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Bank of New York Trust Co. v. Timosan

Intermediate Court of Appeals of Hawaii

January 6, 2014

THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, FKA THE BANK OF NEW YORK TRUST COMPANY, N.A.AS SUCCESSOR TO JPMORGAN CHASE N.A. AS TRUSTEE FOR RAMP 2005RS9, Plaintiff-Appellee,
v.
ALBERTO C. TIMOSAN, SIMPLICIA C. TIMOSAN, ARIEL TIMOSAN, ARCHANGEL TIMOSAN and AILYN T. OUNYOUNG, Defendants-Appellants and YVONNE CAPLENER, MARIO POSTRANO and LEONILA POSTRANO, Defendants

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT (CIVIL NO. 3RC 11-1-810K).

Gary Victor Dubin Fred J. Arensmeyer (Dubin Law Offices) for Defendants-Appellants.

Charles R. Prather Sofia M. Hirosane (RCO Hawaii) for Plaintiff-Appellee.

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

SUMMARY DISPOSITION ORDER

Defendants-Appellants Alberto C. Timosan, Simplicia C. Timosan, Ariel Timosan, Archangel Timosan[1] and Ailyn Timosan Ounyoung (collectively, Appellants) appeal from:

(1) the "Order 1) Denying Defendant's Motion To Dismiss Filed January 10, 2012[;] 2) Granting Plaintiff's Motion for Summary Judgment and Writ of Possession Filed November 14, 2011, " the "Judgment for Possession, " and the "Writ of Possession, " all entered April 27, 2012 (collectively, Summary Judgment Order); and

(2) the "Order Denying Defendants' [District Court Rules of Civil Procedure (DCRCP)] Rule 60(b)(3) and (4) Motion to Set Aside This Court's (1) April 27, 2012 Order Granting Summary Judgment And Writ of Possession, (2) April 27, 2012 Judgment For Possession, And (3) April 27, 2012 Writ of Possession, For Sanctions, And For Discovery[, ]" entered September 18, 2012 (DCRCP Rule 60(b) Motion). All judgments and orders were entered in the District Court of the Third Circuit[2] (district court).

Because Appellants filed their notice of appeal on October 18, 2012, only the appeal from the DCRCP Rule 60(b) Motion is timely. See Hawai'i Rules of Appellate Procedure Rule 4(a) (1) .

On appeal, Appellants contend the district court lacked subject matter jurisdiction, rendering its prior orders and judgments void, because: (1) title was at issue, depriving the district court of jurisdiction, (2) Plaintiff-Appellee Bank of New York Mellon Trust Company, National Association, FKA the Bank of New York Trust Company, N.A. as Successor to JPMorgan Chase N.A. as Trustee for RAMP 2005RS9 (RAMP) lacked standing to pursue ejectment as a matter of law, (3) RAMP committed fraud, (4) RAMP's attorneys' affirmation was false, and (5) discovery was required on all standing issues.

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 Appellants' appeal is without merit.

(1) The district court's denial of Appellants' DCRCP Rule 60(b) Motion was proper because the Summary Judgment Order was not void.

The district court's denial of Appellants' DCRCP Rule 60(b) Motion is reviewed for abuse of discretion. See Beneficial Hawaii, Inc. v. Casey, 98 Hawai'i 159, 164, 45 P.3d 359, 364 (2002). An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant. See id.

DCRCP Rule 60(b)(4) provides a party relief from a "final judgment, order, or proceeding . . . [if] . . . the judgment is void[.]" A judgment is void "if the court that rendered it lacked jurisdiction of . . . the subject matter . . . ." Application of Hana Ranch ...


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