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Federal Home Loan Mortgage Corporation v. Coito

Intermediate Court of Appeals of Hawaii

July 19, 2013

FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff-Appellee,
v.
TIMOTHY J. COITO and ANN K. COITO, Defendants-Appellants

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT (CIVIL No. 3RC12-1-30H).

Damon M. Senaha for Defendants-Appellants.

Robert E. ChapmanMary Martin(Clay Chapman Iwamura Pulice & Nervell) for Plaintiff-Appellee.

Foley, Presiding J., Leonard and Ginoza, JJ.

MEMORANDUM OPINION

Defendants-Appellants Timothy J. Coito and Ann K. Coito (collectively, Coitos) appeal from several orders and a judgment for possession entered in the District Court of the Third Circuit[1] (district court) in favor of Plaintiff-Appellee Federal Home Loan Mortgage Corporation (FHLMC). The district court granted FHLMC's motion for summary judgment, granted a judgment for possession and writ of possession to FHLMC, and denied the Coitos' motion for reconsideration.

I. BACKGROUND

On January 31, 2012, FHLMC filed a complaint for ejectment in the district court against the Coitos. FHLMC alleged it was the owner of the subject property (Property) by virtue of a non-judicial foreclosure sale held on April 11, 2011. The complaint stated FHLMC had provided the Coitos written notice to vacate, and FHLMC requested a judgment for possession and a writ of possession The Coitos did not file a written answer to the complaint but appeared at a hearing before the district court. The hearing's minutes indicate the Coitos orally entered a general denial.

FHLMC filed a motion for summary judgment (MSJ) on April 5, 2012. FHLMC's supporting documentation included a "Mortgagee's Affidavit of Foreclosure Under Power of Sale" and the resulting quitclaim deed issued in its favor, both recorded in the Land Court of the State of Hawai'i.

The Coitos filed their opposition to FHLMC's MSJ on April 17, 2012. In their opposition, the Coitos argued the district court lacked jurisdiction pursuant to Hawaii Revised Statutes (HRS) 604-5 (Supp. 2012) because the Coitos challenged FHLMC's title to the Property. The Coitos attached an affidavit by Ann Coito in which she claimed to be the owner of the Property and claimed the foreclosure sale was invalid. Specifically, the affidavit stated the lender had failed to provide the Coitos with a notice of acceleration as required by the power of sale clause contained in the Coitos' mortgage. FHLMC did not file a response to the Coitos' opposition.

The district court held a hearing on FHLMC's MSJ on April 25, 2012. At the hearing's conclusion, the district court orally granted FHLMC's MSJ. The district court entered its order and a writ of possession and judgment for possession on May 9, 2012.

On April 30, 2012, the Coitos filed a motion for reconsideration pursuant to District Court Rules of Civil Procedure (DCRCP) Rule 59. The Coitos again argued the district court lacked jurisdiction and attached another affidavit by Ann Coito, adding several details that were not in the first affidavit. The court denied the Coitos' motion, concluding the Coitos' evidence and arguments should have and could have been presented earlier, and it entered its order denying the Coitos' motion on July 26, 2012.

The Coitos filed a timely notice of appeal to this court on August 24, 2012. On appeal, the Coitos argue the district court lacked jurisdiction to grant FHLMC's MSJ and ...


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