Manuel v. Bank of America, N.A.

Date Signed: RO

August 4, 2021 ky & SO ORDERED.

WAS) 27D

Meaty Robert J. Faris

ier OF ge United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT

DISTRICT OF HAWAITI

In re: Case No. 11-02712 (RJF)

Chapter 7

JASPER CESAR MANUEL,

Debtor.

RICHARD A. YANAGI, Chapter 7 | Adv. No. 21-90001

Trustee,

Plaintiff,

VS.

BANK OF AMERICA, N.A.; and

DOE DEFENDANTS 1-50,

Defendants.

ORDER CERTIFYING QUESTIONS

TO THE HAWAI‘I SUPREME COURT

Pursuant to Haw. Rev. Stat. section 602–5(a)(2) and Haw. R. App. P.

13, this court respectfully certifies the following questions to the Hawaiʻi

Supreme Court:

1. Whether an action alleging a wrongful nonjudicial foreclosure of

Land Court property that seeks only money damages against the

foreclosing lender, and does not seek to avoid the foreclosure

sale or affect title to the property, is an action that “directly

impeach[es] . . . any foreclosure proceedings affecting registered

land” within the meaning of Haw. Rev. Stat. section 501–118(c),

and is time barred if filed after the issuance of a certificate of title

to the buyer at a foreclosure sale.

2. Whether a putative class action asserting wrongful foreclosure

claims extends the time during which a class member may

commence an individual action under Haw. Rev. Stat. section

501–118(c), where the putative class action was commenced

before the issuance of a certificate of title to the buyer at the

foreclosure sale; and, if there is such an extension, how long does

it last?

The answers to these questions of substantive Hawaiʻi law are

“determinative of the cause” in Yanagi v. Bank of America (In re Manuel),

Adv. No. 21-90001, before this court. They are not answered by “clear

controlling precedent in the Hawaiʻi judicial decisions.” Haw. R. App. P.

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13(a). This court therefore respectfully asks the Hawaiʻi Supreme Court to

exercise its discretion to accept and decide the certified questions.

I. STANDARD FOR CERTIFYING A QUESTION

The legislature has given the Hawaiʻi Supreme Court jurisdiction

“[t]o answer, in its discretion, . . . any question or proposition of law

certified to it by a federal district or appellate court if the supreme court

shall so provide by rule[.]”1

The Supreme Court has adopted a rule implementing the statutory

grant of jurisdiction. “When a federal district court or appellate court

certifies to the Hawaiʻi Supreme Court that there is involved in any

proceeding before it a question concerning the law of Hawaiʻi that is

determinative of the cause and that there is no clear controlling precedent

in the Hawaiʻi judicial decisions, the Hawaiʻi Supreme Court may answer

the certified question by written opinion.”2

1 Haw. Rev. Stat. § 602-5(a)(2).

2 Haw. R. App. P. 13(a).

3

The statute and rule refer to the federal district court, not the

bankruptcy court. But the bankruptcy court “constitute[s] a unit of the

district court” under 28 U.S.C. § 151. Therefore, the bankruptcy court

respectfully submits that the Hawaiʻi Supreme Court may, in its discretion,

accept this certification.

The answer to the certified questions will determine whether the

plaintiff’s complaint was timely and thus is “determinative of the cause.”

As I explain in more detail below, no clear controlling judicial precedent

from the Hawaiʻi state courts answers these questions.3

II. STATEMENT OF PRIOR PROCEEDINGS AND FACTS

A. Foreclosure

Jasper Cesar Manuel owned a condominium unit in Honolulu

(“Property”) on land that is registered in the Land Court of the State of

3 According to Bank of America, the certified questions are before the

Intermediate Court of Appeals in Boyd v. Bank of America and Hillinger v. Bank of

America. The Supreme Court has very recently denied the plaintiffs’ motion to

transfer the appeals from the ICA (SCAP-20-0000577). Under the statute and rule,

the propriety of a certified question depends on the lack of “clear controlling

precedent”; the pendency of an appeal which might result in clear controlling

precedent is not the same thing. But the decision to accept a certified question rests

in the Supreme Court’s discretion.

4

Hawaiʻi. The Property was encumbered by a mortgage. After a series of

assignments, Bank of America, N.A. (“BANA”) succeeded to the

mortgagee’s interest.

On June 14, 2010, BANA’s predecessor in interest conducted a public

auction of the Property. The Mortgagee’s Affidavit of Foreclosure Under

Power of Sale (“Affidavit”), executed and recorded on June 29, 2010,

declared BANA “or its nominee” the successful bidder at the auction.

On July 17, 2010, BANA quitclaimed the Property to Federal National

Mortgage Association (“Fannie Mae”). The quitclaim deed was recorded in

Land Court on July 28, 2010. The Land Court did not issue a new certificate

of title to Fannie Mae until November 10, 2015.

In the meantime, Fannie Mae conveyed the Property to a third party

by a Limited Warranty Apartment Deed dated March 28, 2011, and

recorded in the Land Court on April 1, 2011. Again, it took the Land Court

about five years, until November 29, 2016, to issue a new certificate of title

in favor of the third party.

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Still later, the third party conveyed the Property to himself and his

wife by Apartment Deed recorded in Land Court on September 30, 2020.

B. Mr. Manuel’s Bankruptcy and the Degamo Class Action

Mr. Manuel filed his chapter 7 bankruptcy petition on October 12,

2011. He did not list the Property or his claims against BANA in his

original bankruptcy schedules. He received a discharge and his bankruptcy

case was closed on January 10, 2012.

Mr. Manuel was a member of a plaintiff class in a putative class

action entitled Degamo v. Bank of America, N.A., et al., Case No. 1:13-cv-

00141-JAO-KJM. Degamo was filed in the circuit court on September 7, 2012,

and subsequently removed to the federal district court. The plaintiffs in

Degamo alleged that BANA had wrongfully foreclosed mortgages on the

plaintiffs’ properties. On March 14, 2019, the district court dismissed

Degamo on the basis that the class representatives lacked standing because

their prior bankruptcy cases made their claims property of their

bankruptcy estates, not property of the class representatives. The district

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court never reached the issue of whether the plaintiff class should be

certified.

On appeal, the Ninth Circuit affirmed most of the district court’s

decision. It held that the court erred, however, when it failed to consider

the merits of motions to intervene filed by five putative class members. The

court of appeals vacated that portion of the district court’s decision and

remanded.4

In December 2020, Mr. Manuel successfully reopened his bankruptcy

case so he could amend his schedules to include the claims against BANA.

Richard A. Yanagi was appointed trustee.

C. Adversary Complaint and Motion to Dismiss

The trustee filed his complaint against BANA on January 14, 2021.

His complaint alleges that BANA foreclosed on the property in violation of

Haw. Rev. Stat. section 667–5(a)(2) and (b)(2) (Count I) and that BANA

engaged in unfair and deceptive trade practices (“UDAP”) as well as unfair

4 Degamo v. Bank of Am., N.A., Civil No. 13-00141 JAO-KJM, 2019 WL 1209086 (D.

Haw. Mar. 14, 2019), aff’d in part, vacated in part, and remanded, No. 19-14736, No. 19-

15826, 849 F. App’x 620 (9th Cir. Feb. 22, 2021).

7

methods of competition (“UMOC”) under Haw. Rev. Stat. chapter 480

(Count II). For these alleged violations, the trustee sought only

compensatory and punitive money damages.5 Although the body of the

complaint states that the foreclosure sale was defective and void,6 the

prayer does not request recovery of the property itself or avoidance of the

foreclosure sale and the trustee did not sue Fannie Mae or the successor

owners of the property.7

BANA filed a motion to dismiss this adversary proceeding under

Fed. R. Civ. P. 12(b)(6), made applicable by Fed. R. Bankr. P. 7012.

III. QUESTIONS OF LAW TO WHICH AN ANSWER IS SOUGHT

AND EFFECT OF AN ANSWER ON THE PROCEEDINGS

As noted above, this court seeks the answer to two questions of law.

The first has to do with the time limit imposed by Haw. Rev. Stat.

section 501–118(c):

Whether an action alleging a wrongful nonjudicial foreclosure of

Land Court property that seeks only money damages against the

foreclosing lender and does not seek to avoid the foreclosure sale

5 Compl. ¶ 73, ECF No. 1.

6 See id. ¶ 50.

7 Cf. id. at 26-27.

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or affect title to the property, is an action that “directly

impeach[es] . . . any foreclosure proceedings affecting registered

land” within the meaning of Haw. Rev. Stat. section 501–118(c),

and is time barred if filed after the issuance of a certificate of title

to the buyer at a foreclosure sale.

If the Supreme Court answers this question in the negative, this court

will deny BANA’s motion to dismiss, and the case will proceed. If, on the

other hand, the Supreme Court answers the first question in the

affirmative, the second question will become relevant:

Whether a putative class action asserting wrongful foreclosure

claims extends the time during which a class member may

commence an individual action under Haw. Rev. Stat. section

501–118(c), where the putative class action was filed before the

issuance of a certificate of title to the buyer at the foreclosure sale;

and, if there is such an extension, how long does it last?

If the Supreme Court answers that Degamo does not extend the time

limit under section 501–118(c), then the bankruptcy court would grant

BANA’s motion to dismiss the complaint. If the answer is in the

affirmative, then the bankruptcy court respectfully requests that the

Supreme Court define the length of that extension. The effect on the case

would depend on the application of that definition to the facts of the case.

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A. Does Haw. Rev. Stat. section 501–118(c) bar the trustee’s

claims?

The first certified question concerns the meaning of the last sentence

of Haw. Rev. Stat. section 501–118(c): “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.”

The Supreme Court’s precedents clearly establish that section

501–118 bars an action to set aside a foreclosure sale if that action is

brought after a new certificate of title is issued to the buyer at the

foreclosure sale.8 But no decision of the Supreme Court or the Intermediate

Court of Appeals answers the question whether the issuance of the new

certificate also bars an action seeking only money damages against the

foreclosing lender.

8 Aames Funding Corp. v. Mores, 110 P.3d 1042, 107 Haw. 95 (Haw. 2005); see also

Bank of N.Y. Mellon v. R. Onaga, Inc., 140 Haw. 358 (Haw. 2017) (appeal of a decree of

foreclosure becomes moot if appellant does not obtain a stay pending appeal, because

appeal could not affect title after issuance of new certificate of title); Wells Fargo Bank v.

Omiya, 142 Haw. 439 (2018) (bar of Haw. Rev. Stat. section 501–118 goes into effect upon

issuance of new certificate of title, not issuance of new certificate number).

10

The trustee argues (in summary) that one must interpret section

501–118(c) in light of the purposes of the Land Court statute, which are “to

conclusively establish title to land through the issuance of a certificate of

title,”9 and “provide[] an economical and convenient method of recording

land titles,” “allowing transfer of titles to be completed with great facility

and ease.”10 According to the trustee, an action for money damages that

does not challenge the title emanating from the foreclosure does not

undermine the stability and ready transferability of Land Court titles.

BANA contends, however, that the trustee’s argument cannot be

squared with the language of section 501–118(c), which speaks broadly of

“impeach[ing] the foreclosure proceedings,” not merely contesting the title

of the purchaser at the foreclosure sale.

Both parties’ arguments have weaknesses.

9 Id. at 1048, 107 Haw. at 101 (internal citations and quotation marks omitted).

10 Id. at 1048-49, 107 Haw. at 101-02.

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BANA’s interpretation does not account for the word “directly.” The

legislature’s use of that word implies that an action “indirectly”

impeaching a foreclosure proceeding is not barred when the new certificate

of title issues. When asked at the hearing on BANA’s motion to dismiss,

BANA’s counsel could not identify an action that would qualify as an

indirect impeachment (but insisted that the trustee’s claim for money

damages is a “direct impeachment”). Arguably, an action seeking only

money damages for wrongful foreclosure “indirectly” impeaches the

foreclosure proceedings and is not barred.

The trustee’s argument fails to account for all of the statutory

language. The very next subsection, section 501–118(d), provides that,

“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.” Arguably, if the legislature

had intended section 501–118(c) to have the trustee’s preferred meaning, it

would have used a phrase like “open the foreclosure or affect the title to

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registered land” in section 501–118(c); instead, it used the broader phrase

“impeach the foreclosure proceedings.”

The trustee also argues that section 501–118(c) is phrased as an

exception to a general rule (“nothing in this chapter shall be construed to

prevent . . . .”). According to the trustee, the general rule is found in section

501–81, which provides that “[r]egistered land, and ownership therein,

shall in all respects be subject to the same burdens and incidents which

attach by law to unregistered land.”11 According to the trustee, this means

that foreclosing lenders’ liability for money damages due to a wrongful

foreclosure should be the same for regular system property and Land

Court property. In further support of his position, the trustee refers to two

other provisions of the Land Court statute that appear to preserve

monetary claims related to registered land. Section 501–212 provides that,

“Nothing in this chapter shall be construed to deprive the plaintiff of any

tort claim which the plaintiff may have against any person for loss or

11 Haw. Rev. Stat. § 501–81.

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damage, or deprivation of land, or of any estate or interest therein.”12

Section 501–81 states that the Land Court statute does not “change or affect

in any way any other rights or liability created by law and applicable to

unregistered land; except as otherwise expressly provided in this

chapter.”13 According to the trustee, to harmonize section 501–118 with

these sections, one must interpret section 501–118 as inapplicable to the

trustee’s claims for money damages.

BANA responds that (1) its interpretation of section 501–118 does not

“deprive any plaintiff of any tort claim” within the meaning of section 501–

212, but establishes a deadline for the assertion of such claims; and

(2) section 501–118 is an “express provision” that trumps section 501–81

and 501–212 by its terms.

BANA also relies on the decisions of the federal district court for this

district and the Ninth Circuit. In Fergerstrom,14 certain mortgagors brought

12 Id. § 501–212.

13 Id. § 501–81.

14 Fergerstrom v. PNC Bank, N.A., 342 F. Supp. 3d 1029 (2018), recon. denied on other

grounds, 2019 WL 1510328 (D. Haw. Apr. 5, 2019), aff’d, 802 Fed. App’x 268 (9th Cir.

2020).

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an action asserting wrongful nonjudicial foreclosure of registered land and

violation of Hawaii’s UDAP/UMOC laws. The violations alleged in

Fergerstrom were indistinguishable from the violations alleged in this

adversary proceeding. But the remedies sought were different: the

Fergerstrom plaintiffs sought to both undo the foreclosure sales and recover

damages, while the trustee in this case seeks only damages.15

The Fergerstrom court held that section 501–118(c) barred both

avoidance of the foreclosure sale and the monetary claims.16 The plaintiffs

appealed to the Ninth Circuit Court of Appeals, which affirmed in an

unpublished memorandum.17

Following the decision of Seegers v. CIT Bank, N.A., Civ. No. 17-00399

LEK-KSC, 2018 WL 1558550, (D. Haw. Feb. 28, 2018), written by another

district judge in this district, the Fergerstrom court agreed that “legislative

intent would be thwarted if the conclusive and unimpeachable character of

15 Cf. Fergerstrom, 342 F. Supp. 3d at 1034-35.

16 Id. at 1040 (citing Aames, 107 Haw. at 102).

17 Fergerstrom v. PNC Bank, N.A., 802 F. App’x. 268 (9th Cir. 2020).

15

certificates of title could be easily ‘sidestepped’ by suing the seller of

registered land for money damages as a substitute for suing the current

owner of registered land for title and possession.”18 “For the parties to a

land transaction to benefit by avoiding the expense and inconvenience of

gathering records as evidence of title, both parties to the transaction must

be protected by the conclusive and unimpeachable character of a Land

Court certificate of title.”19

I am hesitant to question the decisions of the district court and the

Ninth Circuit, even though the bankruptcy court is probably not bound,

under the doctrine of stare decisis, by the district court’s decisions20 or the

18 Fergerstrom, 342 F. Supp. 3d at 1042 (quoting Seegers, 2018 WL 1558550, at *5).

19 Seegers, 2018 WL 1558550, at *5.

20 See Life Ins. Co of Va. v. Barakat (In re Barakat), 173 B.R. 672, 678-79 (Bankr.

C.D. Cal. 1994) (“[I]n a district with more than one district judge, the appellate

ruling by a district judge is only binding on the case in which it is made and not

on the district as a whole unless the district judges themselves sit en banc and

therefore bind themselves to the law enunciated in that opinion. . . . Since most

appellate decisions of the district court . . . are decisions of a given district judge

and are not binding on other district judges of that district, they should not be

seen as binding on the bankruptcy judges of that district.”) (italics removed); see

also First of Am. Bank v. Gaylor (In re Gaylor), 123 B.R. 236, 243 (Bankr. E.D. Mich.

1991) (“[B]ankruptcy courts are no more or less bound by opinions of the district

court than are the district court judges themselves. . .”).

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Ninth Circuit’s unpublished affirmance in Fergerstrom.21 An authoritative

decision of the Supreme Court on these doubtful questions of state law

would resolve this case and might resolve other similar cases pending in

the state and federal courts.22

B. Does class action tolling apply to Haw. Rev. Stat.

section 501–118(c)?

The trustee argues that even if section 501–118(c) applies to purely

monetary claims, the class action tolling rule means that his claims are

timely. He notes that the Degamo action was filed in 2012, prior to the entry

of the new Transfer Certificate of Title.

The Hawaiʻi Supreme Court has held that the commencement of a

class action tolls the statute of limitations applicable to individual claims

brought by members of the putative class, even when the class action is

filed in another jurisdiction, and that tolling continues until the foreign

21 Ninth Circuit Rule 36-3 (“Unpublished dispositions and orders of this

Court are not precedent, except when relevant under the doctrine of law of the

case or rules of claim preclusion or issue preclusion.”).

22 The trustee’s counsel represented that judges of the Hawaiʻi circuit courts

disagree about the answers to these questions.

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jurisdiction issues a final judgment unequivocally dismissing the putative

class action.23

BANA contends that section 501–118(c) is a statute of repose and that

such statutes are not subject to class action tolling.24 BANA’s argument is

consistent with the United States Supreme Court’s decision that class action

tolling does not apply to a federal statute of repose.25 No published

decision of any state or federal court, however, decides whether class

action tolling under Hawaiʻi law applies to statutes of repose in general or

whether section 501–118(c) in particular is a statute of repose. A definitive

decision of the Supreme Court could dispose of this case (and perhaps

other cases pending in the state and federal courts).

IV. ORDER

The Clerk of Court is directed to transmit a copy of this order to the

Hawaiʻi Supreme Court under the official seal of the United States

23 Patrickson v. Dole Food Co., 368 P.3d 959, 137 Haw. 217 (Haw. 2015).

24 BANA also provides other arguments that class action tolling does not save the

trustee’s claims. Those other arguments are not within the scope of the certified

questions.

25 Cal. Pub. Emps.’ Ret. Sys. v. ANZ Secs., Inc., 137 S. Ct. 2042, 2052 (2017).

18

Bankruptcy Court for the District of Hawaiʻi. The Clerk is also directed to

provide “original or copies of all or any portion of the record” in this case

as “the Hawaiʻi Supreme Court may, in its discretion, require.”26

Further proceedings in this court are stayed pending action by the

Hawaiʻi Supreme Court.

END OF ORDER

26 Haw. R. App. P. 13(c).

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