International Savings & Loan Ass'n v. Carbonel

5 P.3d 454, 93 Haw. 464, 2000 Haw. App. LEXIS 103
CourtHawaii Intermediate Court of Appeals
DecidedMay 18, 2000
DocketNo. 22226
StatusPublished
Cited by8 cases

This text of 5 P.3d 454 (International Savings & Loan Ass'n v. Carbonel) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Savings & Loan Ass'n v. Carbonel, 5 P.3d 454, 93 Haw. 464, 2000 Haw. App. LEXIS 103 (hawapp 2000).

Opinion

Opinion of the Court by

ACOBA, J.

We hold that when a promissory note provides for joint and several liability, not all borrowers on the note are required to be joined under Hawaii Rules of Civil Procedure (HRCP) Rule 19(a) or Rule 19(b) in an action to enforce the note. Similarly, we hold that a guarantor of a promissory note secured by a mortgage is not required to be joined as a party under HRCP Rule 19 in a mortgage foreclosure action. Thus, the absence of a co-borrower or guarantor does not deprive a trial court of jurisdiction over co-borrowers who were parties to an action to enforce a promissory note and for foreclosure of the mortgage of even date, or deprive such co-borrowers of due process of law. The co-borrowers on the note, therefore, would not be entitled to relief under HRCP Rule 60(b)(4) on the grounds that prior orders or judgments were void.

Furthermore, we hold that a party who has not objected to inadmissible evidence at a summary judgment proceeding or filed a timely appeal from such a judgment has failed to demonstrate “extraordinary circumstances” required under HRCP Rule 60(b)(6) to obtain relief from a judgment.

Applying the foregoing propositions, we conclude the first circuit court (the court) properly denied the motion for HRCP Rule 60(b)(4) and (6) relief filed by Defendants-Appellants Abelardo Cobangbang Carbonel (Abelardo) and Felomina Alagao Carbonel (Felomina), mortgagors in the foreclosure action brought by mortgagee, Plaintiff-Appel-lee International Savings and Loan Association (Lender). Therefore, we affirm the court’s December 22, 1998 order granting in part and denying in part the HRCP Rule 60(b) motion of Abelardo, Felomina, and Defendant-Appellant Virgilio C. Carbonel (Virgilio) (collectively, Defendants).

I.

A.

On or about January 31, 1995, Defendants obtained a loan for $304,700 from Lender. All three Defendants signed an Adjustable Rate Note (the note) as “co-borrower.” The note, dated January 31, 1995, stated in pertinent part:

If more than one person signs [the note], each person is fully and personally obligated to keep all the promises made in [the note], including the promise to pay the full amount owed.... The [njote [hjolder may enforce its rights under this note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under [the note],

(Emphasis added.) As security for the note, Abelardo and Felomina executed a mortgage on their property at 94-345 Kahuawai Street, Waipahu, Hawai'i (the property). Because Virgilio did not own any interest in the property, he was not a mortgagor thereof. Unlike the note itself, however, the mortgage document indicated that Virgilio was a guarantor of the promissory note. The mortgage provided in pertinent part as follows:

AND [Virgilio], unmarried, of Waipa-hu, City and County of Honolulu, State of Hawaii (“Guarantor”) in order to induce [467]*467[Lender] to make the aforesaid loan to [Abelardo and Felomina], does hereby guarantee the payment of the promissory note of even date herewith and does hereby guarantee the full and faithful performance and observance of all the terms, conditions and covenants contained herein and on the part of [Abelardo and Felomi-na] to be observed and/or performed including, without limitation, the payment of any other obligations and advances that now are or hereafter may be or become owing, directly or contingently, by [Abelar-do and Felomina] to [Lender], on any and every account, whether or not the same are mature, and whether or not Guarantor has endorsed any of the notes which have been executed by [Abelardo and Felomina] to [Lender],

(Emphasis added.)

Defendants defaulted under the note and a foreclosure action was commenced in the court on February 28, 1997. On or about March 5, 1997, Lender’s counsel retained Deputy Sheriff Anthony T. Shannon (Shannon) to serve Lender’s complaint and summons on Defendants.

According to his declaration, on March 6, 1997, Shannon went to the property to serve the complaint and summons. When he arrived at the property, a young adult male answered the door. Shannon related in his declaration that he asked the male whether Defendants were present. At that time, Fel-omina came to the door and identified herself. Shannon asked Felomina if she resided on the property and she answered in the affirmative. He then asked her whether Abelardo and Virgilio also lived there, and she again answered affirmatively. Shannon then handed Felomina three certified copies of the complaint. According to Shannon, Felomina did not indicate that Virgilio was living elsewhere. The “Return and Acknowledgment of Service,” filed on March 13, 1997 by Shannon, stated he served “[Abelardo and Virgilio] by leaving a certified copy at their usual place of abode in the presence of [Felo-mina,] a person of suitable age and discretion then residing there. [Abelardo and Virgilio] COULD NOT BE FOUND.”

On April 2, 1997, Lender filed its motion for summary judgment and interlocutory decree of foreclosure. Defendants did not file any opposition to the motion or appear at the hearing. Accordingly, on June 24, 1997 the court entered its findings of fact, conclusions of law, and order granting Lender’s motion for summary judgment as to all claims and all parties, an interlocutory decree of foreclosure, and an order of sale. On the same day, in accordance with HRCP Rules 581 and 54(b),2 the court entered judgment on the order granting summary judgment in favor of Lender (the June 24, 1997 judgment). The property was sold to Lender at a public auction held on September 29,1997 for $225,-000. There were no other bids for the property.

A hearing to confirm the sale was set for November 6, 1997. The sale was confirmed by an August 3, 1998 order granting Lender’s motion for confirmation of sale and distribution of proceeds and for deficiency judgment (order confirming sale).3 Defendants did not appeal the June 24,1997 judgment or the order confirming sale.

B.

On January 30,1998, Felomina commenced an action in the United States District Court for the District of Hawaii (the district court) claiming that Lender violated certain provisions of 15 United States Code §§ 1601 et [468]*468seq. (Supp.1999), commonly referred to as the “Truth in Lending Act” and 12 Code of Federal Regulations 226 (Supp.2000), commonly referred to as “Regulation Z.” Felomi-na sought rescission of the note and cancellation of the lien created by the mortgage.

Lender filed a motion for summary judgment in the district court action, arguing that the validity of the note and mortgage had already been adjudged in the state court foreclosure action and the action, therefore, was barred by the doctrine of res judicata. Felomina, who filed the complaint pro se, retained counsel to appear at the hearing. Despite being granted additional time to oppose Lender’s motion, no opposition was filed.

The district court granted Lender’s motion, finding that Felomina’s claims were precluded by res judicata. The district court entered its order on May 27, 1998, and its judgment on June 2, 1998.

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INTERNATIONAL SAV. & LOAN ASS'N v. Carbonel
5 P.3d 454 (Hawaii Intermediate Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
5 P.3d 454, 93 Haw. 464, 2000 Haw. App. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-savings-loan-assn-v-carbonel-hawapp-2000.