiff-Appellee,
v.
DALE SCOTT WINTERS; DALE SCOTT WINTERS, TRUSTEE UNDER THAT
CERTAIN UNRECORDED REVOCABLE LIVING TRUST DATED AUGUST 30, 1993,
MADE BY DALE SCOTT WINTERS, WITH FULL POWERS TO SELL, MORTGAGE,
LEASE OR OTHERWISE DEAL WITH THE LAND, AS TO AN UNDIVIDED 1/2
INTEREST; and DEPARTMENT OF TAXATION, STATE OF HAWAI#I,
Defendants-Appellees, and JOHN and MARY DOES 4-10, Defendants
and
EILEEN MARIE WINTERS; EILEEN MARIE WINTERS TRUSTEE UNDER THAT
CERTAIN UNRECORDED REVOCABLE LIVING TRUST DATED AUGUST 30, 1993,
MADE BY EILEEN MARIE WINTERS, WITH FULL POWERS TO SELL,
MORTGAGE, LEASE OR OTHERWISE DEAL WITH THE LAND,
AS TO AN UNDIVIDED 1/2 INTEREST, Defendant-Appellant

EILEEN MARIE WINTERS, TRUSTEE UNDER THAT CERTAIN UNRECORDED
REVOCABLE LIVING TRUST DATED AUGUST 30, 1993, MADE BY EILEEN
MARIE WINTERS, WITH FULL POWERS TO SELL, MORTGAGE, LEASE OR
OTHERWISE DEAL WITH THE LAND, AS TO AN UNDIVIDED 1/2 INTEREST,
Defendant/counterclaimant-Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER
THE POOLING AND SERVICING AGREEMENT DATED AS OF DECEMBER 1,
2006, GSAMP TRUST 2006-FM3, Plaintiff/Counterclaim
Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC111000093)
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MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

Eileen Marie Winters appeals1 from the January 18, 2022
Final Judgment for Deutsche Bank National Trust Company entered
by the Circuit Court of the Fifth Circuit.2 Winters challenges
the (1) March 23, 2021 order dismissing counts 2-5 of her
counterclaim; and (2) November 19, 2021 order granting Deutsche
Bank's motion for summary judgment on its claim for ejectment and
dismissing counts 1 and 6 of her counterclaim. We vacate the
Final Judgment in part as to Winters individually and as Trustee
under that certain unrecorded Revocable Living Trust dated
August 30, 1993, made by Eileen Marie Winters, and remand for
further proceedings.

BACKGROUND

Deutsche Bank sued Winters and Dale Scott Winters for
ejectment.3 The complaint was filed on May 25, 2011. Deutsche
Bank alleged it had purchased property in Kapa#a, Kaua#i in a
nonjudicial foreclosure, and sought to eject Winters and Dale
Scott Winters from the property. Winters answered the complaint.
She didn't assert a counterclaim. Deutsche Bank filed an amended
complaint on December 30, 2014. Winters answered the amended
complaint and didn't assert a counterclaim.
On October 12, 2020, the circuit court granted Deutsche
Bank's motion to identify "Eileen Marie Winters, Trustee under
that certain unrecorded Revocable Living Trust dated August 30,
1993" as a defendant. On November 25, 2020, Winters, as trustee,
answered and counterclaimed for (1) wrongful nonjudicial
foreclosure; (2) unfair and deceptive acts and practices in

1
Winters' notice of appeal was filed on behalf of Winters
individually and as "Trustee under that certain unrecorded Revocable Living
Trust dated August 30, 1993, made by Eileen Marie Winters."
2
The Honorable Kathleen N.A. Watanabe presided.
3
Dale Scott Winters isn't a party to this appeal.

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violation of Hawaii Revised Statutes (HRS) § 480-2 (UDAP);
(3) rescission under the federal Truth in Lending Act, 15 U.S.C.
§§ 1601 et seq. (TILA); (4) violation of the federal Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq. (RESPA);
(5) breach of contract; and (6) quiet title.
Deutsche Bank moved to dismiss counts 2-5 of the
counterclaim. The circuit court granted the motion. Deutsche
Bank then moved for summary judgment on its claim for ejectment
and on counts 1 (wrongful foreclosure) and 6 (quiet title) of
Winters' counterclaim. The circuit court granted the motion.
The Final Judgment was entered. This appeal followed. Winters
contends the circuit court erred by granting Deutsche Bank's
motion to dismiss and motion for summary judgment.

STANDARDS OF REVIEW

We review the circuit court's ruling on the motion to
dismiss de novo. Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai#i
249, 256, 428 P.3d 761, 768 (2018). We assume the facts alleged
in the counterclaim are true and view them in the light most
favorable to Winters to see if they warrant relief under any
legal theory. See id. at 256-57, 428 P.3d at 768-69.
We review the grant of summary judgment de novo.
Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai#i 331,
338, 418 P.3d 1187, 1194 (2018). Deutsche Bank had the burden to
establish the material facts, show there is no genuine issue as
to any of them, and explain why it is entitled to a judgment as a
matter of law. Id. at 342, 418 P.3d at 1198. A fact is material
if it would establish or refute an element of a cause of action
or defense. Id. We view the evidence in the light most
favorable to Winters. Id.

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DISCUSSION

1. The circuit court erred by dismissing
counterclaim counts 2-5.

Counts 2-5 of Winters' counterclaim alleged UDAP,
violation of TILA and RESPA, and breach of contract. It made
these allegations which, for this appeal, we deem true and view
in the light most favorable to Winters:
Winters created her revocable living trust (RLT) in
2002 and transferred title to her Kapa#a home to herself as
trustee. If she were the RLT's beneficiary, she would be the
real party in interest to assert claims affecting ownership of
and title to her home. Tradewinds Hotel, Inc. v. Cochran, 8 Haw.
App. 256, 265, 799 P.2d 60, 66 (1990) (noting general rule that a
trustee having the right sought to be enforced is the real party
in interest). She refinanced debt in 2006 and signed a mortgage,
but the mortgage did not say she was a trustee.4 The lender,
Fremont, failed to deliver two completed and signed notice-of-
right-to-cancel documents at the closing, as required under TILA.
In February 2008 Fremont informed Winters her loan was
being transferred to Wells Fargo and she would receive written
instructions for making future payments. Winters called Wells
Fargo for payment instructions. She was informed Wells Fargo did
not own her loan. Winters called Fremont and was told to make
her March 2008 payment over the phone. She did. That happened
again in April 2008. In May 2008 Fremont told Winters it was
closing and would not accept further payment.
In June 2008 Litton informed Winters it was the new
loan servicer, Wells Fargo owned her loan, she was in default,
and she needed to call to get the payoff amount. Winters left
messages at the phone number she was given, but never received a
return call. In August 2008 she contacted Litton. She signed a

4
The mortgage identified the "Borrower" as "Dale Scott Winters and
Eileen Marie Winters, husband and wife, as tenants by the entirety." We
express no opinion about the legal effect of the failure to identify Winters
as trustee of her RLT in the mortgage.

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Repayment Plan Agreement on August 27, 2008, and wired the
required $5,000 initial payment. A few days later, Litton
informed her it was proceeding with a foreclosure and keeping her
initial payment because it was $100 less than required. Litton
also force-placed property insurance on the Kapa#a property and
charged the premium to Winters' loan, even though the property
was insured. Litton verbally quoted a reinstatement amount, but
never verified it in writing. Litton also told Winters to apply
for a loan modification, which Winters did by fax.
Meanwhile, Litton's foreclosure counsel sent a letter
telling Winters if she wanted to dispute the debt she must do so
in writing by December 17, 2008. On December 16, 2008, Winters
faxed and mailed a letter disputing the debt and requesting an
accounting and the name of the original creditor. She never
received the information, in violation of RESPA. In January 2009
Litton informed Winters her house would be sold at auction in
March. Winters called Litton's counsel, requested a payoff
number and an accounting, and followed up in writing. Litton's
counsel told Winters her house was scheduled for auction in two
weeks.
By letter dated January 10, 2009, Litton informed
Winters her loan could not be modified. In early February 2009
Litton told Winters it had no record of receiving loan
modification documents, and she should resubmit. In late
February 2009, Litton's counsel gave Winters a written
reinstatement amount that was "almost double any previous
quote[.]" On June 24, 2009, Winters exercised her TILA
rescission right. She received no response. Deutsche Bank
proceeded with a nonjudicial foreclosure, sold Winters' house to
itself, and recorded a quitclaim deed on August 30, 2010.
Deutsche Bank's motion to dismiss argued that Winters
lacked standing to assert the UDAP, TILA, RESPA, and breach of
contract claims because they were based on loan documents she
signed individually, not as trustee of her RLT. Deutsche Bank
alternatively argued the claims were time-barred.

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(a) Count 2 alleged UDAP. A UDAP claim may only be
brought by a consumer. HRS § 480-2(d) (2008). A "consumer" is
"a natural person who, primarily for personal, family, or
household purposes, purchases, attempts to purchase, or is
solicited to purchase goods or services or who commits money,
property, or services in a personal investment." HRS § 480-1
(2008).
Deutsche Bank argues Winters' RLT is not a "natural
person," citing Association of Apartment Owners of Newtown
Meadows v. Venture 15, Inc., 115 Hawai#i 232, 252, 167 P.3d 225,
245 (2007) (holding that unincorporated association is not
"consumer" under HRS § 480–1). But a trust is not comparable to
an unincorporated association; it is an instrument creating a
relationship. HRS § 554A-1 (2018, repealed, 2021 Haw. Sess. Laws
Act 32, § 9 at 92); HRS § 554D-1104 (Supp. 2021). The
counterclaim alleged Winters was the trustee holding title to her
Kapa#a home under her RLT when the loan documents, including the
mortgage that encumbered the home, were executed. If she were
also the RLT's beneficiary, she would be the real party in
interest and have standing to maintain a UDAP claim for unfair or
deceptive acts and practices that affected her ownership of and
title to her home. Cf. Cochran, 8 Haw. App. at 265, 799 P.2d at
66.
Winters' UDAP claim was not time-barred. A consumer
suit under HRS § 480-13(b) (2008) must be filed "within four
years after the cause of action accrues[.]" HRS § 480-24 (Supp.
2016). The last unfair or deceptive act or practice alleged in
the counterclaim was the recording of Deutsche Bank's quitclaim
deed on August 30, 2010. A UDAP action had to have been filed by
August 30, 2014. Winters' counterclaim wasn't filed until
November 25, 2020. But Winters argues her counterclaim relates
back to May 25, 2011, when Deutsche Bank's complaint was filed.

(a) In the cases enumerated in subsection (b), . . . any
. . . statute of limitations, shall apply to a claim stated
as a counterclaim against an opposing party in the same
manner as if an action thereon had been commenced at the

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time when the opposing party commenced the opposing party's
action . . . .
(b) Subsection (a) shall apply if the claim stated
as a counterclaim:
. . . .
(2) Arises out of the transaction or occurrence that
is the subject matter of the opposing party's
claim.

HRS § 657-3 (2016).
Deutsche Bank argues that "counterclaims, as with all
other claims, will relate back only if they arose out of a
situation previously described in timely pleadings." Mauian
Hotel, Inc. v. Maui Pineapple Co., 52 Haw. 563, 567, 481 P.2d
310, 313–14 (1971) (applying Hawai#i Rules of Civil Procedure
Rule 15(c)). Deutsche Bank's complaint sought ejectment. But it
alleged that Deutsche Bank sold Winters' property to itself in a
nonjudicial foreclosure, and that Winters and Dale Scott Winters
were "remaining on the property as trespassers and/or uninvited
guests and lessees." Thus, Winters' mortgage loan, alleged
default, and the nonjudicial foreclosure were "situation[s]
previously described" in, and the UDAP counterclaim "ar[ose] out
of the transaction or occurrence that is the subject matter" of,
Deutsche Bank's complaint.
It was reasonably foreseeable that Winters would defend
against the ejectment claim by challenging the validity of the
nonjudicial foreclosure. Deutsche Bank realized this; its motion
for summary judgment stated it "commenced this action in May 2011
to confirm the validity of the nonjudicial foreclosure and obtain
a writ of ejectment." The complaint was filed before Winters'
UDAP counterclaim, which relates back, became time-barred. The
circuit court erred by dismissing count 2.
(b) Count 3 alleged TILA violations. Deutsche Bank
doesn't argue Winters lacked standing; it argues only that her
TILA claim was time-barred. TILA does not contain its own
statute of limitations. "In the absence of a controlling federal
limitations period, the general rule is that a state limitations
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period for an analogous cause of action is borrowed and applied
to the federal claim[.]" Cnty. of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 240 (1985).
HRS § 657-1(1), the six-year breach-of-contract statute
of limitations, is the most analogous. Cf. Hoang v. Bank of Am.,
N.A., 910 F.3d 1096, 1099 (9th Cir. 2018) ("In Washington, the
state's six-year contract statute of limitations is the most
analogous statute."). The counterclaim alleged Winters exercised
her TILA rescission right on June 24, 2009, but the nonjudicial
foreclosure proceeded. Deutsche Bank's complaint was filed
before Winters' TILA rescission claim became time-barred. The
circuit court erred by dismissing count 3.
(c) Count 4 alleged RESPA violations. Deutsche Bank
argues the RLT was not a "borrower" authorized to sue under RESPA
because Winters signed the loan documents individually, not as
trustee. 12 U.S.C. § 2605(f) ("Whoever fails to comply with any
provision of this section shall be liable to the borrower for
each such failure[.]").
Deutsche Bank relies on Keen v. Helson, 930 F.3d 799,
802 (6th Cir. 2019). Keen is inapposite. There, Tara and Nathan
Keen bought a house. Both signed the mortgage, but only Nathan
signed the note. Tara got title to the house when they divorced.
Nathan died. The loan servicer foreclosed. Tara sued the loan
servicer for violating RESPA. The federal district court held
that Tara was not a "borrower" under RESPA because she was never
personally obligated under the note. Tara appealed. The Sixth
Circuit affirmed, holding that a "'borrower' is someone who is
personally obligated on a loan — i.e., someone who is actually
borrowing money. Tara Keen does not fit that description, so she
does not have a cause of action under RESPA." Id. at 800.
Here, Winters was the borrower. Her counterclaim
alleged she owned her home as trustee of her RLT when she signed
the note. She had standing as RLT trustee to assert the RESPA
violation on behalf of herself as the real party in interest.
Cf. Cochran, 8 Haw. App. at 265, 799 P.2d at 66.

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RESPA has a three-year statute of limitations for
violations involving servicing a mortgage loan. 12 U.S.C.
§ 2614. The counterclaim alleged RESPA violations in June,
October, and December 2008. Deutsche Bank's complaint was filed
before the earliest RESPA claim became time-barred. The circuit
court erred by dismissing count 4.
(d) Count 5 alleged breach of the Repayment Plan
Agreement. Deutsche Bank argues the RLT was not a party to the
agreement because it was not a signatory. Winters signed the
Repayment Plan Agreement as the real party in interest under the
RLT. Deutsche Bank does not argue the breach of contract claim
was time-barred. The circuit court erred by dismissing count 5.

2. The circuit court erred by granting summary
judgment on Deutsche Bank's ejectment claim.

To prevail on its ejectment claim, Deutsche Bank had to
prove it had "title to and right of possession of" the Kapa#a
property. Kondaur Cap. Corp. v. Matsuyoshi, 136 Hawai#i 227,
241, 361 P.3d 454, 468 (2015). In Kondaur the supreme court
noted: "Because the title to the Property deeded by RLP to
Kondaur derives from a non-judicial foreclosure sale of the
Property, the strength and validity of Kondaur's title is
unavoidably intertwined with the validity of the foreclosure
sale." Id. at 241, 361 P.3d at 468. Deutsche Bank submitted the
Adjustable Rate Note, the Mortgage, and recorded copies of the
Mortgagee's Affidavit of Foreclosure Under Power of Sale and
Quitclaim Deed. The burden then shifted to Winters to show there
were genuine issues of material fact precluding summary judgment.
The Mortgage provided:

20. Sale of Note; Change of Loan Servicer; Notice of
Grievance. . . . If there is a change of the Loan Servicer,
Borrower will be given written notice of the change which
will state the name and address of the new Loan Servicer,
the address to which payments should be made and any other
information RESPA requires in connection with a notice of
transfer of servicing.

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Winters submitted a 15-page declaration explaining in
more detail the facts alleged in her counterclaim. She also
submitted copies of correspondence she received from Litton, the
Repayment Plan Agreement, and $5,000 check to "Litton Mortgage,"
a Litton billing statement, correspondence with Litton and its
foreclosure counsel, her December 16, 2008 letter disputing the
debt, Litton's call logs, another 2-page declaration, and her
June 24, 2009 TILA rescission letter.
Viewed in the light most favorable to Winters, her
evidence raised genuine issues of material fact about Fremont's,
Litton's, and Deutsche Bank's breach of paragraph 20 of the
Mortgage; violation of 12 U.S.C. § 2605 and 12 C.F.R. § 1024.33
(concerning mortgage servicing transfers); whether Litton and
Deutsche Bank breached the Repayment Plan Agreement; whether
Litton and Deutsche Bank violated 12 U.S.C. § 2605 (concerning
force-placed insurance); and whether Litton and Deutsche Bank
violated former HRS § 667-5(c) (Supp. 2008) (concerning right to
cure a default). If proven, the breach and violations could
invalidate the foreclosure, and thus should have precluded
summary judgment for Deutsche Bank on its ejectment claim.

3. The circuit court erred by granting summary
judgment on Winters' wrongful foreclosure
counterclaim.

Deutsche Bank argues that Winters' wrongful foreclosure
claim lacked merit because she failed to establish actual damages
under the holding of Lima v. Deutsche Bank National Trust
Company, 149 Hawai#i 457, 494 P.3d 1190 (2021). In Lima the
supreme court addressed this question, certified from the federal
district court:

When (a) a borrower has indisputably defaulted on a mortgage
for real property, (b) a lender has conducted a nonjudicial
foreclosure sale but has not strictly complied with the
requirements governing such sales, and (c) the borrower sues
the lender over that noncompliance after the foreclosure
sale and, if the property was purchased at foreclosure by
the lender, after any subsequent sale to a third-party
purchaser, may the borrower establish the requisite harm for

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liability purposes under the law of wrongful foreclosure
and/or section 480-2 of Hawai#i Revised Statutes by
demonstrating the loss of title, possession, and/or
investments in the property without regard to the effect of
the mortgage on those items?

Id. at 460, 494 P.3d at 1193 (emphasis added). The supreme court
held that "a borrower with no pre-foreclosure rights in property
except as encumbered by a mortgage bears the burden of accounting
for the effect of the mortgage in establishing the element of
harm." Id. at 469, 494 P.3d at 1202.
Winters argues that Lima is distinguishable because
there, the borrowers had no pre-foreclosure rights in property
except as encumbered by a mortgage, while Winters contends "she
absolutely had pre-foreclosure rights in the property, including
the right to make monthly payments towards her debt under the
mortgage loan, which she absolutely could do." Her opening brief
asserts: "She is not asking for a free house, release of
mortgage, or to be excused from her obligations under the
mortgage loan contract. Instead, she is asking that her rights
under the parties' contract be upheld."
A supreme court case decided after briefing was
completed lends credence to her argument. In Llanes v. Bank of
Am., N.A., 154 Hawai#i 423, 555 P.3d 110 (2024), several
borrowers sued their lenders for nonjudicial foreclosures that
didn't comply with statutory requirements. The foreclosed
properties were sold to third parties. Id. at 426, 555 P.3d at
113. Discussing Lima, the supreme court explained:

Accounting for the effect of the mortgage in
establishing the element of harm means . . . factoring in
the mortgage's value[.] This reading comports with the
general rule in measuring damages, which is to give a sum of
money to the person wronged which as nearly as possible,
will restore him or her to the position he or she would be
in if the wrong had not been committed. . . .

Moreover, under Borrowers' own theory, they did not
walk away empty-handed — their initial "invested debt" was
returned to them on the backend when it was forgiven. The
satisfaction of Borrowers' mortgage debts, which they do not
contest here, represents a return of their "investment" on
their own theory. If the "invested debt" was theirs on the
front end, it was also theirs on the backend.

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Id. at 432-33, 555 P.3d at 119-20 (cleaned up).
The supreme court contrasted the facts in Llanes and
Lima with those in Santiago v. Tanaka, 137 Hawai#i 137, 366 P.3d
612 (2016). There, the Santiagos bought a tavern from Tanaka
with a purchase money mortgage that did not contain a power of
sale. Tanaka had misrepresented the tavern's sewer costs during
negotiations. The Santiagos initially withheld payments from
Tanaka after discovering the sewer fees, but later cured their
default. Four months later, Tanaka sold the tavern to herself in
a nonjudicial foreclosure, then resold it to a third party. In
Llanes the supreme court summarized its Santiago decision:

We held that Tanaka improperly foreclosed upon the
Santiagos' tavern because (1) her misrepresentations and
non-disclosures induced the Santiagos to purchase the
tavern, (2) the mortgage altogether lacked a power of sale,
and (3) the Santiagos cured their default. Because the
tavern could not be returned to the Santiagos, having been
resold, we concluded that they were entitled to
out-of-pocket losses of $1,412,790.79 as a result of the
seller's wrongful foreclosure of the mortgage and subsequent
sale of the tavern.

. . . .

Here [in Llanes], Borrowers were in different pre-
foreclosure positions than were the Santiagos for two
reasons. First, Lender had the right to foreclose upon
their properties under powers of sale. Thus, their pre-tort
position still includes a looming foreclosure. Second,
Borrowers were not current on their mortgages. Thus, to the
extent that they were improper at all, the foreclosures at
issue here appear from the record to have been merely
procedurally defective. Indeed, the circuit court noted in
its summary judgment order that Borrowers claim that Lender
conducted the foreclosures in a wrongful manner by not
complying with the technical requirements of the nonjudicial
foreclosure statute and power of sale, instead of claiming
that the foreclosures were wrongful because they should not
have happened at all.

Llanes, 154 Hawai#i at 430, 431, 555 P.3d at 117, 118 (cleaned
up).
Here, Winters' declaration — which we must view in the
light most favorable to her — showed that the nonjudicial
foreclosure was not "looming." It would not have happened but
for Fremont's, Litton's, and Deutsche Bank's alleged breach of
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paragraph 20 of the Mortgage, statutory violations, and alleged
breach of the Repayment Plan Agreement. Winters' declaration
states that she tried to timely pay what she was told she owed,
even incurring pay-by-phone and Western Union fees to do so, and
had "the ability to pay the reinstatement charges if we could
ever get an exact amount in writing." Thus, as in Llanes,
assuming Winters' allegations are true "the foreclosures were
wrongful because they should not have happened at all." 154
Hawai#i at 431, 555 P.3d at 118.
In addition, in Llanes and Lima, the mortgaged
properties had been sold to good-faith purchasers. The
foreclosure sales, even if wrongful, could not be set aside and
the borrowers could not recover their properties. Wilmington
Sav. Fund Soc'y, FSB v. Domingo, 155 Hawai#i 1, 10, 556 P.3d 347,
356 (2024) (noting that "vacatur or reversal of a foreclosure
judgment cannot affect title conveyed to the good faith
purchaser"). But the borrowers' loan debts were also discharged.
That is why they had to account "for the effect of the mortgage
in establishing the element of harm." Lima, 149 Hawai#i at 469,
494 P.3d at 1202.
Here, the record does not show that Deutsche Bank sold
the Kapa#a property to a third party. If Winters succeeded in
invalidating the foreclosure, she could regain the property.
Llanes, 154 Hawai#i at 434, 555 P.3d at 121. She would still be
liable to repay her mortgage loan, but she would be entitled to
some recovery under "the general rule in measuring damages, which
is to give a sum of money to the person wronged which as nearly
as possible, will restore . . . her to the position . . . she
would be in if the wrong had not been committed." Id. at 432,
555 P.3d at 119 (brackets omitted). The circuit court erred by
granting summary judgment on Winters' wrongful foreclosure
counterclaim.

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4. The circuit court erred by granting summary
judgment on Winters' quiet title claim.

Deutsche Bank argued to the circuit court that Winters
had to allege she paid, or tendered, what she owed on her
mortgage loan to maintain her quiet title counterclaim, citing
Delapinia v. Nationstar Mortg. LLC, 146 Hawai#i 218, 228, 458
P.3d 929, 939 (App. 2020) (Delapinia I), vacated in part by
Delapinia v. Nationstar Mortg. LLC, 150 Hawai#i 91, 497 P.3d 106
(2021) (Delapinia II).
A week before the hearing on Deutsche Bank's motion for
summary judgment, the supreme court decided Delapinia II. There,
it "decline[d] to opine whether the tender rule applies in
Hawai#i wrongful foreclosure cases generally." 150 Hawai#i at 92,
497 P.3d at 107. It then held "that the tender rule is not an
absolute bar to a quiet title action against a party to whom the
plaintiff is not indebted[.]" Id. at 100, 497 P.3d at 115.5
Winters cited Delapinia II to the circuit court in a supplemental
memorandum the day the supreme court's opinion was filed.
Deutsche Bank's reply memorandum did not argue why the tender
rule should be applied despite Delapinia II. Nor does its
answering brief.
A quiet title action "may be brought by any person
against another person who claims, or who may claim adversely to
the plaintiff, an estate or interest in real property, for the
purpose of determining the adverse claim." HRS § 669-1(a)
(2016). "Hawai#i case law explicitly provides that a plaintiff
seeking relief under HRS Chapter 669 must demonstrate that he or
she has title to the land, either via paper title or adverse
possession, and that he or she has superior title compared to the
defendant." Ibbetson v. Kaiawe, 143 Hawai#i 1, 17, 422 P.3d 1,
17 (2018). Deutsche Bank incorrectly argues that Winters' quiet
title claim "was premised solely upon alleged defects in the

5
The party who asserted the tender rule in Delapina II was the
mortgagee of the third party who had purchased the property in an allegedly
wrongful nonjudicial foreclosure.

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

foreclosure process." Winters actually claimed her default was
caused by Fremont's, Litton's, and Deutsche Bank's breach of
paragraph 20 of the Mortgage, statutory violations, and Litton's
and Deutsche Bank's breach of the Repayment Plan Agreement, and
the nonjudicial foreclosure was wrongful because it should not
have happened. Deutsche Bank did not show why the tender rule
should apply under these circumstances. On this record, the
circuit court erred by granting summary judgment for Deutsche
Bank on Winters' quiet title claim.

CONCLUSION

We vacate the circuit court's March 23, 2021 order
granting Deutsche Bank's motion for partial dismissal of Winters'
counterclaim; November 19, 2021 order granting Deutsche Bank's
motion for summary judgment; and January 18, 2022 Final Judgment,
all as against Winters individually and as Trustee under that
certain unrecorded Revocable Living Trust dated August 30, 1993,
made by Eileen Marie Winters, and remand for further proceedings
consistent with this memorandum opinion.
DATED: Honolulu, Hawai#i, May 19, 2025.

/s/ Keith K. Hiraoka
Presiding Judge

/s/ Clyde J. Wadsworth
Associate Judge

/s/ Karen T. Nakasone
Associate Judge

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