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Indymac Venture, LLC v. Richard Charles Hillard

April 9, 2013

INDYMAC VENTURE, LLC,
PLAINTIFF-APPELLANT
v.
RICHARD CHARLES HILLARD, ET AL.,
DEFENDANTS-APPELLEES AND JOHN AND MARY DOES 1-20,
DOE PARTNERSHIPS, CORPORATIONS OR OTHER ENTITIES 1-20,
DEFENDANTS



APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NO. 11-1-0390(2))

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

ORDER

(1) DENYING MARCH 13, 2013 MOTION FOR EXTENSION OF TIME TO FILE OPENING BRIEF AND

(2) DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION (By: Nakamura, Chief Judge, Foley and Ginoza, JJ.)

Upon review of (1) Plaintiff-Appellant Indymac Venture, LLC's (Appellant Indymac Venture), March 13, 2013 motion for an extension of time to file its opening brief, (2) the lack of any other party's response to Appellant Indymac Venture's March 13, 2013 motion, and (3) the record, it appears that we lack jurisdiction over Appellant Indymac Venture's appeal from the Honorable Kelsey T. Kawano's September 17, 2012 order confirming the sale of the foreclosed property for $1,005,000.00.

This appeal arises out of Appellant Indymac Venture's complaint for foreclosure, in which Appellant Indymac Venture alleged an outstanding balance due on a promissory note in the amount of $4,390,261.10, and Appellant Indymac Venture prayed for, among other remedies, a deficiency judgment. When a party desires to assert an appeal from a foreclosure case such as this, the two primary statutes that potentially authorize appellate review of an order confirming the sale of foreclosed property are

(1) Hawaii Revised Statutes (HRS) § 667-51 (Supp. 2012) and

(2) HRS § 641-1(a) (1993 & Supp. 2012).

HRS § 667-51(a)(2) authorizes a party in a foreclosure action to assert an appeal from a judgment on an order confirming the sale of the foreclosed property that contains the necessary finding for certification pursuant to Rule 54(b) of the Hawaii Rules of Civil Procedure (HRCP): § 667-51 Appeals. (a) Without limiting the class of orders not specified in section 641-1 from which appeals may also be taken, the following orders entered in a foreclosure case shall be final and appealable:

(1) A judgment entered on a decree of foreclosure, and if the judgment incorporates an order of sale or an adjudication of a movant's right to a deficiency judgment, or both, then the order of sale or the adjudication of liability for the deficiency judgment also shall be deemed final and appealable;

(2) A judgment entered on an order confirming the sale of the foreclosed property, if the circuit court expressly finds that no just reason for delay exists, and certifies the judgment as final pursuant to Rule 54(b) of the Hawaii Rules of Civil Procedure; and

(3) A deficiency judgment; provided that no appeal from a deficiency judgment shall raise issues relating to the judgment debtor's liability for the deficiency judgment (as opposed to the amount of the deficiency judgment), nor shall the appeal affect the finality of the transfer of title to the foreclosed property pursuant to the order confirming sale.

(b) An appeal shall be taken in the manner and within the time provided by the rules of court.

HRS § 667-51 (emphases added). However, HRS § 667-51(a)(2) does not authorize a party in a foreclosure action to assert an appeal from an "order" confirming the sale of foreclosed property. An order and a judgment are two different things under HRS § 667-51. The circuit court has not entered an HRCP Rule 54(b)-certified judgment on the order confirming the sale of the foreclosed property. Therefore, absent the entry of such a judgment, HRS § ...


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