NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000236

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NELSON BARRY GUYER, Plaintiff-Appellant,

v.

NATIONSTAR MORTGAGE LLC; FEDERAL NATIONAL

MORTGAGE ASSOCIATION, Defendants-Appellees,

and

DOE DEFENDANTS 1-50, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 16-1-0631(1))

SUMMARY DISPOSITION ORDER

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

In an appeal arising out of an action for return of

title and possession and wrongful foreclosure, concerning the

nonjudicial foreclosure sale of the leasehold interest in an

apartment, Plaintiff-Appellant Nelson Barry Guyer (Guyer) appeals

from the (1) "Final Judgment" entered on March 21, 2018 and (2)

"Order Granting Defendants Nationstar Mortgage LLC's and Federal

National Mortgage Association's Motion for Summary Judgment"

entered November 1, 2017 (Order Granting MSJ), entered by the

Circuit Court of the Second Circuit (Circuit Court).1

On appeal, Guyer asserts the Circuit Court erroneously

granted summary judgment for Defendants-Appellees Nationstar

1 The Honorable Rhonda I.L. Loo presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000236

30-NOV-2022

10:08 AM

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Mortgage LLC (Nationstar) and Federal National Mortgage

Association (Fannie Mae): 1) by concluding the wrongful

foreclosure claim was barred by either the two-year statute of

limitations under Hawaii Revised Statutes (HRS) § 657-7 (2016)2

or the six-year statute of limitations under HRS § 657-1(4)

(2016);3 2) by concluding that the time for Guyer to file the

wrongful foreclosure claim was triggered on September 28, 2010

or, at the latest, on November 29, 2010; and 3) because a twentyyear statute of limitations under HRS § 657-31 (2016)4 applied to

his claim to recover possession of the property at issue or

equitable damages.

I. Brief Background

After Guyer was assigned a leasehold interest in an

apartment located in Lahaina, Maui (Property), he executed a note

and mortgage (Mortgage) in connection with the Property, granting

the mortgagee a power of sale. The Mortgage was later assigned

to Nationstar. In 2010, Nationstar exercised its power of sale

and purchased the Property at public auction. The parties do not

dispute that on March 30, 2011, Nationstar assigned the leasehold

interest in the Property to Fannie Mae, and that nearly a year

later, Fannie Mae assigned the leasehold interest to Travis

Bontorin (Bontorin).

2 HRS § 657-7 provides that: "[a]ctions for the recovery of

compensation for damage or injury to persons or property shall be instituted

within two years after the cause of action accrued, and not after, except as

provided in section 657-13."

3 HRS § 657-1 provides, in pertinent part:

§ 657-1 Six years. The following actions shall be commenced within

six years next after the cause of action accrued, and not after:

. . . .

(4) Personal actions of any nature whatsoever not specifically

covered by the laws of the State.

4 HRS § 657-31 provides: "No person shall commence an action to recover

possession of any lands, or make any entry thereon, unless within twenty years

after the right to bring the action first accrued."

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On December 28, 2016, Guyer initiated this action in

the Circuit Court. Guyer asserted two counts against both

Nationstar and Fannie Mae: 1) return of title and possession of

property (Count I) and 2) wrongful foreclosure (Count II).

In Count I, Guyer alleged, inter alia, that the

assignment by Nationstar to Fannie Mae "unlawfully deprived [him]

of the title, possession, and use" of the Property and was void

under prior cases, not simply voidable, because Nationstar, as

the foreclosing mortgagee, violated multiple provisions of the

power of sale in the Mortgage and nonjudicial foreclosure statute

regarding notice. Guyer also asserted he had twenty years to

bring a claim of title to or possession of the Property under HRS

§ 657-31. Further, Guyer alleged that because the assignment

from Nationstar to Fannie Mae was void, the assignment from

Fannie Mae to Bontorin was likewise void and if title could not

be restored to Guyer then he would be entitled to damages.

In Count II, Guyer alleged, inter alia, that the

improper foreclosure and further assignment of the Property to

Bontorin were part of a continuing tort against Guyer and fell

within the six-year statute of limitations under HRS § 657-1(4)

as measured from the date title or possession of the Property was

lost; thus, Nationstar and Fannie Mae were liable to him for

damages.

Nationstar and Fannie Mae asserted several defenses in

response to the Complaint, including that the Complaint was

barred by the applicable statute of limitations.

On July 25, 2017, Nationstar and Fannie Mae jointly

filed a motion for summary judgment (MSJ), supported by a

declaration of counsel and exhibits. Nationstar and Fannie Mae

argued that for an actionable claim, a plaintiff only needs

factual knowledge of the necessary elements. Thus, Guyer's

claims accrued on September 28, 2010, when Nationstar recorded

the "Notice of Mortgagee's Intention to Foreclose Under Power of

Sale" (Notice of Sale) or, at the latest, on November 29, 2010,

the date the Notice of Sale stated the foreclosure sale would

take place but which actually occurred on December 28, 2010.

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The MSJ further argued that the two-year statute of

limitations applied to tort claims and thus the wrongful

foreclosure claim was barred. The MSJ also argued Guyer's claims

were barred by the six-year statute of limitations when

calculating accrual from either September 28, 2010, or November

29, 2010.

Regarding Guyer's complaint allegation that a twentyyear statute of limitations applies to his claim for recovery of

title and possession, Nationstar and Fannie Mae argue the twentyyear statute of limitations under HRS § 657-31 only applies to

adverse possession cases, and not wrongful foreclosure cases.

In opposition to Nationstar and Fannie Mae's MSJ, Guyer

argued that: 1) his claim for wrongful foreclosure was subject to

at least the six-year statute of limitations because it pertained

to an intangible and nonphysical injury to property; 2) the

wrongful foreclosure claim accrued at earliest on January 10,

2011, when the "Mortgagee's Affidavit of Foreclosure Under Power

of Sale" (Foreclosure Affidavit) was recorded; and 3) the twentyyear statute of limitations applies to real actions against the

land, including foreclosures claiming recovery of title and

possession.

On August 17, 2017, the Circuit Court held a hearing on

the MSJ. In the hearing, the Circuit Court ruled as follows:

THE COURT: . . . The Court having had an

opportunity to review the motion, the opposition, and the

reply, the Court's going to grant Defendants' motion for

summary judgment.

The wrongful foreclosure claim accrued, at 

the latest, at the time of the auction on December 28, 2010

but more likely September 28, 2010, the notice of sale. The

complaint was filed six years after the alleged improper

foreclosure sale.

As pled, Plaintiff's claim sounds solely in 

tort; therefore, Plaintiff's wrongful foreclosure claim is

barred by the two-year statute of limitations pursuant to

HRS 657-7.

Even if the two-year limitations does not 

apply, the six-year statute of limitations under HRS 657-11

[sic] would bar Plaintiff's claims as well.

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Therefore, the Court's going to grant 

Defendants' motion for summary judgment, ask Ms. Ching to

prepare the order on the matter.

MS. CHING: Thank you, Judge.

Could I have a clarification? Our argument

was notice of sale, which was - - I just want to make sure I

have the dates correct for accrual - - September 28th, 2010

or, at the latest, the date of the auction that did not

occur, which was November 29, 2010.

THE COURT: Correct. Sorry. Thank you for

clarifying that for me.

The Order Granting MSJ and Final Judgment were entered

thereafter.

II. Standard of Review

We review the grant or denial of summary judgment de

novo. See First Ins. Co. of Hawaii, Ltd. v. A & B Props., Inc.,

126 Hawai#i 406, 413, 271 P.3d 1165, 1172 (2012) (citation

omitted). It is well-established that:

[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. A

fact is material if proof of that fact would have the effect

of establishing or refuting one of the essential elements of

a cause of action or defense asserted by the parties. The

evidence must be viewed in the light most favorable to the

non-moving party. In other words, we must view all of the

evidence and inferences drawn therefrom in the light most

favorable to the party opposing the motion.

Id. at 413-14, 271 P.3d at 1172-73 (citation omitted) (brackets

in original).

III. Discussion

A. Applicable Statute of Limitations

Guyer first contends the Circuit Court erred in

granting Nationstar and Fannie Mae's MSJ by concluding that the

wrongful foreclosure claim was barred by either the two-year

statute of limitations under HRS § 657-7 or the six-year statute

of limitations under HRS § 657-1(4).

Guyer argues that his wrongful foreclosure claim is

subject to at least a six-year statute of limitations under HRS

§ 657-1(4) rather than the two-year statute of limitations under

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HRS § 657-7, because HRS § 657-7 does not govern a claim for

wrongful foreclosure.

Nationstar and Fannie Mae argue that the two-year

statute of limitations under HRS § 657-7 applies here because it

concerns compensation for "injury to persons or property" and

Guyer "seeks to recover monetary damages resulting from his loss

of possession and use of the Property."

In Delapinia v. Nationstar Mortgage LLC, 146 Hawai#i

218, 224, 458 P.3d 929, 935 (App. 2020), affirmed in part,

vacated in part, 150 Hawai#i 91, 497 P.3d 106 (2021) (Delapinia

II), this court observed that:

[t]he supreme court has interpreted HRS § 657-7 "to apply to

'claims for damages resulting from physical injury to

persons or physical injury to tangible interests in

property.'" Gomez[ v. Am. Airlines, Inc., 111 Hawai#i 67,

70, 137 P.3d 381, 384 (2006)] (emphasis in original)

(quoting Au[ v. Au, 63 Haw. 210, 216, 626 P.2d 173, 178

(1981)]). On the other hand, the supreme court has applied

HRS § 657-1 to claims concerning a non-physical injury to an

intangible interest of the plaintiff. Higa v. Mirikitani, 55

Haw. 167, 170-73, 517 P.2d 1, 4-6 (1973) (applying the

six-year statute of limitations of HRS § 657-1(1) to a legal

malpractice claim involving non-physical injury to an

intangible interest).

Id. at 225, 458 P.3d at 936 (footnote omitted) (emphasis in

original). There, plaintiffs did not allege any physical harm to

the subject property and instead asserted that the defendants had

wrongfully deprived them of title to and possession of the

subject property. Id. (citations omitted). Therefore, as a

nonphysical injury to their intangible interests, this court

concluded that the plaintiffs' wrongful foreclosure claim was

subject to the six-year statute of limitations under HRS § 657-

1(4). Id.

Here, as in Delapinia, Guyer did not allege any

physical harm to the Property. Instead, Guyer claims Nationstar

and Fannie Mae caused a nonphysical injury to his intangible

interest by wrongfully "depriv[ing him] of his possession, record

title, and use of the Property[.]" Thus, the six-year statute of

limitations under HRS § 657-1(4) governs Guyer's claim for

wrongful foreclosure.

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B. Trigger for Limitations Period

Guyer next contends the Circuit Court erred in

determining that the limitations period to file the wrongful

foreclosure claim was triggered on September 28, 2010 or, at the

latest, on November 29, 2010. Guyer contends that for wrongful

foreclosure claims, the statute of limitations is triggered when

a plaintiff has a cause of action for damages, i.e., when the

foreclosure occurs "causing either a loss of title or possession

or both." According to Guyer, this does not occur until both a

foreclosure affidavit and a deed are recorded. Guyer further

argues that because the discovery rule applies to wrongful

foreclosure claims, the statute of limitations began to run at

the earliest when the Foreclosure Affidavit was recorded on

January 10, 2011, giving him notice of the foreclosure.

Nationstar and Fannie Mae argue that instead of the

discovery rule, the relevant inquiry "is what the plaintiff might

'have known by the use of the means of information within his

reach, with the vigilance the law requires of him[.]'" (Citing

Ass'n of Apartment Owners of Newtown Meadows ex rel. Bd. of Dirs.

v. Venture 15, Inc., 115 Hawai#i 232, 277-78, 167 P.3d 225,

270-71 (2007), as corrected (Sept. 20, 2007)). Thus, Nationstar

and Fannie Mae argue the Circuit Court did not err because

Guyer's claim for money damages accrued when the Notice of Sale

was recorded and served on Guyer on September 28, 2010,

considering the Notice of Sale provided him with the "information

necessary to assert a claim of wrongful foreclosure."

As discussed in Delapinia, "[u]nder Hawaii's discovery

rule, the statute of limitations begins to run when the plaintiff

'discovers or should have discovered the negligent act, the

damage, and the causal connection between the former and the

latter.'" 146 Hawai#i at 226, 458 P.3d at 937 (quoting Thomas v.

Kidani, 126 Hawai#i 125, 132, 267 P.3d 1230, 1237 (2011)).

There, because the "actual damage being claimed was the loss of

title," the earliest date of accrual was when title was deeded by

the mortgagee, i.e., "when title was transferred to someone other

than the Delapinias." Id.

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In Schick v. Nationstar Mortgage LLC, No. CAAP-18-

0000103, 2022 WL 2315570, at *6 (Haw. App. June 28, 2022) (mem.),

this court similarly determined that where the appellant alleged

"depriv[ation] of possession, title, use, and occupancy of the

[p]roperty," the date of accrual was when title to the subject

property was deeded to a party other than the appellantmortgagor.

Here, it is undisputed that Nationstar transferred

title to someone other than Guyer, namely, Fannie Mae, on March

30, 2011. The Complaint was filed on December 28, 2016, within

the six-year statute of limitations. See id. Therefore, the

Circuit Court erred in granting summary judgment for Nationstar

and Fannie Mae on grounds that Guyer's wrongful foreclosure claim

was time-barred by the statute of limitations.

C. Twenty-Year Statute of Limitations

The remedy for a wrongful nonjudicial foreclosure

governed by the six-year statute of limitations is that the

transfer of property is voidable. Delapinia II, 150 Hawai#i at

104, 497 P.3d at 119 ("Hawai#i law has moved unmistakably towards

the conclusion that sales pursuant to a wrongful foreclosure are

voidable, regardless of whether the violation was statutory or

contractual, substantial or a mere irregularity."). Further,

"where the property has passed into the hands of an innocent

purchaser for value, rendering the voiding of a foreclosure sale

impracticable, an action at law for damages is generally the

appropriate remedy." Id. (citations omitted).

Given our ruling above, that Guyer's wrongful

foreclosure claim was not time-barred, we need not reach Guyer's

third argument that a twenty-year statute of limitations applies

under HRS § 657-31.

IV. Conclusion

Based on the foregoing, we vacate the (1) "Final

Judgment" entered on March 21, 2018 and (2) "Order Granting

Defendants Nationstar Mortgage LLC's and Federal National

Mortgage Association's Motion for Summary Judgment" entered on

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November 1, 2017. We remand this matter to the Circuit Court of

the Second Circuit for further proceedings consistent with this

decision.

DATED: Honolulu, Hawai#i, November 30, 2022.

On the briefs:

James J. Bickerton,

Bridget G. Morgan,

(Bickerton Dang, LLLP),

and

John F. Perkin,

(Perkin & Faria LLLC),

and

Van-Alan H. Shima,

(Affinity Law Group),

Attorneys for

Plaintiff-Appellant

Andrew J. Lautenbach,

Kukui Claydon,

(Starn O'Toole Marcus

& Fisher),

Attorneys for

Defendants-Appellees

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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