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Tabuyo v. Reish

Intermediate Court of Appeals of Hawai‘i

June 28, 2012

Rodillo M. TABUYO, Sr. and Merlina D. Tabuyo, Plaintiffs-Appellees,
v.
Robert C. REISH and Susan N. Reish, Individually and as Trustees for the Reish 1995 Family Trust as created by Declaration of Trust dated September 18, 1995, Defendants–Appellants and Does 1–30, Defendants.

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

Appeal from the Circuit Court of the First Circuit (Civil No. 09-1-2029).

Mitzi A. Lee (Law Office of Mitzi Lee), on the brief, for Defendants-Appellants.

FOLEY, Presiding J., REIFURTH and GINOZA, JJ.

MEMORANDUM OPINION

Defendants-Appellants Robert C. Reish and Susan N. Reish, Individually and as Trustees for the Reish 1995 Family Trust as created by Declaration of Trust dated September 18, 1995, (Reish Trust) appeal from the " Order Denying Defendants' Motion for Reconsideration of Order Denying Defendants' Motion for Order Expunging Notice of Pendency of Action, Filed on November 4, 2009," filed April 26, 2010 (April 26, 2010 Order) in the Circuit Court of the First Circuit [1] (circuit court). The circuit court's order was in favor of Plaintiffs-Appellees Rodillo M. Tabuyo Sr. and Merlina D. Tabuyo (Tabuyo Plaintiffs), who had filed the Notice of Pendency of Action against Reish Trust.

I.

On December 17, 2007, Reish Trust loaned Tabuyo Plaintiffs $150,000. The loan was secured by a " Purchase Money Real Property Mortgage" (second mortgage) held by Reish Trust on real property (Property) owned by Tabuyo Plaintiffs. Tabuyo Plaintiffs agreed to pay an interest rate of 14% per year, with the total loan due January 1, 2009.

Tabuyo Plaintiffs defaulted on the loan and Reish Trust initiated a non-judicial foreclosure action against Tabuyo Plaintiffs. The auction was held May 6, 2009, and Reish Trust bought the Property for $50,000, subject to the first mortgage.[2]

On May 15, 2009, a " Limited Warranty Deed Pursuant to Power of Sale" was filed in the State of Hawai‘i Bureau of Conveyances, purportedly conveying title of the Property to Reish Trust. Reish Trust entered into a contract to sell the Property to a third party, with the recording of the sale scheduled for September 11, 2009.

On September 10, 2009, in its Commitment for Title Insurance related to the anticipated sale, First American Title Company, Inc. indicated that a Notice of Pendency of Action had been filed September 1, 2009, claiming right to title and possession of the Property. On September 14, 2009, Reish Trust filed a Motion for Order Expunging Notice of Pendency of Action. On September 24, 2009, the circuit court denied the motion without prejudice and on November 4, 2009, entered its " Order Denying [Reish Trust's] Motion for Order Expunging Notice of Pendency of Action Filed September 14, 2009" (November 4, 2009 Order Denying Expungement).

On November 12, 2009, Reish Trust filed a Hawai‘i Rules of Civil Procedure (HRCP) Rule 60(b) " Motion for Reconsideration of [November 4, 2009 Order Denying Expungment]" (November 12, 2009 Motion for Reconsideration). The circuit court orally denied the motion December 8, 2009, but did not file its written order denying the November 12, 2009 Motion for Reconsideration until April 26, 2010.

On May 25, 2010, pursuant to Hawai‘i Rules of Appellate Procedure (HRAP) Rule 4(a)(4)(A), Reish Trust filed an " Ex Parte Motion to Extend Time to File Notice of Appeal" (Motion to Extend Time). The circuit court granted the motion, extending the time to file a notice of appeal from May 26, 2010 ...


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