Domingo v. James B. Nutter & Company. Consolidated with CAAP-17-0000859. ICA Order Granting the January 8, 2019 Motion to Dismiss with Prejudice, filed 01/25/2019 [ada].

543 P.3d 1, 153 Haw. 584

• Court: Hawaii Intermediate Court of Appeals
• Decided: December 20, 2023
• Docket: CAAP-17-0000324
• Status: Published

Opinion

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-DEC-2023 08:01 AM Dkt. 201 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

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NO. CAAP-XX-XXXXXXX FAUSTINO DASALLA DOMINGO and ELTON LANE NAMAHOE, SR., Plaintiffs-Appellees/Cross-Appellees, v. JAMES B. NUTTER & COMPANY, Defendant-Appellant/Cross-Appellee, and ROBERT M. EHRHORN, JR.; CLAY CHAPMAN IWAMURA PULICE & NERVELL, Attorneys at Law, a Law Corporation, Defendants-Appellees/Cross-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS 1-10, Defendants ____________________ NO. CAAP-XX-XXXXXXX FAUSTINO DASALLA DOMINGO and ELTON LANE NAMAHOE, SR., Plaintiffs-Appellants/Cross-Appellees, v. JAMES B. NUTTER & COMPANY, Defendant-Appellee/Cross-Appellee, and ROBERT M. EHRHORN, JR.; CLAY CHAPMAN IWAMURA PULICE & NERVELL, Attorneys at Law, a Law Corporation, Defendants-Appellees/Cross-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS 1-10, Defendants FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 16-1-0249)

DECEMBER 20, 2023

GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ.

OPINION OF THE COURT BY LEONARD, J.

This consolidated appeal concerns wrongful-foreclosure-

related claims brought in Civil No. 16-1-0249 by Plaintiffs-

Appellees/Cross-Appellees/Appellants Faustino Dasalla Domingo

(Domingo) and Elton Lane Namahoe, Sr. (Namahoe) (collectively,

Plaintiffs) against Defendant-Appellant/Cross-Appellee/Appellee

James B. Nutter & Company (Nutter), as well as related claims

brought against Nutter's attorneys.

In CAAP-XX-XXXXXXX, Nutter appealed from the March 6,

2017 Order Denying [Nutter's] Motion for Judgment on the

Pleadings as to Plaintiffs' Complaint filed July 5, 2016 (Order

Denying Nutter MJOP), entered by the Circuit Court of the Third

Circuit (Circuit Court).1 Nutter later moved to dismiss its

appeal from the Order Denying Nutter MJOP. On January 25, 2019,

this court entered an order granting Nutter's motion and

dismissing its appeal with prejudice.

In CAAP-XX-XXXXXXX, Defendants-Appellees/Cross-

Appellants/Appellees Robert M. Ehrhorn, Jr. (Ehrhorn) and Clay

Chapman Iwamura Pulice & Nervell Attorneys at Law, a Law

1 The Honorable Greg K. Nakamura presided.

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Corporation, (Clay Chapman) (collectively, Attorney Defendants)

cross-appeal from: (1) the Order Denying Nutter MJOP; (2) the

March 6, 2017 Order Denying [Attorney Defendants'] Substantive

Joinder to [the Nutter MJOP]; and (3) the March 6, 2017 Order

Denying [Attorney Defendants'] MJOP (Order Denying Attorney

Defendants' MJOP).

In CAAP-XX-XXXXXXX, Plaintiffs appeal from the November

15, 2017 Final Judgment on Order Granting Plaintiffs' Motion for

HRCP 54(b) Certification of (1) Decision and Order on [Attorney Defendants'] Motion to Dismiss Plaintiffs' Complaint with

Prejudice, . . . and (2) Order Granting in Part and Denying in

Part Plaintiffs' Motion for Partial Summary Judgment Number One

Against [Nutter and Attorney Defendants] (HRCP Rule 54(b)

Judgment) entered by the Circuit Court. Plaintiffs also

challenge (or appeal from) the following three orders: the

December 15, 2016 Decision and Order on [Attorney Defendants']

Motion to Dismiss Plaintiffs' Complaint with Prejudice (Partial

Dismissal Order); the March 6, 2017 Order Granting in Part and

Denying in Part Plaintiffs' Motion for Partial Summary Judgment

Number One Against [Nutter] and [Attorney Defendants] (Order

Granting/Denying MPSJ); and the October 19, 2017 Order Granting

[Plaintiffs'] Motion for HRCP 54(b) Certification of (1) the

[Partial Dismissal Order]; and (2) the [(Order Granting/Denying

MPSJ] (Order Granting HRCP Rule 54(b) Certification).

In CAAP-XX-XXXXXXX, Attorney Defendants cross-appeal

from the HRCP Rule 54(b) Judgment. Attorney Defendants

challenge: (1) the Partial Dismissal Order; (2) the Order

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Granting/Denying MPSJ; and (3) the Order Granting HRCP 54(b)

Certification.

Notably, on March 31, 2023, the Hawai#i Supreme Court

issued an opinion in a closely-related case, James B. Nutter &

Co. v. Namahoe, 153 Hawai#i 149, 528 P.3d 222 (2023) (generally

referred to as the Namahoe Appeal).2 Of significance here, the

supreme court held that Namahoe was entitled to relief from the

foreclosure judgment against him on two grounds, including that

Nutter and its attorneys, Attorney Defendants herein, committed

fraud on the court in the foreclosure action against Namahoe's

home. Id. at 153, 528 P.3d at 226.

Here, in sum, we hold that: (1) the Circuit Court did

not err in concluding that Plaintiffs' action against Attorney

Defendants was not a strategic lawsuit against public

participation (SLAPP) filed in violation of Hawaii Revised

Statutes (HRS) Chapter 634F (2016) (repealed 2022); (2) this

court has appellate jurisdiction to review the Partial Dismissal

Order, but not the Order Granting/Denying MPSJ; and (3) the

Circuit Court erred in part in granting the Partial Dismissal

Order. In doing so, we further hold that: (1) the litigation

privilege is not an absolute bar against an action by a borrower

against a foreclosing lender's attorney arising out of the

attorney's fraud on the court in a prior foreclosure action; (2)

a private cause of action against an attorney for committing a

fraud on the court through an egregious, legally and factually

2 We take judicial notice of the court records in the Namahoe Appeal, in accordance with Hawai#i Rules of Evidence (HRE) Rule 201 (1993), as well as rely on the court's opinion.

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deficient, inaccurate and incomplete, materially false and

misleading HRS § 667-17 affirmation, with respect to a

foreclosure on a reverse mortgage, is hereby recognized; (3) a

wrongful foreclosure claim per se is not cognizable against a

lender's attorney, even though certain wrongful-foreclosure-

related claims may lie against the attorney for the attorney's

own wrongful conduct in limited circumstances; (4) the litigation

privilege bars Plaintiffs' claims for intentional infliction of

emotional distress (IIED) in this case, but does not in every

circumstance shield attorneys from defending a claim that they

intentionally acted to defraud elderly borrowers out of their

homes; (5) although we recognize Plaintiffs' cause of action

against Attorney Defendants for committing a fraud on the court

through an egregious, legally and factually deficient, inaccurate

and incomplete, materially false and misleading HRS § 667-17

affirmation under the circumstances of this case, the Circuit

Court did not err in dismissing Plaintiffs' additional fraud

claims without prejudice; and (6) although Domingo and Namahoe

are consumers based on their reverse mortgages with Nutter, and

thus are consumers vis à vis Attorney Defendants, we decline to

recognize a claim against Attorney Defendants pursuant to HRS

chapters 480 and 481A here.

I. RELEVANT BACKGROUND

On July 5, 2016, Domingo and Namahoe filed a complaint

against Nutter and Attorney Defendants asserting the following

thirteen counts (the Complaint): (I) & (II) legal malpractice

and gross legal malpractice (against Attorney Defendants only);

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(III) breach of fiduciary duty; (IV) wrongful foreclosure; (V)

intentional infliction of emotional distress (IIED); (VI) unfair

and deceptive trade practices (Chapters 480 and 481A Claims or

UDAP Claims); (VII) abuse of process; (VIII) fraud (which the

Circuit Court construed as including fraud on the court); (IX)

fraud in the inducement (against Nutter only); (X) elder abuse;

(XI) a prayer for injunctive relief (against Nutter only); (XII)

slander of title; and (XIII) punitive damages.

The Complaint states factual allegations relating to two separate underlying foreclosure actions undertaken by Nutter,

through then-counsel Attorney Defendants, against Domingo and

Namahoe, respectively.

A. The Allegations Regarding the Domingo Foreclosure

With respect to Domingo, the Complaint alleges that on

December 11, 2007, Domingo executed an Adjustable Rate Note

(Domingo Note), Home Equity Conversion Loan Agreement (Domingo

Loan Agreement), with an attached Repair Rider to Loan Agreement

(Domingo Repair Rider), and an Adjustable Rate Home Equity

Conversion Mortgage (Domingo Reverse Mortgage), which was

assigned to Nutter on the same day. The Domingo Repair Rider

contained a provision requiring Nutter to set aside $24,000 from

the initial principal limit to be used for certain required

repairs.3 The Complaint alleges that on November 3, 2009, nearly

3 The Domingo Repair Rider provided, in relevant part:

I. Lender's Promises A. The Lender [Nutter] shall set aside $24,000.00 from the initial Principal Limit under the Loan Agreement to be used for the purpose of bringing (continued...)

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two years after Domingo executed the Domingo Reverse Mortgage,

Nutter first communicated by letter to Domingo regarding the

repairs identified in the Domingo Repair Rider, asking to be

advised of the progress to date and to complete the required

repairs as soon as possible, if not already completed. Domingo

advised Nutter via letter on or about December 7, 2009, that he

had completed and paid for the required repairs and requested the

$24,000 set aside to complete additional upgrades in progress.

The Domingo Loan Agreement provided that if the

mortgagor failed to make the repairs, the reverse mortgage lender

could access the property to make the repairs utilizing the funds

withheld to make the repairs, and that foreclosure was not

permitted under the "standard reverse mortgage" unless "the Loan

Agreement was recorded contemporaneously with the Reverse

Mortgage." The United States Department of Housing and Urban

Development (HUD) regulations and best practices "prohibited

foreclosure as a remedy for failure to timely repair, especially

where funds were withheld from loan proceeds for repairs."

Nevertheless, on April 19, 2012, through Attorney Defendants,

Nutter filed a foreclosure complaint against Domingo, based

solely on Domingo's alleged failure to timely make the repairs

required per the Domingo Loan Agreement and Domingo Repair Rider.

(...continued) the Property up to the property standards required by the [HUD] Secretary by repairing: Peeling/Scraping Paint, Roof Repair/Replacement, General Cleanup, Replace Stove/Hood, Toilet Inspection/Repair, Cabinet Repair, Hot Water Heater Insp[ection]/Repair.

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Nutter filed a motion for summary judgment, which

Domingo opposed, arguing that Nutter did not have a legal right

to foreclosure under these circumstances. Specifically, Domingo

argued that foreclosure was not a remedy for failure to timely

repair where, as was the case here, the loan agreement

(containing the repair rider) was not simultaneously recorded

with the reverse mortgage; where Nutter held reserves to pay for

said repairs; where the repairs were so "manini", i.e.

inconsequential, as to not constitute a substantial breach of

contract; and where HUD regulations prohibited foreclosure as a

remedy. Nutter's motion for summary judgment was denied.

The Complaint further alleges that Domingo, through

counsel William J. Rosdil (Rosdil),4 contacted Nutter and

Attorney Defendants to request that they stipulate to a HUD-

approved inspection of Domingo's property to determine if all of

the required repairs had been completed. Neither Nutter nor

Attorney Defendants agreed to the inspection. Nevertheless,

Rosdil "contacted a HUD approved inspector who made the

inspection and approved not only the repairs but the overall

condition of the [Domingo] residence." Upon notification of the

inspection, Attorney Defendants "conceded [that] Domingo was due

the $24,000 refund [set aside in the Repair Rider] and not in

default." However, Nutter allegedly "refused to acknowledge

[that] Domingo had satisfactorily completed the repairs per HUD

inspection and was not now or ever in default[.]"

4 Domingo was self-represented until December 29, 2013.

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On August 7, 2014, Domingo moved for summary judgment

on Nutter's foreclosure complaint, for an award of $24,000, and

for attorney's fees and costs, arguing, inter alia, that he

completed the required repairs, and that, even if he had not,

failure to do so would not, as a matter of law, give Nutter a

legal right to accelerate the Domingo Note and seek foreclosure.

On November 14, 2014, the Circuit Court granted summary

judgment in favor of Domingo, dismissing Nutter's foreclosure

complaint with prejudice and ordering Nutter to pay Domingo the

$24,000 set aside, as well as attorney's fees. The court

concluded that Nutter was unable to show default under the terms

of the Domingo Loan Agreement and that there was no genuine issue

of material fact precluding summary judgment in favor of Domingo.

Judgment was entered on January 15, 2015.5

The Complaint further alleges that despite the

foregoing judgment being entered in favor of Domingo, Nutter

and/or Attorney Defendants notified Domingo by mail on or about

February 26, 2015, that he remained in default for non-payment of

$6,674 and threatened Domingo with foreclosure if Domingo did not

sign a Repayment Plan Agreement for monthly repayments of

$278.08.6 Plaintiffs allege that this default notice did not

disclose that Nutter's claims had been dismissed with prejudice

5 A second judgment was entered on February 4, 2015, concerning the Circuit Court's award of attorney's fees and costs. 6 Plaintiffs allege that Nutter was directed by Rosdil on two separate occasions to "communicate with Domingo through Rosdil only, and to send Domingo's $24,000.00 [judgment award] through Rosdil[.]" Nevertheless, the Complaint states that on or about February 24, 2015, Nutter and/or Attorney Defendants mailed the $24,000 check to Domingo directly without advising Rosdil.

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and that Domingo did not "appreciate the same." Domingo signed

the Repayment Plan Agreement "under duress, fear and serious

emotional distress caused by the continued threat of foreclosure

and years of litigation."7

Thereafter,8 the Circuit Court entered an August 10,

2015 Amended Judgment Superceding Judgments (Amended Judgment),

which made clear that all claims for foreclosure in Nutter's

complaint were dismissed with prejudice and expressly directed

judgment in favor of Domingo for the $24,000 repair set aside and

$39,179.24 in attorney's fees and costs.9 On September 4, 2015,

Nutter appealed the Amended Judgment in CAAP-XX-XXXXXXX. Domingo

cross-appealed, arguing that the Circuit Court abused its

discretion in refusing to impose sanctions on Nutter.

Upon review, we concluded that Nutter did not provide

any evidence showing that Domingo failed to comply with the terms

of the Domingo Repair Rider. We also upheld the Circuit Court's

conclusion that the entry of final judgment on Nutter's complaint

before Domingo's Hawaii Rules of Civil Procedure (HRCP) Rule 11

motion was filed precluded the Circuit Court from entering

7 Upon notifying Rosdil of the letter, Domingo abrogated the payment contract. 8 On April 24, 2015, Domingo filed an HRCP Rule 11 motion for sanctions against Nutter and Attorney Defendants based on the filing and prosecution of the foreclosure complaint. The court denied the motion on procedural grounds, finding that the summary judgment entered in favor of Domingo and against Nutter resolved the challenged conduct. Domingo then filed a motion to correct/reconsider the order denying the HRCP Rule 11 motion, which the court also denied. 9 On May 1, 2015, Nutter moved for correction and/or reconsideration per HRCP Rules 54, 58, 60(a), and 60(b) of the judgments granting Domingo's motion for summary judgment and for attorney's fees and costs. Although the motion was granted in part and denied in part, the August 10, 2015 Amended Judgment is essentially identical in substance to the earlier judgments in favor of Domingo.

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sanctions against Nutter. We therefore affirmed the trial

court's rulings.

Finally, Plaintiffs alleged that Nutter continues to

threaten Domingo with foreclosure, and that Nutter's conduct is

intended to cause Domingo anxiety and worry and to hasten his

demise, and that Nutter has been successful. Domingo has been

hospitalized about four times since Nutter's first post-judgment

threat to foreclose again and/or render Domingo in default. The

Complaint states that on June 14, 2016, through different

counsel, Nutter again filed for foreclosure against Domingo, and

"[t]he pleading and affirmation of counsel are intentionally

vague and ambiguous but certainly frivolous, fraudulent, elder

abuse, and wrongful foreclosure."

B. The Allegations Regarding the Namahoe Foreclosure

The allegations regarding Nutter's foreclosure action

against Namahoe mirror in many respects those regarding Nutter's

foreclosure against Domingo, the main differences being that

Namahoe's alleged repair failure was for only $500 worth of

repairs, and Namahoe failed to defend himself in the case.

Namahoe lost his home.

On October 19, 2009, Namahoe executed a promissory note

in favor of Nutter and its successors and assigns (Namahoe Note),

along with a Home Equity Conversion Loan Agreement (Namahoe Loan

Agreement) and an attached Repair Rider to Loan Agreement

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(Namahoe Repair Rider).10 The exhibits to the Namahoe Note

indicated that the "principal limit" was $67,536.00, with Namahoe

receiving an "advance" of $52,462.48, with a $750.00 "line of

credit" designated for repairs, and the balance of the $67,536.00

going to closing costs and servicing fee set asides. The Namahoe

Note was secured by a Home Equity Conversion Mortgage (Namahoe

Reverse Mortgage).

On March 6, 2012, Nutter filed a foreclosure complaint

and summons against Namahoe, also naming HUD.11 The complaint alleged that Namahoe "defaulted in the observance and performance

of the terms, covenants and conditions by failing to repair the

property as required by the [Namahoe Repair Rider] in a timely

manner." The complaint further alleged that Namahoe was given

written notice that failure to timely repair per the Namahoe

Repair Rider "required immediate payment in full of all

outstanding principal and accrued interest due on the loan," and

that Namahoe failed to so pay.

On May 20, 2013, Nutter filed a Motion for Summary

Judgment and Decree of Foreclosure Against All Defendants on

10 The Namahoe Repair Rider provided, inter alia: I. Lender's Promises A. The Lender shall set aside $750.00 from the initial Principal Limit under the Loan Agreement to be used for the purpose of bringing the Property up to the property standards required by the Secretary by repairing: The hall and carport ceiling shows evidence of water stains due to roof leak. The Front stair rail showed evidence of water rot. All to be repaired.

11 On June 28, 2012, HUD filed a disclaimer of interest in the Property.

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Complaint Filed March 6, 2012.12 The memorandum in support of

the motion stated, inter alia: [Namahoe] defaulted in the observance and performance of the terms, covenants and conditions by failing to repair the property, as required by the [Namahoe Repair Rider], in a timely manner. A true and correct copy of the approval by [HUD] for immediate payment in full of all outstanding principal and accrued interest as required by paragraph 7(b)(iii) of the Note is attached hereto. . . . Written notice was given to [Namahoe] that because of the failure to repair the property as required by the [Namahoe Repair Rider] in a timely manner [Nutter] required immediate payment in full of all outstanding principal and accrued interest due on the loan. A true and correct copy of this notice with all personal and confidential information redacted is attached hereto. . . . However, despite said notice the default was not cured and the loan has not been paid off. Consequently, [Nutter] exercised its option under the terms and covenants of the Note and Mortgage to declare the entire unpaid principal balance of the loan, together with interest immediately due and payable[.] 13

On June 25, 2013, a one-minute hearing was held on

Nutter's motion for summary judgment, with Nutter's attorney

appearing by telephone and no other appearances noted; the motion

was granted. On July 2, 2013, the Circuit Court entered the

Findings of Fact, Conclusions of Law and Order Granting

[Nutter's] Motion for Summary Judgment and Decree of Foreclosure

Against All Defendants on Complaint Filed March 6, 2012 (Order

12 According to the attached certificate of service, the motion for summary judgment and the notice of hearing were mailed to Namahoe at the subject property. Based on an August 28, 2012 filing by Nutter, it does not appear that the U.S. Postal Service delivers mail to the physical location of the subject property. The notice of hearing stated that a hearing would be held at 8:30 a.m. in the Circuit Court's courtroom at 777 Kilauea Avenue, in Hilo; no hearing date was included in the Notice of Hearing, although a date was written on the first page of the Motion for Summary Judgment. A November 16, 2011 Notice of Intent to Foreclose and an April 6, 2012 debt collection notice, both attached in support of the motion, indicated that they were mailed to Namahoe's post office box in Hilo, rather than the subject property's physical address. 13 With the motion for summary judgment, Ehrhorn submitted an affirmation pursuant to HRS § 667-17 (2016) (repealed 2017) stating that he was "fully aware" of the underlying action and that based, inter alia, "upon [his] own inspection and other reasonable inquiry" to the best of his knowledge, information, and belief, the motion contained no false statements of fact or law, that he understood his continuing obligation to amend the affirmation in light of newly discovered material facts, and that the allegations in the motion were warranted by existing law and have evidentiary support.

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Granting Summary Judgment), as well as a Judgment on the Order

Granting Summary Judgment (Foreclosure Judgment).

On July 24, 2013, Foreclosure Commissioner Michael W.

Moore (Moore) filed a Motion for Leave to Waive Open Houses. The

attached Declaration states: 2. On July 18, 2013, I visited the subject property in Hawaiian Acres. . . . I knocked on the front door, but there was no response. . . . It appeared that someone was residing in the house. 3. . . . I found Defendant Namahoe's telephone number in the phone book and called. Mr. Namahoe answered. He seemed unaware there was a foreclosure proceeding against him. He said he is 70 years old, has no car, so he can't check his post office box in Hilo where he receives his mail. He told me no one can take his house because he owns it. I explained to him it was my responsibility to sell his property at public auction. 4. He became quite upset. He said he has nowhere else to live, no family or friends he can stay with. He said his income is only $700 a month, and he can barely afford to buy food. He told me that he would shoot the next person to come to his house so he could go to jail and get fed.

5. Based on these circumstances, I believe Mr. Namahoe will not cooperate in conducting open houses of the property, and that any person who attempts to enter his home would risk injury, possibly serious injury.

(Emphasis added).

Also on July 24, 2013, Moore mailed a Notice of Hearing

to Namahoe's Hilo post office box. The Circuit Court's October

2, 2013 Order Granting Commissioner's Motion for Leave to Waive

Open Houses states that the motion "came on for hearing before

this Court on August 29, 2013, with the Commissioner present and

[Nutter] having filed a statement of no opposition . . . and no

other parties appearing."

The Commissioner's Report on Sale of Property indicates

that the property was sold at public auction on November 13,

2013, with the highest bid being presented by Nutter. The

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attached certificate of service, dated November 25, 2013,

contains the following addendum: NOTE: We do not have a current mailing address for [Namahoe]. His last known mailing address was P.O. Box 4686, HILO HI 96721. By return mail notice dated 10/4/13, the U.S. Postal Service advised that Mr. Namahoe's post office box has been closed and they are unable to forward his mail.

On February 11, 2014, the Circuit Court entered an

Order Approving Report of Commissioner, Confirming Commissioner's

Sale of Property at Public Auction, Directing Distribution of

Proceeds and for a Writ of Ejectment, along with a corresponding Judgment, Writ of Ejectment, and Notice of Entry (Confirmation

Judgment). A Return of Service as to Writ of Ejectment was filed

on June 23, 2014, indicating personal service on Namahoe.

Approximately two and a half years later, on January 3,

2017, Namahoe filed an HRCP Rule 60(b) Motion for Relief from

[Foreclosure Judgment] (Rule 60(b) Motion). The motion

challenged the substantive basis for the foreclosure, averring

that Nutter was not entitled to pursue a reverse mortgage

foreclosure based upon failure to timely repair, and further,

that Namahoe made the repairs set forth in the Namahoe Repair

Rider but that, although he recalled two separate inspections of the Property by Nutter's agents, neither inspector checked the

repairs to the roof and neither indicated there was any problem

with the repairs.

The Rule 60(b) Motion and Namahoe's attached

Declaration also challenged whether Namahoe had notice of the

foreclosure proceedings, stating, inter alia: 7. I do not remember the sheriff, [Estacion] handing me the foreclosure Complaint on November 9, 2012.

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Not [sic] do I recall signing any paper that I received the Complaint. I would not have understood it anyway. 8. My first memory about the foreclosure was a telephone call from an attorney who said he wanted to inspect my house and property because it was his job to sell my house at a foreclosure action. I was shocked! I did not know of any foreclosure. How come no one wrote me, telephoned me, or came to the house. I was always there because I had no car, very little money and only a few neighbors and relatives. I had to hitch rides from my house in remote Hawaiian Acres to shop for food and collect my mail at my post office box in Hilo. I was angry and upset and never heard again from the attorney.

In the Rule 60(b) Motion, Namahoe further argued that

Nutter committed fraud and fraud upon the court in pursuing the

improper foreclosure, and requested the court take judicial

notice of the records and files in the separate allegedly

improper foreclosure proceedings brought by Nutter against

Domingo, as well as the records and files in Civil No. 16-1-0249,

the Circuit Court case underlying the instant appeal.

Nutter opposed the Rule 60(b) Motion, arguing that:

(1) it was untimely and Namahoe failed to establish a meritorious

claim or defense; (2) Namahoe's fraud allegations were

unsupported; (3) the Foreclosure Judgment was not void; (4)

Namahoe waived all claims against Nutter related to the

foreclosure in exchange for $5,000; and (5) the Property had

already been sold to a third party. Namahoe filed a reply to

Nutter's opposition, contesting Nutter's first four arguments.

A hearing on the Rule 60(b) Motion was held on February

28, 2017, wherein the Circuit Court orally denied the motion.

The Circuit Court explained its ruling: [T]he Court will deny the motion to the extent that the motion proceeds under Rule 60(b)(3), [because] the motion is untimely. More than one year passed between the

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time the Judgment was filed on July 2nd, 2013, and the filing of the [Rule 60(b) Motion]. To the extent that proceeding under Rule 60(b)(4), the motion is denied. If we're talking about the notice issue, Mr. Namahoe did not answer and provide a mailing address. And if you look at the note and mortgage, all notices were to be given by mail to that 16-2218 Opeapea Road in Kurtistown unless Mr. Namahoe designated otherwise. And there's no indication that he designated another address to the lender. Regarding the fraud on the court type theories I'm going to think that that's more properly addressed in Civil number 16-1-249. I see that case as being that independent action that's mentioned under Rule 60(b). And my impression is that independent action is not really a 60(b) type motion. There's still a fraud on the court type claim for relief by Mr. Namahoe against Clay Chapman. And Mr. Namahoe would have at least the opportunity to attempt to amend the pleadings in that case to state, let's say, clear claims for relief against Nutter. So that's what the Court's belief is.

Namahoe's attorney asked if the court's ruling was with

prejudice, and the court replied: On the (b)(3), (b)(4), I think so. But the [fraud on the] court stuff [14] is still out there; right, in your other action. Cause you still have -- I think Mr. Namahoe still has a claim for relief against Nutter -- not Nutter -- Clay Chapman. And then you have the opportunity to amend. I'm thinking that you already have that action already, you know, so it's not as if you needed this action to address the [fraud on the] court issue[.]

On April 5, 2017, the Circuit Court entered the Order

Denying Rule 60(b) Motion.

On April 13, 2017, Namahoe filed an HRCP Rule 59(a) &

(e) Motion for Amendment/Additional Evidence/Reconsideration of

[Order Denying Rule 60(b) Motion]. Nutter opposed the motion.

On June 9, 2017, the Circuit Court entered an order denying

reconsideration.

Namahoe timely filed a Notice of Appeal to this court

(the ICA). We affirmed. Namahoe filed a petition for writ of

certiorari to the supreme court, which was accepted and which

14 The transcript reads "form of court stuff," but in context, it is clear that the Circuit Court was referring to Namahoe's assertion that there had been a fraud on the court.

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resulted in the Namahoe Appeal, which is discussed at length

herein. In short, the supreme court affirmed the ICA's decision

with respect to Namahoe's requests for relief under HRCP Rule

60(b)(3) and (4), but held that Namahoe was entitled to relief

under HRCP Rule 60(b)(6). Namahoe, 153 Hawai#i 149, 528 P.3d

222.

C. Other Relevant Proceedings Below

1. Attorney Defendants' Motion to Dismiss

On July 27, 2016, Attorney Defendants filed a Motion to

Dismiss Plaintiffs' Complaint with Prejudice (Motion to Dismiss),

arguing that: (1) they owe no duty of care or fiduciary duty to

Plaintiffs that could give rise to liability for legal

malpractice or breach of fiduciary duty; (2) the litigation

privilege provides them with immunity for legal malpractice,

breach of fiduciary duty, wrongful foreclosure, intentional

infliction of emotional distress, and elder abuse; (3) Plaintiffs

failed to allege a claim for abuse of process because the

Complaint did not allege "willful acts" distinct from the use of

process; (4) Plaintiffs failed to allege a claim for fraud

because the Complaint failed to allege detrimental reliance or,

in the case of Domingo, substantial pecuniary damage; (5)

Plaintiffs failed to allege a claim for violation of HRS Chapter

481A because the Complaint did not allege conduct that would

likely lead to confusion or misunderstanding; and (6) Plaintiffs

lacked the consumer standing required to bring a claim under HRS

Chapter 480.

18 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Attorney Defendants further argued that because the

claims against Ehrhorn fail to state a claim for relief, any and

all allegations of respondeat superior liability against Clay

Chapman must be dismissed with prejudice, and, similarly, that

Plaintiffs had no cause of action on which to premise a request

for punitive damages.

Plaintiffs raised numerous arguments in opposition to

the Motion to Dismiss, and Attorney Defendants filed a reply

memorandum.

Following a September 29, 2016 hearing, on December 15,

2016, the Circuit Court entered the Partial Dismissal Order. The

Partial Dismissal Order dismissed Counts I, II, III, IV, V, VI,

VII, VIII (only in part), X, and XIII of the Complaint without

prejudice, as well as dismissed Count XII of the Complaint with

prejudice.15 The Partial Dismissal Order is discussed further in

Section IV.B.2. and IV.C. below.

2. Plaintiffs' Motion for Partial Summary Judgment

On August 24, 2016, Plaintiffs filed a Motion for

Partial Summary Judgment Number One Against [Nutter and Attorney

Defendants] (MPSJ), seeking a determination that, as a matter of

law, Nutter did not have the right to foreclosure on either

Domingo or Namahoe for failure to timely make the required

repairs. Plaintiffs argued that Nutter was prevented from

seeking foreclosure by the terms of the loan documents, the HUD

mortgage loan servicing handbook, and Nutter's own reverse

mortgage manual.

15 Counts IX and XI state claims against Nutter only.

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Nutter and Attorney Defendants filed oppositions to the

Motion for Partial Summary Judgment. On March 6, 2017, the court

entered the Order Granting/Denying MPSJ, granting the MPSJ as to

Domingo and denying it as to Namahoe. For the reasons set forth

in Section IV.B.1. below, we conclude that we lack appellate

jurisdiction to review the Order Granting/Denying MPSJ.

D. Attorney Defendants' Anti-SLAPP Motion

On November 23, 2016, Attorney Defendants filed a

motion for judgment on the pleadings "on the basis that

[Plaintiffs'] claims against the Attorney Defendants represent an

impermissible strategic lawsuit against public participation."

Plaintiffs filed a memorandum in opposition, Attorney Defendants

filed a reply memorandum, and the Circuit Court held a hearing on

January 26, 2017. The Circuit Court concluded that Plaintiffs'

sole surviving claim against Attorney Defendants for fraud on the

court had substantial and sufficient justification to warrant

denial of the motion for judgment on the pleadings. On March 6,

2017, the Circuit Court entered an Order Denying Attorney

Defendants' MJOP, and the court later denied Attorney Defendants'

renewed anti-SLAPP motion for judgment on the pleadings.

These appeals were timely filed.

II. POINTS OF ERROR

In CAAP-XX-XXXXXXX, Nutter raised three points of

error, all of which contended, in one manner or other, that the

Circuit Court erred in failing to conclude that this action

constitutes a SLAPP filed in violation of HRS Chapter 634F (2016)

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(repealed 2022).16 As noted above, Nutter's appeal has been

dismissed with prejudice.

In CAAP-XX-XXXXXXX, Attorney Defendants raise three

points of error, contending that the Circuit Court erred in: (1)

denying their substantive joinder to Nutter's MJOP; (2) denying

Attorney Defendants' MJOP, pursuant to HRS Chapter 634F; and (3)

ruling that Attorney Defendants were not afforded protection by

the anti-SLAPP statute, based on (a) the attorney affirmations

filed by them during their representation of Nutter in the

foreclosure actions against Namahoe and Domingo, and (b) the

fraud on the court claim by Namahoe, which was not dismissed in

the Partial Dismissal Order.

points of error,17 contending that the Circuit Court erred in:

(1) entering the Order Granting HRCP 54(b) Certification, as the

orders subject to certification did not resolve any claims; (2)

entering the Partial Dismissal Order inasmuch as it denied

Attorney Defendants' motion to dismiss Namahoe's claim for relief

based on fraud on the court; and (3) entering the Order

Granting/Denying MPSJ to the extent that it granted any relief in

favor of Namahoe.

In CAAP-XX-XXXXXXX, Plaintiffs raise two points of

error, contending that the Circuit Court erred in: (1) granting

in part Attorney Defendants' Motion to Dismiss, which was filed

16 Act 96 of 2022 repealed HRS chapter 634F and instead adopted HRS chapter 634G, the Hawaii Public Expression Protection Act. 17 Although Attorney Defendants cross-appealed in CAAP-XX-XXXXXXX, we address their contentions first here because they argue that this court lacks appellate jurisdiction.

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pursuant to HRCP Rule 12(b)(6); and (2) denying in part

Plaintiffs' Motion for Partial Summary Judgment, given that

Nutter had no right to foreclose against their homes.

III. APPLICABLE STANDARDS OF REVIEW

A ruling on a motion for judgment on the pleadings

pursuant to HRS § 634F, regarding SLAPP cases, is reviewed de

novo. Perry v. Perez-Wendt, 129 Hawai#i 95, 98, 294 P.3d 1081,

1084 (App. 2013). Pursuant to the anti-SLAPP statute, when a

motion to dispose of a purported SLAPP claim is filed, the burden

of proof and persuasion rests with the non-moving party. HRS

§ 634F–2(4)(B) (Supp. 2012); see also Perry, 129 Hawai#i at 100,

294 P.3d 1086.

Statutory interpretation and the existence of

jurisdiction are questions of law that are reviewed under the

right/wrong standard. Deutsche Bank Nat'l Tr. Co. v. Greenspon,

143 Hawai#i 237, 243, 428 P.3d 749, 755 (2018).

A trial court's ruling on a motion to dismiss is

reviewed de novo. Kamaka v. Goodsill Anderson Quinn & Stifel,

117 Hawai#i 92, 104, 176 P.3d 91, 103 (2008). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. This court must, therefore, view a plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternate theory. Consequently, in reviewing the circuit court's order dismissing the plaintiffs' complaint in this case, our consideration is strictly limited to the allegations of the complaint, and we must deem those allegations to be true.

Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113

Hawai#i 251, 266, 151 P.3d 732, 747 (2007) (citation and internal

quotation marks omitted).

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IV. DISCUSSION

A. Attorney Defendants' Anti-SLAPP Arguments

Attorney Defendants argue that Plaintiffs' Complaint

should have been dismissed as an impermissible SLAPP, filed in

violation of HRS Chapter 634F. We conclude that Plaintiffs

carried their burden of showing that their Complaint is not a

SLAPP. Namahoe and Domingo are elderly individuals who allegedly

suffered injury and/or loss in conjunction with the wrongful

foreclosures of the reverse mortgages on their homes.

Plaintiffs' action to seek redress was not filed in violation of

HRS Chapter 634F. The Circuit Court did not err in rejecting

Attorney Defendants' arguments that this case should be dismissed

as a SLAPP.18

HRS Chapter 634F sought to, inter alia, "[p]rotect and

encourage citizen participation in government to the maximum

extent permitted by law" and "[c]reate a more equitable balance

between the rights of persons to file lawsuits and to trial by

jury, and the rights of persons to petition, speak out,

associate, and otherwise participate in their governments" by

prohibiting strategic lawsuits against such public participation.

See 2002 Haw. Sess. Laws Act 187, § 1 at 822 (setting forth

purposes of HRS Chapter 634F). HRS § 634F-1 (2016) provided that

SLAPP "refers to a lawsuit that lacks substantial justification

or is interposed for delay or harassment and that is solely based

on the party's public participation before a governmental body."

18 Our affirmation of the Circuit Court's SLAPP rulings is not a decision on the merits of Plaintiffs' claims against Attorney Defendants.

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(Emphasis added). Attorney Defendants argue that the claims

against them lack substantial justification, are based solely on

their participation before a government body, and therefore,

should have been dismissed under the anti-SLAPP statute.

Attorney Defendants generally contend, inter alia,

that: every one of Plaintiffs' claims against them arise out of

Nutter's foreclosures on both Namahoe's and Domingo's reverse

mortgages; Nutter had a right to initiate the foreclosure actions

and participate in those actions by way of giving written and/or

oral testimony; and Attorney Defendants' actions in the

foreclosures against Namahoe and Domingo constitute precisely the

type of conduct that Hawaii's anti-SLAPP Law is designed to

protect. Given the allegations in Plaintiffs' Complaint, this is

an incorrect interpretation of Hawaii's anti-SLAPP law,

especially in light of the supreme court's opinion in the Namahoe

Appeal, as set forth below.

Attorney Defendants more specifically argue that

Plaintiffs do not assert a valid claim against them because

Namahoe's claim for fraud on the court is not a cause of action

upon which damages may be awarded to an individual. However, as

Plaintiffs note, this argument was not raised in their anti-SLAPP

arguments to the Circuit Court, and therefore it is waived. See

Hawaii Rules of Appellate Procedure Rule 28(b)(4); see also,

e.g., Kemp v. CSEA, 111 Hawai#i 367, 391, 141 P.3d 1014, 1038

(2006).

Attorney Defendants next argue that Plaintiffs' fraud

on the court claim lacks substantial justification because the

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alleged conduct is not a sufficiently egregious or widespread

fraud upon the judicial process to constitute a fraud on the

court. In the Namahoe Appeal, in the supreme court's discussion

of what constitutes fraud on the court in the context of an HRCP

Rule 60(b) motion, the court explained: Attorneys representing foreclosing lenders must verify and affirm to the court the accuracy of documents proffered by the lender/client in order to prevent unwarranted foreclosures. HRS § 667-17. Attorney affirmations in foreclosure proceedings are a statutory means of protecting homeowners from wrongful foreclosure, as they prevent the courts from advancing fraud by lenders in foreclosure actions. Id. According to the statutory mandate, attorneys shall file an affirmation with the court "that the attorney has verified the accuracy of the documents submitted, under penalty of perjury and subject to applicable rules of professional conduct." Id. The purpose of the statute "is to prevent unwarranted foreclosure actions on residential property by requiring an attorney who files a judicial foreclosure . . . to also submit a signed affidavit to the court . . . stating that the attorney has verified the accuracy of the document submitted." H. Stand Comm. Rep. No. 697-14, in 2014 House Journal, at 1127. The statute specifically notes that:

During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities, including failure to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits that falsely attest to such review and to other critical facts in the foreclosure process; and "robosignature" of documents.

HRS § 667-17. Failure to submit adequate documentation, including the attorney affirmation, has been determined to be an adequate basis for denial of a motion for summary judgment. Wells Fargo Bank, N.A. v. Fong, 149 Hawai#i 249, 252, 255—56, 488 P.3d 1228, 1231, 1234—35 (2021). It is reasonably inferred that to require attorney affirmations is to also require them to be accurate and complete. Anything less would render the statutory requirement meaningless. See In re City & Cnty. of Honolulu Corp. Counsel, 54 Haw. 356, 373, 507 P.2d 169, 178 (1973) ("It is a cardinal rule of statutory construction that a statute ought upon the whole be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void, or insignificant."); Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai#i 217, 230, 953 P.2d 1315, 1328 (1998) (courts can consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it . . . to discover its true meaning.") (bracket and ellipsis points in original). Because attorney affirmations are representations to the court, an inaccurate, incomplete, or otherwise misleading HRS § 667-17 affirmation may constitute

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a misrepresentation to the court. Accordingly, an inadequate attorney affirmation may rise to the level of fraud on the court. In these instances, relief from the Decree of Foreclosure is justified. 24 24 The circuit court in the Domingo and Namahoe foreclosure action in Domingo v. James B. Nutter & Co., Civil No. 16-1-0249, CAAP-XX-XXXXXXX, highlighted the importance of the attorney affirmation:

If the representations contained in the affirmation required under HRS § 667-17 are not directed to the mortgagor, then to whom are they directed? Quite clearly they are directed to the Court presiding over the foreclosure case. The Court implicitly relies upon the attorney affirmation. The attorney affirmation "helps ensure that Hawai#i's courts are not used as instruments of fraud in foreclosure actions." Conf. Comm. Rep. No. 62-12, in 2013 House Journal, 27th Leg., Reg. Sess. at 1632 (Haw. 2013). Since the attorney affirmation contains representations to the Court, if the attorney affirmation contains misrepresentations they are misrepresentations to the Court. Sanctions and remedies may be available as a result of these misrepresentations to the Court.

Here, the attorney affirmation submitted in support of the foreclosure of Namahoe's home was inaccurate and incomplete in several respects. [Nutter] appears to have initiated foreclosure despite having knowledge that it failed to comply with the Repair Rider — the violation of which triggered the foreclosure. According to the Repair Rider attached to [Nutter's] complaint, the burden was on [Nutter] to certify "that the repairs which are funded under this Repair Rider will be completed in a manner to meet HUD property standards required by the Secretary as determined by a HUD-approved inspector." However, the record is devoid of any admissible evidence of Namahoe's alleged failure to carry out the repairs. As the ICA stated in its Memorandum Opinion, "there is no declaration or other evidence in the record of the particular repairs Namahoe allegedly failed to complete." No. CAAP-XX-XXXXXXX, 2022 WL 899896 at *11 n.10 (App. March 28, 2022) (emphasis added). Furthermore, nowhere in the record does [Nutter] confirm that Namahoe's property had been inspected by a HUD-certified inspector. 25 Pursuant to the Repair Rider, [Nutter] had the independent duty to ensure that a HUD-approved inspector had inspected Namahoe's property prior to initiating foreclosure proceedings. 25 Based on the current record, it is unknown whether any inspectors were sent to survey the state of repairs on Namahoe's property. Namahoe attests that two individuals inspected his property, but that none indicated any problems with Namahoe's repairs. By submitting an attorney affirmation in support of foreclosure against Namahoe, without first verifying that there was an adequate factual and legal basis for foreclosure pursuant HRS § 667-17, the attorney affirmation falsely affirmed the sufficiency of the basis for the

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foreclosure. This failure by [Nutter] and its attorneys supports a finding of fraud on the court.

James B. Nutter & Co., 153 Hawai#i at 167-68, 528 P.3d at 240-41

The supreme court clearly rejected the argument that

the alleged conduct of Attorney Defendants in the foreclosure

action against Namahoe does not constitute a fraud on the court.

The supreme court's ruling shows that Plaintiffs' claim for fraud

in this case does not "lack[] substantial justification." See

HRS § 634F-1 (definition of SLAPP). Further, the Complaint and the supreme court's opinion show that Plaintiffs' claims do not

just flow from the filing of the false attorney affirmation and

other pleadings in the foreclosure case, but the failure to

verify – outside the participation in the court proceedings –

that there was an adequate factual and legal basis for

foreclosure. Indeed, Plaintiffs' allegations assert that

Attorney Defendants conducted due diligence and similar

responsibilities "prior to, during and subsequent to the

foreclosures." Thus, the allegations in Plaintiffs' Complaint are based in part on the conduct of Attorney Defendants outside

of their appearances before the court and are not "solely based

on [Attorney Defendants'] public participation before a

governmental body." Id. Therefore, Defendant Attorneys are not

entitled to SLAPP relief based on that argument.

Domingo's claims against Nutter are similarly based on

allegations of wrongful foreclosure and further claims arising,

in the first instance, out of a factually and legally deficient

foreclosure on the reverse mortgage on Domingo's home based on

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repairs that Domingo supposedly failed to complete. Domingo,

like Namahoe, argued that, as a matter of law, Nutter did not

have a legal right to foreclosure under the circumstances.

Domingo moved for summary judgment on Nutter's

foreclosure complaint in Civil No. 12-1-0226, arguing, inter

alia, that he completed the required repairs, and that even if he

had not, failure to complete the repairs would not, as a matter

of law, give Nutter the legal right to accelerate the subject

note and seek foreclosure. The Circuit Court granted Domingo's

summary judgment motion and entered judgment in favor of Domingo,

inter alia, dismissing the foreclosure complaint with prejudice.

The Complaint herein further alleges, inter alia, that

despite the foregoing order and judgment thereon, Nutter and/or

Attorney Defendants notified Domingo by mail on or about February

26, 2015, that he remained in default for non-payment of $6,674

and threatened Domingo with another foreclosure, if Domingo did

not sign a Repayment Plan Agreement for monthly repayments and

make monthly payments of $278.08. Plaintiffs allege that this

default notice did not disclose that Nutter's claims had been

dismissed with prejudice and that Domingo did not "appreciate the

same." Domingo signed the Repayment Plan Agreement "under

duress, fear and serious emotional distress caused by the

continued threat of foreclosure and years of litigation."19

Thereafter, the Circuit Court entered the August 10,

2015 Amended Judgment, superceding the previous judgments, which

19 Upon notifying his counsel of the letter, Domingo abrogated the repayment contract.

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made clear that all claims for foreclosure were dismissed with

prejudice and expressly directed judgment in favor of Domingo for

the $24,000 repair set aside and $39,179.24 in attorney's fees

and costs.20 The Circuit Court's rulings in favor of Domingo in

the foreclosure action against him were affirmed on appeal in

CAAP-XX-XXXXXXX.

Although ultimately Domingo did not end up losing his

home to foreclosure, it appears that by submitting an egregiously

inaccurate and incomplete, materially false and misleading,

attorney affirmation in support of the foreclosure action against

Domingo, without first verifying that there was an adequate

factual and legal basis for foreclosure pursuant to HRS § 667-17,

Attorney Defendants fraudulently affirmed the sufficiency of the

basis for the foreclosure. This egregious failure to comply with

HRS § 667-17, facilitated an unwarranted foreclosure action

against Domingo. Thus, Plaintiffs' Complaint does not "lack[]

substantial justification," and it is not "solely based on

[Attorney Defendants'] public participation before a governmental

body." See HRS § 634F-1. We conclude that Defendant Attorneys

are not entitled to SLAPP relief based on Domingo's action to

seek redress.

Attorney Defendants next argue that Plaintiffs'

Complaint against them lacks substantial justification because

Namahoe's claims are barred by res judicata and collateral

estoppel in light of the judgment on the merits in favor of

20 This judgment was later modified, but the substance of it was undisturbed.

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Nutter and against Namahoe in the foreclosure action (Civil No.

12-1-0113). However, the supreme court vacated the Foreclosure

Decree insofar as it would preclude Namahoe from asserting a

wrongful foreclosure claim against Nutter. James B. Nutter &

Co., 153 Hawai#i at 153, 166-69, 528 P.3d at 226, 239-42. We

conclude that the vacated judgment is not a bar to claims against

Defendant Attorneys, and therefore, we reject the argument that

Plaintiffs' Complaint against them lacks substantial

justification because Namahoe's claims are barred by res judicata

and collateral estoppel.

Finally, Attorney Defendants argue that the supreme

court's decision in Hungate v. Law Office of David B. Rosen, 139

Hawai#i 394, 391 P.3d 1 (2017),21 bars all direct claims against a

mortgagee's attorney for wrongful foreclosure, and as a result,

Plaintiffs' Complaint lacks substantial justification under HRS

chapter 634F. We conclude that Hungate is distinguishable, and

this argument is without merit.

Attorney Defendants specifically argue that Hungate

bars all HRS § 480-2 claims against the lender's attorney in the

context of foreclosure cases. However, the supreme court's

decision was based on the specific allegations against the

mortgagee's attorney in that case (Rosen), and set forth examples

of circumstances beyond that decision. The supreme court stated,

inter alia: In contrast [to the role of a real estate broker], the role of an attorney involves representing a client's interests against those of an opposing party within an

21 Hungate was abrogated on other grounds by State ex rel. Shikada v. Bristol-Myers Squibb Co., 152 Hawai#i 418, 526 P.3d 395 (2023).

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adversary system. Attorneys bear a duty to zealously represent clients "within the bounds of the law." Giuliani v. Chuck, 1 Haw. App. 379, 384, 620 P.2d 733, 737 (1980); see also Hawai#i Rules of Professional Conduct, "Preamble," ¶ 2; ¶ 8; ¶ 9. 22 In other settings, we have declined to recognize a duty in favor of a plaintiff adversely affected by an attorney's performance of legal services on behalf of the opposing party. In Boning, we noted that "creation of a duty in favor of an adversary of the attorney's client would create an unacceptable conflict of interest. Not only would the adversary's interests interfere with the client's interests, the attorney's justifiable concern with being sued for negligence would detrimentally interfere with the attorney-client relationship." Boning, 114 Hawai #i at 220, 159 P.3d at 832. 22 Our desire to avoid creating unacceptable conflicts of interest in this context, to protect attorney-client counsel and advice from the intrusion of competing concerns, and to allow adequate room for zealous advocacy, does not encompass, for example, allowing attorneys to conduct patently illegal activities on behalf of clients.

Permitting a party to sue his or her opponent's attorney for UDAP under HRS § 480-2 in foreclosure actions presents a similar issue in that an attorney's concern with being sued by a party opponent could compromise his or her representation of the client. In a UDAP action, an attorney would be especially vulnerable to suit because, for example, under HRS § 480-2 "actual deception need not be shown; the capacity to deceive is sufficient." Keka, 94 Hawai #i at 228, 11 P.3d at 16 (emphasis added) (citations omitted). Accordingly, a plaintiff would need only to allege that opposing counsel has breached the statutory duty under HRS § 480-2 "not to engage in unfair or deceptive acts or practices in the conduct of any trade or commerce . . . in a way that caused private damages[ ] in order to state a claim under" HRS chapter 480. Compton, 761 F.3d at 1056. Given that UDAP lacks a more rigorous or precise state of mind requirement, "even a carefully rendered opinion could, if incorrect, have the capacity to deceive." Short v. Demopolis, 103 Wash.2d 52, 691 P.2d 163, 172 (1984) (Pearson, J., concurring). The attorney would therefore "have to insure the correctness of his [or her] opinions and strategies," rendering it "virtually impossible for an attorney to effectively perform the traditional role of legal counselor." Id. Similar to the negligence issue in Boning, in foreclosure actions an attorney's justifiable concern with being sued by the opposing party for UDAP could compromise the attorney's ability to zealously represent his or her client. Consequently, based on the allegations against Rosen, we decline to recognize a UDAP claim against him by Hungate under HRS § 480-2 in the instant foreclosure action.23

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23 We do not now decide whether the 2012 amendments to the foreclosure statute create potential UDAP liability under some circumstances for attorneys conducting nonjudicial foreclosures. See HRS § 667-60 (2016) (imposing UDAP liability on "any foreclosing mortgagee" for violating a series of provisions governing nonjudicial foreclosure); HRS § 667-1 (2016) (defining "mortgagee" to include "the current mortgagee's or lender's duly authorized agent").

Accordingly, the circuit court properly dismissed Hungate's complaint alleging Rosen violated HRS § 480-2 by engaging in unfair or deceptive acts or practices.

Hungate, 139 Hawai#i at 413, 391 P.3d at 20.

In short, Hungate expressly leaves open potential for

HRS § 480-2 claims against an attorney, for example, if the

attorney conducts patently illegal activities on behalf of a

client; and the supreme court declined to decide whether the

amendments to the nonjudicial foreclosure statute at issue in

Hungate create potential HRS chapter 480 liability for attorneys

under some circumstances.

Our conclusion that Hungate does not support Attorney

Defendants' SLAPP argument is further informed by the supreme

court's discussion and rationale for concluding that the former

HRS §§ 667-5 and 667-7 did not create a private cause of action

against a foreclosing mortgagee's attorney. See Hungate, 139

Hawai#i at 405-08, 391 P.3d at 12-15. The supreme court reiterated the factors it considered in determining whether

statutory duties give rise to a private cause of action: In determining whether a private cause of action should be recognized based on statutory requirements, we consider the following factors: (1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; and (3) whether a private cause of action would be consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.

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Id. at 406, 391 P.3d at 13 (citation and internal quotation marks

omitted).

Finally, we note that in the Namahoe Appeal, the

supreme court discussed, at some length, the vulnerability of

seniors who have taken out reverse mortgages, the legislative

intent to combat predatory lending and foreclosure practices, and

the expansive legislative and regulatory framework intended to

prevent abuse of borrowers like Namahoe and Domingo. James B.

Nutter & Co., 153 Hawai#i at 163-64, 528 P.3d at 236-37.

Accordingly, we reject Attorney Defendants' arguments

that the Complaint lacks substantial justification under Hawai#i

law or that the Complaint is solely based on Attorney Defendants'

participation before a governmental body. Therefore, we conclude

that the Circuit Court did not err in rejecting Attorney

Defendants' arguments that the Complaint should have been

dismissed under the anti-SLAPP statute.

B. The Issues Raised in CAAP-XX-XXXXXXX

1. Appellate Jurisdiction

As a threshold matter, Attorney Defendants argue that

this court lacks appellate jurisdiction in CAAP-XX-XXXXXXX

because the Circuit Court erred in entering the Order Granting

HRCP Rule 54(b) Certification and the HRCP Rule 54(b) Judgment.

Attorney Defendants submit that neither the Order

Granting/Denying MPSJ nor the Partial Dismissal Order were

eligible for HRCP Rule 54(b) certification.

HRS § 641-1 (2016) sets forth the jurisdiction of this

court in civil matters and provides in relevant part:

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§ 641-1 Appeals as of right or interlocutory, civil matters. (a) Appeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit and district courts and the land court to the intermediate appellate court, subject to chapter 602. [22]

HRCP Rule 54(b) provides in pertinent part: Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

In addition, HRCP Rule 58 requires that "[e]very

judgment shall be set forth on a separate document."

On August 2, 2018, this court entered an order raising

the issue of appellate jurisdiction, and temporarily remanding

the case to the Circuit Court (Temporary Remand Order). In the

Temporary Remand Order, the court stated, inter alia: Although Domingo and Namahoe asserted thirteen separate counts against multiple parties in their July 5, 2016 complaint, the [HRCP Rule 54(b) Judgment] purports to enter judgment by merely incorporating the following two interlocutory orders by reference: (1) [Partial Dismissal Order], and (2) [Order Granting/Denying MPSJ].

The [HRCP Rule 54(b) Judgment] does not specifically identify the parties in favor of whom and against whom the Circuit Court intends to enter judgment. The [HRCP Rule 54(b) Judgment] also does not specifically identify the claim or claims on which the Circuit Court intends to enter judgment. In other words, we cannot determine exactly how the Circuit Court is entering judgment by reading the face of the [HRCP Rule 54(b) Judgment]. Therefore, the [HRCP Rule 54(b) Judgment] does not satisfy the specificity

22 HRS § 602-57 (2014) provides, in relevant part:

§ 602-57 Jurisdiction. Notwithstanding any other law to the contrary, the intermediate appellate court shall have jurisdiction . . . . (1) To hear and determine appeals from any court or agency when appeals are allowed by law[.]

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requirements for an appealable final judgment under HRS § 641-1(a), HRCP Rule 58, and the holding in Jenkins. The Supreme Court of Hawai#i now

hold[s] that when a party to a circuit court civil case timely appeals a purportedly appealable final judgment later determined not to meet Jenkins requirements, rather than dismiss the appeal, the ICA must temporarily remand the case to the circuit court "in aid of its jurisdiction" pursuant to HRS § 602-57(3) (2016) for entry of an appealable final judgment with a direction to the circuit court to supplement the record on appeal with the final judgment. State v. Joshua, 141 Hawai#i 91, 93, 405 P.3d 527, 529 (2017) (footnote omitted). Under the circumstances of the instant case, a temporary remand is necessary under the holding in Joshua for the entry of a judgment that comports with the specificity requirements in Jenkins. Therefore, pursuant to HRS § 602-57(3) (2016) and the holding in Joshua, IT IS HEREBY ORDERED AND DECREED as follows: 1. . . . CAAP-XX-XXXXXXX is temporarily remanded to the Circuit Court of the Third Circuit in Civil No. 16-1- 0249 where, within twenty (20) days after entry of this temporary remand order, the Circuit Court shall

(a) enter a new judgment that amends the [HRCP Rule 54(b) Judgment] by specifically identifying the appropriate parties in favor of whom and against whom the Circuit Court intends to enter judgment, and by specifically identifying the claim or claims on which the Circuit Court intends to enter judgment, or (b) enter a written explanation as to why it is not possible or appropriate for the Circuit Court to do so.

After further submittals from the parties, on September

4, 2018, the Circuit Court entered: (1) the Final Judgment

Entered Pursuant to the [Partial Dismissal Order] (2018

Judgment); and (2) an Explanation as to Why Judgment Is Not Being

Entered as to the [Order Granting/Denying MPSJ] (2018

Explanation).

In the 2018 Explanation, the Circuit Court concluded

that the Order Granting/Denying MPSJ did not dispose of any claim

for relief, and therefore, judgment was not being entered

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thereon. In the absence of a compliant judgment, we lack

appellate jurisdiction to review the Order Granting/Denying MPSJ.

See generally Jenkins v. Cades Schutte Fleming & Wright, 76

Hawai#i 115, 869 P.2d 1334 (1994).

In the 2018 Judgment, as directed by this court, the

Circuit Court specifies the parties in favor of and against whom

judgment is entered and the claims on which judgment is entered

pursuant to the Partial Dismissal Order. Although the 2018

Judgment does not resolve all claims as to all parties, it

includes the certification language required under HRCP Rule

54(b) that "there is no just reason for delay." Accordingly, we

conclude that we have appellate jurisdiction to review the

Partial Dismissal Order.

2. Attorney Defendants' Arguments on the Partial Dismissal Order

a. Litigation Privilege

Attorney Defendants argue that Namahoe's claims against

them are barred as a matter of law pursuant to the litigation

privilege and the supreme court's decision in Hungate. The

gravamen of Attorney Defendants' argument is that the litigation

privilege operates as an absolute bar against a borrower seeking

to sue opposing counsel for counsel's conduct within the scope of

representation in a prior foreclosure. They argue, inter alia,

"Hungate emphatically quashed the last ambiguity that existed for

the litigation privilege regarding foreclosure cases" and "the

Hawai#i Supreme Court has completely shut the door on the ability

of a borrower to sue opposing counsel in a foreclosure action."

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Under Hawai#i law, the litigation privilege is robust,

and for good reason, but it is not an absolute bar against an

action by a borrower against a foreclosing lender's attorney(s).

The reasons for this robust privilege, as discussed in the

Hungate passages quoted above, include the attorney's duty to

zealously represent his or her client, the lack of a common law

duty in favor of an adversary's interest, the strong policy

considerations against creating a conflict of interest, the

protection of attorney-client counsel and advice from competing

concerns, and the vulnerability of an attorney to such suits.

See Hungate, 139 Hawai#i at 413, 391 P.3d at 20; Matsuura v. E.I.

du Pont de Nemours & Co., 102 Hawai#i 149, 155-61, 73 P.3d 687,

693-99 (2003) (explaining the policy rationale underlying the

litigation privilege);23 Isobe v. Sakatani, 127 Hawai#i 368, 279

P.3d 33 (App. 2012) (applying the attorney's absolute privilege

for defamation in judicial proceeding to slander of title claims,

23 In Matsuura, the supreme court explained: [T]he interrelated policies associated with the litigation privilege include: (1) promoting the candid, objective, and undistorted disclosure of evidence; (2) placing the burden of testing the evidence upon the litigants during trial; (3) avoiding the chilling effect resulting from the threat of subsequent litigation; (4) reinforcing the finality of judgments; (5) limiting collateral attacks upon judgments; (6) promoting zealous advocacy; (7) discouraging abusive litigation practices; and (8) encouraging settlement. Therefore, in order to determine whether the litigation privilege should bar a subsequent collateral proceeding for civil damages based on litigation misconduct, including fraud, we must first address the policies associated with the privilege. 102 Hawai#i at 155, 73 P.3d at 693.

After examining each of these policy considerations in the context of the case, the supreme court concluded that, under Hawai #i law, a party was not immunized by the litigation privilege against liability for damages based on fraud engaged in during prior litigation proceedings. Id. at 162, 73 P.3d at 700. Attorney liability was not at issue.

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citing policy reasons); Buscher v. Boning, 114 Hawai#i 202, 218-

19, 159 P.3d 814, 830-31 (2007) (discussing policy reasons

supporting bar to suit against adversary's attorney for

negligence and that attorney owed no actionable duty to the

opposing party).

That said, none of these cases hold that the litigation

privilege provides an absolute bar to claims against the opposing

party's attorney for the attorney's actions in judicial

foreclosure proceedings. Indeed, as highlighted above, in

Hungate the supreme court recognized that attorneys' zealous

representation of their clients must be conducted within the

bounds of the law, zealous advocacy does not include illegal

activities on behalf of clients, and the supreme court would not

rule out potential UDAP liability for attorneys in all

circumstances other than those at issue in Hungate. 139 Hawai#i

at 412-13, 391 P.3d at 19-20. In Matsuura, the supreme court

stated that the scope of any privilege is based on policy

considerations. 102 Hawai#i at 155, 73 P.3d at 693. In Kahala

Royal Corp. v. Goodsill Anderson Quinn & Stifel, the supreme

court reiterated the conclusion in Matsuura that "'a party is not

immune from liability for civil damages based upon that party's

fraud engaged in during prior litigation proceedings .'" 113

Hawai#i 251, 269, 151 P.3d 732, 750 (2007) (quoting Matsuura, 102

Hawai#i at 162, 73 P.3d at 700).

In this light, we consider whether the litigation

privilege operates as a bar against claims against Attorney

Defendants for their fraud on the court in conjunction with the

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judicial foreclosure proceedings at issue here. As directed in

Matsuura, 102 Hawai#i at 155, 73 P.3d at 693, we consider the

policies associated with the privilege in such circumstances:

Promoting the candid, objective, and undistorted

disclosure of evidence: As discussed in Matsuura, the litigation

privilege is based, in part, on an assumption that exposing a

declarant or witness to liability may result in distorted

evidence. Id. Here, however, (like the defendants in Matsuura),

Attorney Defendants' conduct was fraudulent and extreme.

Attorney Defendants provided the Circuit Court with an inadequate

and materially misleading HRS § 667-17 attorney affirmation,

which was so egregious that the supreme court in the Namahoe

Appeal concluded that it constituted a fraud on the court. James

B. Nutter & Co., 153 Hawai#i at 167, 528 P.3d at 240. The

supreme court further held that Namahoe had demonstrated

extraordinary circumstances warranting relief under HRCP Rule

60(b)(6) in that case. Id. at 170, 528 P.3d at 243. This

conduct is directly contrary to the policy of promoting the

candid, objective, and undistorted disclosure of evidence.

Accordingly, this policy does not favor limiting liability in a

subsequent proceeding based on commission of a fraud on the court

in a prior proceeding. See Matsuura, 102 Hawai#i at 156, 73 P.3d

at 694.

Placing the burden of testing the evidence upon the

litigants during trial: The litigation privilege promotes

diligent and timely investigation and testing of the evidence by

the parties, and relatedly, it helps secure the finality of

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judgments. Id. An attorney's egregious, false, and materially

misleading failure to carry out their statutory obligations under

HRS § 667-17 frustrates the purpose of the affirmation, but here

Namahoe did not diligently and timely test this evidence.

Therefore, this policy consideration slightly weighs in favor of

limiting liability in subsequent proceedings.

Avoiding the chilling effect resulting from the threat

of subsequent litigation: There is a strong policy in Hawai$i

against opening the door to subsequent litigation every time

someone loses a lawsuit, in large part because it can deter

access to justice. Id. at 157, 73 P.3d at 695. In most

instances, that policy favors limiting liability in subsequent

proceedings. Id. Here, however, assuming that justiciable

claims can ever be brought against an opposing party's attorney

for the attorney's commission of a fraud on the court in a prior

proceeding, the only avenue for access to justice would be via

subsequent litigation.24 Thus, under the circumstances here,

this policy does not weigh against allowing the subsequent suit.

Reinforcing the finality of judgments: As discussed in

Matsuura, and as demonstrated in the Namahoe Appeal, Hawai#i

courts favor reaching a judgment on the merits over preserving

the finality of a judgment procured by fraud, including fraud on

the court. Matsuura, 102 Hawai$i at 157-58, 73 P.3d at 695-96;

James B. Nutter & Co., 153 Hawai#i at 166-68, 528 P.3d at 239-41.

This policy favors permitting relief in a subsequent proceeding

24 Any chilling effect of potential subsequent litigation should operate as a deterrent to the commission of fraud on the court in the first instance.

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in limited circumstances. Here, permitting suit against the

Attorney Defendants for their fraud on the court in the prior

foreclosure proceedings does not directly impact the finality of

the prior foreclosure proceedings. We conclude that when there

is an allegation of fraud on the court in prior proceedings, the

policy of reinforcing the finality of judgments does not favor

limiting liability in a subsequent proceeding. See Matsuura, 102

Hawai$i at 158, 73 P.3d at 696.

Limiting collateral attacks upon judgments: A

collateral attack upon a judgment rendered by a court of

competent jurisdiction is strongly disfavored and is permitted

only in very limited circumstances, which can include a fraud

upon the court. See id. at 158-59, 73 P.3d at 696-97. Here,

however, a suit against the Attorney Defendants for their fraud

on the court in the prior proceedings is not an attack on a

judgment entered in favor of their client, and this policy is not

implicated.

Promoting zealous advocacy: Clearly, permitting

subsequent suit against a party's attorney could impede this

important interest. However, as the supreme court explained in

Matsuura: Litigation misconduct that amounts to a fraud on the court directly conflicts with the pursuit of justice and never results from a reasonable advocate's best judgment. Thus, the policy of promoting zealous advocacy is counterbalanced by the need to adequately punish and discourage such misconduct. Consequently, the policy of promoting zealous advocacy does not favor limiting liability in subsequent collateral proceedings for fraud.

Id. at 159, 73 P.3d at 697.

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We conclude that this rationale is fully applicable

here to the subsequent proceedings based upon fraud on the court

in the prior proceedings.

Discouraging abusive litigation practices: As

discussed in Matsuura, remedies such as criminal contempt,

attorney discipline, and criminal prosecution might act as

deterrents to litigation misconduct, but they provide limited

means to compensate the victims of such misconduct, and "the

existence of these remedies does not oblige us to limit victims

of fraud solely to these established remedies, given the nature

and effect of fraud." Id. at 160, 73 P.3d at 698. Again, we

conclude that this rationale is fully applicable to subsequent

proceedings based on fraud on the court in the prior

proceedings.25

The attorney's litigation privilege: Although not at

issue in Matsuura, here, the important policy considerations

favoring the protection of attorneys from claims against them for

their actions in prior judicial proceedings must be carefully

weighed. We will not recount each of these policy considerations

again, but in the vast majority of circumstances, they should and

do act as a bar against suit by an opposing party in prior

litigation. However, here, the supreme court has determined that

there was a fraud on the court committed by Attorney Defendants

through the submission of a legally and factually deficient,

inaccurate and incomplete, materially misleading affirmation that

25 The policy of encouraging settlement, which is discussed in Matsuura, 102 Hawai$i at 161, 73 P.3d at 699, is not implicated here.

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is mandated by Hawai$i statute in order to prevent unwarranted

foreclosures. None of the important and substantial policy

reasons for shielding an attorney from suit, in the vast majority

of circumstances, warrant applying the litigation privilege to

bar the victims of such misconduct from seeking a remedy.

Weighing all of the policies underlying the litigation

privilege, specifically including the litigation privilege for

attorneys, and in light of the supreme court's determination in

Matsuura that a party is not immune from liability for damages

based upon that party's fraud engaged in during prior

proceedings, we hold that an attorney is not immune from

liability or civil damages based upon the attorney's own fraud

upon the court in prior litigation proceedings.

b. Damages Based on Attorney Defendants' Fraud on the Court

Attorney Defendants argue that, as a matter of law,

fraud on the court is a ground upon which a court may set aside a

judgment, but it is not a cause of action for which damages can

be awarded. We consider that argument in the context of the

fraud on the court at issue here, i.e., Attorney Defendants'

legally and factually deficient, inaccurate and incomplete,

materially misleading affirmation, which falsely affirmed the

sufficiency of the basis of Nutter's foreclosure on the reverse

mortgage on Namahoe's home, based on an alleged failure to make a

$500 repair, which led to Namahoe being evicted and homeless.

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In the Namahoe Appeal, the supreme court explained the

legal framework that has been put in place to protect borrowers

like Namahoe and Domingo. It is relevant here, and worth

repeating: Reverse mortgages are distinct from conventional mortgages both in their function and purpose. Reverse mortgages, of which home equity conversion mortgages (HECMs) make up a significant portion, 16 are loans that allow senior homeowners to withdraw a portion of their home's equity in the form of cash. Consumer Financial Protection Bureau, Reverse Mortgages: Report to Congress 5—6 (June 2012). This provides seniors with capital to pay for living expenses and other costs, with the loan only reaching maturity when the borrower dies, sells the home or moves out, or fails to maintain the property or pay necessary fees and taxes. Id. at 5—6, 22; see also HRS § 506-10 (2008) (listing the events that make a reverse mortgage loan due). This transaction for cash at the expense of ownership of one's home — the largest and most significant asset most Americans possess — has significant ramifications for senior citizens, their families, and the communities in which they live. Protecting Seniors: A Review of the FHA's Home Equity Conversion Mortgage (HECM) Program: Hearing Before the Subcomm. on Housing, Community Development, and Insurance of the H. Comm. on Financial Services, 116th Cong. 2 (2019) (statement of Rep. Wm. Lacy Clay, Chairman, H. Subcomm. on Hous., Cmty. Dev., and Ins.) ("The racial wealth gap is exacerbated as countless families[, largely racial minorities,] are deprived of the chance to pass on their homes and other property to their children and other heirs, leading to . . . gutted city blocks, and less overall wealth.") 16 The mortgage at issue in this case is specifically a home equity conversion mortgage. HECMs are only available for seniors above 62 years of age who own a property and occupy it as their principal residence. For consistency with the briefs, circuit court documents, and ICA Memorandum Opinion, this court uses the broader term "reverse mortgage." Seniors face a significant risk of abuse by lenders, and the consequences of reverse mortgages can be unclear at the time of signing, but disastrous for mortgagors. See Reverse Mortgages: Polishing Not Tarnishing the Golden Years: Hearing Before the Senate Special Comm. on Aging, 110th Cong. 1 (2007) (statement of Senator Herb Kohl, Chairman, Special Comm. on Aging) ("[Reverse mortgage] [a]gents are targeting seniors aggressively in ways that this Committee has seen before: through direct mail, celebrity endorsements, and free lunch seminars. Marketers often gloss over the risks of a reverse mortgage, but they convey the pay-off quite clearly."); Sarah B. Mancini & Odette Williamson, Reversing Course: Stemming the Tide of Reverse Mortgage Foreclosures Through Effective Servicing and Loss Mitigation, 26 Elder L.J. 85, 86—87, 119—20 (2018) ("[o]lder adults who have taken out reverse mortgages are particularly resource-constrained. They tend to take out these loans as a last resort, motivated by a lack of

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sufficient income to cover rising medical costs and other essential expenses."). Namahoe appears to have been targeted in a similar manner; according to his declaration: "some folks came to my door and told me I could obtain a loan and not pay back anything while I lived and resided at the property. I believed them and I obtained what I understand was a reverse mortgage. . . . I spent the money over the years paying bills and buying food."

Due to the significant risks of abuse by lenders and inadequate understanding of reverse mortgage agreements by many senior citizens, reverse mortgages and foreclosures are subject to stringent rules and regulations promulgated by both federal and state authorities. Lenders offering loans backed by HUD, of which reverse mortgages and HECMs are one type, are required to make reasonable efforts to conduct face-to-face interviews with delinquent mortgagors, 24 C.F.R. § 203.604 (2009), conduct loss mitigation efforts to cure defaults, 24 C.F.R. §§ 203.605 (2009) and 203.501 (2009), conduct pre-foreclosure review, 24 C.F.R. § 203.606 (2009), and facilitate reinstatement of the mortgage, 24 C.F.R. § 203.608 (2009). Failure to comply with these regulations may result in civil penalties or the withdrawal of a mortgagee's HUD approval. 24 C.F.R. § 203.500 (2009).

Our state legislature has also acted to combat predatory lending in the context of reverse mortgages. Lenders are required to refer borrowers to HUD-approved counselors, and must be presented with a signed certification confirming that the borrower has received counseling prior to accepting an application for a reverse mortgage loan. HRS § 506-10.

Further, in the aftermath of economic crash and foreclosure crisis in the early-2010s, the legislature passed HRS § 667-17. The language of the attorney affirmation even refers to the conditions that gave rise to the statute:

During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported . . ., including failure to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits that falsely attest to such review and to other critical facts in the foreclosure process; and "robosignature" of documents.

HRS § 667-17.

Importantly for [the Namahoe Appeal,] [as well as this appeal now before the ICA], HRS § 667-17 requires attorneys filing on behalf of mortgagees seeking foreclosure to sign and submit an affirmation that the attorney has verified the accuracy of filed documents, and confirm that the lender has an adequate factual and legal basis for pursuing foreclosure.17 As officers of the court, attorneys for mortgagees seeking foreclosure must affirm not only the accuracy of the factual allegations underlying foreclosure, but also the legal sufficiency of foreclosure claims. 18 Id. Attorneys are also under a "continuing obligation to amend" the affirmation in the event of newly discovered material facts after filing. Id.

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17 HRS § 667-17 states, "[a]ny attorney who files on behalf of a mortgagee seeking to foreclose on a residential property under this part shall sign and submit an affirmation that the attorney has verified the accuracy of the documents submitted, under penalty of perjury and subject to applicable rules of professional conduct." HRS § 667-17. 18 One of the form affirmations in § 667-17 states:

Based upon my communication with [the foreclosing entity], as well as upon my own inspection and other reasonable inquiry under the circumstances, I affirm that, to the best of my knowledge, information, and belief, the Summons, Complaint, and other papers filed or submitted to the Court in this matter contain no false statements of fact or law and that plaintiff has legal standing to bring this foreclosure action.

It is within this expansive legislative and regulatory framework that [Nutter] and its attorneys at Clay Chapman pursued foreclosure on Namahoe's only home — all on the basis of a $500.00 repair obligation.

James B. Nutter & Co., 153 Hawai#i at 163-64, 528 P.3d at 236-37

(emphasis omitted).

This framework is critical here because the supreme

court has also held: In determining whether a private cause of action should be recognized based on statutory requirements, we consider the following factors: (1) whether the plaintiff is "one of the class for whose especial benefit the statute was enacted"; (2) whether there is "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one"; and (3) whether a private cause of action would be "consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff."

Whitey's Boat Cruises, Inc. v. Napali-Kauai Boat Charters, Inc.,

110 Hawai#i 302, 312, 132 P.3d 1213, 1223 (2006).

In Hungate, the supreme court considered these factors

in determining whether certain former provisions of the

nonjudicial foreclosure statute, including the former HRS § 667-

5, created a private cause of action against a mortgagee's

attorney. 139 Hawai#i at 406-07, 391 P.3d at 13-14. Hungate, as

a party in breach of a mortgage contract, fell within the class

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for whom the statute was enacted. Id. at 406, 391 P.3d at 13.

As to the second factor, the statute was silent as to whether the

legislature intended to create a private cause of action. Id.

Turning to whether a private right of action would be consistent

with the underlying purpose, the supreme court emphasized: [A] close reading of the legislative history of the 2008 amendment shows it was enacted to set additional burdens on the mortgagee to protect the mortgagor; the statute was not amended to regulate attorneys representing mortgagees. The amendment's structure or scheme attempted "to streamline and ensure transparency in the non-judicial foreclosure process by requiring a foreclosure mortgagee to provide pertinent information regarding the property to' interested parties."

Id. at 407, 391 P.3d at 14 (citation omitted).

Although the legislature tapped Hawaii-based attorneys

to provide useful information that could be obtained locally, the

supreme court reiterated that "the underlying structure and

intent of the amendment was to enable interested parties to

request and receive information in a timely manner from

mortgagees, and not to regulate attorneys' conduct." Id. In

addition, the Hungate court considered whether additional

remedies were unnecessary to protect the interests of the

borrower in light of the available remedies against the lender,

i.e., a claim for wrongful foreclosure. Id. Based on these

factors, the supreme court concluded that recognizing a cause of

action against a lender's attorney based on the former HRS § 667-

5 was not warranted.

We turn to HRS § 667-17 (Supp. 2012) (repealed 2017),

and the broader statutory framework enacted to combat predatory

lending and foreclosure practices related to reverse mortgages.

Vulnerable, elderly borrowers such as Namahoe and Domingo are

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certainly among the class of persons for whose special benefit

the statute was enacted. See James B. Nutter & Co., 153 Hawai#i

at 163-64, 528 P.3d at 236-37. Thus, the first Whitey's Boat

factor is met.

The second factor looks for any indication of

legislative intent, explicit or implicit, to create or deny a

remedy against the attorney responsible for communicating with a

lender's representative, conducting reasonable inquiry, verifying

the accuracy of documents, and submitting an affirmation with the

court. Unlike the statute examined in Hungate, HRS § 667-17 was

plainly and specifically enacted to put additional burdens on the

foreclosing attorney, not his or her mortgagee client.26 The

26 HRS § 667-17 provided, in pertinent part:

§ 667-17 Attorney affirmation in judicial foreclosure. Any attorney who files on behalf of a mortgagee seeking to foreclose on a residential property under this part shall sign and submit an affirmation that the attorney has verified the accuracy of the documents submitted, under penalty of perjury and subject to applicable rules of professional conduct. The affirmation shall be filed with the court at the time that the action is commenced and shall be in substantially the following form: . . . .

Note: During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities, including failure to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits that falsely attest to such review and to other critical facts in the foreclosure process; and "robosignature" of documents.

[____________], Esq., pursuant to Hawaii Revised Statutes § 667-17 and under the penalties of perjury, affirms as follows: 1. I am an attorney at law duly licensed to practice in the State of Hawaii and am affiliated with the Law Firm of __________________, the attorneys of record for Plaintiff in the above-captioned mortgage foreclosure action. As such, I am fully aware of the (continued...)

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substantially-required form included a recitation regarding

widespread insufficiencies in foreclosure filings and

specifically called out false attestations regarding the review

of documents and critical facts. The statute does not explicitly

create or deny a remedy for failure to comply with its mandate,

and the legislative history states that the purpose of the

legislation is "to prevent unwarranted foreclosure." H. Stand.

Comm. Rep. No. 697-14, in 2014 House Journal, at 1127. Thus,

this is a neutral factor.

26 (...continued) underlying action, as well as the proceedings had herein. 2. On [date], I communicated with the following representative or representatives of Plaintiff, who informed me that he/she/they (a) personally reviewed plaintiff's documents and records relating to this case for factual accuracy; and (b) confirmed the factual accuracy of the allegations set forth in the Complaint and any supporting affidavits or affirmations filed with the Court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith. Name Title _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ 3. Based upon my communication with [persons specified in item 2], as well as upon my own inspection and other reasonable inquiry under the circumstances, I affirm that, to the best of my knowledge, information, and belief, the Summons, Complaint, and other papers filed or submitted to the Court in this matter contain no false statements of fact or law and that plaintiff has legal standing to bring this foreclosure action. I understand my continuing obligation to amend this Affirmation in light of newly discovered material facts following its filing. 4. I am aware of my obligations under Hawaii Rules of Professional Conduct. __________________________ DATED:

N.B.: Counsel may augment this affirmation to provide explanatory details, and may file supplemental affirmations or affidavits for the same purpose. (Bold emphasis added).

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The third factor to be examined is whether a private

cause of action would be consistent with the underlying purposes

of the legislative scheme. Under the language of the statute and

the legislative scheme here, it is palpably clear that the

legislature did not view additional duties and remedies directed

solely at foreclosing mortgagees as sufficient to stem the tide

of wrongful foreclosures. HRS § 667-17 was directed at

foreclosing attorneys. Recognizing a private cause of action

against attorneys for committing a fraud on the court through an

egregious, legally and factually deficient, inaccurate and

incomplete, materially false and misleading HRS § 667-17

affirmation, particularly with respect to a foreclosure on a

reverse mortgage, would be consistent with the purposes of the

legislative scheme at issue here.27

Finally, we consider the additional factor weighed by

the supreme court in Hungate, that is, whether additional

remedies are unnecessary, as we determine whether to recognize a

cause of action against attorneys for committing a fraud on the

court through an egregious, legally and factually deficient,

inaccurate and incomplete, materially false and misleading HRS

§ 667-17 affirmation, particularly with respect to a foreclosure

on a reverse mortgage. Arguably, an additional cause of action

against attorneys was not strictly necessary to protect the

interests of the mortgagor because the mortgagor can file a claim

against the mortgagee for wrongful foreclosure. See Hungate, 139

27 This analysis is intended to be construed narrowly and should not be construed to be applicable to a non-material or less egregious failure to comply with HRS § 667-17.

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Hawai#i at 407, 391 P.3d at 14. Yet, the whole purpose of HRS

§ 667-17 was to provide stringent, additional safeguards and

failsafes, to be carried out by foreclosing attorneys, to address

the plague of wrongful foreclosures, particularly against

vulnerable members of our community. The existence of other

remedies does not preclude an additional remedy against a

Hawai#i-licensed attorney who not only fails to comply with the

statute, but who commits a fraud on the court by submitting a

materially false HRS § 667-17 affirmation. See Matsuura, 102

Hawai$i at 160, 73 P.3d at 698. Here, we hold that the weighing

of these factors favors recognition of a cause of action against

attorneys for committing a fraud on the court through an

affirmation, with respect to a foreclosure on a reverse mortgage.

C. Attorney Defendants' Rule 12(b)(6) Motion to Dismiss

In their first point of error in CAAP-XX-XXXXXXX,

Plaintiffs contend that in the Partial Dismissal Order, the

Circuit Court erred in granting in part Attorney Defendants' HRCP

Rule 12(b)(6) Motion to Dismiss. In the Complaint, Plaintiffs

asserted 13 counts, including the following against the Attorney

Defendants: Count I, Legal Malpractice; Count II, Gross Legal

Malpractice; Count III, Breach of Fiduciary Duty; Count IV,

Wrongful Foreclosure; Count V, IIED; Count VI, UDAP Claims; Count

VII, Abuse of Process; Count VIII, Fraud, including fraud on the

court; Count X, Elder Abuse; Count XII, Slander of Title; and

Count XIII, Punitive Damages. After briefing and a September 29,

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2016 hearing, the Circuit Court dismissed all of Domingo's claims

against Attorney Defendants, and dismissed all of Namahoe's

claims except the fraud on the court claim.28

It is well-established that: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. The appellate court must therefore view a plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternative theory. For this reason, in reviewing a circuit court's order dismissing a complaint . . . the appellate court's consideration is strictly limited to the allegations of the complaint, and the appellate court must deem those allegations to be true.

Kealoha v. Machado, 131 Hawai#i 62, 74, 315 P.3d 213, 225

(2013) (citation and brackets omitted); see also Bank of Am.,

N.A. v. Reyes-Toledo, 143 Hawai#i 249, 257-63, 428 P.3d 761, 769-

75 (2018) (Reyes-Toledo II) (discussing standards applicable to

HRCP Rule 12(b)(6) motions to dismiss).

Our review is conducted accordingly.

1. Counts I and II - Legal Malpractice Claims

It is undisputed that Plaintiffs were not in an

attorney-client relationship with Attorney Defendants; in fact,

Attorney Defendants represented Plaintiffs' litigation adversary.

As previously held by the ICA, as well as the supreme court: [C]reation of a duty in favor of an adversary of the attorney's client would create an unacceptable conflict of interest. Not only would the adversary's interests interfere with the client's interests, the attorney's justifiable concern with being sued for negligence would

28 Count XII, Slander of Title, was dismissed with prejudice. All of the other dismissals were without prejudice.

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detrimentally interfere with the attorney-client relationship.

Myers v. Cohen, 5 Haw. App. 232, 246, 687 P.2d 6, 16 (1984)

(citations omitted), reversed on other grounds by 67 Haw. 688

P.2d 1145 (1984); see also Buscher, 114 Hawai#i at 220, 159 P.3d

at 832).

In Blair v. Ing, 95 Hawai#i 247, 253-63, 21 P.3d 452,

458-68 (2001), the supreme court examined the legal theories

underlying legal malpractice claims and the various reasons that

other jurisdictions have created narrow exceptions to the general

rule disallowing a legal malpractice action by a non-client

against an attorney based on either a negligence or third-party

beneficiary (contract-based) claim.29 While the entire discussion is illuminating and informs our decision here, the

bottom line is that under Hawai#i law, legal malpractice is

viewed as a hybrid of tort and contract, permitting claims to

proceed under either negligence or contract theories of recovery,

and "[t]he class of individuals who may bring a malpractice

action is limited to a client's intended beneficiaries, provided

no other remedy exists to prevent future harm." Id. at 258, 259,

261, 21 P.3d at 463, 464, 466; see also Buscher, 114 Hawai#i at

220, 159 P.2d at 831 (reiterating that the Blair holding did not

create a duty of care to all non-client beneficiaries).

29 The starting place for this discussion was a nineteeth century United States Supreme Court case that held "a third party not in privity of contract with an attorney may not maintain a legal malpractice action against an attorney for negligence absent fraud or collusion." Blair, 95 Hawai #i at 253, 21 P.3d at 458 (citing Nat'l Sav. Bank v. Ward, 100 U.S. 195, 205-06 (1879)).

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We decline to expand the narrow conditions in which a

non-client can bring a legal malpractice action to the

circumstances here. Clearly, foreclosure defendants are not

intended beneficiaries of the legal services an attorney is

contracted to provide to his or her lender clients. The sound

policies against creating conflicts of interests are particularly

germane in the context of adversaries in litigation proceedings.

In addition, other remedies exist to address the

alleged harm and any future harm. Perhaps most important here is

the well-recognized principle noted in Buscher: Unlike a claim [by a non-client against an attorney] for negligence, an attorney can be held liable for fraudulent misrepresentation. See Kahala Royal Corp., 113 Hawai#i at 268–69, 151 P.3d at 749–50 (citing caselaw from other jurisdictions stating that it is well settled that an attorney can be sued by an adverse party for fraud); Matsuura v. E.I. du Pont, 102 Hawai#i 149, 162, 73 P.3d 687, 700 (2003) ("Under Hawai#i law, a party is not immune from liability for civil damages based upon that party's fraud engaged in during prior litigation proceedings."); Giuliani v. Chuck, 1 Haw. App. 379, 383–84, 620 P.2d 733, 736–37 (1980) ("The rule of law that an attorney representing a client may be held personally liable to an adverse party or a third person who sustains injury as a result of an attorney's intentional tortious acts is well settled." (Citations omitted.)).

Buscher, 114 Hawai#i at 220 n.13, 159 P.3d at 833 n.13.

In Kahala Royal Corp., the supreme court pointed to a California case that stated: [A] fraud claim against a lawyer is no different from a fraud claim against anyone else. If an attorney commits actual fraud in his dealings with a third party, the fact he did so in the capacity of attorney for a client does not relieve him of liability. While an attorney's professional duty of care extends only to his own client and intended beneficiaries of his legal work, the limitations on liability for negligence do not apply to liability for fraud.

113 Hawai#i at 269, 151 P.3d at 750 (citing Vega v. Jones, Day,

Reavis & Pogue, 121 Cal.App.4th 282, 17 Cal.Rptr.3d 26, 31–35

(2004)) (citation form altered).

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For these reasons, we conclude that the Circuit Court

did not err in dismissing Plaintiffs' legal malpractice claims

against Attorney Defendants.

2. Count III - Breach of Fiduciary Duty

To prove a breach of fiduciary duty, Plaintiffs must

show that a fiduciary relationship existed between them and

Attorney Defendants, Attorney Defendants breached a fiduciary

duty to Plaintiffs, and the breach proximately caused injury to

the Plaintiffs. See 37 C.J.S. Fraud § 15 (2023) (elements of

cause of action for breach of fiduciary duty); Cochrane v. Azman,

No. 29562, 2001 WL 661714, *5 (Haw. App. Feb. 22, 2011) (mem.

op.). A fiduciary duty exists when there is a relationship of

trust and confidence. Meheula v. Hausten, 29 Haw. 304, 314 (Haw.

Terr. 1926).

Plaintiffs make no argument that a relationship of

trust and confidence existed between them and Attorney

Defendants, instead arguing that HRS § 667-17 supports the

existence of a statutory duty owed by attorneys under the

circumstances here. We addressed the issue of whether a cause of

action should be recognized based on the requirements of HRS

§ 667-17 in conjunction with Attorney Defendants' cross-appeal

from the Partial Dismissal Order. However, viewing the Complaint

in the light most favorable to Plaintiffs, it appears beyond

doubt that Plaintiffs can prove no set of facts supporting that a

relationship of trust and confidence exists between them and

Attorney Defendants. Therefore, we conclude that the Circuit

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Court did not err in dismissing Plaintiffs' claim for breach of

fiduciary duty.

3. Counts IV, V, X & XII - Litigation Privilege

Plaintiffs argue that the Circuit Court erred in

dismissing Counts IV (Wrongful Foreclosure), V (IIED), X (Elder

Abuse), and XII (Slander of Title) as to Attorney Defendants

based on the litigation privilege. In the HRCP Rule 12(b)(6)

motion filed in the Circuit Court, Attorney Defendants cited,

inter alia, Kahala Royal Corp. for the proposition that the

litigation privilege is generally applicable to bar a claim for

damages against the opposing party's attorney if the alleged acts

occurred in the course of the prior litigation. Attorney

Defendants argued that the allegations pertaining to Counts IV,

V, X, and XII "are limited to conduct that occurred in the scope

of the Attorney Defendants' representation of [Nutter]," and

therefore, they are barred by the litigation privilege.30

In the Partial Dismissal Order, the Circuit Court

reviewed the policy considerations underlying the litigation

privilege, which were set forth in Matsuura, wherein the supreme

court explained that the interrelated policies associated with the litigation privilege include: (1) promoting the candid, objective, and undistorted disclosure of evidence; (2) placing the burden of testing the evidence upon the litigants during trial; (3) avoiding the chilling effect resulting from the threat of subsequent litigation; (4) reinforcing the finality of judgments; (5) limiting collateral attacks upon judgments; (6) promoting zealous advocacy; (7) discouraging abusive litigation practices; and (8) encouraging settlement. Therefore, in order to determine whether the litigation privilege should bar a subsequent collateral proceeding for

30 Attorney Defendants argue that the litigation privilege also bars Counts I, II, and III. However, as we have already concluded that the Circuit Court did not err in dismissing those counts, we need not address them further.

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civil damages based on litigation misconduct, including fraud, we must first address the policies associated with the privilege.

102 Hawai#i at 155, 73 P.3d at 693.

The Circuit Court noted that the litigation privilege

applies when statements were made or conduct was undertaken in

judicial proceedings, but that certain claims for relief are

clearly not covered, such as abuse of process and malicious

prosecution. The Circuit Court explained its dismissal without

prejudice of Counts IV, V, and X based on the litigation

privilege as follows: Case law does not expressly except the claims contained in the counts from the application of the litigation privilege. Also, there is no allegation that [Attorney Defendants] acted with a specific desire to harm Plaintiffs or acted for the purpose of personal gain or with ill will toward Plaintiffs. Accordingly, Counts IV, V, and X are dismissed without prejudice.

We first consider Count IV (Wrongful Foreclosure).

Under Hawai#i jurisprudence, a mortgagor can bring a wrongful

judicial foreclosure claim against a mortgagee, even when no

foreclosure or sale has yet occurred, if the foreclosing

mortgagee had no right to foreclosure at the time the foreclosure

proceedings were commenced, and the mortgagor suffered an injury

in fact and damages as a result. Reyes-Toledo II, 143 Hawai#i at

263-64, 428 P.3d at 775-76. The wrongful act in the wrongful

foreclosure is the lender's attempt, for its own benefit, to

foreclose the borrower's rights, title, and interest in the

property being foreclosed upon without a lawful basis for doing

so. See generally id. No Hawai#i case has recognized a wrongful

foreclosure cause of action against the lender's attorney.

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As discussed above, in Hungate the supreme court

recognized the generally unacceptable policy implications of

creating a cause of action against a lender's attorney in favor

of an adverse party, so long as the attorney's actions were

within the bounds of the law. Hungate, 139 Hawai#i at 412-13,

391 P.3d at 19-20. In Hungate, the supreme court declined to

permit Hungate to sue the lender's attorney for, inter alia, UDAP

under HRS § 480-2 in the foreclosure action because allowing a

UDAP claim could compromise the attorney's zealous representation

of his or her client. Id. at 413, 391 P.3d at 20. In addition,

the court noted that an attorney is particularly vulnerable to

such suit because, under HRS § 480-2 a plaintiff need only allege

that the attorney's actions had a capacity to deceive, rather

than meeting a more rigorous state of mind, such as actual

deception. Id. Broadly recognizing a wrongful foreclosure cause

of action against attorneys poses similar pitfalls. A wrongful

foreclosure claim can be brought, regardless of a lender's state

of mind, if the lender cannot establish that it had the right to

proceed at the commencement of the foreclosure proceedings, and

the borrower-defendant suffered injuries and damages as a result.

See Reyes-Toledo II, 143 Hawai#i at 263-64, 428 P.3d at 775-76.

To allow a parallel wrongful foreclosure claim against

the lender's attorney in every case wherein the lender's right to

sue might be at issue could severely compromise the attorney's

ability to zealously represent lender clients. To impose

liability on an attorney for wrongful foreclosure would have the

undesirable effect of creating a duty to third parties that might

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take precedence over the attorney's duty to his or her client.

Thus, we conclude that the supreme court's policy concerns

disfavor recognizing a wrongful foreclosure cause of action

against a lender's attorney. In most circumstances, the

mortgagor's interests can be protected from the wrongful acts of

the mortgagee through filing a claim against the mortgagee,

without permitting a wrongful foreclosure claim against the

lender's attorney. Hungate, 139 Hawai#i at 412, 391 P.3d at 19.

We further conclude that, while a wrongful foreclosure claim per

se should not be permitted against the lender's attorney, based

on the policy considerations underlying the litigation privilege,

certain wrongful-foreclosure-related claims may lie against the

attorney for the attorney's own wrongful conduct in certain

circumstances, as discussed in the context of Plaintiffs' fraud

on the court claims against Attorney Defendants.

Accordingly, even accepting the allegations of the

Complaint as true and viewing the Complaint in a light most

favorable to Plaintiffs, we conclude that the Circuit Court did

not err in dismissing the wrongful foreclosure claims against

Attorney Defendants.

The Circuit Court also dismissed without prejudice

Count V, IIED, purportedly based on the Attorney Defendants'

litigation privilege, but further stating that "there is no

allegation that [Attorney Defendants] acted with a specific

desire to harm Plaintiffs or acted for the purpose of personal

gain or with ill will toward Plaintiffs." Thus, it appears that

dismissal of Count V was on alternative grounds of litigation

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privilege and failure to state a claim for IIED. The supreme

court has held: The elements of the tort of IIED are: 1) that the conduct allegedly causing the harm was intentional or reckless; 2) that the conduct was outrageous; and 3) that the conduct caused 4) extreme emotional distress to another. Hac v. Univ. of Hawaii, 102 Hawai#i 92, 106–07, 73 P.3d 46, 60–61 (2003). "The term 'outrageous' has been construed to mean without just cause or excuse and beyond all bounds of decency." Enoka v. AIG Hawai#i Ins. Co., Inc., 109 Hawai#i 537, 559, 128 P.3d 850, 872 (2006) (citations and some internal quotation marks omitted). Additionally, "[t]he question whether the actions of the alleged tortfeasor are unreasonable or outrageous is for the court in the first instance, although where reasonable people may differ on that question it should be left to the jury." Young v. Allstate Ins. Co., 119 Hawai#i 403, 429, 198 P.3d 666, 692 (2008) (citation omitted).

Goran Pleho, LLC v. Lacy, 144 Hawai#i 224, 237, 439 P.3d 176, 189

(2019).

The allegations of the Complaint include, inter alia,

the following. Namahoe was "knowingly, purposely [sic],

wrongfully, fraudulently, conspiratorially, and criminally

expelled" from his home via a wrongful foreclosure. Attorney

Defendants filed multiple reverse mortgage foreclosures while

representing Nutter against elderly mortgagors, including the

foreclosures against Domingo and Namahoe, to further Nutter's

wrongful, tortious, illegal, and criminal conduct toward Domingo and Namahoe in the foreclosure actions, with various degrees of

culpability including, for example, knowing (or they should have

known) that Nutter had no right to foreclose under the

circumstances. Attorney Defendants refused to agree to a HUD

inspection of the completed repairs by Domingo, while admitting

that a HUD inspection was determinative of the issue of whether

repairs were satisfactory. After service of a writ of ejectment

on Namahoe, in order to cover-up and further defraud Namahoe,

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Attorney Defendants (and Nutter) offered Namahoe $5,000 to sign a

paper Namahoe did not understand, under extreme duress. Newly

homeless, Namahoe took the $5,000, used it to purchase a van to

live in, and Namahoe was left unhoused, helpless, ill, depressed,

shamed, and physically, emotionally, and psychologically impaired

for life.

With respect to Domingo, the Complaint additionally

alleges the following. Even after judgment was entered in favor

of Domingo in the Domingo Foreclosure Action, Attorney Defendants

(and/or Nutter) notified Domingo, without advising Domingo's

attorney, that Domingo remained in default for $6,674, and if he

did not enter into a repayment agreement, a new foreclosure

action would be filed. Domingo was frightened, fatigued, frail,

feeble and impaired when he signed a Repayment Plan Agreement

under duress, fear, and serious emotional distress caused by the

continued threat of baseless foreclosure.

Taking these allegations as true for the purposes of

evaluating the dismissal of Plaintiffs' IIED claims under HRCP

Rule 12(b)(6), we cannot say that Namahoe and Domingo have failed

to state claims for IIED. See Goran Pleho, LLC, 144 Hawai#i at

238, 439 P.3d at 190.

Turning to the question of whether the litigation

privilege bars the IIED claims at issue in this case, Attorney

Defendants argue that the litigation privilege has been held to

bar other intentional tort claims, pointing to Kahala Royal

Corp., 113 Hawai#i at 269-73, 151 P.3d at 750-54, which applied

the litigation privilege to bar claims of intentional

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interference with contractual relations (IICR) and intentional

interference with prospective economic advantage (IIPEA) for

conduct occurring during the course of the attorney's

representation of his or her client. In so doing, the supreme

court noted that the complainants failed to allege that the

attorney defendants were acting outside of the scope of their

attorney-client relationship, and they failed to allege facts

from which actual malice might reasonably said to exist. Id. at

271, 151 P.3d at 752. Accordingly, the supreme court concluded that there were no allegations indicating that the attorneys

"possessed a desire to harm which is independent of the desire to

protect their clients." Id. (citation omitted). The supreme

court further concluded that there were no allegations that the

attorneys were acting for personal gain or with ill will toward

the opposing party. Id.

Similarly, in the case at bar, Plaintiffs do not allege

attorney defendants were acting outside of the scope of their

attorney-client relationship, they do not allege facts from which

actual malice might reasonably be said to exist,31 and they do

not allege that Attorney Defendants acted for personal gain or

with ill-will toward Plaintiffs. Attorney Defendants' alleged

conduct occurred during and in conjunction with their

representation of Nutter in judicial foreclosure proceedings.

31 Actual malice was not an element of either the IICR or IIPEA claims at issue in Kahala Royal Corp. Kahala Royal Corp., 113 Hawai #i at 267 n.17 & n.18, 151 P.3d at 748 n.17 & n.18 (setting forth the elements of IICR and IIPEA). However, the supreme court's litigation privilege analysis embraced cases from other jurisdictions that have held that the privilege is lost only if the attorney acts with bad faith, personal ill-will, malice, or actual intent to harm. Id. at 270-72, 151 P.3d at 751-53.

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Thus, based on the allegations of the Complaint, we conclude that

the Circuit Court did not err in dismissing Plaintiffs' IIED

based on the litigation privilege.

Count X (Elder Abuse) asserts that Attorney Defendants

(and Nutter) wrongfully appropriated and/or assisted in

appropriating Plaintiffs' residences with the intent to defraud,

they knew or should have known that Plaintiffs had the right to

retain ownership of their residences, and that this conduct

constituted elder abuse. It is unclear, and the parties have not

addressed, whether Hawai#i recognizes a cause of action for elder

abuse (and what elements must be established), although

additional civil penalties may be imposed in a government action

for a violation of HRS § 480-2 that is "directed toward, targets

or injures an elder." HRS § 480-13.5 (2008). However,

Plaintiffs' Elder Abuse claims were dismissed based on Attorney

Defendants' litigation privilege on an HRCP Rule 12(b)(6) motion,

and we confine our review to that issue.32

We accept Plaintiffs' allegations as true and view them

in the light most favorable to plaintiff, including the

allegation that Attorney Defendants' intended to defraud them out

of their residences. As stated above, in Kahala Royal Corp., the

supreme court pointed favorably to a California case that stated: [A] fraud claim against a lawyer is no different from a fraud claim against anyone else. If an attorney commits actual fraud in his dealings with a third party, the fact he did so in the capacity of attorney for a client does not relieve him of liability. While an attorney's professional duty of care extends only to his own client and intended beneficiaries of his legal work, the limitations on

32 We do not reach the question of whether an elder abuse claim lies in Hawai#i.

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liability for negligence do not apply to liability for fraud.

13 Hawai#i at 269, 151 P.3d at 750 (citing Vega v. Jones, Day,

Reavis & Pogue, 121 Cal.App.4th 282, 17 Cal.Rptr.3d 26, 31–35

While Count X may ultimately be found to be otherwise

infirm, applying the standards applicable to a review of

dismissal on an HRCP Rule 12(b)(6) motion, we cannot conclude

that the litigation privilege shields Attorney Defendants from

defending a claim that they intentionally acted to defraud these elderly Plaintiffs out of their homes. Accordingly, we conclude

that the Circuit Court erred in dismissing Count X on this basis.

Finally, the Circuit Court dismissed Count XII, Slander

of Title, on the ground that the litigation privilege expressly

applies to slander of title claims, based on this court's

decision in Isobe, 127 Hawai#i at 368, 279 P.3d at 33. In Isobe,

we held that an absolute litigation privilege applies to claims

for slander of title. Id. at 383, 279 P.3d at 48. Here,

Plaintiffs' claim for slander of title against Attorney Defendants is based on the filing of a Notice of Pendency of

Action (NOPA) with respect to both the Domingo Foreclosure and

the Namahoe Foreclosure. The NOPAs were filed in the course of

judicial proceedings and were related to those proceedings.

Therefore, based on Isobe, we conclude that the Circuit Court did

not err in dismissing Plaintiffs' slander of title claims in

Count XII with prejudice.

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4. Count VII - Abuse of Process

dismissing without prejudice Count VII for failure to state a

claim for abuse of process. Count VII states: 57. Plaintiffs Domingo and Namahoe re-allege and re-state the allegations of paragraphs 1-56 above. 58. [Nutter and Attorney Defendants] initiated the Namahoe Foreclosure for a measly $500.00 worth of cosmetic repairs that had been completed, but not approved by a HUD inspector and never disclosed to the Court. 59. [Nutter and Attorney Defendants] initiated the Domingo Foreclosure for the improper purpose of an inspection of Domingo's residence by Nutter's inspectors and appraisers rather than a HUD approved inspector, to which Nutter vehemently objected.

60. [Nutter and Attorney Defendants] insidiously devised the strategy to foreclose reverse mortgages with repair riders, targeting the impaired, marginal, and improverished elderly who are unaware of the HUD inspection requirement to satisfy the repair rider and also unaware foreclosure was never a remedy per the loan documents and HUD regulations, rules and standard practices. 61. The acts and omissions of [Nutter and Attorney Defendants] alleged herein and such other conduct as may be established at trial, constitute abuse of process .

(Format altered).

The Circuit Court dismissed Plaintiffs' claims for

abuse of process based on Young v. Allstate Ins. Co., 119 Hawai#i 403, 198 P.3d 666 (2008). In Young, the supreme court reiterated

that "there are two essential elements in a claim for abuse of

process: (1) an ulterior purpose and (2) a wilful act in the use

of the process which is not proper in the regular conduct of the

proceeding." Id. at 412, 198 P.3d at 675 (citation and internal

quotation marks omitted). With respect to the second element,

the supreme court emphasized that the defendant must be alleged

to have committed a willful act that is not proper in the regular

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conduct of the proceeding. Id. The willful act alleged in

Young, using lowball settlement offers to punish the claimant in

that case and "send a message" to other claimants, did not

satisfy the second element because offers to settle are "proper"

in the regular conduct of proceedings. Id. at 414-15, 198 P.3d

at 677-78. Noting that the only other willful act alleged was

the use of process itself, the supreme court pointed to the

following: The most recent edition of Professor Prosser's treatise on torts teaches that "[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Prosser and Keeton on Torts § 121, at 898 (5th ed., W. Page Keeton et al. eds., 1984) (emphases added) (footnotes omitted). Thus, more is required than the issuance of the process itself. See Coleman, 41 Cal.3d at 802, 718 P.2d at 89, 226 Cal.Rptr. at 101–02, Simone v. Golden Nugget Hotel & Casino, 844 F.2d 1031, 1038, 1040 (3d Cir. 1988) (applying New Jersey law); Clermont Environmental Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 474 N.E.2d 357, 361 (1984); Kaminske v. Wisconsin Cent. Ltd., 102 F.Supp.2d 1066, 1078–79 (E.D.Wis. 2000).

Young, 119 Hawai#i at 414-15, 198 P.3d at 677-78 (footnote

omitted; emphasis altered).

Here, the Circuit Court's dismissal without prejudice

of Plaintiffs' abuse of process claims rested on the second element, and the court's determination that there was no

allegation that Attorney Defendants committed a willful act

distinct from the use of process. On appeal, Plaintiffs argue

that the willful act committed by Attorney Defendants was the act

of filing the foreclosure complaints knowing that Nutter had no

right to proceed in the first place, and proceeding in the

Namahoe Foreclosure despite the fact that documents mailed to

Namahoe were returned. As in Young, while Plaintiffs'

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allegations satisfied the first element of an abuse of process

claim, the Complaint did not allege the type of improper act upon

which a claim of abuse of process may be founded. Therefore, we

conclude that the Circuit Court did not err in dismissing Count

VII without prejudice.

5. Count VIII - Fraud

dismissing Domingo and Namahoe's fraud claims, except for

Namahoe's fraud on the court claims. Count VIII states: 62. Plaintiffs re-allege and re-state the allegations of paragraphs 1-61 above.

63. The acts and omissions of [Nutter and Attorney Defendants] alleged herein and such other conduct as may be established at trial, constitute clear and convincing evidence of fraud practiced upon Plaintiffs.

dismissed Count VIII, in relevant part as follows: To the extent that the claims for relief seek recovery of damages and they are based upon violations of HRS § 667- 17, consistent with the discussion in Subsection A[ 33] they are dismissed.

In regard to [Domingo's] claim for relief for fraud based upon the Repayment Agreement, it does not have the requisite specificity required by Rule 9 of the HRCP and Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 30-31 (1992). Of particular concern, the element of detrimental reliance is not clearly articulated. Also, in light of the allegation that the Repayment Agreement has been rescinded, it is not clear what substantial pecuniary damage was suffered by [Domingo]. See Ellis v. Crockett, 51 Haw. 45, 52-53 (1969).

33 In Subsection A of the Partial Dismissal Order, inter alia, the Circuit Court rejected Plaintiffs' argument that a claim for damages may be brought against Attorney Defendants pursuant to HRS § 667-17. The Circuit Court reasoned that attorney affirmations are directed at the court, and that sanctions and other remedies might be available as a result of misrepresentations to the court, but that no direct cause of action against Attorney Defendants was permissible. We did not reach this issue in conjunction with our review of the Circuit Court's dismissal of Counts I, II, and III of the Complaint, as the Circuit Court did. However, it is discussed in conjunction with our review of Attorney Defendants' appeal.

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Regarding [Namahoe's] claim for relief for fraud based on paragraphs 18, 19 and 20, [Namahoe] characterizes it as a fraud on the court. Plaintiffs' claims for relief for damages based upon fraud are dismissed without prejudice. [Namahoe's] claim for relief for fraud on the court is not dismissed.

On appeal, Plaintiffs argue that the fraud claims were

sufficient to withstand dismissal under HRCP Rule 12(b)(6),

particularly since the facts must be deemed as true. Plaintiffs

further argue that the essence of their fraud claim against

Attorney Defendants was based on HRS § 667-17, and Attorney

Defendants' materially false and misleading HRS § 667-17 affirmations. As we held above, applying the standards set forth

in the supreme court's jurisprudence, an action for damages is

hereby recognized in Hawai#i against an attorney for committing a

fraud on the court through an egregious, legally and factually

misleading HRS § 667-17 affirmation under the circumstance of

this case, which involves wrongful foreclosures on Plaintiffs'

reverse mortgages.

Thus, we conclude that the Circuit Court erred in

dismissing Plaintiffs' fraud claims to the extent that they seek

a recovery of damages based upon the egregious violations of HRS

§ 667-17 that are alleged in this case, which have been held to

constitute fraud on the court. See James B. Nutter & Co., 153

Hawai#i at 166-69, 528 P.3d at 239-42.

Plaintiffs argue that its allegations of fraud are

stated with the required particularity. They submit that, in

addition to Attorney Defendants' materially deficient and

misleading HRS § 667-17 affirmations, the claim for fraud was

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based on the failure to amend the necessary affirmations, the law

and facts particular to reverse mortgages and the HUD rules and

regulations applicable thereto, as well as Attorney Defendants'

further actions in seeking summary judgment against Domingo and

Namahoe in the foreclosure suits. It seems, however, based on

the allegations of the complaint, that these allegations are part

of the fraud on the court claim grounded in HRS § 667-17.

As discussed above, we have recognized a cause of

action against attorneys arising out of a fraud on the court

through an egregious, legally and factually deficient, inaccurate

affirmation under the circumstances of this case, which involved

foreclosure on the Plaintiffs' reverse mortgages. On remand,

both Plaintiffs are able to seek damages from Attorney Defendants

for their injuries and losses caused by such egregious

misconduct. However, Plaintiffs' assertion that there were

additional, independent fraudulent acts and/or omissions is

unclear, and Plaintiffs do not point to any specific additional

fraud. We therefore conclude that the Circuit Court did not err

in dismissing such additional fraud claims without prejudice.

6. Count VI - Unfair or Deceptive Acts or Practices

Plaintiffs contend that the Circuit Court erred in

dismissing their UDAP Claims on the grounds that they do not have

standing as consumers to sue Attorney Defendants under HRS

chapters 480 and 481A. The Circuit Court's ruling on Count VI

states, in relevant part: HRS § 480-2(d) states: "[n]o person other than a consumer, the attorney general or the dirctor of the office

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of consumer protection may bring an action based upon unfair or deceptive acts or practices declared unlawful by this section." Under HRS § 480-1, "'[c]onsumer' means 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." Under the allegations of the Complaint, Plaintiffs did not receive or pursue legal services from [Attorney Defendants]. Therefore, the claims for relief under Chapter 480, HRS, should be dismissed. Regarding Plaintiffs' claims for relief under Chapter 481A, HRS, Plaintiffs contend that they relate to the likelihood of Plaintiffs' confusion or misunderstanding. Under Hawai#i law, a: likelihood of confusion exists when consumers confronted with products or services bearing one label or mark would be likely to assume that the source of the products or services is the same as or associated with the source of a different product or service identified by a similar mark. (Citation omitted)

Carrington v. Sears, Roebuck & Co., 5 Haw. App. 194, 199 (1984). The point is that a claim under Chapter 481A, HRS, relates to the sale or provision of goods or services. In this case, [Attorney Defendants] may have provided legal services, but not to Plaintiffs. Plaintiffs do not have standing to bring an action against [Attorney Defendants] under Chapter 481A, HRS.

Plaintiffs' claims for relief based upon Chapters 480 and 481A are dismissed without prejudice.

On appeal, Plaintiffs argue that, even though Attorney

Defendants did not provide legal services to them, they are

third-party beneficiaries of the protections afforded by the HRS

§ 667-17 affirmation obligations/duties. We have already

recognized a direct cause of action against attorneys arising out

of a fraud on the court through an egregious, legally and

factually deficient, inaccurate and incomplete, materially false

and misleading HRS § 667-17 affirmation under the circumstances

of this case. It is unclear how Plaintiffs' argument concerning

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third-party beneficiary status under HRS § 667-17 entitles them

to further relief under the UDAP statutes.34

As Attorney Defendants point out, in Hungate the

supreme court declined to recognize a UDAP claim against the

lender's attorney, although the court stated: "[a]s Hungate

asserts, he is a consumer based on the mortgage with Deutsche

Bank, and is thus also a 'consumer vis à vis the mortgagee's

lawyer for the same transaction.'" Hungate, 139 Hawai#i at 412,

391 P.3d at 19; see also HRS § 480-1 (defining "consumer"). The

supreme court examined the unique nature of the attorney-client

relationship, and with respect to UDAP claims the court stated: Permitting a party to sue his or her opponent's attorney for UDAP under HRS § 480-2 in foreclosure actions presents a similar issue in that an attorney's concern with being sued by a party opponent could compromise his or her representation of the client. In a UDAP action, an attorney would be especially vulnerable to suit because, for example, under HRS § 480-2 actual deception need not be shown; the capacity to deceive is sufficient. Accordingly, a plaintiff would need only to allege that opposing counsel has breached the statutory duty under HRS § 480-2 not to engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in a way that caused private damages in order to state a claim under HRS chapter 480. Given that UDAP lacks a more rigorous or precise state of mind requirement, even a carefully rendered opinion could, if incorrect, have the capacity to deceive. The attorney would therefore have to insure the correctness of his [or her] opinions and strategies, rendering it virtually impossible for an attorney to effectively perform the traditional role of legal counselor. Similar to the negligence issue in Boning, in foreclosure actions an attorney's justifiable concern with being sued by the opposing party for UDAP could compromise the attorney's ability to zealously represent his or her client. Consequently, based on the allegations against Rosen, we decline to recognize a UDAP claim against him by Hungate under HRS § 480-2 in the instant foreclosure action.

34 Plaintiffs cite no authority for the proposition that they have rights as a third-party beneficiary of a statute, as opposed to a third-party beneficiary of a contract. As discussed above, we have rejected the argument that an adverse party is a third-party beneficiary of the legal services contract between their litigation adversary and their adversary's attorney.

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Id. at 413, 391 P.3d at 20 (citations and footnote omitted;

punctuation altered).

Although Domingo and Namahoe are consumers based on

their reverse mortgages with Nutter, and thus are consumers vis à

vis Attorney Defendants, the supreme court's rationale for

declining to recognize a UDAP claim against the lender's attorney

in Hungate is equally applicable to Plaintiffs' Chapters 480 and

481A Claims against Attorney Defendants here.35 Thus, we affirm

the Circuit Court's dismissal of Count VI without prejudice, on

this alternative ground.

7. Count XIII - Punitive Damages

dismissing their claims for punitive damages on the basis that it

had dismissed the other tort claims against Attorney Defendants.

In light of our conclusion that Plaintiffs may prosecute claims

in the nature of fraud for Attorney Defendants' fraud on the

court, the Circuit Court erred to the extent that it barred

Plaintiffs' pursuit of punitive damages, which was set forth in

the Complaint's prayer for relief, as well as in Count XIII.

However, "a claim for punitive damages is not an independent

tort, but is purely incidental to a separate cause of action."

35 In Hungate, the supreme court did not decide whether attorneys could be held liable under HRS § 667-60 (2016), which imposes UDAP liability on certain foreclosing mortgagees in nonjudicial foreclosures. 139 Hawai #i at 413 n.23, 391 P.3d at 20 n.23. We similarly are not addressing other potential arguments; rather, we are applying Hungate's holding to the allegations of the Complaint in this case. We further note that we have examined the majority opinion in Goran Pleho, LLC, which held that Hungate's holding concerning UDAP claims against opposing counsel did not apply because the issue in that case was whether a lawyer who engaged in unfair or deceptive practices against his own client was subject to civil liability under HRS § 480-2, and we conclude that Goran Pleho, LLC does not affect the application of Hungate to this case. Goran Pleho, LLC, 144 Hawai #i at 245-52, 439 P.3d at 197-203.

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Ross v. Stouffer Hotel Co. (Haw.), Inc., 76 Hawai#i 454, 466, 879

P.2d 1037, 1049 (1994) (citation omitted). Thus, on this

alternative ground, we conclude that the Circuit Court did not

err in dismissing Count XIII as a separate cause of action.

D. Plaintiffs' Partial Summary Judgment Motion

As discussed in Section IV.B.1. above, we lack

appellate jurisdiction to review the Order Granting/Denying MPSJ.

Therefore, we do not reach Plaintiffs' arguments on their second

point of error in CAAP-XX-XXXXXXX.

V. CONCLUSION

As set forth above, Nutter's appeal in CAAP-XX-XXXXXXX

was dismissed with prejudice. With respect to Attorney

Defendants' cross-appeal, we conclude that Plaintiffs' Complaint

does not constitute a SLAPP and thus affirm the Circuit Court's

Order Denying Attorney Defendants' MJOP, as well as the Order

Denying Attorney Defendants' Substantive Joinder to the Nutter

MJOP.

In CAAP-XX-XXXXXXX, the appeal from the Order

Granting/Denying MPSJ is dismissed for lack of appellate

jurisdiction. For the reasons stated herein, the Partial

Dismissal Order is affirmed in part and vacated in part; the

Circuit Court's dismissal of Counts I, II, III, IV, V, VI, VII,

and XIII without prejudice is affirmed; the Circuit Court's

dismissal of Count XII with prejudice is affirmed; the Circuit

Court's dismissal of Plaintiffs' fraud claims in Count VIII to

the extent that they seek a recovery based upon the egregious

violations of HRS § 667-17 that are alleged in this case is

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vacated, but the Circuit Court's dismissal without prejudice of

Plaintiffs' fraud claims other than fraud on the court is

otherwise affirmed; the Circuit Court's dismissal of Count X is

vacated.

This case is remanded to the Circuit Court for further

proceedings consistent with this Opinion.

On the briefs: /s/ Lisa M. Ginoza Chief Judge David J. Minkin, Jesse J.T. Smith, /s/ Katherine G. Leonard (McCorriston Miller Mukai Associate Judge MacKinnon LLP), for Defendant-Appellant/ /s/ Karen T. Nakasone Cross-Appellee/Appellee. Associate Judge

William J. Rosdil, AAL, and Rebecca A. Copeland, (Law Office of Rebecca A. Copeland, LLC), for Plaintiffs-Appellees/ Cross-Appellees/Appellants.

A. Bernard Bays, Matthew C. Shannon, (Bays Lung Rose & Holmas), for Defendants-Appellees/ Cross-Appellants.