NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-22-0000323

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK,

AS TRUSTEE, (CWABS 2006-ABC1), Plaintiff-Appellee,

v.

DALE ALLEN WARD; MELANIE RENEE WARD, Defendants-Appellants,

and

UNITED STATES OF AMERICA; DEPARTMENT OF TAXATION, STATE OF

HAWAI#I; SUSAN JILL HOOVER; ISLAND PROPERTY INVESTMENTS;

DESCHUTES RIVER PROPERTIES; PIILANI HOMEOWNERS ASSOCIATION;

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., SOLELY AS 

NOMINEE FOR ENCORE CREDIT CORP., A CALIFORNIA CORPORATION,

Defendants-Appellees,

and

 JOHN and MARY DOES 1-20; DOE PARTNERSHIPS, CORPORATIONS or 

OTHER ENTITIES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CASE NO. 2CC161000209(3))

ORDER

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

Upon review of the "Motion to Dismiss DefendantsAppellant's [sic] Appeals Filed December 30, 2019 and Filed

May 11, 2022" filed by Plaintiff-Appellee The Bank of New York

Mellon (BONY) on June 30, 2022, the papers in support, the

memorandum in opposition filed by Defendants-Appellants Dale

Allen Ward and Melanie Renee Ward (the Wards) on July 7, 2022,

and the record, it appears that:

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000323

22-JUL-2022

07:51 AM

Dkt. 48 OGMD
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

1. BONY filed a mortgage foreclosure action against

the Wards, among others, docketed in the Judiciary Information

Management System as 2CC161000209 (the Foreclosure Action);

2. The circuit court entered a Judgment of

Foreclosure in the Foreclosure Action in favor of BONY and

against the Wards on December 2, 2019;

3. The Wards appealed from the Judgment of

Foreclosure, creating CAAP-19-0000882 (the Foreclosure Appeal);

4. The Wards did not obtain a stay of the Foreclosure

Action pending the Foreclosure Appeal;

5. The property which was the subject of the

Foreclosure Action (the Property) was sold to a third party,

Michael Wick, at the foreclosure auction;

6. BONY filed a motion to confirm the sale of the

Property to Wick;

7. The Wards' memorandum in opposition to BONY's

motion to confirm sale did not argue that Wick was not a good

faith purchaser1 of the Property;

8. The circuit court entered a judgment in the

Foreclosure Action confirming the sale of the Property to Wick on

April 5, 2022 (Judgment Confirming Sale);

9. The Wards appealed from the Judgment Confirming

Sale, creating CAAP-22-0000323 (the Confirmation of Sale Appeal);

10. The Wards did not obtain a stay of the Foreclosure

Action pending the Confirmation of Sale Appeal;

11. The Property was conveyed to Wick by

Commissioner's Deed recorded in the State of Hawai#i Bureau of

Conveyances on May 10, 2022;2

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

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." Bank of New York

Mellon v. R. Onaga, Inc., 140 Hawai#i 358, 367 n.13, 400 P.3d 559, 568 n.13

(2017) (cleaned up).

2 We may consider this new evidence because it relates to

mootness. Queen Emma Found. v. Tatibouet, 123 Hawai#i 500, 507 n.8, 236 P.3d

1236, 1243 n.8 (App. 2010).

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

12. In response to the Motion to Dismiss, the Wards

submitted no evidence tending to show that Wick was not a good

faith purchaser of the Property;

13. The Foreclosure Appeal and the Confirmation of

Sale Appeal are moot because the Wards did not obtain a stay of

the Foreclosure Action pending the Foreclosure Appeal or the

Confirmation of Sale appeal, and the Property has been sold to

Wick, a good faith purchaser. R. Onaga, Inc., 140 Hawai#i at

367, 400 P.3d at 568;

14. The Wards cite Ally Bank v. Hochroth, Nos. CAAP17-0000911 and CAAP-18-0000465 (consolidated), 2020 WL 1929172

(Haw. App. April 21, 2020) (SDO) for the proposition that their

appeals are not moot, but Hochroth did not involve the sale of

the foreclosed property to a good faith purchaser; and

15. The Wards argue that "they are seeking damages

against" BONY, and "when this case is remanded to the trial

court, the Wards will be entitled to recover treble damages from"

BONY; however, there are no remaining claims in the Foreclosure

Action because the Wards did not assert a counterclaim against

BONY, see Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai#i 249,

264, 428 P.3d 761, 776 (2018), as corrected (Oct. 15, 2018)

(holding that mortgagor may assert a counterclaim for wrongful

foreclosure based on the underlying facts of the pending

foreclosure case).

Therefore, IT IS HEREBY ORDERED that the Motion to

Dismiss is granted, CAAP-19-0000882 and CAAP-22-0000323 are both

dismissed as moot, and any pending motions in either appeal are

dismissed.

DATED: Honolulu, Hawai#i, July 22, 2022.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

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