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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

WELLS FARGO BANK, N.A. AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN 

TRUST 2007-4 ASSET-BACKED CERTIFICATES, SERIES 2007-4, 

Petitioner/Plaintiff-Appellant,

vs.

DANIEL TSUKASA OMIYA, 

Respondent/Defendant-Cross-Claimant-Appellee,

and

ASSOCIATION OF APARTMENT OWNERS OF ILIKAI APARTMENT BUILDING,

Defendant/Cross-Claim Defendant-Appellee.

SCWC-13-0000133

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-13-0000133; CIVIL NO. 10-1-2345)

JUNE 15, 2018

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

Under Hawaii law, in the case of non-judicial 

foreclosure of real property registered with the Land Court, the 

mortgagor or other person in interest may directly impeach the 

Electronically Filed

Supreme Court

SCWC-13-0000133

15-JUN-2018

09:16 AM
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2

foreclosure proceedings affecting the property prior to the 

entry of a new certificate of title. However, after a new 

certificate of title has been entered, no judgment recovered on 

the mortgage note for any balance due shall operate to open the 

foreclosure or affect the title to the registered property (with 

some exceptions for fraud).

This case concerns whether a certificate of title is 

entered when a deed is accepted by the Office of the Assistant 

Registrar of the Land Court and stamped with a new certificate 

of title number. Because we conclude that assignment of a new 

certificate of title number is not the statutory equivalent of 

an entry of a certificate of title, we hold that the evidence 

did not establish that a certificate of title had been entered. 

Accordingly, the plaintiff in this case was not barred from

maintaining an action against the purchaser-defendant for 

recovery of the foreclosed property. Additionally, because the 

evidence presents an issue of material fact as to whether the 

foreclosure sale was conducted through reasonable means to 

secure an adequate purchase price, we vacate the grant of 

summary judgment and remand the case for further proceedings.

I. BACKGROUND

Wells Fargo, N.A. (Wells Fargo) foreclosed via a nonjudicial foreclosure sale on its mortgage lien against apartment

unit 1731 (Property), located in the Ilikai Apartment Building
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in Honolulu, Hawaii. Wells Fargo paid $318,750.00 for the 

Property, and a mortgagee quitclaim deed was recorded in the 

Office of the Assistant Registrar of the Land Court in favor of 

Wells Fargo on March 30, 2009. 

Thereafter, another non-judicial foreclosure sale was 

held on August 18, 2010 by the Association of Apartment Owners 

of Ilikai Apartment Building (AOAO) at which Daniel Tsukasa 

Omiya purchased the Property for $15,000.1 According to the 

filings, the AOAO foreclosed on the Property to recover 

maintenance fees the AOAO claimed it was owed.2 The AOAO 

executed a quitclaim deed to Omiya which was accepted in the 

Office of the Assistant Registrar on September 15, 2010 and 

bears a stamp that reads in relevant part as follows:

STATE OF HAWAII

OFFICE OF ASSISTANT REGISTRAR

RECORDED

SEP 15, 2010 08:01 AM

Doc No(s) 3999421

on Cert(s) 940,974

 

1 The record does not indicate if there were competing bids to 

purchase the Property.

2 The quitclaim deed that the AOAO executed to Omiya after the 

foreclosure sale states that the AOAO had exercised foreclosure rights under 

a power of sale based, in part, on Hawaii Revised Statutes (HRS) § 514B-146. 

That section provides in relevant part that “[a]ll sums assessed by the 

association but unpaid for the share of the common expenses chargeable to any 

unit shall constitute a lien on the unit with priority over all other liens” 

with some enumerated exceptions. HRS § 514B-146(a) (Supp. 2016). The 

statute further specifies that “[t]he lien of the association may be 

foreclosed by action or by nonjudicial or power of sale foreclosure 

procedures set forth in chapter 667.” Id.
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Issuance of Cert(s) 996,234

A. Circuit Court Proceedings

1. Wells Fargo’s Complaint

On November 3, 2010, Wells Fargo filed a complaint 

against Omiya and the AOAO in the Circuit Court of the First 

Circuit (circuit court), alleging that the sale of the Property 

to Omiya was not conducted in accordance with applicable Hawaii

law because, inter alia, Omiya did not pay reasonable value for 

the Property.3 The complaint also stated that Omiya

claims to the be owner of the Property by virtue of that 

certain Quitclaim Deed filed on September 15, 2010 . . . in 

the Office of the Assistant Registrar of the Land Court, 

State of Hawaii which resulted in the issuance of Transfer 

Certificate of Title No. 996,234 registering title in the 

name of Defendant Omiya.

In addition to other relief, Wells Fargo asked that the 

Assistant Registrar of the Land Court be directed to take such 

action as necessary to restore legal title to Wells Fargo,

including but not limited to, cancellation of Transfer 

Certificate of Title (TCT)

4 No. 996,234. Omiya answered and 

filed a cross-claim against the AOAO. 

 

3 The Honorable Edwin C. Nacino presided.

4 HRS Chapter 501 refers to the initial certificate of title issued 

pursuant to the Land Court’s decree of registration as an “original 

certificate of title,” see, e.g., HRS § 501-75 (2006), and refers to a 

subsequent certificate of title issued to a new owner following the 

conveyance of previously registered property as a “new certificate of title.” 

See, e.g., HRS § 501-108 (2006 & Supp. 2016). Although the terms do not 

appear in HRS Chapter 501, the Rules of the Land Court refer in some 

instances to a new certificate of title as a “transfer certificate of title” 

or TCT. See Rules of the Land Court (RLC) Rules 14, 26 (1989).
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2. Omiya’s Summary Judgment Motion

On December 21, 2011, Omiya filed a motion for summary 

judgment asserting that the quitclaim deed to Omiya was recorded 

and the Land Court had issued TCT No. 996,234. Thus, according 

to Omiya, Wells Fargo’s arguments to invalidate the AOAO’s 

foreclosure sale were untimely because they were not raised 

before the issuance of the new certificate of title, which was 

final and binding. (Citing Aames Funding Corp. v. Mores, 107 

Hawaii 95, 103, 110 P.3d 1042, 1050 (2005).) As a result, Omiya

argued, no relief could be obtained against him or the Property 

because he was statutorily protected as a subsequent purchaser 

for value.

5 (Citing Hawaii Revised Statutes (HRS) § 501-82 

(Supp. 2016).)

6

In its opposition to the summary judgment motion, 

Wells Fargo asserted that there was a genuine issue of material 

fact as to whether a new certificate of title had issued. Wells 

Fargo pointed to the declaration of its counsel Anya Perez 

 

5 In the alternative, Omiya argued that Wells Fargo should be 

barred from opposing the motion for summary judgment or that the court should 

dismiss Wells Fargo’s complaint based on its failure to comply with its 

discovery obligations. 

6 HRS § 501-82(a) provides in relevant part as follows: “Every 

applicant receiving a certificate of title in pursuance of a decree of 

registration, and every subsequent purchaser of registered land who takes a 

certificate of title for value and in good faith, hold the same free from all 

encumbrances except those noted on the certificate” subject only to 

enumerated exceptions that are not relevant here.
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(Perez Declaration), which stated that she went to the Office of 

the Assistant Registrar of the Land Court and, after searching 

its computer records, was able to see that the new certificate 

of title was only partially prepared. The certificate of title

was not complete and not certified, Perez averred, because the 

legal description was missing. Perez further declared that a 

staff person at the office initially told her that a new TCT No. 

996,234 had been issued, “because it is certified by [the 

quitclaim deed].” The staff member went on to explain, Perez 

averred, that the certificate of title had not been checked and 

signed by an assistant registrar, which was required for the 

certificate of title to be certified.

Wells Fargo also asserted that there was a genuine 

issue of material fact as to whether the sale price was 

adequate. Wells Fargo again pointed to the Perez Declaration, 

which stated that, based on a 2012 tax assessment found in an 

online search of the City and County of Honolulu’s Real Property 

Assessment and tax billing information website, the assessed 

value of the Property as of October 1, 2011 was $308,300.00. A 

copy of the search results was attached to the Perez 

Declaration.7

 

7 Wells Fargo additionally submitted that there were genuine issues 

of material fact as to the following: whether Wells Fargo was paying fees for 

the Property; whether the AOAO gave proper notice of foreclosure; whether 

(continued . . .)
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Omiya countered that the tax assessed value of the 

Property found on the internet was inadmissible hearsay and an 

unqualified expert opinion. As to whether a new certificate of 

title was issued, Omiya maintained that the complaint admitted 

that the filing of the quitclaim deed in the Office of the 

Assistant Registrar resulted in the issuance of TCT No. 996,234,

registering title in Omiya’s name. Additionally, Omiya asserted 

that the lack of a physical hard copy of a certificate of title

was merely the result of clerical or bureaucratic delay and that 

“treating an issued certificate of title as ineffective” would

result in arbitrary and inconsistent Land Court protections,

which was contrary to the intent of the Land Court statute.

8

Omiya submitted a supplemental declaration by Sandra 

Furukawa, a title insurance provider who formerly served as

Registrar of the Bureau of Conveyances and Assistant Registrar 

 

(. . . continued)

Omiya was the highest bidder; whether the auction took place in a manner as 

required by law; and whether the sale was commercially reasonable.

8 The hearing on the motion was scheduled for January 19, 2012. At 

the hearing, the court questioned Wells Fargo regarding its position as to 

whether there was a judicial admission in the complaint. Wells Fargo 

acknowledged the language in the complaint cited by the court and orally 

requested leave to amend the complaint, arguing that the record was clear 

that a new certificate of title had not been issued. The court stated that 

it was not going to allow Wells Fargo to amend the complaint for the purpose 

of the summary judgment motion because the motion to amend was not before the 

court. The court continued the hearing to allow additional briefing. Wells 

Fargo then filed a non-hearing motion for leave to amend its complaint on 

January 23, 2012, so as to remove the language referring to the issuance of a 

TCT number. On February 1, 2012, the court denied the motion.
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of the Land Court (Furukawa Declaration). Furukawa stated that 

the Office of the Assistant Registrar of the Land Court at that

time was nearly four years behind in physically producing and 

certifying new certificates of title for properties registered 

in the Land Court system.

Wells Fargo filed a supplemental memorandum, asserting 

that the rule that the certificate of title is conclusive is 

predicated on the ability of an interested person to inspect the 

actual, physical document at will. Wells Fargo argued that 

Omiya had not presented a certificate of title as defined by the 

Rules of the Land Court (RLC) Rule 52 (1989), which provides 

that a “[c]ertificate means a certificate of title showing the 

owner’s name, a description of the land and a summary of

encumbrances affecting the land, if any.” Because a certificate 

of title had not been issued, Wells Fargo contended, it was not 

prevented from challenging the non-judicial foreclosure. 

Following a further hearing on the summary judgment 

motion, the circuit court framed the dispositive issue as 

whether “the issuance of the TCT number is sufficient” to 

provide Omiya with statutory protection. The court concluded

that “there’s no genuine issue of material fact regarding”

whether Omiya was protected and thus granted the summary 

judgment motion in favor of Omiya.
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The court issued an order granting summary judgment

and an amended partial final judgment. Wells Fargo filed a 

timely notice of appeal to the Intermediate Court of Appeals 

(ICA).

B. ICA Proceedings

On appeal, Wells Fargo contended that the circuit 

court erred in (1) concluding that because a certificate number 

had been issued, this court’s precedent prevented Wells Fargo 

from challenging the AOAO’s foreclosure of the Property and (2)

granting the summary judgment motion because the sale price of 

the Property shocked the conscience.9 

In a memorandum opinion, the ICA held that the circuit 

court did not err in granting summary judgment because there was 

no genuine issue of material fact as to Omiya’s ownership of the 

Property.

10 The ICA cited RLC Rule 59(d) (1989), which provides 

that in recording a deed, “the purchaser presents the deed which 

contains the proper number of the certificate of the land 

affected and also contains or has endorsed upon it a full 

 

9 Wells Fargo also contended that the circuit court erred in 

granting the summary judgment motion as Wells Fargo provided evidence that it 

had been current in its payment to the AOAO for the condominium association 

fees at the time of the foreclosure. This point of error is not raised in 

the application for a writ of certiorari and is therefore not further 

addressed.

10 The ICA’s memorandum opinion can be found at Wells Fargo Bank, 

N.A. v. Omiya, No. CAAP-13-0000133, 2017 WL 3140895 (Haw. App. July 24, 

2017).
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memorandum of all encumbrances affecting the land, if any.” The 

ICA noted that Omiya followed this procedure by presenting the 

quitclaim deed to the Land Court. Pursuant to HRS § 501-107 

(Supp. 2016), the ICA stated, the instrument is stamped with the 

date, hour, and minute of reception, and, with that, the 

instrument is regarded as registered from the date and time 

noted. 

The ICA then pointed to HRS § 501-118 (2006), which

precludes a mortgagor or other person in interest from 

impeaching foreclosure proceedings after the entry of a new 

certificate of title. The ICA concluded that Omiya was required 

only to show a TCT number stamped on the quitclaim deed record 

at the Land Court and not a physical certificate of title. 

The ICA acknowledged that Wells Fargo’s argument that 

issuance of a TCT number does not have the same effect as 

issuance of a physical TCT was not unreasonable. However, the 

ICA determined that, “under the circumstances of the Land 

Court’s current operations” and in view of Wells Fargo’s

judicial admission that issuance of the TCT number had the 

effect of registering title in Omiya’s name, any challenge to 

Omiya’s title should have been initiated before the TCT number 

was issued to Omiya. The ICA accordingly held that Wells 

Fargo’s purchase price argument was untimely because title 
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became conclusive and unimpeachable when the TCT number was 

issued.

Judge Ginoza dissented, arguing that there was 

conflicting evidence as to whether the transfer had been 

certified by the Land Court process, including (1) the quitclaim 

deed with a notation of the “Issuance of Cert(s) 996,234”; (2) 

the Perez Declaration attesting that Perez retrieved the 

certificate of title on a computer screen and that it was only 

partially prepared and not complete or certified because the 

legal description was missing; and (3) the Furukawa Declaration 

averring that the Office of the Assistant Registrar of the Land 

Court was nearly four years behind in physically producing and 

certifying new certificates of title. As to any judicial 

admission, the dissent reasoned that the statement in the 

complaint was not dispositive as the pertinent question under 

HRS § 501-118 is whether there has been entry of a new 

certificate of title. Thus, the dissent contended that there 

was a genuine issue of material fact that precluded summary 

judgment on this issue.

The dissent further concluded that there was a genuine 

issue of material fact as to whether the price was grossly 

inadequate. The dissent explained that mortgagees must 

“exercise their right to non-judicial foreclosure under a power 

of sale in a manner that is fair, reasonably diligent, and in 
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good faith, and to demonstrate that an adequate price was 

procured for the property.” (Quoting Kondaur Capital Corp. v. 

Matsuyoshi, 136 Hawaiʻi 227, 240, 361 P.3d 454, 467 (2015).) In 

this case, the dissent contended, the quitclaim deed submitted 

by Omiya included an attachment indicating that in 2010 the 

assessed net value of the Property was $281,100. Based on this 

evidence, the dissent concluded there was a genuine issue of 

material fact as to the adequacy of the purchase price.11

II. STANDARD OF REVIEW

This court reviews a court’s grant or denial of 

summary judgment de novo. Querubin v. Thronas, 107 Hawaiʻi 48, 

56, 109 P.3d 689, 697 (2005).

III. DISCUSSION

Wells Fargo presents two questions in its application

for a writ of certiorari. The first question concerns whether 

the ICA gravely erred in affirming summary judgment when a new 

certificate of title had not been entered prior to Wells Fargo 

initiating this case. The second question involves whether the 

ICA gravely erred in affirming summary judgment as to the 

adequacy of the price paid by Omiya for the Property at the 

 

11 The ICA majority responded that the 2010 tax assessment was not 

argued by Wells Fargo as a basis for establishing that the foreclosure price 

was inadequate, and that the value of the Property in the separate 2012 tax 

assessment relied upon by Wells Fargo had “no bearing on the value of the 

Property at the time of Omiya’s purchase in 2010.”
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foreclosure sale. To address these questions, we first consider

the framework of the Land Court system. 

A. Certificate of Title

1. The Land Court System

Hawaii has two systems for recording title to real 

property, the Bureau of Conveyances and the Land Court. 

GGS (HI), Inc. v. N.Y. Diamond, Inc. (In re 2003 Ala Wai Blvd.), 

85 Hawaii 398, 405, 944 P.2d 1341, 1348 (App. 1997), overruled 

on other grounds, Knauer v. Foote, 101 Hawai‘i 81, 63 P.3d 389 

(2003). The legislature created the Land Court with the passage 

of the Torrens Land Act (Act) in 1903, which is today codified 

in HRS Chapter 501 as amended. 1903 Haw. Sess. Laws Act 56, § 2 

at 279. The purpose of the system created by the Act “is to 

conclusively establish title to land through the issuance of a 

certificate of title.” Aames Funding Corp. v. Mores, 107 Hawai‘i

95, 101, 110 P.3d 1042, 1048 (2005). The holder of a 

certificate of title holds it “free from all encumbrances except 

those noted on the certificate in the order of priority of 

recordation” and other statutorily enumerated encumbrances. HRS 

§ 501-82(a) (Supp. 2016). Thus, “a land court certificate of 

title is ‘conclusive and unimpeachable’ with regard to ‘all 

matters contained therein,’” which is “[t]he fundamental 

difference between a certificate of title issued by the land 
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court and a recordation of title at the bureau of conveyances.” 

In re 2003 Ala Wai Blvd., 85 Hawai‘i at 405, 944 P.2d at 1348. 

Initial registration of property in Land Court “is not 

a simple matter” and “has often been compared to an action to 

quiet title.” 11 Thompson on Real Property, § 92.10(c) (David 

A. Thomas ed., 3d ed. 2015); 3 Patton and Palomar on Land 

Titles, § 682 (3d ed. 2003). A party first files an application 

with the registrar. HRS § 501-22 (2006); see HRS § 501-21

(2006) (specifying who may file an application); HRS § 501-23

(2006) (listing requirements of contents of application). After 

an application is filed, the court enters an order referring the 

application to an examiner of title who searches records,

investigates facts, and files a report, “concluding with a 

certificate of the examiner’s opinion upon the title.” HRS 

§ 501-32 (2006). If the opinion of the examiner is adverse to 

the applicant, the applicant may elect to proceed further or 

withdraw the application. Id. If, in the examiner’s opinion, 

the applicant has good title or if the applicant elects to 

proceed notwithstanding an adverse opinion, the registrar 

publishes notice of the application by order of the court in a 

newspaper of general circulation; the notice must include the 

names of all persons known to have an adverse interest in the 

property and the adjoining owners and occupants, so far as 

known. HRS § 501-41 (2006). The notice is also mailed to any 
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person named in the notice and is posted in a conspicuous place 

on the property. HRS § 501-42 (2006). Those claiming an 

interest in the property may appear and file an answer. HRS 

§ 501-45 (2006). If no person answers within the time allowed, 

the court may order a default to be recorded, enter a decree 

confirming the title of the applicant, and order registration of 

the title. HRS § 501-46 (2006).

If an answer is filed, the case is set for hearing on 

motion of a party, HRS § 501-51 (2006), at which time a judge of 

the Land Court decides whether the applicant has proper title 

for registration. HRS § 501-71 (Supp. 2016). If the court

finds proper title, the court issues a decree of confirmation 

and registration subject to any encumbrances or interests found. 

HRS § 501-71(a)-(b). Decrees of registration of absolute title 

bind the property and quiet title to it, and they are thus 

conclusive upon and against all persons.12 HRS § 501-71(d); see 

also HRS § 501-73 (2006) (“The court may remove clouds on titles 

and may find and decree in whom the title or any interest, legal 

or equitable, in land is vested, whether in the applicant or in 

any other person.”). The decree must contain certain 

 

12 Types of non-absolute title are possessory title and qualified 

title. HRS § 501-72 (2006).
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information, including any known encumbrances. HRS § 501-74

(2006).

After entry of the court decree, the registrar sends a 

certified copy of the decree to the assistant registrar. HRS 

§ 501-75 (2006); RLC Rule 55 (1989). The assistant registrar 

then “transcribes the decree in a book to be called the 

registration book, in which a leaf or leaves in consecutive 

order shall be devoted exclusively to each title.” HRS § 501-

75. “The entry made by the assistant registrar in this book in 

each case shall be the original certificate of title, and shall 

be signed by the assistant registrar and sealed with the seal of 

the court.” HRS § 501-75; RLC Rule 55. The certified copy of 

the decree of registration is “filed and numbered by the 

assistant registrar with a reference noted on it to the place of 

record of the original certificate of title.” HRS § 501-75.

“The certificate first registered in pursuance of a 

decree of registration in regard to any parcel of land” is 

“entitled in the registration book ‘original certificate of 

title, entered pursuant to decree of the land court, dated at’

(stating time and place of entry of decree and the number of the 

case).” HRS § 501-83 (2006). The certificate “shall take

effect from the date of the transcription of the decree.” HRS 

§ 501-83. Decrees of registration and the entry of certificates 

are agreements running with the land and are binding upon the 
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applicant and his or her successors, and the property “shall be 

and forever remain registered land,” HRS § 501-86 (Supp. 2016), 

unless deregistered by the owner of record. See HRS § 501-261.5

(Supp. 2016). 

Owners of registered land “may convey, mortgage, 

lease, charge, or otherwise deal with the same as fully as if it 

had not been registered.” HRS § 501-101 (2006). An owner of 

registered land who wants to convey it in fee executes a deed of 

conveyance, which the grantor or grantee presents to the 

assistant registrar.13 HRS § 501-108(a) (Supp. 2016); see also

HRS § 501-105 (Supp. 2016) (listing requirements of voluntary 

instruments). If the instrument contains the requisite 

information, then the assistant registrar shall record the deed, 

mortgage, or other voluntary instrument.14 RLC Rule 58 (1989); 

HRS § 501-108(a). “The act of registration shall be the 

operative act to convey or affect the land.” HRS § 501-101.

Following tender of the deed of conveyance, “in 

accordance with the rules and instructions of the court,” the 

assistant registrar “shall make out in the registration book a 

 

13 Conveyance of land less than fee simple are addressed in HRS 

§ 501-103 (2006).

14 Instruments are “stamped with the date, hour, and minute of 

reception[,]” and the instruments are “regarded as registered from the date 

and time so noted” and are “numbered and indexed, and indorsed with a 

reference to the proper certificate of title.” HRS § 501-107 (Supp. 2016). 
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new certificate of title to the grantee,” note the date of 

transfer on the original certificate, and stamp “canceled” on 

the original certificate. HRS § 501-108(a); RLC Rule 59 (1989) 

(after recording the instrument of transfer, “[t]he assistant 

registrar shall thereupon, in accordance with the rules and 

instructions of the court, enter a new certificate in the name 

of the grantee”); see also HRS § 501-83 (prescribing that 

“[s]ubsequent certificates relating to the same land shall be in 

like form” as that of the certificate first registered pursuant 

to a decree of registration). At the “time of any transfer,” if 

there are encumbrances or claims adverse to the title of the 

registered owner upon the registration book, “they shall be

stated in the new certificate or certificates, except as far as 

they may be simultaneously released or discharged.” HRS § 501-

110 (2006). The “new certificate . . . shall be binding upon 

the registered owner and upon all persons claiming under the 

registered owner, in favor of every purchaser for value and in 

good faith.”15 HRS § 501-106(b) (2006). 

Owners of registered land may also mortgage the 

property. HRS § 501-116 (Supp. 2016). With some exceptions for 

 

15 In “cases of registration procured by fraud the owner may pursue 

all the owner’s remedies against the parties to the fraud, without prejudice 

however to the rights of any innocent holder for value of a certificate of 

title.” HRS § 501-106(b) (2006).
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land deregistered pursuant to HRS Chapter 501, part II, all 

instruments dealing with the mortgage must be registered and 

“take effect upon the title of the mortgaged property only from 

the time of registration.” HRS § 501-116; see also HRS § 501-

117 (2006) (prescribing procedure to register a mortgage). 

“Mortgages of registered land may be foreclosed like mortgages 

of unregistered land[,]” and nothing in HRS Chapter 501 “shall 

be construed to prevent the mortgagor or other person in 

interest from directly impeaching by action or otherwise, any 

foreclosure proceedings affecting registered land, prior to the 

entry of a new certificate of title.” HRS § 501-118 (2006). 

“After a new certificate of title has been entered, no judgment 

recovered on the mortgage note for any balance due thereon shall 

operate to open the foreclosure or affect the title to 

registered land.” HRS § 501-118. 

With some exceptions,

16 HRS § 501-212 provides a 

statutory remedy to any person who, without negligence on the 

person’s part, sustains loss as a result of the registration of 

any other person as owner of such land through fraud, “or in 

consequence of any error, omission, mistake, or misdescription 

in any certificate of title . . . in the registration book.” 

 

16 The State shall not be liable for a wrongful non-judicial 

foreclosure or for loss caused by a breach of trust by a registered owner 

trustee. HRS § 501-216 (2006). 
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HRS § 501-212 (2006). The claim may be brought as a contract 

claim “for the recovery of compensation for such loss or damage

or for such land or estate, or interest therein.” HRS § 501-

212.

17

If the harm arises “wholly through fraud, negligence, 

omission, mistake, or misfeasance of the registrar, assistant 

registrar, or of any of the examiners of title . . . , or of any 

of the assistants or clerks” in the performance of their 

respective duties, the action shall be brought against the state 

director of finance, as sole defendant. HRS § 501-213 (2006). 

If the harm arises solely through misfeasance of some person 

other than the officers and assistants, or arises jointly, “then 

the action shall be brought against both the director and such 

other person as joint defendants.” HRS § 501-213. If judgment 

is in favor of the plaintiff and if damages cannot be recovered 

from other defendants, then any amount due is to be paid out of 

the general fund. See HRS § 501-214 (2006). 

Thus, in many instances the statutory framework 

essentially renders the State as a guarantor of the certificate 

of title issued by the Land Court.

 

17 When the person who has been deprived of land or of any estate, 

or interest therein, from conduct described in HRS § 501-212, has a remedy to 

recover the land or interest, the person shall exhaust this remedy before 

resorting to the statutory contract claim. HRS § 501-212.
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2. Defining “Entry of a Certificate of Title”

Omiya presented the quitclaim deed for registration to 

the assistant registrar on September 15, 2010, according to the 

stamp on the deed, and Wells Fargo filed its complaint on 

November 3, 2010. Omiya contends that HRS § 501-118 and Aames 

Funding Corp. v. Mores, 107 Hawaii 95, 110 P.3d 1042 (2005), bar 

Wells Fargo from impeaching the foreclosure proceedings because 

Wells Fargo filed its complaint after he presented the quitclaim 

deed for registration. Wells Fargo argues that the statute and 

Aames do not bar its claims because no certificate of title was 

issued to Omiya. 

HRS § 501-118 provides in relevant part as follows:

In case of foreclosure by exercising the power of 

sale without a previous judgment, the affidavit required by 

chapter 667 shall be recorded with the assistant registrar. 

The purchaser or the purchaser’s assigns at the foreclosure 

sale may thereupon at any time present the deed under the 

power of sale to the assistant registrar for recording and 

obtain a new certificate. Nothing in this chapter shall be 

construed to prevent the mortgagor or other person in 

interest from directly impeaching by action or otherwise, 

any foreclosure proceedings affecting registered land, 

prior to the entry of a new certificate of title.

After a new certificate of title has been entered, no 

judgment recovered on the mortgage note for any balance due 

thereon shall operate to open the foreclosure or affect the 

title to registered land.

HRS § 501-118 (emphases added). Under this section, a 

mortgagor’s right to directly impeach a foreclosure proceeding

is “expressly limited to the period before entry of a new 

certificate of title.” Aames, 107 Hawaii at 101, 110 P.3d at 

1048. 
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HRS § 501-118 specifies “entry of a new certificate of 

title” as the determinative point when foreclosure proceedings 

may no longer be impeached. To determine what constitutes a new 

certificate of title and entry thereof, we consider principles 

of statutory construction, the legislative history of the 

provision, and the structure of the statutes.

a. Statutory Construction

“The fundamental starting point of statutory 

interpretation is the language of the statute itself,” and 

“where the statutory language is unambiguous, our duty is to 

give effect to its plain and obvious meaning.” State v. 

Alangcas, 134 Hawai‘i 515, 525, 345 P.3d 181, 191 (2015). To 

effectuate a statute’s plain language, its words “must ‘be taken 

in their ordinary and familiar signification, and regard is to 

be had to their general and popular use.’” See State v. Guyton, 

135 Hawai‘i 372, 378, 351 P.3d 1138, 1144 (2015) (quoting In re 

Taxes of Johnson, 44 Haw. 519, 530, 356 P.2d 1028, 1034 (1960)); 

see also HRS § 1–14 (2009). “In conducting a plain meaning 

analysis, ‘this court may resort to legal or other well accepted 

dictionaries as one way to determine the ordinary meaning of 

certain terms not statutorily defined.’” Guyton, 135 Hawai‘i at

378, 351 P.3d at 1144 (quoting State v. Pali, 129 Hawaiʻi 363, 

370, 300 P.3d 1022, 1029 (2013)).
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It is also “a canon of construction that statutes that 

are in pari materia may be construed together.” State v. 

Kamanaʻo, 118 Hawai‘i 210, 218, 188 P.3d 724, 732 (2008) (quoting 

Black’s Law Dictionary 806 (8th ed. 2004)). “Thus, ‘[l]aws in 

pari materia, or upon the same subject matter, shall be 

construed with reference to each other. What is clear in one 

statute may be called upon in aid to explain what is doubtful in 

another.’” Id. (alteration in original) (quoting Barnett v. 

State, 91 Hawaiʻi 20, 31, 979 P.2d 1046, 1057 (1999)); see also

HRS § 1-16 (2009). 

The plain meaning of “prior to the entry of a new 

certificate of title” clearly contemplates the transcription of 

information into some common repository, and not merely the 

acceptance or stamping of an existing document. See Entry, 

Black’s Law Dictionary (10th ed. 2014) (“An item written in a 

record; a notation.” (emphasis added)). This plain meaning 

reading of HRS § 501-118 is underscored by other statutes 

pertaining to the same subject matter in HRS Chapter 501.

Following the Land Court’s decision to grant an 

application to register property in Land Court, the Land Court 

issues a decree.

18 HRS 501-71(a)-(b). A copy of that decree is 

 

18 The required contents of a decree include information as to the 

names of the owner and spouse, if married, a description of the land, and a 

description of “the estate of the owner, and also, in such manner as to show 

(continued . . .)
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then sent to the assistant registrar. HRS § 501-75. The 

assistant registrar “transcribe[s] the decree” in the 

registration book “in which a leaf or leaves in consecutive 

order shall be devoted exclusively to each title.” Id. “The 

entry made by the assistant registrar in this book in each case 

shall be the original certificate of title,” id., and the 

certificate “take[s] effect from the date of the 

transcription[,]” HRS § 501-83. Thus, the act of transcribing 

the decree into the registration book results in creation of the 

original certificate of title, which is retained in the 

registration book with all other certificates. The original 

certificate in the registration book is entitled “original 

certificate of title, entered pursuant to decree of the land 

court, dated at,” followed by the “time and place of entry of 

decree and the number of the case.” HRS § 501-83.

An owner desiring to convey in fee registered land, or 

any portion thereof, executes a deed of conveyance, which is 

then presented to the assistant registrar. HRS § 501-108(a). 

If the instrument contains the requisite information, then the 

 

(. . . continued)

their relative priority, all particular estates, mortgages, easements, liens, 

attachments, and other encumbrances.” HRS § 501-74; cf. HRS § 501-82 (Supp. 

2016) (providing that holder of certificate of title holds “free from all 

encumbrances except those noted on the certificate” and statutorily 

enumerated encumbrances). 
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assistant registrar records it. RLC Rule 58; HRS § 501-108(a).

Following recording and in accordance with prescribed procedures

involving a review and certifying process, the assistant 

registrar “make[s] out in the registration book a new 

certificate of title to the grantee,” and the original 

certificate of title is stamped “canceled.”19 HRS § 501-

108(a)(1); see RLC Rule 59 (“The assistant registrar shall 

thereupon, in accordance with the rules and instructions of the 

court, enter a new certificate in the name of the grantee.”). 

The assistant registrar also lists any encumbrances or claims 

adverse to the title of the owner on the new certificate of 

title, unless they can be simultaneously released or discharged. 

HRS § 501-110.

Thus, provisions of HRS Chapter 501 provide the 

original and new certificates of title as being within the 

registration book--the decree is “transcribe[d] in the 

[registration] book,” which “shall be the original certificate 

of title,” and new certificates of title are “ma[d]e out in the 

registration book.” HRS §§ 501-75, 501-108(a); see HRS § 501-

196 (2006) (disallowing, with some exceptions, erasures, 

alterations, or amendments “upon the registration book after the 

 

19 It is not clear if certificates that follow the original are also 

stamped “canceled.” See HRS § 501-108(a)(2).
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entry of a certificate of title . . . thereon”). Original 

certificates of title are therefore created when they are 

transcribed in the registration book and do not exist prior to 

this transcription, and similarly, new certificates of title are 

created when they are made out in the registration book.

Additionally, HRS § 501-83 provides that certificates 

of title subsequent to the original certificate--i.e., new 

certificates--“shall be in like form” to the original 

certificate. HRS § 501-83. RLC Rule 52 (1989) defines 

“certificate” as “a certificate of title showing the owner’s 

name, a description of the land and a summary of encumbrances 

affecting the land, if any.” Thus, a new certificate of title 

has information referencing the original registration, the 

owner’s name, a description of the property, and a summary of 

encumbrances.20 None of this information is contained in a TCT 

number.

Further, when statutory provisions in HRS Chapter 501 

refer to a certificate of title, that is precisely what is 

 

20 It appears that, as the name implies, a certificate of title must 

also be certified with the signature or initials of the assistant registrar. 

HRS § 501-75 expressly provides that an original certificate of title “shall 

be signed by the assistant registrar and sealed with the seal of the court,”

and, as stated, new certificates of title “shall be in like form” to the 

original certificate. HRS § 501-83. Perez, in her declaration, averred that 

the new certificate of title in this case had not yet been signed by an 

assistant registrar and that for the new certificate “to be certified, it 

would have to be signed by an assistant registrar” according to a staff 

person at the Office of the Assistant Registrar. See infra note 31 and 

accompanying text.
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meant;21 when provisions in HRS Chapter 501 reference the number

of the certificate of title, that is also what is meant.

22 If 

the legislature intended for the issuance of the number of the 

certificate of title to be the determinative point for when 

parties could no longer impeach foreclosure proceedings, the 

legislature would have so provided. Cf. Hyland v. Gonzales, 139 

Hawai‘i 386, 391, 390 P.3d 1273, 1278 (2017) (“If the legislature 

 

21 See, e.g., HRS § 501-83.5 (2006) (“[T]he assistant registrar 

shall accept for filing any deed or other voluntary instruments without 

requiring the presentation of the outstanding duplicate certificate.”); HRS 

§ 501-84 (2006) (“Any conveyance of fee simple interest in registered land 

shall be recorded with the assistant registrar, who shall note the same on 

the certificate . . . [and] cancel all the certificates affecting the whole 

land . . . .”); HRS § 501-88 (2006) (“The original certificate in the 

registration book . . . shall be received as evidence in all the courts of 

the State and shall be conclusive as to all matters contained therein.”); HRS 

§ 501-108(a)(3) (“The original certificate shall be stamped 

‘canceled’ . . . .”); HRS § 501-144 (2006) (“Every new certificate entered 

under this section shall contain a memorandum of the nature of the proceeding 

on which it is based . . . .”); HRS § 501-156 (2006) (“[A]ny new certificate 

entered in pursuance of partition proceedings . . . shall contain a reference 

to the final judgment of partition . . . .”).

22 See, e.g., HRS § 501-102(a) (2006) (“Every conveyance, lien, 

attachment, order, decree, instrument, or entry affecting registered 

land . . . shall . . . contain a reference to the number of the certificate 

of title . . . .”); HRS § 501-108(a) (“[N]o deed, mortgage, lease, or other 

voluntary instrument shall be accepted by the assistant registrar for 

registration unless a reference to the number of the certificate of title of 

the land affected by such instrument is incorporated in the body of the 

instrument . . . .”); HRS § 501-131 (2006) (“The assistant registrar shall 

note upon the original instrument creating or declaring the trust or other 

equitable interest a reference by number of the certificate of title to which 

it relates.”); HRS § 501-136 (2006) (“In addition to any particulars required 

in such papers for recording with records of deeds, it shall also contain a 

reference to the number of the certificate of title of the land to be 

affected . . . .”); HRS § 501-151 (Supp. 2016) (“No writ of entry, action for 

partition, or any action affecting the title to real property . . . and no 

judgment, nor any appeal or other proceeding to vacate or reverse any 

judgment, shall have any effect upon registered land as against persons other 

than the parties thereto, unless a full memorandum thereof, containing also a 

reference to the number of the certificate of title of the land affected is 

filed or recorded and registered.”). 
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intended that local boards of registration’s jurisdiction would 

be so limited, then the legislature would have used language to 

indicate that delivery was required.”). 

Accordingly, the plain language of HRS § 501-118, 

statutes in pari materia, and other principles of statutory 

construction underscore that the issuance of a new certificate 

of title number is not the statutory equivalent of an entry of a 

new certificate of title under HRS § 501-118.23

b. Legislative History

“The legislative history of a statute remains relevant 

‘even when the language appears clear upon perfunctory review.’” 

State v. Alangcas, 134 Hawaii 515, 526, 345 P.3d 181, 192 (2015) 

(quoting Richardson v. City & Cty. of Honolulu, 76 Hawaii 46, 

68–69, 868 P.2d 1193, 1215–16 (1994) (Klein, J., dissenting)); 

 

23 We note that, although a certificate of title is created upon 

transcription in the “registration book,” HRS §§ 501-75, 501-108(a)(1), the 

statutory scheme indicates “registration” is a distinct act occurring prior 

to the entry of a certificate of title. In the context of newly registered 

land, registration occurs when the land court enters a “decree of 

confirmation and registration.” HRS § 501-71(a). Entry of an original 

certificate of title occurs later, when the assistant registrar transcribes 

the decree into the registration book, HRS § 501-75, with the certificate 

taking effect upon transcription. HRS § 501-83. Subsequent registrations of 

conveyances and other instruments affecting registered land occur “during 

office hours,” HRS § 501-101, and are effective from the time the instrument 

is received by the assistant registrar. HRS § 501-107. Thus, registration 

of a subsequent instrument occurs when the instrument is received by the 

assistant registrar, and this delivery acts to transfer the applicable 

interest. See HRS § 501-101 (“The act of registration shall be the operative 

act to convey or affect the land . . . .”). The transfer is not made 

unimpeachable under HRS § 501-118, however, until a new certificate of title 

is issued. 
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see State v. Entrekin, 98 Hawaii 221, 227, 47 P.3d 336, 342 

(2002) (using legislative history to confirm interpretation of 

statute). “Were this not the case, a court may be unable to 

adequately discern the underlying policy which the legislature 

seeks to promulgate and, thus, would be unable to determine if a 

literal construction would produce an absurd or unjust result, 

inconsistent with the policies of the statute.” Survivors of 

Medeiros v. Maui Land & Pineapple Co., 66 Haw. 290, 297, 660 

P.2d 1316, 1321 (1983). 

According to the Furukawa Declaration, there was a 

backlog of nearly four years at the Land Court in certifying new 

certificates of title for properties registered in Land Court. 

Over time, there have been legislative efforts to alleviate the 

backlog. As early as 1985, there was a backlog at the Land 

Court of which the legislature was aware. See, e.g., S.C. Rep. 

No. 38, in 1985 Senate Journal, at 921 (“Testimony by the 

Department of Land and Natural Resources and confirmation from 

practitioners in this area indicate that there is currently a 

seven month delay in processing land court documents.”). The 

following year, the legislature appropriated funds to 

computerize the Land Court in an effort to reduce the backlog. 

See 1986 Haw. Sess. Laws Act 246, §§ 26-28 at 441-42; S.C. Rep. 

No. 38, in 1985 Senate Journal, at 921.
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More recently, the legislature passed a pair of acts 

aimed to alleviate the backlog, one in 2009 and the other in 

2012. The first act’s stated purpose was to “ease the backlog” 

in Land Court by, inter alia, allowing an owner of a fee 

interest in registered land to transfer it to the regular 

system, allowing electronic recording of instruments, and 

transferring fee simple timeshare interests from the Land Court 

to the regular system. 2009 Haw. Sess. Laws Act 120, § 1 at 

304. The stated purpose of the second act was also to “ease the

backlog” by requiring that fee timeshare interests be recorded 

in the regular system rather than Land Court and “streamlining 

the procedure for deregistering” remaining fee timeshare 

interests. See 2012 Haw. Sess. Laws Act 121, § 1 at 426. This 

change was a result of the legislature finding that the process 

required to transfer fee timeshare interests to the regular 

system had “exceeded the capacity of the land court, 

particularly in light of the approximately three year backlog of 

land court recordings and registration.” See 2012 Haw. Sess. 

Laws Act 121, § 1 at 425-26; see also HRS § 501-261 (Supp. 

2016). 

Other changes made to Land Court procedures have 

included eliminating the issuance of duplicates of certificates 
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of title to mortgagees and lessees,

24 making issuance of a new 

certificate discretionary upon the appointment of a new trustee 

of registered land,25 eliminating the need for a duplicate 

owner’s certificate of title,26 eliminating the requirement that 

leasehold timeshare interests be registered with the Land 

Court,27 and allowing money judgments recorded in the Bureau of 

Conveyances to encumber registered property.28 

The act creating Land Court and enacting the precursor 

to HRS § 501-118 was passed in 1903. 1903 Haw. Sess. Laws Act 

56. The statute read in relevant part as follows: “[N]othing 

contained in this Act shall be construed to prevent the 

mortgagor or other person in interest from directly impeaching, 

by bill in equity or otherwise, any foreclosure proceedings 

affecting registered land, prior to the entry of a new 

certificate of title.” 1903 Haw. Sess. Laws Act 56, § 63 at 

307. This provision is virtually identical to the current 

iteration of HRS § 501-118 and has remained unchanged in 

 

24 Stand. Comm. Rep. No. 432, in 1951 Senate Journal, at 933; see

1951 Haw. Sess. Laws Act 142.

25 S.C. Rep. No. 38, in 1985 Senate Journal, at 921; see 1986 Haw. 

Sess. Laws Act 246, § 13 at 436.

26 S.C. Rep. No. 2258, in 1988 Senate Journal, at 965; see 1988 Haw. 

Sess. Laws Act 346.

27 S.C. Rep. No. 2619, in 1998 Senate Journal, at 1060; see 1998 

Haw. Sess. Laws Act 219, § 1 at 753.

28 See 2014 Haw. Sess. Laws Act 19, §§ 1-3 at 40-42.
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substance from the inception of the Land Court. Compare id., 

with HRS § 501-118. Indeed, in 1998, the legislature 

specifically “[r]etain[ed] the original statutory language in 

[HRS § 501-118], which refers to the ability for the mortgagor 

to directly impeach any foreclosure proceeding affecting 

registered land, prior to the entry of a new certificate of 

title.” Conf. Comm. Rep. No. 75, in 1998 Senate Journal, at

774; see also Aames Funding Corp., 107 Hawai‘i at 102, 110 P.3d 

at 1049 (noting that amendments were made to HRS § 501-118, but 

that the cutoff to impeach foreclosure proceedings was retained

(quoting Conf. Comm. Rep. No. 75, in 1998 House Journal, at 

980)). 

Throughout the many legislative amendments to HRS 

Chapter 501, including those made for the express purpose of 

reducing the backlog, the legislature has consistently 

maintained the entry of a new certificate of title as the 

deadline for impeaching foreclosure proceedings. Omiya contends 

that “the Land Court’s practice is to hold that a new TCT is 

‘entered’ when the new TCT number is stamped on the recorded 

deed.”29 The legislature, however, has not enacted the multiple 

amendments throughout HRS Chapter 501 necessary to adopt this 

 

29 Omiya cites Gary W.B. Chang, Land Court: Demystifying an Enigma, 

Haw. B. J. 4 (Sept. 2017), which states that the Land Court’s practice was 

the result of “a pragmatic decision.” 
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practice. Instead, the legislature has sought to alleviate the 

backlog by increasing resources, streamlining certain 

procedures, and reducing the need to issue certificates and 

duplicate certificates.

Thus, despite various statutory changes made to HRS 

Chapter 501 since its enactment, HRS § 501-118 has remained 

virtually identical, evincing the legislature’s intent to 

maintain the entry of a new certificate as the pivotal juncture 

after which foreclosure proceedings may no longer be impeached. 

This conclusion is underscored by the legislature’s response to 

the Land Court backlog. The legislature enacted the amendments 

discussed above for the express purpose of addressing the Land 

Court’s workload, but at no point did the legislature amend HRS 

§ 501-118 to prohibit foreclosure proceedings from being

directly impeached prior to the entry of a new certificate.30 

Any change in Land Court practice that implemented such a bar

was clearly inconsistent with the legislative history and 

statutory provisions of HRS Chapter 501.

c. Structural Considerations

As stated, the primary purpose of the Torrens Land 

Act, codified in HRS Chapter 501, “is to conclusively establish 

 

30 HRS § 501-118 has not been amended since 1998. See 1998 Haw. 

Sess. Laws Act 122, § 3 at 477.
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title to land through the issuance of a certificate of title.” 

Aames Funding Corp., 107 Hawai‘i at 101, 110 P.3d at 1048 

(emphasis added). Thus, a land court certificate of title is 

“conclusive and unimpeachable” with regard to “all matters 

contained therein.” In re Bishop Tr. Co., 35 Haw. 816, 825 

(Haw. Terr. 1941). The circuit court and ICA decisions, 

however, make a recorded deed stamped with an assigned TCT 

number the equivalent of a new certificate of title. 

Preparation of a new certificate of title involves a 

verification process as the document is intended to be a 

conclusive, comprehensive listing of every interest in the 

property.31 See id. The certifying process is key to the 

issuance of a new certificate of title both to maintain the 

integrity of the Land Court system by ensuring the registration 

 

31 In the article cited by Omiya, Judge Chang explains that the 

current Land Court practice is to subject registered conveyances to a 

“secondary review” prior to “the final act of certifying the new TCT as being 

recognized by the assistant registrar.” Chang, supra note 29, at 13 n.18. 

During this review, “the document and the content of the superseded TCT can 

be studied and examined to determine whether the new transaction meets the 

requirements of land court” and to verify that there are no typographical 

errors in the document. Id.

Judge Chang states that “TCT numbers are assigned on a random, 

chronological order depending upon when a document is recorded,” and a single 

mistyped digit in a seven digit TCT number can result in the document 

applying “to a completely different parcel of property.” Id. at 18 n.35. 

The article also notes that complex mortgage and lending documents may 

contain drafting errors that preclude issuance of a certificate of title. 

Id. at 10 n.16. Judge Chang indicates that a registered conveyance may be 

pending secondary review if the corresponding entry in the registration book 

“is not initialed by the assistant registrar, or . . . the list of 

encumbrances/memorials . . . are left totally blank.” Id. at 13 n.18.
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book is completely accurate and to avoid the potential adverse 

consequences that can result if the information entered on a 

certificate is incorrect. Aames Funding Corp., 107 Hawai‘i at

101, 110 P.3d at 1048 (explaining that the purpose of the 

registration “is to conclusively establish title to land through 

the issuance of a certificate of title”). 

In many circumstances, the State is statutorily liable

to any non-negligent person who sustains loss or damage, or is 

deprived of land or of any estate or interest therein, “in 

consequence of any error, omission, mistake, or misdescription 

in any certificate of title,” by Land Court personnel in the 

performance of their duties.

32 HRS § 501-212. This liability 

even extends to situations in which the misfeasance is wholly 

the result of some person other than Land Court personnel, or 

arises from joint misfeasance, and the judgment shall be paid by 

the State when amounts due by other defendants are not 

satisfied. HRS § 501-213. The State is not liable, however, 

when the aggrieved person is able to recover the property. HRS 

§ 501-212.

 

32 Although “[t]he State shall not be liable to pay for any loss, 

damage, or deprivation occasioned . . . by the improper exercise of any power 

of sale in a mortgage,” HRS § 501-216, the effect of an entry of a 

certificate of title with respect to the State’s role as guarantor has 

implications in other contexts involving registered land.
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Treating a stamped deed with an assigned TCT number as 

a certificate of title that precludes an aggrieved person from 

recovering property would thus pose a significantly increased

liability risk for the State. See Legis. Reference Bureau, Two 

Land Recording Systems, H.R. 47-7, at 20 (1987) (“[T]he single 

claim of $110,000 paid in 1986 by the State, pursuant to the 

provisions of [HRS § 501-212] has nearly depleted the total 

amount of fees estimated to have been collected for the 

fund . . . .”). If the statutory determinative point when title 

becomes unimpeachable is to be made effective prior to the

issuance of a certificate of title, it must be the result of

legislative amendments to HRS Chapter 501, and not of a change 

in practice of the Land Court. 

3. Wells Fargo’s Admission

Omiya asserts that Wells Fargo admitted in the 

complaint that a new certificate number was issued in favor of 

Omiya. The ICA, after concluding that a TCT number has the same 

effect as issuance of an actual certificate of title, then

determined that Wells Fargo’s complaint contained a judicial 

admission that issuance of the TCT number in this case had the 

effect of registering title in Omiya’s name. 

A judicial admission is a formal statement, either by 

a party or his or her attorney, in the course of a judicial 

proceeding that removes an admitted fact from the field of 
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controversy. Lee v. Puamana Cmty. Ass’n, 109 Hawai‘i 561, 573, 

128 P.3d 874, 886 (2006). “It is a voluntary concession of fact 

by a party or a party’s attorney during judicial proceedings.” 

Id. Omiya points to two paragraphs in the complaint that he 

argues contains judicial admissions. The first reads as 

follows:

[Plaintiff] . . . alleges and avers, as follows: . . . .

3. That Defendant DANIEL TSUKASA OMIYA (“Omiya”), 

husband of Sandra Sachiko Omiya, whose address is 1314 

South King Street, Suite 1052, Honolulu, 96814 also claims 

to the be owner of the Property by virtue of that certain 

Quitclaim Deed filed on September 15, 2010 as Document No. 

3999421 in the Office of the Assistant Registrar of the 

Land Court, State of Hawaii which resulted in the issuance 

of Transfer Certificate of Title No. 996,234 registering 

title in the name of Defendant Omiya.

(Emphasis added.) The other paragraph Omiya points to states 

the following:

WHEREFORE, Plaintiff prays, as follows:

1. As to Count One, the Court declare the 

foreclosure sale of the Property conducted by Defendant 

Ilikai null and void; that all parties claiming by, through 

or under said foreclosure sale, including but not limited 

to Defendant Omiya, have no legal interest in the Property; 

that Plaintiff be declared the legal owner of the Property; 

and the Assistant Registrar of the Land Court, State of 

Hawaii, be directed to take such action as necessary to 

restore legal title to Plaintiff, including but not limited 

to, cancellation of TCT No. 996,234 issued to Defendant 

Omiya.

(Emphasis added.) Omiya specifically references the underscored 

language in both paragraphs as constituting judicial admissions. 

HRS § 501-118 allows impeachment of non-judicial 

foreclosure proceedings of registered land “prior to the entry 

of a new certificate of title.” HRS § 501-118. The first 
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purported admission states that the filed quitclaim deed 

“resulted in the issuance of Transfer Certificate of Title No. 

996,234 registering title in the name of Defendant Omiya.” The 

statement does not admit that a new certificate of title was 

issued and then entered; rather, it admits only that a new 

certificate number was issued.33 The second contended admission 

requests that the circuit court cancel the TCT number that was 

issued. It does not request that a certificate of title be 

cancelled. Neither of Wells Fargo’s statements in the complaint 

admits that a new certificate of title was issued. 

4. Erroneous Grant of Summary Judgment

In this case, Omiya presented a quitclaim deed to the 

assistant registrar, who stamped it with the date and time. 

That stamp registered the quitclaim deed, making it effective as 

a conveyance. See HRS §§ 501-101, 501-107 (Supp. 2016); supra

note 23. For the reasons discussed, registering a quitclaim 

deed is not equivalent to the creation or entry of a new 

certificate of title. As Wells Fargo argued, the evidence does 

not show that a new certificate of title was entered; had one 

been created, a certified and sealed copy of the certificate

would have been admissible as evidence. See HRS § 501-88 (2006)

 

33 Judge Ginoza’s dissent aptly observed that the complaint was not 

dispositive: “Rather, the pertinent question under HRS § 501-118 is whether 

there has been ‘entry of a new certificate of title.’” 
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(certified and sealed copies of certificates “shall be received 

as evidence in all the courts of the State”); cf. Aames Funding 

Corp. v. Mores, 107 Hawaiʻi 95, 97, 110 P.3d 1042, 1044 (2005)

(“Trial began with both parties stipulating to the authenticity 

of . . . a certified copy of TCT No. 587,098,” which was 

accepted into evidence). 

In addition, the stamp on the quitclaim deed in this 

case reads “Issuance of Cert(s) 996,234.” Based on this stamp, 

Omiya argued that a new certificate had been issued. But, as 

explained, assignment of a new TCT number does not demonstrate

that a new certificate of title has been duly prepared and 

entered. Thus, the record in this case does not show that “a 

new certificate of title has been entered,” which is required to 

invoke the statutory protection provided by HRS § 501-118.

34

In affirming the circuit court’s grant of summary 

judgment, the ICA adopted the circuit court’s interpretation 

that the assignment of a TCT number has the same effect as a new 

certificate of title. As explained, this conclusion is 

contradicted by the plain language of HRS § 501-118, statutes 

and rules that are in pari materia, the legislative history of 

HRS Chapter 501, and the statutory scheme underlying the Land 

 

34 Wells Fargo argued that Omiya did not present a certificate of 

title meeting the definition of RLC Rule 52. Omiya does not contend that he 

presented such a document.
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Court system. Accordingly, equating a TCT number to issuance 

and entry of a new certificate of title was error, and the grant 

of summary judgment in favor of Omiya on this ground was 

improper.

B. Adequacy of Purchase Price

Wells Fargo also contends that the circuit court

erroneously granted summary judgment in favor of Omiya because

there was a genuine issue of material fact as to whether the 

AOAO used reasonable means to obtain the best price for the 

Property. Omiya counters that Wells Fargo’s challenge is barred 

by HRS § 501-118 and that, even if it were not, Wells Fargo did 

not submit admissible evidence of the value of the Property. 

Because we have concluded that Wells Fargo’s complaint is not 

barred by HRS § 501-118, its contention as to the adequacy of 

the price for the Property may be considered.

Mortgagees exercising their right to non-judicial 

foreclosure under a power of sale must do so “in a manner that 

is fair, reasonably diligent, and in good faith, and to 

demonstrate that an adequate price was procured for the 

property.” Kondaur Capital Corp. v. Matsuyoshi, 136 Hawai‘i 227, 

240, 361 P.3d 454, 467 (2015) (citing Ulrich v. Sec. Inv. Co., 

35 Haw. 158, 168 (Haw. Terr. 1939)); see also id. at 239–40, 361 

P.3d at 466–67 (holding that duties under Ulrich apply to non-
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judicial foreclosures of real property).35 Although “the 

mortgagee’s duty to seek the best price under the circumstances 

does not require the mortgagee to obtain the fair market value 

of the property[,]” “the mortgagee nonetheless has a duty to use 

fair and reasonable means to conduct the foreclosure sale in a 

manner that is conducive to obtaining the best price under the 

circumstances.” Hungate v. Law Office of David B. Rosen, 139 

Hawai‘i 394, 408–09, 391 P.3d 1, 15–16 (2017).

“[S]ummary judgment is appropriate if the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to judgment as a matter of law.” Kondaur, 136 

Hawai‘i at 240, 361 P.3d at 467 (quoting Price v. AIG Haw. Ins. 

Co., 107 Hawaii 106, 110, 111 P.3d 1, 5 (2005)). All evidence 

and inferences therefrom are to be viewed in the light most 

favorable to the non-moving party. Id.

 

35 The foreclosure by the AOAO was conducted under power of sale 

pursuant to, inter alia, HRS §§ 667-5 to 667-10. The AOAO was therefore 

subject to the requirements of Ulrich and Kondaur. See Hungate v. Law Office 

of David B. Rosen, 139 Hawaii 394, 408, 391 P.3d 1, 15 (2017); see also

Kondaur, 136 Hawaii at 230 n.3, 361 P.3d at 457 n.3 (“HRS §§ 667–5 to 667–10 

governed the process of foreclosure by power of sale (i.e., non-judicial 

foreclosure) and were within Part I of HRS Chapter 667. HRS §§ 667–5 to 667–

8 were repealed by the legislature in 2012.” (citing 2012 Haw. Sess. Laws Act 

182, § 50 at 684)).
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Before this court, Wells Fargo cites the 2010 taxassessed value that was included with the quitclaim deed 

submitted by Omiya to support its contention that summary 

judgment was improperly granted. Omiya contends that we should 

not consider the 2010 tax-assessed value because Wells Fargo did 

not make that argument or specifically point to that evidence 

before the circuit court, therefore waiving use of that 

evidence.

Omiya cites in support of its argument Munoz v. Yuen,

which noted that “in reviewing a summary judgment, this court 

will not examine evidentiary documents, such as depositions and 

admissions, not specifically called to the attention of the 

trial court, even though they may be on file in the case.” 66 

Haw. 603, 606, 670 P.2d 825, 827 (1983). In Munoz, none of the

documents filed in support of and in opposition to the motion 

for summary judgment cited the depositions that the appellant 

sought to rely upon on appeal to establish a genuine issue of 

material fact. Id. Nor were the depositions referenced during 

the hearing. Id. In contrast, Omiya included the quitclaim 

deed and the 2010 tax-assessed value as an exhibit to his

summary judgment motion. Accordingly, the 2010 tax-assessed 
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value would have been within the circuit court’s attention 

during the summary judgment proceedings.36

The 2010 tax-assessed value as of June 22, 2010,

before the August 18, 2010 foreclosure sale, was $281,100. 

Omiya paid $15,000 at the foreclosure sale. The difference 

between the assessed value and the purchase price, viewed in the 

light most favorable to Wells Fargo as the non-moving party, 

creates a genuine issue of material fact as to whether the AOAO 

used reasonable means to obtain the best price for the Property. 

Therefore, the grant of summary judgment as to the adequacy of 

the bid price for the Property was erroneous.

37

 

36 Additionally, Omiya argues that the internet printout showing a 

2012 tax assessment that Wells Fargo submitted with the Perez Declaration was 

inadmissible hearsay and not relevant, as the tax-assessed value was for a 

time period after the foreclosure took place. In light of our conclusion 

with regard to the evidence of the 2010 tax-assessed value of the Property 

before the circuit court, this argument is not addressed.

37 Omiya raises other arguments that are unavailing. Omiya contends 

that because Wells Fargo stipulated to receiving foreclosure-related notice, 

Wells Fargo “waiv[ed] any challenge to the underlying foreclosure notice, 

process, or conduct that resulted in the foreclosure sale price.” Aside from 

the fact that Omiya raises this argument for the first time in his response 

to the application for a writ of certiorari, it is without merit. Hungate, 

which Omiya relies upon for its contention, does not indicate that 

stipulating to notice precludes any challenge to a foreclosure sale. After 

discussing the common-law duty addressed in Kondaur and Ulrich, this court 

held that what had to be proven was “that the sale was fairly conducted and 

resulted in an adequate price under the circumstances.” Hungate, 139 Hawaii

at 408-09, 391 P.3d at 15-16 (citing Kondaur, 136 Hawaii at 240-42, 361 P.3d 

at 467-69). 

Omiya also argues for the first time before this court that “a 

defective non-judicial foreclosure process results in merely voidable title, 

not void,” and, accordingly, “Wells Fargo’s remedy is limited to monetary 

damages against the alleged wrongful foreclosing party, [the AOAO,] not the 

foreclosure buyer,” because “an innocent purchaser like [himself] is 

protected.” (Citing Mount v. Apao, 139 Hawaii 167, 169, 384 P.3d 1268, 1270 

(continued . . .)
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IV. CONCLUSION

For the foregoing reasons, we vacate the ICA’s August 

29, 2017 Judgment on Appeal; the circuit court’s Order Granting 

Defendant Daniel Tsukasa Omiya’s Motion for Summary Judgment or, 

Alternatively, to Dismiss for Failure to Comply with Discovery 

Order, Filed December 21, 2011, filed March 29, 2012; the Order 

Granting Defendant Daniel Tsukasa Omiya’s Motion for Entry 

of Rule 54(b) Final Judgment, Filed April 18, 2012, filed June 

6, 2012; and the Amended Partial Final Judgment In Favor of 

Defendant Daniel Tsukasa Omiya, filed February 5, 2013. The 

case is remanded to the circuit court for further proceedings 

consistent with this opinion.

Gary Y. Okuda

for petitioner

Charles A. Price

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson 

 

(. . . continued)

(2016); Santiago v. Tanaka, 137 Hawaii 137, 158, 366 P.3d 612, 633 (2016).) 

In his motion for summary judgment, Omiya argued only that he was statutorily 

protected because a certificate of title had issued, and this was the sole 

basis of the circuit court’s ruling. The circuit court did not consider 

whether an innocent purchaser of property registered in the Land Court system 

is protected when a certificate of title has not issued, nor did the court 

make any finding that Omiya was in fact an innocent purchaser. Accordingly, 

we do not address these issues.