NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-NOV-2024 08:07 AM Dkt. 100 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
MICHAEL C. GREENSPON, Plaintiff-Appellant, v. CIT BANK, N.A. f/k/a ONEWEST BANK FSB; DAVID B. ROSEN, ESQ.; THE LAW OFFICE OF DAVID B. ROSEN, ALC, Defendants-Appellees, DOES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CC141000379(1))
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Self-represented Plaintiff-Appellant Michael C.
Greenspon appeals from the Circuit Court of the Second Circuit's
August 11, 2020 Final Judgment, dismissing his case for failure
to prosecute. 1
In 2003, Greenspon obtained a $650,000.00 mortgage
loan for a property in Ha‘ikū, Maui (the Ha‘ikū Property). In
2006, Greenspon modified the loan, increasing the principal
1 The Honorable Rhonda I.L. Loo presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
amount to $800,000.00. In 2008, Greenspon was sent a notice
stating that his loan was "in serious default" and that he must
pay $27,664.44 on or before December 6, 2008 to cure the
default. In 2010, the Ha‘ikū Property was sold at a public non-
judicial foreclosure auction to Deutsche Bank National Trust
Company, as Trustee.
In June 2014, Greenspon filed a complaint under the
pseudonym "Charles M. Brown" against Defendants-Appellees
David B. Rosen, Esq. and Law Offices of David B. Rosen, ALC
(together, Rosen Parties) claiming improper and illegal
collection efforts following the non-judicial foreclosure. In
December 2014, Greenspon filed a First Amended Complaint naming
Defendant-Appellee CIT Bank N.A., f.k.a. Onewest Bank N.A.,
f.k.a. Onewest Bank, FSB (CIT) as an additional defendant, and
raising nine claims: (1) negligent and intentional
misrepresentation; (2) violation of Federal Fair Debt Collection
Practices Act under 15 U.S.C. § 1692; (3) violation of HRS
Chapter 480D; (4) unfair and deceptive acts and practices under
HRS Chapter 480; (5) negligence; (6) abuse of process;
(7) intentional/negligent infliction of emotional distress;
(8) damages; and (9) punitive and exemplary damages.
In January 2015, CIT and Rosen Parties moved for a
protective order, to stay the case, and to sanction Greenspon
for his "improper, harassing, and abusive conduct" in refusing
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
to withdraw his discovery requests (Motion for Stay). CIT and
Rosen Parties further argued the case overlapped with the issues
on appeal in CAAP-XX-XXXXXXX (Related Appeal), and they asked
the circuit court to stay proceedings until the Related Appeal
was resolved. 2
In March 2015 the circuit court stayed the case,
ordering in a written order that:
"this case is STAYED pending a final resolution in that appeal currently pending before the [Hawaiʻi] Intermediate Court of Appeals in [the Related Appeal]. Consequently, all pending hearings are hereby removed from the Court's calendar, but may be re-scheduled upon the entry of an Order lifting this Stay."
(Emphasis added.) See State v. Milne, 149 Hawai‘i 329, 335, 489
P.3d 433, 439 (2021) (explaining that "a trial court's written
order controls over its oral statements"). This court decided
the Related Appeal in June 2016, and Greenspon's application for
writ of certiorari was rejected in November 2016. See Greenspon
v. Deutsche Bank Nat'l Tr. Co., 138 Hawai‘i 52, 375 P.3d 1290,
No. CAAP-13-00001432, 2016 WL 3280366 (App. June 14, 2016) (mem.
op.); Greenspon v. Deutsche Bank Nat'l Tr. Co., SCWC-13-
0001432, 2016 WL 6879563 (Haw. Nov. 22, 2016) (Order).
2 We take judicial notice of the files and records in CAAP-XX-XXXXXXX. See State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) (explaining that the court may take judicial notice of its own records in interrelated proceedings).
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Almost two years later, in October 2018, Rosen Parties
filed a "Notice" of Greenspon's failure to comply with the Rules
of the Circuit Court of the State of Hawaiʻi (RCCH) Rule 12(q),
and requested the circuit court dismiss the case for lack of
prosecution due to Greenspon's failure to file a pretrial
statement or seek an extension, which the circuit court granted.
The circuit court later granted Greenspon's motion for
reconsideration, set aside the RCCH Rule 12(q) dismissal, and
extended the deadline for Greenspon's pretrial statement to
July 1, 2019, which Greenspon timely filed.
In April 2020, CIT moved to dismiss the case for
failure to prosecute pursuant to Hawaiʻi Rules of Civil Procedure
(HRCP) Rule 41(b)(1) and RCCH Rules 7, 12(c)(2), and 12(q). CIT
argued Greenspon failed to request a trial setting conference
within 60 days of filing his pretrial statement, as required
under RCCH Rule 12(c)(2), and he had not done anything to
advance the case besides filing a pretrial statement. Rosen
Parties joined CIT's motion to dismiss.
CIT also moved to designate Greenspon a vexatious
litigant, arguing that: (1) Greenspon initiated and maintained
thirteen separate civil actions arising from the same non-
judicial foreclosure that raised overlapping claims against
overlapping defendants; (2) Greenspon's related consolidated
cases 2CC141000395 and 2CC141000560 were dismissed due to
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Greenspon's intentional disruption of discovery efforts; and
(3) Greenspon was deemed a vexatious litigant in Florida for
similar behavior.
On June 7, 2020, Greenspon moved to (1) lift the stay
and set the matter for trial or, in the alternative,
(2) continue the stay pending the resolution of his other
"related" cases in CAAP-XX-XXXXXXX, 2CC171000090, 2CC141000395,
and 2CC141000560.
In July 2020, the circuit court entered written orders
denying Greenspon's motion to lift the stay, granting CIT's
motion to dismiss (Dismissal Order), and granting CIT's motion
to designate Greenspon a vexatious litigant. The circuit court
then entered a final judgment in favor of CIT and Rosen Parties
and against Greenspon as to all claims in the first amended
complaint. Greenspon timely appealed.
On appeal, Greenspon raises five points of error
(POE). 3 Of these points, only Greenspon's challenge to the
3 Greenspon's five POE are as follows:
1. "The circuit court's March 10, 2015 Stay order, R 46, premised on wrong conclusions, is legal error that caused years of prejudicial delay and obstruction of Appellant's meritorious claims in this case";
2.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-NOV-2024 08:07 AM Dkt. 100 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
MICHAEL C. GREENSPON, Plaintiff-Appellant, v. CIT BANK, N.A. f/k/a ONEWEST BANK FSB; DAVID B. ROSEN, ESQ.; THE LAW OFFICE OF DAVID B. ROSEN, ALC, Defendants-Appellees, DOES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CC141000379(1))
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Self-represented Plaintiff-Appellant Michael C.
Greenspon appeals from the Circuit Court of the Second Circuit's
August 11, 2020 Final Judgment, dismissing his case for failure
to prosecute. 1
In 2003, Greenspon obtained a $650,000.00 mortgage
loan for a property in Ha‘ikū, Maui (the Ha‘ikū Property). In
2006, Greenspon modified the loan, increasing the principal
1 The Honorable Rhonda I.L. Loo presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
amount to $800,000.00. In 2008, Greenspon was sent a notice
stating that his loan was "in serious default" and that he must
pay $27,664.44 on or before December 6, 2008 to cure the
default. In 2010, the Ha‘ikū Property was sold at a public non-
judicial foreclosure auction to Deutsche Bank National Trust
Company, as Trustee.
In June 2014, Greenspon filed a complaint under the
pseudonym "Charles M. Brown" against Defendants-Appellees
David B. Rosen, Esq. and Law Offices of David B. Rosen, ALC
(together, Rosen Parties) claiming improper and illegal
collection efforts following the non-judicial foreclosure. In
December 2014, Greenspon filed a First Amended Complaint naming
Defendant-Appellee CIT Bank N.A., f.k.a. Onewest Bank N.A.,
f.k.a. Onewest Bank, FSB (CIT) as an additional defendant, and
raising nine claims: (1) negligent and intentional
misrepresentation; (2) violation of Federal Fair Debt Collection
Practices Act under 15 U.S.C. § 1692; (3) violation of HRS
Chapter 480D; (4) unfair and deceptive acts and practices under
HRS Chapter 480; (5) negligence; (6) abuse of process;
(7) intentional/negligent infliction of emotional distress;
(8) damages; and (9) punitive and exemplary damages.
In January 2015, CIT and Rosen Parties moved for a
protective order, to stay the case, and to sanction Greenspon
for his "improper, harassing, and abusive conduct" in refusing
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
to withdraw his discovery requests (Motion for Stay). CIT and
Rosen Parties further argued the case overlapped with the issues
on appeal in CAAP-XX-XXXXXXX (Related Appeal), and they asked
the circuit court to stay proceedings until the Related Appeal
was resolved. 2
In March 2015 the circuit court stayed the case,
ordering in a written order that:
"this case is STAYED pending a final resolution in that appeal currently pending before the [Hawaiʻi] Intermediate Court of Appeals in [the Related Appeal]. Consequently, all pending hearings are hereby removed from the Court's calendar, but may be re-scheduled upon the entry of an Order lifting this Stay."
(Emphasis added.) See State v. Milne, 149 Hawai‘i 329, 335, 489
P.3d 433, 439 (2021) (explaining that "a trial court's written
order controls over its oral statements"). This court decided
the Related Appeal in June 2016, and Greenspon's application for
writ of certiorari was rejected in November 2016. See Greenspon
v. Deutsche Bank Nat'l Tr. Co., 138 Hawai‘i 52, 375 P.3d 1290,
No. CAAP-13-00001432, 2016 WL 3280366 (App. June 14, 2016) (mem.
op.); Greenspon v. Deutsche Bank Nat'l Tr. Co., SCWC-13-
0001432, 2016 WL 6879563 (Haw. Nov. 22, 2016) (Order).
2 We take judicial notice of the files and records in CAAP-XX-XXXXXXX. See State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985) (explaining that the court may take judicial notice of its own records in interrelated proceedings).
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Almost two years later, in October 2018, Rosen Parties
filed a "Notice" of Greenspon's failure to comply with the Rules
of the Circuit Court of the State of Hawaiʻi (RCCH) Rule 12(q),
and requested the circuit court dismiss the case for lack of
prosecution due to Greenspon's failure to file a pretrial
statement or seek an extension, which the circuit court granted.
The circuit court later granted Greenspon's motion for
reconsideration, set aside the RCCH Rule 12(q) dismissal, and
extended the deadline for Greenspon's pretrial statement to
July 1, 2019, which Greenspon timely filed.
In April 2020, CIT moved to dismiss the case for
failure to prosecute pursuant to Hawaiʻi Rules of Civil Procedure
(HRCP) Rule 41(b)(1) and RCCH Rules 7, 12(c)(2), and 12(q). CIT
argued Greenspon failed to request a trial setting conference
within 60 days of filing his pretrial statement, as required
under RCCH Rule 12(c)(2), and he had not done anything to
advance the case besides filing a pretrial statement. Rosen
Parties joined CIT's motion to dismiss.
CIT also moved to designate Greenspon a vexatious
litigant, arguing that: (1) Greenspon initiated and maintained
thirteen separate civil actions arising from the same non-
judicial foreclosure that raised overlapping claims against
overlapping defendants; (2) Greenspon's related consolidated
cases 2CC141000395 and 2CC141000560 were dismissed due to
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Greenspon's intentional disruption of discovery efforts; and
(3) Greenspon was deemed a vexatious litigant in Florida for
similar behavior.
On June 7, 2020, Greenspon moved to (1) lift the stay
and set the matter for trial or, in the alternative,
(2) continue the stay pending the resolution of his other
"related" cases in CAAP-XX-XXXXXXX, 2CC171000090, 2CC141000395,
and 2CC141000560.
In July 2020, the circuit court entered written orders
denying Greenspon's motion to lift the stay, granting CIT's
motion to dismiss (Dismissal Order), and granting CIT's motion
to designate Greenspon a vexatious litigant. The circuit court
then entered a final judgment in favor of CIT and Rosen Parties
and against Greenspon as to all claims in the first amended
complaint. Greenspon timely appealed.
On appeal, Greenspon raises five points of error
(POE). 3 Of these points, only Greenspon's challenge to the
3 Greenspon's five POE are as follows:
1. "The circuit court's March 10, 2015 Stay order, R 46, premised on wrong conclusions, is legal error that caused years of prejudicial delay and obstruction of Appellant's meritorious claims in this case";
2. "The circuit court reversibly erred as a matter of law by its failure to grant [his] motions to consolidate, and to either lift the stay and set the case for trial or, alternatively, to continue the stay pending 'final resolution' of the related case appeals, and by ruling that [his] motion is 'moot'"; (continued . . .)
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
circuit court's dismissal of his first amended complaint (POE 3)
has merit.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve the
points of error as discussed below, and vacate and remand.
The Dismissal Order dismissed all claims against CIT
and Rosen Parties "for the reasons stated on the record at the
hearing[.]" At the hearing, the circuit court found that
Greenspon "failed to timely request a trial setting status
conference pursuant to [RCCH] Rule 12(c)(2) and failed to move
for relief from the stay or do anything else in the case, thus
prejudicing the defendants," due to "almost four years of
plaintiff being idle despite the active status of the case."
The Dismissal Order also stated that Greenspon
repeatedly failed to comply with deadlines, including the
(. . . continued)
3. "The circuit court reversibly erred as a matter of law by unjustly dismissing [his] entire FAC with prejudice premised on a[n] inadvertent oversight of RCCH Rule 12(c) and by making false and clearly erroneous findings and conclusions";
4. "The circuit court reversibly erred as a matter of law and grossly abused its discretion by granting Appellee's HRS § 634J motion"; and
5. "The circuit court's conduct and systematic errors shows a pattern of bias[.]"
(Formatting altered.) As to POE 1, the circuit court did not abuse its discretion in ordering a stay of the proceedings as there appear to be overlapping claims and parties, and based on our decision as to POE 3, we need not reach POE 2, 4, and 5.
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
deadlines to file a pretrial statement under RCCH Rule 12(b),
and to request a trial setting conference under RCCH
Rule 12(c)(2); the case had not been stayed since the resolution
of the Related Appeal, but to the extent Greenspon believed a
stay was in place, he failed to move for relief from the stay or
take any action in the case; Greenspon's delay prejudiced CIT
and the Rosen Parties "as explained in their memoranda and
supporting declarations, and is inexcusable"; and dismissal was
proper under HRCP Rule 41(d). 4
HRCP Rule 41(b)(1) provided that "a defendant may move
for dismissal of an action or of any claim against it" if the
plaintiff fails "to prosecute or to comply with these rules or
any order of the court[.]" RCCH Rule 12(q), entitled "Dismissal
for want of prosecution," provided that
[a]n action may be dismissed sua sponte with written notice to the parties if a pretrial statement has not been filed within 8 months after a complaint has been filed (or within any further period of extension granted by the court) or if a trial setting status conference has not been scheduled as required by Rule 12(c).
RCCH Rule 12(c)(2) required the plaintiff to schedule a trial
setting status conference within sixty days of the pretrial
statement.
Here, the circuit court concluded no stay was in
place. However, the stay order stated that "all pending
4 Although the circuit court referred to HRCP Rule 41(d), entitled "Costs of previously-dismissed action," it appears HRCP Rule 41(b), entitled "Involuntary dismissal: Effect thereof," applies.
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
hearings are hereby removed from the Court's calendar, but may
be re-scheduled upon the entry of an Order lifting this Stay."
(Emphasis added.) The parties do not point to, and we could not
find, where in the record there was entry of an order lifting
the stay. As no order lifting the stay was entered, the stay
remained in place. And, because the stay remained in place, the
pretrial deadlines did not run and all filings (besides a motion
for entry of an order to lift the stay) were improper. The
circuit court thus abused its discretion in determining there
was no stay in place and dismissing the case for failure to meet
pretrial deadlines.
Based on the foregoing, we vacate the circuit court's
August 11, 2020 Final Judgment, and remand this case for further
proceedings consistent with this summary disposition order.
DATED: Honolulu, Hawai‘i, November 19, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Michael C. Greenspon, Plaintiff-Appellant, pro se. /s/ Keith K. Hiraoka Associate Judge Judy A. Tanaka, Jenny J.N.A. Nakamoto, /s/ Sonja M.P. McCullen (Dentons), Associate Judge for Defendant-Appellee.