CSMC Mortgage-Backed Pass-Through Certificates v. Morgenstein, Jr.

• Court: Hawaii Intermediate Court of Appeals
• Decided: October 14, 2024
• Docket: CAAP-22-0000403
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 14-OCT-2024 07:54 AM Dkt. 73 OAWST

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

CSMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-3, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, Plaintiff-Appellee, v. RICHARD MICHAEL MORGENSTEIN, JR.; KIM'S JOY MORGENSTEIN, Defendants-Appellants, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., SOLELY AS NOMINEE FOR ALLIANCE BANCORP; STATE OF HAWAIʻI- DEPARTMENT OF TAXATION; VIVINT SOLAR, INC., Defendants-Appellees, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE GOVERNMENTAL UNITS 1-50, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1CC181001969)

ORDER (1) DENYING MOTION TO EXTEND DEADLINES, (2) APPROVING STIPULATION FOR DISMISSAL OF APPEAL, AND (3) DISMISSING ALL PENDING MOTIONS (By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Upon consideration of Plaintiff-Appellee CSMC

Mortgage-Backed Pass Through Certificates, Series 2007-3, U.S.

Bank National Association, as Trustee, Defendants-Appellants

Richard Michael Morgenstein Jr. and Kim's Joy Morgenstein

(collectively Morgensteins), and Proposed Intervenors/Third- NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Party Purchasers Lovehome Realty, LLC, Sini Zhang, and Haixin

Tan's (collectively Proposed Intervenors) September 17, 2024

"Stipulation for Dismissal with Prejudice of Defendants Richard

Michael Morgenstein, Jr., and Kim's Joy Morgenstein's Notice of

Appeal filed June 21, 2022" (Stipulation to Dismiss), and the

Morgensteins' September 13, 2024 "Motion to Extend Deadlines in

Order of Temporary Remand Filed on August 5, 2024" (Motion to

Extend Deadlines), the papers in support, and the record and

files herein, it appears that:

(1) On August 5, 2024, this court entered an order in

response to Prospective Intervenors' "Motion to Intervene and

Dismiss Appeal as Moot" temporarily remanding the case to " the

circuit court for an evidentiary hearing to determine whether

Zhang is a good-faith, third-party purchaser of the Property"

and explaining jurisdiction would revert to this court upon the

filing of a motion to extend the temporary remand period, the

filing of a supplemental record on appeal including the circuit

court's findings of fact and conclusions of law following its

evidentiary hearing on Zhang's status, or within sixty-three

days from the order, whichever occurred first;

(2) On September 13, 2024, the Morgensteins filed the

Motion to Extend Deadlines pursuant to Hawai‘i Rules of Appellate

Procedure (HRAP) Rule 27, asking this court to extend deadlines

in the August 5, 2024 order of temporary remand to allow

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

additional time to seek dismissal of this appeal and the

underlying complaint as the Morgensteins and Prospective

Intervenors had reached a settlement;

(3) The Motion to Extend Deadlines does not explain

why additional time is needed to seek dismissal of the appeal

and/or the underlying complaint;

(4) On September 17, 2024, CSMC, the Morgensteins,

and non-party Proposed Intervenors filed the Stipulation to

Dismiss pursuant to HRAP Rule 42(b);

a. The Stipulation to Dismiss states all parties

to the appeal stipulated "the above-entitled

appeal . . . is dismissed with prejudice";

b. "[E]ach party [is] to bear his or her own

costs and attorneys' fees"; and

c. The Stipulation to Dismiss is dated and signed

by counsel for both appearing parties (CSMC

and the Morgensteins) and non-party Proposed

Intervenors;

(5) The appeal was docketed on August 24, 2022;

(6) No payment is due;

(7) The Stipulation to Dismiss complies with HRAP

Rule 42(b) (providing in part that if "parties to a docketed

appeal or other proceeding sign and file a stipulation for

dismissal, specifying the terms as to payment of costs and" pay

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

the fees that are due, "the case shall be dismissed upon

approval by the appellate court"); and

(8) On October 7, 2024, jurisdiction automatically

reverted to this court as sixty-three days passed since this

court entered its order temporarily remanding the case to

circuit court, no supplemental record on appeal was filed in the

case, and the Motion to Extend Deadlines did not explain why

additional time was needed to seek dismissal of the appeal

and/or the underlying complaint.

Therefore, IT IS ORDERED that the Motion to Extend

Deadlines is denied, the Stipulation to Dismiss is approved, and

the appeal is dismissed with prejudice. The parties shall bear

their own attorneys' fees and costs on appeal.

IT IS FURTHER ORDERED that all pending motions are

dismissed.

DATED: Honolulu, Hawaiʻi, October 14, 2024.

/s/ Keith K. Hiraoka Presiding Judge

/s/ Clyde J. Wadsworth Associate Judge

/s/ Sonja M.P. McCullen Associate Judge