NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000523 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

AURORA LOAN SERVICES, LLC, A DELAWARE LIMITED LIABILITY 

COMPANY, Plaintiff-Appellee, 

v. 

RANDOLPH GOODWIN CURRIER, STACEY MARIE CURRIER, 

Defendants-Appellants, 

and 

KENNETH A. SMITH, Defendant-Appellee, 

and 

JOHN and MARY DOES 1-10, Defendants 

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT 

(CIVIL NO. 11-1-0371(3)) 

SUMMARY DISPOSITION ORDER 

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

 Defendants-Appellants Randolph Goodwin Currier and 

Stacey Marie Currier (collectively, Curriers) appeal from the 

July 1, 2019 "Order Denying Defendants Randolph Goodwin Currier 

and Stacey Marie Currier's [Hawai‘i Rules of Civil Procedure 

(HRCP)] Rule 60(b) Motion for Relief from Judgment" (Order 

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000523

09-APR-2024

08:04 AM

Dkt. 52 SO
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Denying Motion for 60(b) Relief) filed by the Circuit Court of 

the Second Circuit (Circuit Court).1 

 On appeal, the Curriers contend that the Circuit Court 

erred in denying their Motion for 60(b) Relief,2 "where the 

underlying nonjudicial foreclosure relied upon by [PlaintiffAppellee Aurora Loan Services, LLC (Aurora)] in pursuing 

judgment was invalid and void, due to Aurora's failure to 

publish notice of its rescheduled foreclosure auction," under 

Hungate v. Law Off. of David B. Rosen, 139 Hawai‘i 394, 391 P.3d 

1 (2017), abrogated on other grounds by State ex rel. Shikada v. 

Bristol-Myers Squibb Co., 152 Hawai‘i 418, 526 P.3d 395 (2023).3 

 Upon careful review of the record and the briefs 

submitted by the parties and having given due consideration to 

the arguments advanced and the issue raised, we affirm. 

1 The Honorable Joseph E. Cardoza presided.

2 HRCP Rule 60(b) entitled "Mistakes; inadvertence; excusable 

neglect; newly discovered evidence; fraud, etc." states in pertinent part:

On motion and upon such terms as are just, the court may 

relieve a party or a party's legal representative from a 

final judgment, order, or proceeding for the following 

reasons: . . . (4) the judgment is void; . . . or (6) any 

other reason justifying relief from the operation of the 

judgment. . . .

While the Curriers contend they are entitled to relief 

under subsections (b)(4) and (b)(6) of HRCP Rule 60, they fail to 

provide argument pertinent to (b)(6). "A party seeking relief under 

HRCP Rule 60(b)(6) after the time of appeal has run must establish the 

existence of 'extraordinary circumstances' that prevented or rendered 

him unable to prosecute an appeal." Application of Hana Ranch Co., 

Ltd., 3 Haw. App. 141, 147, 642 P.2d 938, 942 (1982) (citations 

omitted). The Curriers' claim of error under HRCP Rule 60(b)(6) is 

waived. See Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7).

3 In Hungate, which also involved a nonjudicial foreclosure as 

here, the Hawai‘i Supreme Court held that because the power of sale clause in 

the mortgage required the bank to publish postponements of the foreclosure 

sale, the circuit court erroneously dismissed the plaintiff's claims that the 

foreclosure was wrongful for failure to publish postponements of the sale 

through a new notice. 139 Hawai‘i at 403-04, 391 P.3d at 10-11. 
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 On April 3, 2014, the Curriers appealed the Circuit 

Court's March 4, 2014 order, judgment for possession, and writ 

of possession in favor of Aurora and against the Curriers on 

Aurora's June 22, 2011 "Complaint for Ejectment." After the 

Curriers failed to submit an opening brief, this court dismissed 

the appeal on March 2, 2015. 

On May 30, 2019, five years after the entry of the 

March 4, 2014 judgment and writ of possession, the Curriers 

filed their Motion for 60(b) Relief relevant to this appeal. On 

June 10, 2019, Aurora filed an opposition to the Motion, the 

Curriers filed a reply on June 17, 2019, and the Circuit Court 

denied the motion on July 1, 2019. 

 "A circuit court's decision on an HRCP Rule 60(b) 

motion is reviewed for abuse of discretion[.]" PennyMac Corp v. 

Godinez, 148 Hawai‘i 323, 327, 474 P.3d 264, 268 (2020) (quoting 

Haw. Hous. Auth. v. Uyehara, 77 Hawai‘i 144, 147, 883 P.2d 65, 68 

(1994)). "The burden of establishing abuse of discretion in 

denying an HRCP Rule 60(b) motion is on the appellant, and a 

strong showing is required to establish it." Id. (cleaned up). 

 The Curriers' sole argument on appeal is that the 

"nonjudicial foreclosure is void as a matter of law" because 

under Hungate, "[n]o evidence was produced showing that notice 

of rescheduling [the auction sale] had been published, which was 

required under the power of sale." Aurora responds, inter alia, 

that under Hawai‘i law, "even where it is determined that a 

nonjudicial foreclosure of a mortgage is somehow wrongful, the 

sale of the property may be 'voidable' at the timely election of 

the mortgagor——as opposed to 'void as a matter of law.'" 

Aurora's argument has merit. 

HRCP Rule 60(b)(4) provides for relief from a judgment 

when "the judgment is void[.]" In Delapinia v. Nationstar 
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Mortg. LLC, 150 Hawai‘i 91, 101-02, 497 P.3d 106, 116-17 (2021), 

the Hawai‘i Supreme Court held that: 

a wrongful foreclosure that violates the power of sale is 

voidable, not void. This conclusion flows from our cases 

that make clear that if a foreclosure violates a statute 

governing the nonjudicial foreclosure scheme, or other law 

extrinsic to the mortgage itself, the sale is "voidable at 

the election of the mortgagor," and in turn, "where the 

property has passed into the hands of an innocent purchaser 

for value, an action at law for damages is generally the 

appropriate remedy." 

(emphasis added) (cleaned up). Thus, even where a nonjudicial 

foreclosure may be wrongful due to failure to strictly comply 

with the power of sale, the remedy recognized under Hawai‘i law 

is to render such a foreclosure voidable, not void as the 

Curriers contend. As the Curriers do not raise any other 

argument why the March 4, 2014 Judgment is void under HRCP Rule 

60(b)(4), we conclude the Circuit Court did not abuse its 

discretion by denying the Curriers' Motion for 60(b) Relief. 

See PennyMac Corp., 148 Hawai‘i at 327, 474 P.3d at 268; HRAP 

Rule 28(b)(7). 

 For the foregoing reasons, we affirm the July 1, 2019 

"Order Denying Defendants Randolph Goodwin Currier and Stacey 

Marie Currier's HRCP Rule 60(b) Motion for Relief from Judgment" 

filed by the Circuit Court of the Second Circuit.

 DATED: Honolulu, Hawai‘i, April 9, 2024. 

On the briefs:

Frederick J. Arensmeyer, 

for Defendants-Appellants. 

Nainoa Watson, 

for Plaintiff-Appellee. 

/s/ Katherine G. Leonard 

Acting Chief Judge 

/s/ Keith K. Hiraoka 

Associate Judge 

/s/ Karen T. Nakasone 

Associate Judge