NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 03-MAR-2023 07:51 AM Dkt. 184 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
GREEN TREE SERVICING LLC, Plaintiff/Counterclaim Defendant-Appellee, vs. ROSY ESPRECION THOMAS, Defendant/Counterclaim Plaintiff-Appellant, and APRIL ROSE ANUHEA THOMAS; BRADLEY SCOTT THOMAS; UNITED STATES OF AMERICA, Defendants-Appellees, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; AND DOE GOVERNMENTAL UNITS 1-50, Defendants,
AND
ROSY ESPRECION THOMAS; APRIL ROSE ANUHEA (THOMAS) GARCIA; AND BRADLEY SCOTT THOMAS, Counterclaim Plaintiffs-Appellees, vs. GREEN TREE SERVICING, LLC NOW KNOWN AS DITECH FINANCIAL, LLC; RCO HAWAII, LLC; BLUE KAANEHE; STEVEN IDEMOTO; TMLF HAWAII, LLC; CHARLES R. PRATHER; PETER T. STONE; ANYA M. PEREZ; SKYLAR G. LUCAS; DEREK W.C. WONG; JASON L. COTTON; STARN O'TOOLE; MARCUS & FISHER; STEPHANIE E.W. THOMPSON; KUKUI CLAYDON; JEANETTE H. CASTAGNETTI; DENNIS P. SIMONCELLI; MERS; AND DOES 1-50, Counterclaim Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 13-1-2392) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Self-represented Defendant-Appellant Rosy Esprecion
Thomas (Thomas) appeals from the November 7, 2018 Judgment
(Judgment on Confirmation Order) entered by the Circuit Court of
the First Circuit (Circuit Court).1 Thomas also challenges the
Circuit Court's Order Confirming Foreclosure Sale, Approving
Commissioner's Report, Allowance of Commissioner's Fees,
Attorney's Fees, Costs, Directing Conveyance (Confirmation Order)
and Writ of Ejectment (Writ of Ejectment), both entered on
November 7, 2018, as well as the Circuit Court's decision to
strike several of her motions due to noncompliance with the Rules
of the Circuit Courts of the State of Hawai#i (RCCH) and the
Hawai#i Rules of Civil Procedure (HRCP).
Thomas purports to additionally challenge the Circuit
Court's September 30, 2016 Judgment (Foreclosure Judgment) and
its Findings of Fact, Conclusions of Law, Order Granting
Plaintiff's Motion for Summary Judgment Against All Parties and
for Interlocutory Decree of Foreclosure, which were entered on
September 30, 2016 (Foreclosure Decree).
Thomas's opening brief fails to state where in the
record each error allegedly occurred and where in the record the
1 The Honorable Bert I. Ayabe (Judge Ayabe) presided and entered the Foreclosure Order and Foreclosure Judgment. The Honorable Jeannette H. Castagnetti (Judge Castagnetti) was assigned to the case on January 6, 2017, and presided until October 9, 2018, when the case was reassigned back to Judge Ayabe.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
alleged error was objected to. See Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4). Thomas also largely failed to
cite pertinent authorities, statutes, and parts of the record
that her arguments relied upon. See HRAP Rule 28(b)(7).
Nevertheless, we interpret self-represented claims liberally and
will address Thomas's arguments to the extent we are able to
discern them. See, e.g., Erum v. Llego, 147 Hawai#i 368, 380,
465 P.3d 815, 827 (2020).
Thomas appears to assert eight points of error on
appeal. The first seven points of error seek to challenge or
appear to challenge the Foreclosure Judgment and Foreclosure
Decree, which were entered in favor of Plaintiff-Appellee Green
Tree Servicing, LLC (Green Tree). In her final point of error,
Thomas contends that the foreclosure commissioner (Commissioner)
unlawfully auctioned the subject property to fictitious
characters he created or persons he conspired with.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, as well as the
relevant legal authorities, we address Thomas's arguments as
follows:
We have appellate jurisdiction over the instant appeal
for the limited purpose of reviewing the Judgment on Confirmation
Order and the Circuit Court rulings made reviewable pursuant
thereto. The Judgment on Confirmation Order is certified under
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRCP Rule 54(b) and appealable pursuant to Hawaii Revised
Statutes (HRS) § 667-51(a)(2) (2016), and Thomas's October 26,
2018 notice of appeal timely invoked our appellate jurisdiction
to review it under HRAP Rule 4(a)(1).
Thomas's failure to seek timely appellate review of the
Circuit Court's earlier Foreclosure Judgment on the Foreclosure
Decree pursuant to HRS § 667-51(a)(1) rendered that Foreclosure
Judgment "final and binding." Mortg. Elec. Registration Sys.,
Inc. v. Wise, 130 Hawai#i 11, 17, 304 P.3d 1192, 1198 (2013).
Thereafter, "in the context of proceedings to confirm the sale of
foreclosed property, the judgment of foreclosure has a preclusive
effect." Id. at 18, 304 P.3d at 1199. The failure of an
aggrieved party to timely appeal from a judgment on the decree of
foreclosure pursuant to HRS § 667-51(a)(1), precludes subsequent
appellate review of that judgment on the decree of foreclosure by
way of an appeal from a judgment on an order confirming the sale
of the foreclosed property. Id. at 17-18, 304 P.3d at 1198-99.
Thomas failed to timely appeal from the Foreclosure
Judgment and Foreclosure Decree, and the merits of the
Foreclosure Decree are not reviewable in this appeal. See id. at
17, 304 P.3d at 1198; see also Bank of N.Y. Mellon v. R. Onaga,
Inc., 140 Hawai#i 358, 368, 400 P.3d 559, 569 (2017) (holding
that "[a]n appellant cannot challenge the merits of a foreclosure
decree in an appeal of an order confirming sale[]" because
"[o]rders confirming sale are separately appealable from the
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
decree of foreclosure.") (brackets and citation omitted); Royce
v. Plaza Home Mortg., Inc., No. CAAP-XX-XXXXXXX, 2022 WL
17335413, at *2-3 (Haw. App. Nov. 30, 2022) (SDO) (holding that
res judicata precluded self-represented plaintiffs from
challenging the foreclosure judgment after they did not timely
appeal the judgment).
Thomas's first seven points of error appear to pertain
to the entry of the Foreclosure Decree and therefore, they are
not properly before this court on appeal.
Thomas's final point of error is related to the
Confirmation Order and Judgment on Confirmation Order inasmuch as
she argues that the Commissioner unlawfully auctioned the subject
property to fictitious persons.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 03-MAR-2023 07:51 AM Dkt. 184 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
GREEN TREE SERVICING LLC, Plaintiff/Counterclaim Defendant-Appellee, vs. ROSY ESPRECION THOMAS, Defendant/Counterclaim Plaintiff-Appellant, and APRIL ROSE ANUHEA THOMAS; BRADLEY SCOTT THOMAS; UNITED STATES OF AMERICA, Defendants-Appellees, and JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; AND DOE GOVERNMENTAL UNITS 1-50, Defendants,
AND
ROSY ESPRECION THOMAS; APRIL ROSE ANUHEA (THOMAS) GARCIA; AND BRADLEY SCOTT THOMAS, Counterclaim Plaintiffs-Appellees, vs. GREEN TREE SERVICING, LLC NOW KNOWN AS DITECH FINANCIAL, LLC; RCO HAWAII, LLC; BLUE KAANEHE; STEVEN IDEMOTO; TMLF HAWAII, LLC; CHARLES R. PRATHER; PETER T. STONE; ANYA M. PEREZ; SKYLAR G. LUCAS; DEREK W.C. WONG; JASON L. COTTON; STARN O'TOOLE; MARCUS & FISHER; STEPHANIE E.W. THOMPSON; KUKUI CLAYDON; JEANETTE H. CASTAGNETTI; DENNIS P. SIMONCELLI; MERS; AND DOES 1-50, Counterclaim Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 13-1-2392) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Self-represented Defendant-Appellant Rosy Esprecion
Thomas (Thomas) appeals from the November 7, 2018 Judgment
(Judgment on Confirmation Order) entered by the Circuit Court of
the First Circuit (Circuit Court).1 Thomas also challenges the
Circuit Court's Order Confirming Foreclosure Sale, Approving
Commissioner's Report, Allowance of Commissioner's Fees,
Attorney's Fees, Costs, Directing Conveyance (Confirmation Order)
and Writ of Ejectment (Writ of Ejectment), both entered on
November 7, 2018, as well as the Circuit Court's decision to
strike several of her motions due to noncompliance with the Rules
of the Circuit Courts of the State of Hawai#i (RCCH) and the
Hawai#i Rules of Civil Procedure (HRCP).
Thomas purports to additionally challenge the Circuit
Court's September 30, 2016 Judgment (Foreclosure Judgment) and
its Findings of Fact, Conclusions of Law, Order Granting
Plaintiff's Motion for Summary Judgment Against All Parties and
for Interlocutory Decree of Foreclosure, which were entered on
September 30, 2016 (Foreclosure Decree).
Thomas's opening brief fails to state where in the
record each error allegedly occurred and where in the record the
1 The Honorable Bert I. Ayabe (Judge Ayabe) presided and entered the Foreclosure Order and Foreclosure Judgment. The Honorable Jeannette H. Castagnetti (Judge Castagnetti) was assigned to the case on January 6, 2017, and presided until October 9, 2018, when the case was reassigned back to Judge Ayabe.
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
alleged error was objected to. See Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4). Thomas also largely failed to
cite pertinent authorities, statutes, and parts of the record
that her arguments relied upon. See HRAP Rule 28(b)(7).
Nevertheless, we interpret self-represented claims liberally and
will address Thomas's arguments to the extent we are able to
discern them. See, e.g., Erum v. Llego, 147 Hawai#i 368, 380,
465 P.3d 815, 827 (2020).
Thomas appears to assert eight points of error on
appeal. The first seven points of error seek to challenge or
appear to challenge the Foreclosure Judgment and Foreclosure
Decree, which were entered in favor of Plaintiff-Appellee Green
Tree Servicing, LLC (Green Tree). In her final point of error,
Thomas contends that the foreclosure commissioner (Commissioner)
unlawfully auctioned the subject property to fictitious
characters he created or persons he conspired with.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, as well as the
relevant legal authorities, we address Thomas's arguments as
follows:
We have appellate jurisdiction over the instant appeal
for the limited purpose of reviewing the Judgment on Confirmation
Order and the Circuit Court rulings made reviewable pursuant
thereto. The Judgment on Confirmation Order is certified under
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRCP Rule 54(b) and appealable pursuant to Hawaii Revised
Statutes (HRS) § 667-51(a)(2) (2016), and Thomas's October 26,
2018 notice of appeal timely invoked our appellate jurisdiction
to review it under HRAP Rule 4(a)(1).
Thomas's failure to seek timely appellate review of the
Circuit Court's earlier Foreclosure Judgment on the Foreclosure
Decree pursuant to HRS § 667-51(a)(1) rendered that Foreclosure
Judgment "final and binding." Mortg. Elec. Registration Sys.,
Inc. v. Wise, 130 Hawai#i 11, 17, 304 P.3d 1192, 1198 (2013).
Thereafter, "in the context of proceedings to confirm the sale of
foreclosed property, the judgment of foreclosure has a preclusive
effect." Id. at 18, 304 P.3d at 1199. The failure of an
aggrieved party to timely appeal from a judgment on the decree of
foreclosure pursuant to HRS § 667-51(a)(1), precludes subsequent
appellate review of that judgment on the decree of foreclosure by
way of an appeal from a judgment on an order confirming the sale
of the foreclosed property. Id. at 17-18, 304 P.3d at 1198-99.
Thomas failed to timely appeal from the Foreclosure
Judgment and Foreclosure Decree, and the merits of the
Foreclosure Decree are not reviewable in this appeal. See id. at
17, 304 P.3d at 1198; see also Bank of N.Y. Mellon v. R. Onaga,
Inc., 140 Hawai#i 358, 368, 400 P.3d 559, 569 (2017) (holding
that "[a]n appellant cannot challenge the merits of a foreclosure
decree in an appeal of an order confirming sale[]" because
"[o]rders confirming sale are separately appealable from the
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
decree of foreclosure.") (brackets and citation omitted); Royce
v. Plaza Home Mortg., Inc., No. CAAP-XX-XXXXXXX, 2022 WL
17335413, at *2-3 (Haw. App. Nov. 30, 2022) (SDO) (holding that
res judicata precluded self-represented plaintiffs from
challenging the foreclosure judgment after they did not timely
appeal the judgment).
Thomas's first seven points of error appear to pertain
to the entry of the Foreclosure Decree and therefore, they are
not properly before this court on appeal.
Thomas's final point of error is related to the
Confirmation Order and Judgment on Confirmation Order inasmuch as
she argues that the Commissioner unlawfully auctioned the subject
property to fictitious persons. Thomas attaches certain exhibits
to the opening brief that she asserts are supportive of this
argument. However, Thomas did not raise this argument or offer
these exhibits in the Circuit Court proceedings on the
confirmation of sale, either in her October 10, 2018 opposition
to the motion for confirmation of the sale of the subject
property or in Thomas's October 25, 2018 motion seeking, inter
alia, to vacate the (then pending) Confirmation Order. "Legal
issues not raised in the trial court are ordinarily deemed waived
on appeal." Assn of Apartment Owners of Wailea Elua v. Wailea
Resort Co., 100 Hawai#i 97, 107, 58 P.3d 608, 618 (2002).
Therefore, Thomas's argument that the Commissioner unlawfully
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
auctioned the subject property to fictitious persons will be
disregarded. See also HRAP Rule 28(b)(4).2
For these reasons, the Circuit Court's November 7, 2018
Judgment on Confirmation Order is affirmed.
DATED: Honolulu, Hawai#i, March 3, 2023.
On the briefs: /s/ Katherine G. Leonard Presiding Judge Rosy Sotto Esprecion Thomas, Pro Se Defendant-Appellant/ /s/ Keith K. Hiraoka Counterclaimant-Appellant. Associate Judge
Patricia Ohara, /s/ Karen T. Nakasone Robyn B. Chun, Associate Judge Deputy Attorneys General, for Counterclaim Defendants- Appellees the Honorable Jeannette Castagnetti and Dennis P. Simoncelli.
Charles R. Prather, Skylar G. Lucas, Peter T. Stone, (TMLF Hawaii LLLC), for Plaintiff-Appellee/ Counterclaim Defendant-Appellee Green Tree Servicing LLC.
2 As they are not properly before this court on appeal from the November 7, 2018 Judgment on Confirmation Order, we do not have jurisdiction to review the Order Granting Counterclaim Defendants the Honorable Jeannette H. Castagnetti and Dennis P. Simoncelli's Motion to Dismiss with Prejudice filed on January 25, 2019, or the March 11, 2019 Judgment. We note that neither of these are part of the record on appeal in this case.