NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-JUN-2026 07:54 AM Dkt. 65 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
EWA VILLAGES OWNERS ASSOCIATION, by its Board of Directors, Plaintiff/Counterclaim Defendant-Appellee, v. ROPATI JAMES TAUTUA and EMMA TUASIVI TAUTUA, Defendants/Counterclaimants/Cross-claim Defendants-Appellants, and NATIONSTAR MORTGAGE LLC, Defendant/Cross-claim Defendant-Appellee, and ARROW FINANCIAL SERVICES, INC., Defendant-Appellee, and CITY AND COUNTY OF HONOLULU, Defendant/Counterclaimant/Cross-claimant-Appellee, 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.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CCV-XX-XXXXXXX)
MEMORANDUM OPINION (By: Leonard, Presiding Judge, McCullen and Guidry, JJ.)
Defendants/Counterclaimants/Cross-claim Defendants-
Appellants Ropati James Tautua and Emma Tuasivi Tautua
(together, the Tautuas) appeal from the Circuit Court of the
First Circuit's December 28, 2023 "Order Granting [Plaintiff/ NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Counterclaim Defendant-Appellee Ewa Villages Owners
Association]'s Motion for an Order Confirming Foreclosure Sale,
Approving Commissioner's Report, Allowance of Commissioner's and
Attorneys' Fees and Costs, Distribution of Proceeds, Directing
Conveyance, for Writ of Ejectment, and for Deficiency Judgment,
Filed August 16, 2023" (Order Confirming Foreclosure Sale) and
Judgment. 1 (Formatting altered.)
On appeal, the Tautuas challenge the confirmation of
the foreclosure sale and the award of attorneys' fees and costs.
We affirm.
I. BACKGROUND
A. Factual Background
The background in this case has a long history. Ewa
Villages is a master-planned residential community located in
ʻEwa Beach, Oʻahu, Hawaiʻi. The City and County of Honolulu
developed Ewa Villages and created the Shared Appreciation or
Equity Program (SAE Program) to provide "safe, sanitary and
reasonably priced housing" to Hawaiʻi residents.
Under the SAE Program, prospective homebuyers would
purchase property in Ewa Villages for roughly seventy-five
percent of the original fair market value. 2 In exchange,
1 The Honorable Jeannette H. Castagnetti presided.
2 The Hawaiʻi Supreme Court considered a similar SAE lien in American Savings Bank, F.S.B. v. Chan, 146 Hawaiʻi 94, 103, 456 P.3d 167, 176 (2020).
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homebuyers agreed to pay the City a twenty-five percent share of
the net appreciation of the property should they "be divested of
title or any interest in the [p]roperty, in any manner,
voluntarily or involuntarily, including a judicial or
nonjudicial foreclosure sale."
In 1996, as part of the SAE Program, the Tautuas
purchased a home on Tenney Street (the Property) for $185,900.00
— roughly seventy-five percent of the Property's original fair
market value of $247,000.00. 3
In 2000, the Tautuas submitted an application to the
Association's Design Review Committee to construct a six-foot-
high chain link and concrete block (otherwise referred to as a
concrete masonry unit or CMU) wall around the Property. The
Committee denied the Tautuas' application for failing to comport
with the Association's Design Standards and Declaration of
Covenants, Conditions, and Restrictions (DCCR). The Committee
explained that there was "no grade difference with adjacent
properties requiring a retaining wall" and such a wall would
"interfere with proper storm water drainage."
In 2007, the Tautuas executed a $408,000.00
adjustable-rate note secured by a mortgage on the Property with
3 The deed was recorded on June 7, 1996.
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Defendant/Cross-claim Defendant-Appellee Nationstar Mortgage
LLC, formerly known as Fremont Investment & Loan. 4
Sometime before February 2009, the Tautuas constructed
the wall. Between 2009 and 2013, the Association sent the
Tautuas nineteen violation notices regarding the wall, thirteen
of which informed the Tautuas that they were being assessed a
$200.00 fine. As of April 2015, the Association had fined the
Tautuas $2,600.00 for violating the Design Standards and DCCR,
all of which went unpaid.
B. Procedural Background
1. Wall Violation Complaint
In 2015, the Association filed a complaint seeking an
order compelling the Tautuas to bring the wall into compliance
with the Design Standards and DCCR and to pay the $2,600.00 in
unpaid fines. 5 The circuit court ordered the Tautuas to remove
all non-compliant portions of the wall, but should they fail to
do so, the circuit court authorized the Association to enter the
Property and remove all non-compliant portions of the wall at
the Tautuas' expense. The circuit court further entered a
$2,600.00 judgment against the Tautuas, representing the unpaid
4 The mortgage was recorded on January 16, 2007. The Tautuas were current with their mortgage payments through June 2023.
5 The Honorable Karen T. Nakasone presided over the wall violation complaint proceedings.
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fines owed to the Association, and awarded the Association
$8,256.91 in reasonable attorneys' fees and $729.40 in costs
(2015 Judgment). 6 Ultimately, the Tautuas paid the $2,600.00
judgment and attorneys' fees and costs.
But the Tautuas did not remove the non-compliant
portions of the wall. Pursuant to the 2015 Judgment, the
Association paid a contractor $7,853.40 to bring the wall into
compliance, with work beginning in mid-July 2020. The Tautuas
failed to reimburse the Association for the contractor costs.
2. Foreclosure Complaint and Appeal
In November 2020, the Association filed the underlying
foreclosure action to recover $18,949.96 in "outstanding
association dues, late fees, repair reimbursement, attorneys'
fees and costs, and other assessments," as well as additional
dues and fees being assessed until the delinquency was
satisfied.
The Association moved for summary judgment and an
interlocutory decree of foreclosure, arguing the Tautuas'
delinquency constituted a lien on which the Association could
6 The 2015 Judgment total was thus $11,586.31 = $2,600.00 + $8,256.91 + $729.40.
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foreclose pursuant to Hawaiʻi Revised Statutes (HRS) § 421J-10.5
(Supp. 2014) and HRS § 667-1.5 (2016). 7
The circuit court granted the Association's motion,
determining that the amounts owed "constitute a valid lien on
the Property that may be foreclosed by" the Association pursuant
to HRS § 421J-10.5, and the proceeds of the foreclosure sale
could be applied to the amounts due. It instructed the
Association to provide the Tautuas "with a payoff amount so that
they may know what amount would be needed to be paid in order to
close this case." The circuit court appointed CJ Paet as
commissioner (Commissioner Paet).
7 HRS § 421J-10.5 provides in pertinent part:
§421J-10.5 Association fiscal matters; lien for assessments. (a) All sums assessed by the association, but unpaid for the share of the assessments chargeable to any unit, shall constitute a lien on the unit. . . .
The lien of the association may be foreclosed by action or by nonjudicial or power of sale foreclosure procedures set forth in chapter 667, by the managing agent or board, acting on behalf of the association and in the name of the association[.]
HRS § 667-1.5 provides in pertinent part:
§667-1.5 Foreclosure by action. The circuit court may assess the amount due upon a mortgage, whether of real or personal property, without the intervention of a jury, and shall render judgment for the amount awarded, and the foreclosure of the mortgage. Execution may be issued on the judgment, as ordered by the court.
"'Mortgage' means a mortgage, security agreement, or other document under which property is mortgaged, encumbered, pledged, or otherwise rendered subject to a lien for the purpose of securing the payment of money or the performance of an obligation." HRS § 667-1 (2016).
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The Tautuas appealed; this court affirmed the circuit
court's foreclosure decree and foreclosure judgment in CAAP-22-
0000051. Ewa Vills. Owners Ass'n v. Tautua, 155 Hawaiʻi 471, 566
P.3d 375, No. CAAP-XX-XXXXXXX, 2025 WL 947852, at *4 (App.
Mar. 28, 2025) (SDO).
3. Confirmation of Sale and Appeal
Meanwhile, in December 2022, the Association moved the
circuit court for an order allowing the sale of the Property
without holding open houses, as the Tautuas refused to allow any
open house. The circuit court granted the motion.
After advertising the auction three times in the
Honolulu Star-Advertiser, Commissioner Paet received
approximately thirty-two inquiries. Then, in May 2023,
Commissioner Paet sold the Property to the Association, the sole
bidder, for $1.00. Commissioner Paet prepared and filed a
report (Commissioner's Report) and included the fact sheet (Fact
Sheet) regarding the Property.
The Fact Sheet indicated the Tautuas owed $11,955.14
to the Association as of February 1, 2019, and the Property
would be sold subject to Nationstar's mortgage interest and the
City's SAE lien. But, neither the Commissioner's Report nor the
Fact Sheet indicated the value of the senior liens held by
Nationstar and the City. The Fact Sheet indicated the
Property's assessed value for the 2023 tax year was $808,900.00.
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The Commissioner's Report stated the "bid price of $1.00 for the
subject property [was] fair and reasonable and recommend[ed]
that the Court confirm the sale."
In August 2023, the Association moved the circuit
court for an order confirming the foreclosure sale, which the
Tautuas opposed as "the amount of $1.00 [was] not fair and
reasonable" and the "Association [had] not shown the amounts
owed to Nationstar Mortgage LLC or the City & County of
Honolulu." In the Tautuas' opposition, they acknowledged the
mortgage "amount presently owed is in the mid $300,000.00s."
At a September 2023 hearing, the circuit court ordered
supplemental briefing on the Property's appraised value and the
senior lien values and continued the hearing to November 2023.
The Association's supplemental brief included three
attachments, the last of which was an appraisal report
(Appraisal Report) for the Property. According to the Appraisal
Report, the "[m]arket value assuming conventional sale" of the
Property was between $790,000.00 and $810,000.00. 8 As to the
senior liens on the Property, the Tautuas owed $362,398.02 on
8 The appraisers "were not able to inspect the interiors or confirm the condition of the property," and instead viewed it from Tenney Street. "The market value estimate assumes the property is in average condition for the neighborhood, with no recent renovations, upgrades, or deferred maintenance."
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the mortgage, and the City's SAE lien was approximately
$190,635.02. 9 The two senior liens thus totaled $553,033.04.
The Appraisal Report asserted that the "effective
purchase price of $553,001 [was] fair and reasonable," given
(1) the substantial liens against the Property; (2) the "costs
to rehabilitate the property if the homeowners fail[ed] to
maintain the property during this time"; (3) the "potential for
future litigation, eviction costs, attorneys' fees, [and] a
drawn-out closing"; (4) the lack of interested bidders; and
(5) the Property's foreclosure value.
The Tautuas opposed the Association's supplemental
brief and again asked the circuit court "to determine whether
the bid price [was] so grossly inadequate as to shock the
conscience" and to reject the Association's $1.00 bid.
Because at least one bidder was interested in
reopening the auction, the circuit court reopened bidding.
Commissioner Paet reported the Association entered a new winning
bid of $15,000.00. After considering arguments, the circuit
court confirmed with Commissioner Paet that the new bid of
$15,000.00 was appropriate under the circumstances of this
9 The City determined its SAE lien based on the real property assessed value as of September 30, 2023. The City explained it was "hoping for an amicable resolution of this matter, so a Property appraisal was not obtained."
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case. 10 Considering the senior liens on the Property, the
circuit court determined the "winning price or bid price to the
Association is not so grossly inadequate as to shock the
conscience under these facts and circumstances."
On December 28, 2023, the circuit court entered its
Order Confirming Foreclosure Sale, which, as relevant to this
appeal, found and concluded:
3. Bidding was reopened at the hearing on the Motion, held on November 2, 2023. The winning bidder at the reopened Commissioner's public sale was [the Association] for the sum of FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00). The Court confirmed with the Commissioner that the sale was legally made, fairly conducted, and achieved a fair and reasonable price under the circumstances.
. . . .
6. Pursuant to the Motion, as of August 9, 2023, the amount owed by [the Tautuas] to [the Association], excluding attorneys' fees and costs, but including the Commissioner's fees and costs, was as follows:
Late Fees: $185.00 Reimbursable Repairs: $6,569.14 Commissioner's Fees & Costs: $4,744.07 Total: $11,498.21
10 The circuit court also cautioned the parties that Hawaiʻi's appellate courts may not look favorably upon such an atypical foreclosure case in which the homeowners had not defaulted on their mortgage:
But I think what -- on the Association's side, as far as what you need to consider is that whatever the outcome is on the motion, this could be an appealable case up to the higher courts and how they would view a case involving not a homeowner who is delinquent in their monthly assessments, but a homeowner who admittedly built something that was nonconforming, the Association had to take care of it, but they are current on their mortgage, and is this something where the Association should be foreclosing on, or is this something where the Association should just get a personal monetary judgment against somebody like that. I'm not saying one way or the other.
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8. [The Association]'s request for reasonable legal fees and costs of $67,280.34 is granted.[ 11]
The circuit court then confirmed the sale and awarded attorneys'
fees and costs:
2. The sale of the Property to [the Association], at the sale price of FIFTEEN THOUSAND AND NO/DOLLARS ($15,000.00), is hereby ratified, approved, and confirmed. Such sale is "AS IS" and shall be without warranties.
4. [The Association]'s Attorneys' Fees and Costs in the amount of $67,280.34 are reasonable.
That same day, the circuit court entered its
December 28, 2023 Judgment. The Tautuas appealed.
II. DISCUSSION
On appeal, the Tautuas contend the circuit court erred
by (1) confirming the foreclosure sale because the bid price
shocks the conscience and (2) awarding attorneys' fees because
the amount was unreasonable. 12
11 Regarding the circuit court's calculations as to the total amount owed by the Tautuas, it appears the circuit court reduced the amount for late fees to $185.00 from the $195.00 requested in the Association's motion to confirm the foreclosure sale. Further, as to the amount for reimbursable repairs, it appears the circuit court adopted the $6,569.14 figure from the Association's motion to confirm the foreclosure sale, rather than the $7,853.40 figure from the contractor's invoice.
12 The Tautuas also contend that "the record is incomplete here, because there is no admissible evidence of what was owed under the mortgage, and whether the Association assumed the mortgage . . . and because the City could not state the amount they were owed." However, the Tautuas do not explain why the evidence they refer to was not admissible. Thus, we deem this argument waived. See Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7) ("Points not argued may be deemed waived.").
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A. Circuit Court Did Not Abuse Its Discretion by Confirming the Foreclosure Sale
The Tautuas challenge the foreclosure sale amount of
$15,000.00 as shocking the conscience.
"The lower court's authority to confirm a judicial
sale is a matter of equitable discretion." Hoge v. Kane, 4 Haw.
App. 533, 540, 670 P.2d 36, 40 (App. 1983). "In exercising its
discretion, the court should act in the interest of fairness and
prudence and with just regard for the rights of all concerned
and the stability of judicial sales." Id. (citing Kleeb v.
Kleeb, 316 N.W.2d 583, 586 (Neb. 1982)). "If the highest bid is
so grossly inadequate as to shock the conscience, the court
should refuse to confirm." Id. (citing Wodehouse v. Hawaiian
Tr. Co., 32 Haw. 835, 852 (Haw. Terr. 1933)).
Here, the Tautuas did not comply with the circuit
court's 2015 Judgment. In October 2015, the circuit court
ordered the Tautuas to remove all non-compliant portions of the
wall within fourteen days. The Tautuas did not. As a result,
the Association paid a contractor to remove the non-compliant
portions of the wall in 2020, about five years later. According
to the 2015 Judgment, the Tautuas were to reimburse the
Association for the contractor costs. The Tautuas did not.
Thus, as found by the circuit court at the time of the
foreclosure sale confirmation, the Tautuas owed the Association
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$11,498.21 for bringing the wall into compliance, Commissioner
Paet's fees and costs, and late fees.
Although there were many inquiries prior to the first
bidding, the Association was the only bidder. After reopening
the bidding, the Association was the top bidder at $15,000.00.
And the Tautuas do not allege in their opening brief any
mismanagement by Commissioner Paet that adversely affected the
auction sales price.
The sales price ($15,000.00) was subject to the
mortgage balance ($362,398.02) and the SAE lien ($190,635.02),
which all together totaled $568,033.04. Although evidence was
admitted that the market value of the Property (assuming a
conventional sale) was between $790,000.00 and $810,000.00, and
that the 2023 tax assessed value of the Property was
$808,900.00, the Hawaiʻi Supreme Court has stated that "the price
obtained at a foreclosure sale is often far below the fair
market value of the property as a result of the forced nature of
a foreclosure sale." HawaiiUSA Fed. Credit Union v. Monalim,
147 Hawaiʻi 33, 45, 464 P.3d 821, 833 (2020).
Further, the Tautuas hindered Commissioner Paet's
ability to market the Property by refusing to allow open houses.
See Ventures Tr. 2013-I-H-R by MCM Cap. Partners, LLC v. Laurin,
144 Hawaiʻi 432, 443 P.3d 124, Nos. CAAP-XX-XXXXXXX and CAAP-18-
0000032, 2019 WL 2609134, at *4 (App. June 26, 2019) (SDO) 13 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(explaining that the defendant "hindered the ability of the
commissioner to market the property" by refusing to schedule
open houses). And the Property's condition was unclear, because
the Tautuas did not allow the appraisers to inspect the
interior. Cf. id.
Considering the particular circumstances of this case
— the Tautuas' refusal to comply with the 2015 Judgment, refusal
to hold an open house, refusal to allow an inspection of the
Property — and the forced nature of a foreclosure sale, we
cannot say that the sale price subject to the mortgage and the
SAE lien shocks the conscience. See Hoge, 4 Haw. App. at 540,
670 P.2d at 40.
Thus, the circuit court did not abuse its discretion
by confirming the foreclosure sale price.
B. Circuit Court Did Not Abuse Its Discretion by Awarding Attorneys' Fees and Costs
Next, the Tautuas challenge the circuit court's award
of $67,280.34 in attorneys' fees and costs as unreasonable
"given the amount that [the Association] sought to collect,
which was only $11,508.21." 13 Otherwise, the Tautuas do not
challenge the billing or lodestar method. In other words, the
13 The Tautuas appear to base the $11,508.21 figure on the amount the Association said it was owed in its motion to confirm the foreclosure sale. As mentioned above, the December 28, 2023 Order Confirming Foreclosure Sale indicated the amount the Tautuas owed was $11,498.21, a difference of ten dollars.
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Tautuas appear to argue that it is inherently unreasonable to
charge so much in attorneys' fees when the collection amount
"was only $11,508.21."
We review the circuit court's award of attorneys' fees
for an abuse of discretion. Chun v. Bd. of Trs. of Emps.' Ret.
Sys., 106 Hawaiʻi 416, 431, 106 P.3d 339, 354 (2005) (citing
Eastman v. McGowan, 86 Hawaiʻi 21, 27, 946 P.2d 1317, 1323
(1997)).
HRS § 421J-10 (2004) entitles planned community
associations organized under HRS Chapter 421J to "[a]ll costs
and expenses, including reasonable attorneys' fees, incurred by
or on behalf of the association" related to an enforcement
action:
[§421J-10] Attorneys' fees and expenses of enforcement. (a) All costs and expenses, including reasonable attorneys' fees, incurred by or on behalf of the association for:
(1) Collecting any delinquent assessments against any unit or the owner of any unit;
(2) Foreclosing any lien on any unit; or
(3) Enforcing any provision of the association documents or this chapter;
against a member, occupant, tenant, employee of a member, or any other person who in any manner may use the property, shall be promptly paid on demand to the association by such person or persons; provided that if the association is not the prevailing party, all costs and expenses, including reasonable attorneys' fees, incurred by any such person or persons as a result of the action of the association, shall
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be promptly paid on demand to the person by the association. The reasonableness of any attorney's fees paid by a person or by an association as a result of an action pursuant to paragraph (2) shall be determined by the court.
(Emphasis added.) The statute tasks the court with determining
the "reasonableness of any attorney's fees paid by a person
. . . as a result of an action" to "[f]oreclos[e] any lien on
any unit[.]" HRS § 421J-10(a).
Based on noncompliance with the 2015 Judgment, the
Association filed its foreclosure complaint in November 2020 to
recover $18,949.96 in "outstanding association dues, late fees,
repair reimbursement, attorneys' fees and costs, and other
assessments." By the end of the circuit court proceedings three
years later in December 2023, the attorneys' fees and costs were
$67,280.34.
The Tautuas do not claim any of the fees or costs were
unreasonable beyond saying they exceed the "collection amount."
See Chun, 106 Hawaiʻi at 431, 106 P.3d at 354. And we decline to
find abuse based solely on the attorneys' fees and costs
exceeding the "collection amount," as HRS § 421J-10 allows for
"all" reasonable attorneys' fees. See id.
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by awarding attorneys' fees and costs.
III. CONCLUSION
Based on the foregoing, we affirm the circuit court's
December 28, 2023 Order Confirming Foreclosure Sale and
Judgment.
DATED: Honolulu, Hawaiʻi, June 18, 2026.
On the briefs: /s/ Katherine G. Leonard Presiding Judge Keith M. Kiuchi, for /s/ Sonja M.P. McCullen Defendants/Counterclaimants/ Associate Judge Cross-claim Defendants- Appellants. /s/ Kimberly T. Guidry Associate Judge Michele-Lynn E. Luke, Saori Takahashi, (Kessner Umebayashi Bain & Matsunaga), Mark K. McKellar, for Plaintiff/Counterclaim Defendant-Appellee.