The Bank of New York Mellon v. White. ICA s.d.o., filed 12/30/2024 [ada], 155 Haw. 255. Motion for Reconsideration, filed 01/09/2025. ICA Order Denying Motion for Reconsideration, filed 01/15/2025 [ada]. Motion for Reconsideration, filed 02/05/2025. ICA Order, filed 02/18/2025 [ada]. Application for Writ of Certiorari, filed 04/01/2025. S.Ct. Order Accepting Application for Writ of Certiorari, filed 05/15/2025 [ada].

• Court: Hawaii Supreme Court
• Decided: August 7, 2025
• Docket: SCWC-21-0000400
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 07-AUG-2025 11:27 AM Dkt. 17 OPA

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

THE BANK OF NEW YORK MELLON, formerly known as THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-11, Respondent/Plaintiff-Appellee,

vs.

BRENDA MERLE WHITE; ASSOCIATION OF APARTMENT OWNERS OF KUMELEWAI COURT; MILILANI TOWN ASSOCIATION, Respondents/Defendants-Appellees,

and

GABI KIM COLLINS, Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1CC181000644)

AUGUST 7, 2025

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.,

OPINION OF THE COURT BY EDDINS, J.

This case concerns the statute of limitations for mortgage

foreclosure actions – an issue that this court has not opined on

since the early 1900s. *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

The answer turns on whether a mortgage foreclosure action

is more analogous to a real property action or an action to

recover a debt.

It is more like a real property action.

We hold that the statute of limitations for mortgage

foreclosure actions is twenty years. Thus, a mortgage

foreclosure action must be commenced within twenty years after

the right to bring the action first accrued.

I.

In 2006, borrower and defendant Brenda Merle White (White)

executed a promissory note for $250,000 to Countrywide Home

Loans, Inc. White stopped making mortgage payments in February

2008. Countrywide Home Loans assigned the mortgage to The Bank

of New York Mellon (BNYM) in July 2008.

That month, BNYM sent White a notice that it intended to

initiate a non-judicial foreclosure. The bank later rescinded

the notice in 2010. It did not foreclose on the property at

that time.

In 2012, the Association of Apartment Owners of Kumelewai

Court (AOAO), the junior lienholder, foreclosed on the property

for unpaid maintenance fees and other assessments.

After an auction, self-represented defendant Gabi Collins

(Collins) acquired an interest to the subject property in 2015

via quitclaim deed. Collins is not a party to White’s mortgage.

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In November 2017, BNYM sent White a notice of default.

BNYM then filed a foreclosure action in the Circuit Court of the

First Circuit.

White did not respond. Collins did. In circuit court,

Collins argued that (1) BNYM failed to show that it actually

mailed the notices of default in 2019; (2) White’s loan was

accelerated in September 2008, when BNYM invoked the non-

judicial foreclosure and published information about the

auction; (3) BNYM did not serve the conditions precedent (notice

of default) on White before foreclosure commenced; and (4) the

statute of limitations began to run after acceleration in 2008,

and expired six years later – around September 23, 2014 — per

Hawaiʻi Revised Statutes (HRS) § 657-1 (2016) and HRS § 490:3-118

(2008).

BNYM countered Collins’ arguments that (1) BNYM failed to

mail the notices of default to White in 2019, and (2) that the

statute of limitations bars the action. The bank maintained

that the statute of limitations for a foreclosure is twenty

years under HRS § 657-31 (2016). BNYM did not respond to

Collins’ other claims.

BNYM moved for summary judgment and Circuit Court of the

First Circuit Judge Jeannette H. Castagnetti granted that

motion.

Collins appealed.

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The ICA issued a summary disposition order affirming the

circuit court’s decision. It held that BNYM’s foreclosure

action was not time barred because the statute of limitations

for a foreclosure action is twenty years pursuant to HRS § 657-

31.

Collins applied for cert on several grounds. Per Hawaiʻi

Rules of Appellate Procedure Rule 40.1, we accepted only the

following question as framed by Collins: “Whether the ICA

gravely erred in holding that the Statute of Limitations of a

foreclosure is 20 years based on HRS § 657-31, and whether

Bowler v. Christiana Trust should be overturned based on Adair

v. Kona, and DW Aina Lea Devel. v. State Of Hawaii Land Use

Comm.”

II.

First, we examine whether the ICA erred in holding that the

statute of limitations for a foreclosure is twenty years per HRS

§ 657-31. It did not. HRS § 657-31 is the appropriate statute

for actions based on a real property interest like mortgages;

twenty years is the proper statute of limitations.

Second, we address Collins’ contention that DW Aina Leʻa

Dev., LLC v. State Land Use Comm’n, 148 Hawaiʻi 396, 477 P.3d 836

(2020) and Adair v. Kona Corp., 51 Haw. 104, 452 P.2d 449 (1969)

support overturning Bowler v. Christiana Trust, No. CAAP-16-

0000728, 2018 WL 4659562 (Haw. App. Sept. 28, 2018) (mem. op.).

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They do not. Neither case conflicts with Bowler, a case we find

persuasive.

III.

HRS chapter 657 prescribes different statutes of

limitations for different types of actions. HRS § 657-1 sets a

six-year statute of limitations for debt recovery actions

founded on a contract. HRS § 657-31 sets a twenty-year statute

of limitations for actions to “recover possession of any lands,

or make any entry thereon.”

Collins says a foreclosure action is like a contractual

debt recovery action. She insists HRS § 657-1 governs.

BNYM disagrees. It says foreclosures are more like real

property actions and HRS § 657-31 governs.

BNYM is right.

“A foreclosure action is a legal proceeding to gain title

or force a sale of the property for satisfaction of a note that

is in default and secured by a lien on the subject property.”

Bank of Am., N.A. v. Reyes-Toledo, 139 Hawaiʻi 361, 368, 390 P.3d

1248, 1255 (2017).

“Foreclosure is an equitable action.” Peak Capital Grp.,

LLC v. Perez, 141 Hawaiʻi 160, 172, 407 P.3d 116, 128 (2017). “A

court of equity is not bound by the statute of limitations, but,

in the absence of extraordinary circumstances, it will usually

grant or withhold relief in analogy to the statute of

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limitations relating to law actions of like character.” Yokochi

v. Yoshimoto, 44 Haw. 297, 300, 353 P.2d 820, 823 (1960)

(emphasis added).

Mortgage foreclosure actions are akin to those involving

real property. Hilo v. Liliuokalani held that foreclosure is a

“remedy at law against the land” such that the statute of

limitations is the “period applicable to real actions.” 15 Haw.

507, 508 (Haw. Terr. 1904). “[W]hile, strictly speaking, the

statute [for real actions] is not applicable to suits in equity,

yet equity follows it by analogy.” Id.

Collins believes otherwise. She says a mortgage is merely

security for the payment of a promissory note. The two should

be handled together under HRS § 657-1, she claims.

Not so. Promissory notes and mortgages are “two distinct

securities.” Campbell v. Kamaiopili, 3 Haw. 477, 478 (Haw.

Kingdom 1872). A promissory note is “an instrument that

evidences a promise to pay a monetary obligation.” HRS § 490:9-

102 (2008 & Supp. 2012). “A mortgage is a conveyance of an

interest in real property that is given as security for the

payment of the note.” Reyes-Toledo, 139 Hawaiʻi at 367-68, 390

P.3d at 1254-55 (citing HRS § 490:9-102).

Plus, citing Hilo, Bowler held that “an action to foreclose

a mortgage on land is not time-barred because an action to

recover on the underlying note is barred by the statute of

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limitations.” 2018 WL 4659562, at *6. This court reached the

same conclusion in Kipahulu Sugar Co. v. Nakila, 20 Haw. 620,

621 (Haw. Terr. 1911). Kipahulu Sugar stressed that subsequent

cases had approved of this court’s reasoning in Hilo. Id. “The

statute that applies, in equity, by analogy, is that which

limits the time within which a right of entry upon lands may be

enforced.” Id.

The Intermediate Court of Appeals (ICA) followed these

holdings in Bowler. 2018 WL 4659562, at *8. Bowler also held

that the exact method of foreclosure is not determinative;

specifically, whether a physical entry occurs is not

dispositive. See id. Rather, the dispositive fact is “that a

mortgage is a conveyance of a real property interest, which

allows the mortgagee to sell and take possession of the

property.” Id. (citing Reyes-Toledo, 139 Hawaiʻi at 367-68, 390

P.3d at 1254-55). This, the ICA said, makes the statute of

limitations “to recover possession of any lands, or make any

entry thereon, under HRS § 657-31 most analogous to a

foreclosure action, as opposed to an action to recover a debt.”

Id. (cleaned up).

Bowler makes sense. Because a mortgage is a conveyance of

a real property interest, the statute of limitations on actions

to “recover possession of any lands, or make any entry thereon”

is most fitting. See Reyes-Toledo, 139 Hawaiʻi at 367-68, 390

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P.3d at 1254-55; HRS § 657-31. The interest in real property

(and recovery thereof), rather than the note itself, drives the

action. We see no reason to strike Bowler.

foreclosure actions is twenty years per HRS § 657-31.

IV.

We turn to whether DW Aina Leʻa and Adair spare Bowler.

Those cases do.

DW Aina Leʻa, Collins says, confirms that the twenty-year

statute of limitations “is limited to claims arising from a

physical invasion of land.” And, she continues, foreclosure to

enforce a promissory note is not a physical invasion of land.

BNYM disagrees. It says DW Aina Leʻa is consistent with

Bowler.

DW Aina Leʻa dealt with regulatory takings, not physical

takings. Early in the opinion, DW Aina Leʻa distinguished

between physical and regulatory takings. 148 Hawaiʻi at 397 n.1,

477 P.3d at 837 n.1. A physical taking arises “when an actual

physical invasion of the landowner’s property has occurred.”

Id. A regulatory taking occurs “when a governmental regulation

places such a burdensome restriction on a landowner’s use of

[the] property that the government has for all intents and

purposes taken the landowner’s property.” Id. (cleaned up).

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This court concluded that the government taking was not

physical, so the twenty-year statute of limitations did not

apply. See id. at 405, 477 P.3d at 845. Rather, it held “the

statute of limitations for a regulatory taking is six years,

pursuant to the catch-all statute of limitations in [HRS] § 657-

1(4).” Id. at 397, 477 P.3d at 837.

Thus, DW Aina Leʻa doesn’t apply. Its holding regarding

physical takings and HRS § 657-31 has no consequence. See id.

at 405, 477 P.3d at 845. And, by extension, it does not

overturn precedent regarding the statute of limitations for

mortgage foreclosures. See id.

Collins’ contentions about Adair also lack merit. She

claims Adair applies because it held that “[s]trict foreclosure

is a concomitant of the title theory of mortgages, and makes

absolute the title which the mortgagee already has by destroying

the mortgagor’s equity of redemption. It does not work under

the lien theory of mortgages.” Bowler’s reliance on Hilo and

Kipahulu Sugar is misplaced, Collins maintains, because those

cases only applied when Hawaiʻi was a title theory state, and

Hawaiʻi has been a lien theory state since 1939. See Adair, 51

Haw. at 110, 452 P.2d at 453.

This argument is unpersuasive. First, Adair involved a

strict foreclosure under the 1955 Revised Laws of Hawaiʻi (where

foreclosure is completed by entry and possession). Id. While

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the court questioned the validity of the strict foreclosure,

that was not at issue in the case, so the court “assume[d] that

the foreclosure was valid.” Id. at 111, 452 P.2d at 453. The

court did not address a statute of limitations. See id. Adair

does not touch whether a twenty-year statute of limitations

applies to mortgage foreclosure actions.

Second, the distinction Collins draws between title theory

and lien theory is inapt. Collins is correct that, typically,

in title theory jurisdictions, the mortgagee holds title until

the mortgage is satisfied or foreclosed, and under lien theory,

the mortgagee holds a security interest only, while the

mortgagor holds legal title until foreclosure is complete. See

Restatement (Third) of Property (Mortgages), § 4.1, cmt. a

(1997). This distinction, she protests, means Hilo and Kipahulu

Sugar are no longer good law.

But this argument disregards the fact that, like today,

mortgagors in Hawaiʻi in the early 1900s retained possession of

the property until foreclosure was complete. Hilo is

illustrative. In Hilo, the mortgagee claimed the mortgagor’s

bill for an injunction against a foreclosure should be dismissed

because the mortgagee had already entered the property and

thereby “foreclosed by entry.” Bowler, 2018 WL 4659562, at *7

(quoting Hilo, 15 Haw. at 508). Hilo held that the mortgage had

not been foreclosed because the law at the time provided for a

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one-year redemption period during which the mortgagor retained

possession. Hilo, 15 Haw. at 508; Revised Laws of Hawaiʻi § 2858

(1915). The mortgagee had entered after only two months; they

were “enjoined against continuing that attempt at foreclosure.”

Hilo, 15 Haw. at 508. Thus, the distinction between title

theory in early 1900s Hawaiʻi and lien theory today is

inconsequential. In either situation, the mortgagor retains

possession throughout the foreclosure process.

Neither DW Aina Leʻa nor Adair support rejecting Bowler.

V.

The statute of limitations for mortgage foreclosure actions

is twenty years per HRS § 657-31.

We affirm the ICA’s judgment on appeal.

Gabi Kim Collins /s/ Mark E. Recktenwald (on the briefs) petitioner /s/ Sabrina S. McKenna

Patricia J. McHenry and /s/ Todd W. Eddins Michi Momose (on the briefs) for respondent The Bank of New /s/ Lisa M. Ginoza York Mellon, formerly known as the Bank of New York, as Trustee /s/ Vladimir P. Devens for the Certificateholders of CWABS, Inc. Asset-Backed Certificates, Series 2006-11