June 12, 2013
THE BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWMBS, INC., CHL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-12, Plaintiffs-Appellees,
ARNA LAHELA JOHNSON, JOHN DOES 1-50, AND JANE DOES 1-50, Defendants-Appellants
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1RC10-1-10634).
R. Steven Geshell for Defendants-Appellants.
Charles R. Prather Sofia Hirosane McGuire Blue Kaanehe (RCO Hawaii) for Plaintiffs-Appellees.
Foley, Presiding J. and Reifurth, J.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Arna Lahela Johnson appeals from the order entered April 5, 2012 in the District Court of the First Circuit (district court) denying "Defendants Arna Lahela Johnson And Geralyn Lapitan Camarillo's Motion to Vacate All Orders And For Summary Judgment For Lack of Subject Matter Jurisdiction." In this ejectment action, the district court found in favor of Plaintiff-Appellee The Bank of New York Mellon FKA The Bank of New York As Trustee For the Certificateholders CWMBS, Inc., CHL Mortgage Pass-Through Certificates Series 2006-12 and against Johnson.
In summary, Johnson contends the district court erred in failing to conclude that the question of title raised by Johnson divested the district court of subject matter jurisdiction.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we conclude Johnson's appeal is without merit.
Johnson contends the district court failed to dismiss the action for lack of subject matter jurisdiction where Johnson identified a question of title to the property. Under Hawaii Revised Statutes § 604-5(d) (Supp. 2012), "district courts shall not have cognizance of real actions, nor actions in which the title to real estate comes into question[.]" When a defendant seeks to assert a question of title as a defense, the defendant must raise the defense in a written answer or motion and attach an affidavit that describes the "source, nature, and extent of the title claimed by defendant[.]" District Court Rules of Civil Procedure Rule 12.1.
Johnson submitted an affidavit with her written motion, however, the affidavit failed to identify any question of title. In her affidavit, Johnson claimed a title issue arose when a fraud perpetuated by the Bank of America caused her to send mortgage payments to the incorrect entity. In Deutsche Bank Nat. Trust Co. v. Peelua, 126 Hawai'i 32, 34, 265 P.3d 1128, 1130 (2011), a respondent in a foreclosure proceeding filed a motion to dismiss for lack of subject matter jurisdiction. The respondent filed an affidavit claiming that a question of title arose from allegedly fraudulent transactions committed by the foreclosing mortgagor. Id. at 38, 265 P.3d at 1134. The Supreme Court of Hawai'i found the respondent's assertions conclusory and deemed respondent's affidavit insufficient to establish any question of title. Id. This is the case here.
Furthermore, the district court did not abuse its discretion in denying Johnson's Hawai'i Rules of Civil Procedure Rule 60(b) motion based on the affidavit of Teri L. Pettit. Johnson's motion failed to demonstrate due diligence in the discovery of the evidence set forth in the Pettit affidavit. Kawamata Farms, Inc. v. United Agri Products, 86 Hawai'i 214, 259-60, 948 P.2d 1055, 1100-01 (1997).
IT IS HEREBY ORDERED that the order entered April 5, 2012 in the District Court of the First Circuit denying "Defendants Arna Lahela Johnson And Geralyn Lapitan Camarillo's Motion to Vacate All Orders And For Summary Judgment For Lack of Subject Matter Jurisdiction" is affirmed.
GINOZA, J. concurring separately.
I concur with the majority that the order entered on April 5, 2012 by the District Court of the First Circuit (district court) should be affirmed, but reach this result solely on a review of whether the district court abused its discretion in denying Defendant-Appellant Arna Lahela Johnson's (Appellant Johnson) post-judgment motion to vacate the district court's prior orders.
On May 31, 2011, the district court entered a "Judgment For Possession As To Defendant Arna Lahela Johnson" in favor of Plaintiff-Appellee The Bank of New York Mellon fka The Bank of New York As Trustee for the Certificateholders CWMBS, Inc. CHL Mortgage Pass-Through Trust 2006-12, Mortgage Pass-Through Certificates, Series 2006-12 (Appellee Bank). No appeal was filed from the May 31, 2011 judgment and therefore this court lacks jurisdiction to review the judgment for possession.
Almost a year later, on April 5, 2012, Appellant Johnson filed a post-judgment motion pursuant to Rule 60(b) of the District Court Rules of Civil Procedure (DCRCP) seeking to vacate the district court's prior orders and seeking summary judgment on the grounds that the district court lacked jurisdiction. Appellant Johnson supported her post-judgment motion with exhibits, her affidavit, and the affidavit of Teri L. Petit (Petit). The district court denied the post-judgment motion and Appellant Johnson timely appealed this ruling.
Both in her post-judgment motion and currently in this appeal, Appellant Johnson fails to provide an explanation as to why she would be entitled to relief under any of the provisions of DCRCP Rule 60(b). She appears to conclusively assert that she has newly discovered evidence and that there was a fraud committed such that the Bank does not properly have title to the subject property. As to the alleged newly discovered evidence, I agree with the majority that Appellant Johnson fails to show that she could not have previously obtained the evidence with due diligence. DCRCP Rule 60(b)(2). Similarly, as to the alleged fraud, Appellant Johnson fails, inter alia, to "establish that the conduct complained of prevented [her] from fully and fairly presenting [her] case or defense." See Kawamata Farms, Inc. v. United Agri Products, 86 Hawai'i 214, 251-52, 948 P.2d 1055, 1092-93 (1997) (citation omitted). In this regard, the fraud alleged by Appellant Johnson did not prevent her from presenting Petit's affidavit prior to entry of the judgment. Thus, Appellant Johnson fails to show that she was entitled to relief under DCRCP Rule 60(b)(3).
I therefore concur in affirming the district court's denial of Appellant Johnson's post-judgment motion.