NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NOS. CAAP-18-0000099 AND CAAP-18-0000712

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-18-0000099

WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS 

CHRISTINA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY

AS TRUSTEE FOR BCAT 2015-14BTT, Plaintiff-Appellee,

v.

ISABELO PACPACO DOMINGO; MICHELE ELANOR DOMINGO,

Defendants-Appellants,

and

BANK OF AMERICA, N.A.; HALEWILI PLACE COMMUNITY ASSOCIATION,

Defendants-Appellees,

and

JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;

DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE

GOVERNMENTAL UNITS 1-50, Defendants

AND

CAAP-18-0000712

WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS 

CHRISTINA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY

AS TRUSTEE FOR BCAT 2015-14BTT, Plaintiff-Appellee,

v.

ISABELO PACPACO DOMINGO; MICHELE ELANOR DOMINGO,

Defendants-Appellants,

and

BANK OF AMERICA, N.A.; HALEWILI PLACE COMMUNITY ASSOCIATION,

Defendants-Appellees,

and

JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;

DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE

GOVERNMENTAL UNITS 1-50, Defendants

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000099

26-AUG-2022

08:33 AM

Dkt. 112 AMSDO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CIVIL NO. 13-1-202K)

AMENDED SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

In these consolidated appeals arising out of a

foreclosure action, Defendants-Appellants Isabelo Pacpaco Domingo

(Isabelo Domingo) and Michele Elanor Domingo (together, the

Domingos) appeal from the following entered by the Circuit Court

of the Third Circuit (Circuit Court):

(1) a "Judgment" (Foreclosure Judgment), based on

"Findings of Fact and Conclusions of Law; Order Granting

Plaintiff's Renewed Motion for Summary Judgment and for

Interlocutory Decree of Foreclosure" (Foreclosure Order), both

entered on January 29, 2018;

(2) a "Judgment" (Confirmation Judgment), based on an

"Order Approving Commissioner's Report and Granting Plaintiff's

Motion for Confirmation of Foreclosure Sale, Allowance of Costs,

Commissions and Fees, Distribution of Proceeds, Directing

Conveyance and for Writ of Possession/Ejectments" (Confirmation

Order), both entered on August 15, 2018; and

(3) a "Writ of Possession" entered on August 20, 2018. 

Each of the above were entered in favor of

Plaintiff-Appellee Wilmington Savings Fund Society, FSB, doing

business as Christiana Trust, Not in Its Individual Capacity, but

Solely as Trustee for BCAT 2015-14BTT (Wilmington) and against

the Domingos.1

The Domingos contend on appeal that the Circuit Court

erred in denying the Domingos' motion for summary judgment and in

granting summary judgment in favor of Wilmington, because

Wilmington admits it was never in possession of the original Note

executed by Isabelo Domingo and Wilmington is thus precluded

1 The Honorable Robert D.S. Kim presided.

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under Hawaii Revised Statutes (HRS) § 490:3-309 (2008) from

enforcing the Note.2

As discussed below, we conclude this appeal must be

dismissed based on mootness.

I. Brief Background

Bank of America, N.A. (Bank of America) initiated this

foreclosure action in 2013. Wilmington was later substituted

into the case as the plaintiff. In seeking summary judgment,

Wilmington presented evidence that the original Note was lost

while in the possession of Bank of America. The mortgage

securing the Note was assigned by Bank of America to Wilmington,

and an Assistant Vice-President for Bank of America executed an

Affidavit of Lost Note. Wilmington claims to have acquired the

rights to enforce the Note from Bank of America on or about

August 1, 2015, via the Affidavit of Lost Note. The evidence is

uncontested that Wilmington never held possession of the actual

Note.

2 HRS § 490:3-309 (2008), adopted in 1991, specifically addresses lost,

destroyed, or stolen notes, and provides:

§490:3-309. Enforcement of lost, destroyed, or stolen

instrument. (a) A person not in possession of an

instrument is entitled to enforce the instrument if

(i) the person was in rightful possession of the

instrument and entitled to enforce it when loss of

possession occurred, (ii) the loss of possession was

not the result of a transfer by the person or a lawful

seizure, and (iii) the person cannot reasonably obtain

possession of the instrument because the instrument

was destroyed, its whereabouts cannot be determined,

or it is in the wrongful possession of an unknown

person or a person that cannot be found or is not

amenable to service of process.

(b) A person seeking enforcement of an

instrument under subsection (a) must prove the terms

of the instrument and the person's right to enforce

the instrument. If that proof is made, section

490:3-308 applies to the case as if the person seeking

enforcement had produced the instrument. The court

may not enter judgment in favor of the person seeking

enforcement unless it finds that the person required

to pay the instrument is adequately protected against

loss that might occur by reason of a claim by another

person to enforce the instrument. Adequate protection

may be provided by any reasonable means.

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On January 29, 2018, the Circuit Court granted summary

judgment in favor of Wilmington by entering the Foreclosure

Order, which states in part:

7. At the time that Bank of America, N.A.

commenced this action, Bank of America, N.A. was

entitled to enforce the indorsed-in-blank Note as

evidence [sic] by a Lost Note Affidavit and the

Declaration of Bank of America, N.A. filed herein. 

[Wilmington] is now the holder of the original Lost

Note Affidavit, and entitled to enforce the same.

The Circuit Court's Foreclosure Order also included findings

regarding Wilmington's acquisition of rights to enforce the lost

Note via the Lost Note Affidavit as well as on equitable grounds;

that at the time the Note and Mortgage had been executed, funds

from the loan had been used to pay off amounts owed by the

Domingos under a mortgage with Ameriquest Mortgage Company; and

the protection afforded to the Domingos under an indemnification

agreement from Bank of America to borrower Isabelo Domingo for

any loss or damage that might occur by reason of a claim by

another person to enforce the original Note. The Foreclosure

Judgment was also entered on January 29, 2018. The Domingos

appealed from the Foreclosure Order and Foreclosure Judgment,

which resulted in CAAP-18-0000099.

On June 15, 2018, Wilmington filed a "Motion for

Confirmation of Foreclosure Sale, Allowance of Costs, Commissions

and Fees, Distribution of Proceeds, Directing Conveyance and for

Writ of Possession/Ejectments" (Motion for Confirmation). After

a hearing on July 10, 2018, the Circuit Court granted

Wilmington's Motion for Confirmation of the foreclosure sale and

found that Wilmington purchased the subject property at the

foreclosure auction and that "the price obtained by the

Commissioner fairly represents the market value of the Mortgaged

Property under the circumstances of the sale and present economic

conditions and that no other person indicated any interest in

submitting a higher bid." On August 15, 2018, the court entered

the Confirmation Order and Confirmation Judgment. On August 20,

2018, the Circuit Court entered the Writ of Possession. On

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September 14, 2018, the Domingos appealed from the Confirmation

Order, Confirmation Judgment, and Writ of Possession, which

became CAAP-18-0000712. Subsequently, CAAP-18-0000712 was

consolidated with CAAP-18-0000099. 

While the appeal in CAAP-18-0000099 was pending, the

Domingos filed a "Motion to Set Supersedeas Bond for a Stay

Pending Appeal" in the Circuit Court on March 7, 2018. On April

16, 2018, the Domingos filed a Motion for Stay Pending Appeal in

CAAP-18-0000099 arguing that "though the Circuit Court has a

ministerial duty to set the amount of a supersedeas bond so that

Appellants may obtain a stay, following a hearing on April 5,

2018, the Circuit Court denied the motion by minute order on

April 10, 2018." (Footnote omitted.) The record shows that

after the hearing on April 5, 2018, the Circuit Court entered an

"Order Denying [Domingos'] Motion to Set Supersedeas Bond for a

Stay Pending Appeal" on May 8, 2018. On May 11, 2018, we granted

in part the Domingos' Motion for Stay Pending Appeal "on the

condition that Appellants submit to this court for its approval a

supersedeas bond in an amount of Three-Hundred Thousand and

no/100 Dollars ($300,000). The stay will take effect upon the

approval of the supersedeas bond by this court." The Domingos

failed to submit a supersedeas bond to this court and thus failed

to obtain a stay. 

II. Motion to Dismiss Based on Mootness

On April 1, 2022, Wilmington filed a Motion to Dismiss

Appeal asserting that this appeal is moot because the Domingos

failed to obtain a stay pending appeal and the subject property

has recently been sold and conveyed to a third-party good-faith

purchaser during the pendency of the appeal. Wilmington argues

that it bought the subject property at the foreclosure auction

and has now sold the property to third-party good-faith purchaser

BBNY REO LLC, a Florida Limited Liability Company (BBNY). 

Wilmington submits declarations and exhibits with its motion to

show that it sold and conveyed the property to BBNY, that a

Special Warranty Deed was recorded on January 4, 2022, and a

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Corrective Special Warranty Deed was recorded on March 7, 2022,

both in the Land Court. 

The Domingos do not dispute that they failed to obtain

a supersedeas bond and thus failed to obtain a stay pending this

appeal. However, the Domingos argue that the authorities that

Wilmington relies upon are inapplicable to this case, the case is

not moot, and we should deny the motion to dismiss.

The Hawai#i Supreme Court has explained mootness as

follows:

A case is moot if it has lost its character as a present,

live controversy of the kind that must exist if courts are

to avoid advisory opinions on abstract propositions of law.

The rule is one of the prudential rules of judicial

self-governance founded in concern about the proper –- and

properly limited –- role of the courts in a democratic

society. We have said the suit must remain alive throughout

the course of litigation to the moment of final appellate

disposition to escape the mootness bar.

Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726

(2007) (citations and emphasis omitted). It is well established

that it is the appellant's burden to seek a stay if post-appeal

transactions could render the appeal moot. Bank of New York

Mellon v. R. Onaga, Inc., 140 Hawai#i 358, 367, 400 P.3d 559, 568

(2017) (quoting Lathrop v. Sakatani, 111 Hawai#i 307, 313, 141

P.3d 480, 486 (2006)).

The City Bank Rule

This court has stated "[t]he general rule is that the

right of a good faith purchaser to receive property acquired at a

judicial sale cannot be affected by the reversal of an order

ratifying the sale where a supersedeas bond has not been filed."

City Bank v. Saje Ventures II, 7 Haw. App. 130, 133, 748 P.2d

812, 814 (1988) (brackets, internal quotation marks and citation

omitted). "The purpose of the rule is to advance the stability

and productiveness of judicial sales." Id. (brackets, internal

quotation marks and citation omitted). Exceptions to this rule

are where the reversal is based on jurisdiction grounds or where

the purchaser is the mortgagee since he "does not free himself

from the underlying dispute to which he is a party." Id.

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(emphasis added) (brackets and citation omitted). In City Bank,

a mortgagor appealed from an order confirming a commissioner's

public auction sale. Id. at 131, 748 P.2d at 813. This court

noted there was nothing to indicate the third-party purchaser was

not a good-faith purchaser and there was no stay of the

confirmation order, and thus the appeal was deemed to be moot. 

Id. at 133-34, 748 P.2d at 814-15.

In Onaga, 140 Hawai#i at 367, 400 P.3d at 568, the

Hawai#i Supreme Court explained "the City Bank rule makes

practical sense in the foreclosure context and is consistent with

the principles underlying the Land Court system . . . The policy

underlying this rule is to encourage nonparty individuals to bid

at foreclosure sales." (brackets, internal quotation marks and

citation omitted). The Hawai#i Supreme Court then expressly

adopted the City Bank rule "for application to Land Court

properties as well as properties administered pursuant to HRS

Chapter 502 (Regular System)[,]" and held that "an appellant

challenging a foreclosure must post a supersedeas bond or

otherwise obtain a stay pursuant to [Hawai#i Rules of Civil

Procedure (HRCP)] Rule 62 or Hawai#i Rules of Appellate Procedure

(HRAP) Rule 8." Onaga, 140 Hawai#i at 367, 400 P.3d at 568

(footnotes omitted). The supreme court concluded:

A party who wishes to stay an order confirming a foreclosure

sale pending appeal must post a supersedeas bond or

otherwise obtain a stay pursuant to HRCP Rule 62 or HRAP

Rule 8. If a stay is not obtained and the property is sold

to a bona fide purchaser, the appeal should be dismissed as

moot because no effective relief can be granted.

Id. at 370, 400 P.3d at 571.

The Domingos argue that Onaga only applies when the

third-party purchaser obtains the property from the commissioner

and should not apply here where Wilmington obtained the property

from the commissioner and then subsequently sold it to a thirdparty. In other words, the Domingos argue that the second 

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exception articulated in City Bank should apply because the

purchaser at the foreclosure sale is the mortgagee.3

We recognize the circumstances in Onaga are different

than the instant case because, in Onaga, the third-party

purchasers obtained the property directly from the foreclosure

sale. In that case, R. Onaga, Inc. (Onaga) and The Bank of New

York Mellon FKA the Bank of New York (BONY) each initiated

foreclosure proceedings against the owners of the subject

property and the circuit court granted summary judgment in favor

of BONY, determining that BONY had a first priority lien. Onaga,

140 Hawai#i at 360, 400 P.3d at 561. The Ferraras then bought

the property at the foreclosure sale. Id. Onaga initiated two

separate appeals, from the summary judgment in favor of BONY and

then from the judgment confirming the foreclosure sale, but Onaga

failed to post a supersedeas bond ordered by the Circuit Court

and thus did not obtain a stay pending the appeal. Id. The

supreme court held that Onaga failed to obtain a stay and thus

"may not attack a good-faith purchaser's title to property

purchased at a judicial sale and confirmed by court order." Id.

at 367, 400 P.3d at 568. The supreme court further determined

that the Ferraras had purchased the property in good-faith. Id.

at 367 n.13, 368, 400 P.3d at 568 n.13, 569.

Although the circumstances in Onaga vary from the

instant case, this court applied the City Bank rule to

circumstances akin to this case. In DB Private Wealth Mortg.,

Ltd. v. Bouley, No. CAAP–14–0000585, 2016 WL 3548347 (Haw. App.

June 28, 2016) (SDO), the foreclosing party was DB Private Wealth

Mortgage, Ltd. (DB), which obtained a foreclosure judgment

against the defendants (the Bouleys) and then obtained the

property via a Commissioner's Deed registered in Land Court. Id.

at *1-2. The Bouleys appealed from, inter alia, a stipulated

confirmation order. Id. at *1. In the meantime, DB conveyed the

3 The Domingos do not assert that the first exception to the City Bank

rule applies here, i.e., that the challenged Circuit Court judgments and

orders should be reversed on jurisdictional grounds. 

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property to Zumirez Drive, LLC (Zumirez) by way of Quitclaim Deed

registered in Land Court, and thereafter, Zumirez sold the

property to the Trustees of the William C. and Donna K. Johnson

Revocable Trust (the Johnsons) with title transferring by

Warranty Deed. Id. at *2. This court addressed whether the

appeal was moot because the Bouleys had failed to obtain a stay

and the property had been sold to a good-faith third-party

purchaser.4 Id. Although this court recognized the exceptions

to the City Bank rule, we held that "neither exception applies

here, as the Bouleys do not request reversal of the orders based

on jurisdictional grounds, and the Johnsons were not the

mortgagee." Id. at *3; see also In re Nat'l Mass Media Telecomm.

Sys. Inc., 152 F.3d 1178 (9th Cir. 1998) (affirming a district

court's dismissal of plaintiff's appeal from bankruptcy court as

moot where plaintiff failed to obtain a stay, the lender

purchased plaintiff's property at a foreclosure sale and then

sold the property to a non-party).

Thus, in light of DB Private Wealth Mortg., we reject

the Domingos' argument that the second exception to the City Bank

rule applies in this case. Here, as in DB Private Wealth Mortg.,

mortgagee Wilmington purchased the property at the commissioner's

sale, but has now sold the property to a third-party, BBNY. 

Further, as discussed below, we conclude that BBNY is a goodfaith third-party purchaser.

The Domingos assert Wilmington has not detailed who

BBNY is or how it is a good-faith purchaser.5 "An innocent or

good faith purchaser is one who, by an honest contract or

4 The Bouleys did not challenge or deny that the Johnsons were goodfaith third-party purchasers. Id. at *2.

5 The Domingos also argue that the matter must be remanded to the

Circuit Court for an evidentiary hearing to determine whether BBNY is a goodfaith purchaser because "[t]his Court is not a court where evidence can be

taken." However, in Onaga, the Ferraras intervened while the case was on

appeal and moved to dismiss, asserting the appeal was moot because they had

purchased the property. 140 Hawai#i at 360, 400 P.3d at 561. The Hawai#i

Supreme Court determined the appeal was moot without remanding to the circuit

court for fact finding. Id.

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agreement, purchases property or acquires an interest therein,

without knowledge, or means of knowledge sufficient to charge him

in law with knowledge, of any infirmity in the title of the

seller." Onaga, 140 Hawai#i at 367 n.13, 400 P.3d at 568 n.13

(citation and internal quotation marks omitted).

Wilmington has provided, inter alia, a declaration by

William J. Bymel, manager of BBNY (Bymel Declaration). Bymel

attests that BBNY entered into an agreement to purchase and did

purchase the subject property from Wilmington. Bymel further

attests that BBNY is not affiliated with or otherwise related to

or connected to Wilmington or its loan servicer, Selene Finance,

LP, and that the price and terms of the purchase were negotiated

at "arms-length." The Bymel Declaration indicates that BBNY is a

good-faith purchaser and the Domingos fail to show otherwise. 

See City Bank, 7 Haw. App. at 133, 748 P.2d at 814-15 (noting

that the purchaser of the property was a third-party not involved

in the case and "[t]here is nothing in the record to indicate

that [the third-party purchaser] was not a good faith

purchaser"); see also Lathrop, 111 Hawai#i at 313-14, 141 P.3d 

at 486-87 (noting in an appeal from an order expunging a lis

pendens that "it is appellant's burden to seek a stay if

post-appeal transactions could render the appeal moot" and

holding that a completed sale of the subject property rendered

the appeal moot).

We also note that, in Onaga, the Hawai#i Supreme Court

stated:

[w]hen the Ferraras purchased the Property, the circuit

court had already determined in the consolidated proceedings

that BONY had a first priority lien on the Property. Thus,

at the time of the purchase, there would not have been an

"infirmity in the title" based on Onaga's mortgage.

140 Hawai#i at 367 n.13, 400 P.3d at 568 n.13. Here, when BBNY

purchased the subject property, the Circuit Court had already

issued its foreclosure decree via its Foreclosure Order and

Foreclosure Judgment, and confirmed the foreclosure sale via the

Confirmation Order and Confirmation Judgment. Thus, at the time

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BBNY purchased the property from Wilmington, there was no

"infirmity in the title" based on the Domingos' mortgage to bar

BBNY from purchasing the property in good-faith.

III. Conclusion

Given the circumstances in this case, including the

Domingos' failure to obtain a stay, no effective relief can be

granted to the Domingos given the sale of the property to thirdparty good-faith purchaser BBNY. Therefore, this appeal is

dismissed as moot.

DATED: Honolulu, Hawai#i, August 26, 2022.

Keith M. Kiuchi,

(Gary Victor Dubin and

Frederick J. Arensmeyer

on the briefs), for

Defendants-Appellants

David B. Rosen, 

David E. McAllister, 

Justin S. Moyer, 

Christina C. Macleod,

(Aldridge Pite, LLP)

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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