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Amicus Brief of Oregon AG John Kroger on Hooker v Northwest Trustee, BofA & MERS lawsuit pending before the 9th U.S. Circuit Court of Appeals.

Amicus Brief of Oregon AG John Kroger on Hooker v Northwest Trustee, BofA & MERS lawsuit pending before the 9th U.S. Circuit Court of Appeals.

Hi/5 Dan Marsh





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In re: MARGERY KANAMU KALEHUANANI KEKAUOHA-ALISA, 9th Cir. BAP – “Court voided the sale and awarded her treble damages, Atty’s Fees”

In re: MARGERY KANAMU KALEHUANANI KEKAUOHA-ALISA, 9th Cir. BAP – “Court voided the sale and awarded her treble damages, Atty’s Fees”





FKA WM Specialty Mortgage,

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Dunn, and Jury, Bankruptcy Judges, Presiding

Argued and Submitted
February 15, 2012—Honolulu, Hawaii

Filed March 26, 2012

Before: Alfred T. Goodwin, Stephen S. Trott, and
Mary H. Murguia, Circuit Judges.

Opinion by Judge Trott


Lissa D. Shults and Bradley R. Tamm, Shults & Tamm, ALC,
Honolulu, Hawaii, for the appellant.

Paul Alston and Tina L. Colman, Alston Hunt Floyd & Ing,
Honolulu, Hawaii, for the appellees.


TROTT, Senior Circuit Judge:

This case requires us to determine whether a mortgage
company violated Hawaii state law when it did not publicly
announce the postponement of a foreclosure sale of property
owned by Appellant Margery Kanamu-Kalehuanani
Kekauoha-Alisa, and if so, to ascertain the proper remedy for
that violation. A federal bankruptcy court held that Appellees’
failure publicly to announce the foreclosure violated the
requirements of Hawaii’s nonjudicial foreclosure procedure
under Hawaii Revised Statute (HRS) § 667-5, as well as its
consumer protection law, HRS § 480-2. The court voided the
sale of the Appellant’s property and awarded her treble dam-
ages of $417,761.66 under HRS § 480-13 for violation of the
consumer protection statute. The Bankruptcy Appellate Panel
reversed, ruling that the mortgagee’s actions did not violate
state law.

We hold that (1) the lack of public announcement did vio-
late Hawaii’s nonjudicial foreclosure statute, and (2) this
defect was a deceptive practice under state law. Accordingly,
we affirm the bankruptcy court’s avoidance of the foreclosure
sale. However, we remand to the bankruptcy court for a
proper calculation of attorneys’ fees and damages under HRS
§ 480-13.


In 2002, Margery Kanamu-Kalehuanani Kekauoha-Alisa
(Debtor) refinanced a mortgage on her property on Hawaii
Island and executed a promissory note to Ameriquest Mort-
gage Company in the amount of $127,500. Debtor defaulted
on her loan eight times, causing Ameriquest to initiate fore-
closure proceedings in early 2005. On April 6, 2005 Ameri-
quest assigned its interest in the mortgage to WM Speciality
Mortgage LLC, which later became JPMC Mortgage, the
named party in this action. The assignment notwithstanding,
Ameriquest continued to service Debtor’s mortgage (hereaf-
ter, Ameriquest and JPMC Mortgage are referred to collec-
tively as “Lenders”). A foreclosure sale was scheduled for
May 13, 2005.

On May 10, 2005, three days before the scheduled foreclo-
sure sale, Debtor filed for Chapter 13 bankruptcy, triggering
an automatic stay of the sale. To comply with the stay, a law
firm employed by Lenders postponed the scheduled foreclo-
sure sale. HRS § 667-51 authorizes a foreclosure sale to be
“postponed from time to time by public announcement made
by the mortgagee or by a person acting on the mortgagee’s
behalf.” The law firm properly announced the postponement
of the sale three times from May 13, 2005 until September 23,

On September 23, 2005, the law firm attempted to postpone
the sale yet again, a fourth and final time. The auction was
scheduled to occur at noon at a flagpole located in front of
Hale Halewai, a local community center. The firm delegated
the task to a legal secretary who had never before postponed
a foreclosure sale. The secretary arrived ten or fifteen minutes
before noon. Rather than shouting out the postponement to all
those present, the secretary asked several of the people pres-
ent if they were interested in Debtor’s property. Everyone she
spoke to said they were not. She did not attempt to speak to
those individuals who appeared to be there for another auction
that was occurring at the same time, and she did not speak to
everyone in the area. She did not tell those she spoke with that
the auction was postponed to December 2, 2005. The secre-
tary stayed at the flagpole until approximately 12:25 PM, after
the other auction had finished and the area was deserted. She
left without ever announcing or posting the information that
the sale of Debtor’s property had been postponed.

On November 1, 2005, Lenders moved for relief from the
stay to allow them to proceed on the foreclosure sale. On
November 21, after Debtor failed to respond, the bankruptcy
court granted Lenders’ motion. The foreclosure sale took
place on December 2. The successful — and only bid — was
a credit bid made by the auctioneer on behalf of Lenders. A
quitclaim deed to the property was recorded on December 27,
2005. Lenders initiated an ejectment action in state court in
January, 2006. Lenders obtained a judgment in their favor on
April 11, 2006, which Debtor appealed. That appeal is still
pending in state court — apparently waiting for our decision.

On April 26, 2006, Debtor filed a complaint in the bank-
ruptcy court, alleging, inter alia, that the sale had violated the
automatic stay, breached the terms of the mortgage contract,
constituted an unfair and deceptive trade practice under HRS
§ 480-2, violated various requirements of nonjudicial foreclo-
sure procedure under HRS § 667-5, and constituted a fraudu-
lent transfer under HRS § 651C-7. The bankruptcy court
dismissed on summary judgment Debtor’s claims alleging a
violation of the stay and fraudulent transfer.

After a five-day bench trial on the remaining claims, the
bankruptcy court issued amended findings of fact and conclu-
sions of law. The court concluded that Lenders’ failure to
publicly pronounce the postponement of the foreclosure sale
on September 23, 2005, violated the “public announcement”
requirement of HRS § 667-5 as well as the terms of the mort-
gage contract. Contrary to Debtor’s assertion on appeal, the
court found only a single violation of HRS § 667-5. As a rem-
edy, the court voided the foreclosure sale. The court held that
the improper postponement was also a breach of the mortgage
contract, because the contract required that Lenders comply
with state law in any foreclosure proceeding.

In addition, the court ruled that the improper postponement
was an unfair and deceptive trade practice under HRS § 480-
2. It awarded Debtor treble damages, under HRS § 480-13,
for damages sustained as a result of the violation of § 480-2,
calculating the damages sustained as (1) Debtor’s lost equity
in her house, (2) the rental value of the house for the time dur-
ing which she lost possession of it, and (3) the attorneys’ fees

Debtor expended defending against the state court ejectment
action. The total money judgment was $417,761.66.

Finally, the court awarded Debtor additional attorneys’ fees
under two Hawaii statutes: HRS § 607-14, allowing fees for
the prevailing party in contract claims, and HRS § 480-
13(b)(1), allowing fees for the party establishing a violation
of HRS § 480-2. The court allocated attorneys’ fees equally
between the contract claim and the HRS § 480-2 claim.
Because HRS § 607-14 limits attorneys fees to twenty-five
percent of the judgment on a contract claim, the court allowed
recovery of only $38,945.01 for that portion of the attorneys’
fees claim, a sum which it arrived at by calculating twenty-
five percent of the value of Debtor’s equity in the mortgaged

Lenders appealed the bankruptcy court’s decision to the
Bankruptcy Appellate Panel (“BAP”), challenging both the
bankruptcy court’s findings of liability and its calculation of
damages and attorneys’ fees. Debtor cross-appealed, challeng-
ing only the bankruptcy court’s ruling that attorneys’ fees
under HRS § 607-14 should be limited to twenty-five percent
of the value of Debtor’s equity in the foreclosed property.

The BAP reversed the bankruptcy court on its findings of
liability, holding that Lenders’ actions (1) met the public
announcement requirement of HRS § 667-5, (2) did not
breach the mortgage contract, and (3) did not constitute an
unfair or deceptive practice under HRS § 480-2. Because it
found in favor of Lenders on the liability issues, the BAP did
not reach the parties’ challenges to damages and attorneys’
fees. Debtor now appeals the decision of the BAP.


We review the decisions of the BAP de novo. Wood v.
Stratos Prod. Dev., LLC (In re Ahaza Sys., Inc.), 482 F.3d
1118, 1123 (9th Cir. 2007). We apply the same standard of
review that the BAP applied to the bankruptcy court’s ruling.
Id. We review the bankruptcy court’s legal conclusions de
novo and its factual findings for clear error. Stevens v. Nw.
Nat’l Ins. Co. (In re Siriani), 967 F.2d 302, 303-04 (9th Cir.


A. Hawaii Revised Statute § 667-5

[1] HRS § 667-5 authorizes a foreclosure sale to be “post-
poned from time to time by public announcement made by the
mortgagee or by a person acting on the mortgagee’s behalf.”
In this case, we must first address whether the secretary’s
actions on September 23rd constituted a “public announce-
ment” under the meaning of Hawaii law. When interpreting
state law, we are bound by the decision of the highest state
court. Sec. Pac. Nat’l Bank v. Kirkland (In re Kirkland), 915
F.2d 1236, 1238 (9th Cir. 1990). Absent a controlling state
court decision, our duty is to predict how the highest state
court would decide the issue. Id. at 1239.

[2] Neither HRS § 667-5 nor Hawaii case law defines the
term “public announcement.” Therefore, we apply Hawaii’s
rules of statutory construction to interpret the term. Hawaii
courts follow “certain well-established principles of statutory
construction.” Haw. Gov’t Emps. Ass’n, AFSCME Local 152,
AFL–CIO v. Lingle, 239 P.3d 1, 6 (Haw. 2010). Under those
principles, “ ‘where the statutory language is plain and unam-
biguous, our sole duty is to give effect to its plain and obvious
meaning.’ ” Id. (quoting Awakuni v. Awana, 165 P.3d 1027,
1034 (Haw. 2007)). If there is ambiguity, we may consider
context and legislative purpose to determine the meaning of
the word or phrase. Id. at 6, 11 n.16.

[3] Applying these principles, it is clear that any reason-
able meaning of “public announcement” does not encompass
Lenders’ actions in this instance. The bankruptcy court turned
to the dictionary, noting that Merriam-Websters defines “an-
nounce” as “to make known publicly: PROCLAIM” and “an-
nouncement” as “public notification or declaration.” No party
suggests a different definition, and this interpretation captures
the essence of what the statute requires: Mortgagees shall
publicly announce the postponement of a foreclosure sale to
a subsequent date.

[4] In this case, the secretary engaged in several conversa-
tions with individuals whom, based on the secretary’s judg-
ment, appeared as if they might have been present because
they were interested in the foreclosure of Debtor’s property.
Even in these conversations, the secretary did not communi-
cate that the sale had been postponed. The secretary did not,
in private conversation or otherwise, announce that the Debt-
or’s property would be sold on December 2, 2005. The bank-
ruptcy court’s conclusion, based on these facts, was that the
secretary “never made an open, oral announcement to all
those present of the date and time to which the auction was
being postponed and she did not post or display such an
announcement in written form.” Lenders do not dispute this
finding of fact, and it suffices to establish under the plain
meaning of HRS § 667-5 that there was no public announce-
ment of a postponement.

The BAP acknowledged that “[i]t is undisputed that the
secretary did not make a ‘public announcement’ within its
commonly understood or dictionary meaning.” Nonetheless, it
reasoned that the phrase must be given a “fair and reasonable
construction” and interpreted in light of the purpose of the
statute. The BAP concluded that the requirements of the stat-
ute could be met by “any mode of communication that reason-
ably achieves the spirit and purpose of the ‘public
announcement’ requirement,” which they reasoned was to
“inform those who appeared at a foreclosure sale that it has
been postponed.”

[5] The BAP erred in relying on statutory context and pur-
pose to introduce ambiguity into the meaning of “public
announcement” because, as it acknowledged, the meaning of
the phrase is plain on its face. See Ross v. Stouffer Hotel Co.
Ltd., 879 P.2d 1037, 1044 (Haw. 1994) (“[W]here the terms
of a statute are plain, unambiguous and explicit, we are not at
liberty to look beyond that language for a different mean-
ing.”). However, even if use of these tools of statutory inter-
pretation were appropriate, we would not find the BAP’s
conclusion persuasive. Hawaii’s nonjudicial foreclosure stat-
ute affords mortgagees a quick and inexpensive alternative to
judicial foreclosure but balances that accommodation by man-
dating compliance with minimal procedural requirements to
protect mortgagors’ interest in their property. Lee v. HSBC
Bank USA, 218 P.3d 775, 779-80 (Haw. 2009). That statutory
balance would be upset if mortgagees could dispense with
those procedures they perceive as futile, or substitute proce-
dures they believe achieve the “spirit and purpose” of the law.
A reviewing court would frequently have no evidence of the
adequacy of those substitute procedures other than the testi-
mony of the mortgagee’s agent. In this case, for instance, the
bankruptcy court would be required to rely on the rough
assessment of a legal secretary undertaking her first foreclo-
sure postponement that none of the individuals present was
interested in Debtor’s property. Moreover, the secretary
admitted she had signed a declaration stating that she had
publicly announced the postponement when she knew she had
not made a public announcement. We reject an approach that
would force a trial court to rely upon evidence of this sort,
and hold that Lenders’ actions violated the plain meaning of
“public announcement” in HRS § 667-5.

[6] We turn to the question of the proper remedy for Lend-
ers’ violation of HRS § 667-5. Hawaii law does not specify a
remedy. The bankruptcy court, based on its reading of Silva
v. Lopez, 5 Haw. 262, 1884 WL 6695 (1884), ruled that
improper postponement required voiding the subsequent fore-
closure sale. The BAP, on the other hand, believed that Silva
does not provide controlling precedent, and reasoned that the
Hawaii Supreme Court would have to look to other jurisdic-
tions to decide the issue. Relying on the trend in the majority
of states, the BAP concluded that the Hawaii Supreme Court
would draw a distinction between technical violations of fore-
closure procedures which do not prejudice a mortgagor and
substantive violations which do. The BAP held that a foreclo-
sure sale should be voided only when a procedural violation
is “significant, material, causes prejudice or otherwise con-
tributes to the inadequacy of the price or other injury.” The
BAP concluded in this instance that Debtor had shown no
prejudice from the foreclosure and was not entitled to any

[7] With all respect to the BAP, we agree with the bank-
ruptcy court that Hawaii precedent is clear and controlling.
Mortgagee violation of the nonjudicial foreclosure require-
ments of HRS § 667-5, whether those violations are griev-
ously prejudicial or merely technical, voids a subsequent
foreclosure sale. Id. at *7. In Silva, the Hawaii Supreme Court
voided a mortgage sale of real estate and livestock because
the mortgagee did not comply with the conditions of the
power of sale set out in the mortgage contract. Id. The Silva
mortgagee erred by scheduling the foreclosure sale one day
too early: under the mortgage contract, the power of sale
could be exercised only after three weeks of notice and the
Silva mortgagee had scheduled the sale after only twenty days
of notice. Id. at *3, *5. The Silva court affirmed the trial
court’s ruling that “if the notice is insufficient, the sale under
it is void and not merely voidable.” Id. at *7. Silva establishes
that under Hawaii law, even technical violations of foreclo-
sure procedures void a subsequent foreclosure sale.

The BAP attempted to distinguish Silva on two grounds.
First, the BAP noted that the Silva court did not explain why
strict, rather than substantial compliance, with foreclosure
procedure is required. However, this undercuts, rather than
supports, the BAP’s conclusion. The fact that the Silva court
did not discuss prejudice or substantial compliance demon-
strates that this factor is irrelevant to the mortgagor’s remedy
under Hawaii law.

The BAP also distinguished Silva on the ground that there
“the defect in the notice requirement was coupled with
another irregularity — the livestock was not available for
inspection at the auction sale.” This assertion misreads Silva.
In fact, the Silva court voided the sale of real estate solely on
the basis of inadequate notice, and not because of the failure
to display the auctioned cattle. The decision makes this clear:
“[T]he third objection to the sale [that the mortgagee failed to
display the cattle to bidders] . . . applies only to the sale of the
chattels.” Silva, 1884 WL 6695, at *3 (emphasis added).

That Hawaii law requires strict compliance with statutory
foreclosure procedures is confirmed by the Hawaii Supreme
Court’s recent decision in Lee, a decision that was not avail-
able at the time the BAP issued its decision. The Lee court,
answering a question certified to it by a federal district court,
held that a foreclosure sale conducted after the mortgagors
had cured their default was not valid. The court cited Silva for
the proposition that the “foreclosure sale did not comply with
the requirements of HRS section 667-5 and was, thus, inval-
id.” Lee, 218 P.3d at 779. As in Silva, there was no discussion
in Lee of the degree to which the violation of HRS § 667-5
prejudiced the mortgagor that would suggest that prejudicial
impact is relevant under Hawaii’s law. While Lee involved
the violation of a different requirement of HRS § 667-5 than
is at issue here, the court’s reasoning encompasses the facts
of this case.

Finally, we note that a strict compliance requirement is not
so out of step with the law of other jurisdictions that we have
reason to second-guess our interpretation of Hawaii law. The
BAP is accurate in noting that the majority of states draw a
distinction between procedural defects that are insignificant
and those that are prejudicial enough to render a foreclosure
sale void or voidable. See, e.g., Gilroy v. Ryberg, 667 N.W.2d
544, 553-54 (Neb. 2003) (describing the majority approach
and collecting cases). However, this trend is far from unani-
mous. Several states have long required strict compliance
with nonjudicial foreclosure statutes. See Univ. Sav. Ass’n v.
Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex.
1982) (mortgagee’s failure to perform “ministerial act” of
recording appointment of successor trustee grounds for void-
ing sale); Bottomly v. Kabachnick, 434 N.E.2d 667, 669-70
(Mass. App. Ct. 1982) (failure in notice of sale to identify the
holder of mortgage voids sale). Other states have begun to
strictly construe the terms of recently enacted statutes
designed to protect mortgagors. See Aurora Loan Servs., LLC
v. Weisblum, 923 N.Y.S.2d 609, 614 (N.Y. App. Div. 2011)
(strict compliance with statutorily mandated notice require-
ments is condition precedent to foreclosure, without consider-
ation of prejudice to mortgagor); EMC Mortg. Corp. v.
Chaudhri, 946 A.2d 578, 586 (N.J. Super. Ct. App. Div.
2008) (“[A] lender’s substantial compliance with the contents
of a notice of intent, sent by a lender prior to initiation of fore-
closure, . . . was not authorized by the statute’s terms.” (inter-
nal quotation marks omitted)). Hawaii’s approach, therefore,
might place it in the minority, but does not place it out of the

[8] We conclude that Lenders’ failure to postpone properly
the foreclosure sale did violate HRS § 667-5 and that the
proper remedy was avoidance of the sale.

B. Breach of Contract

[9] The bankruptcy court ruled that the terms of the par-
ties’ mortgage agreement specified that Lenders could fore-
close only in compliance with the procedural requirements of
HRS § 667-5. Lenders do not dispute the court’s interpreta-
tion of the contractual language. Therefore, because Lenders’
improper postponement of the foreclosure sale violated HRS
§ 667-5, it also constituted a breach of contract.

[10] Lenders’ contractual breach is an alternative ground
upon which the bankruptcy court properly voided the foreclo-
sure sale. Lenders argue, however, that damages for the
breach of contract should be subject to standard causation
requirements, and that the breach was not the cause of the
foreclosure. Lenders’ discussion of general contract principles
of causation is not persuasive in the context of the mortgage
at issue. The bankruptcy court read the mortgage contract as
requiring compliance with the nonjudicial foreclosure statute
as a condition precedent to Lenders’ right to exercise the
power of sale in the contract. We agree. In the context of this
interpretation of the mortgage, the avoidance of the sale is
consistent both with case law particular to mortgage agree-
ments and with general contract principles. See Silva, 1884
WL 6695, at *7; Stevens v. Cliffs at Princeville Assocs., 684
P.2d 965, 969 (Haw. 1984) (“If the condition is not fulfilled,
the right to enforce the contract does not come into exis-
tence.” (internal quotation marks omitted)).

C. Hawaii Revised Statute § 480-2 and § 480-13

[11] HRS § 480-2(a) prohibits “unfair or deceptive acts or
practices in the conduct of any trade or commerce.” Consum-
ers who establish a violation of § 480-2 are entitled to three-
fold damages under HRS § 480-13 for those “damages
sustained” as a result of the defendant’s deceptive actions.
HRS § 480-13(a)(1). Whether a practice is deceptive or unfair
is “ordinarily a question of fact,” Balthazar v. Verizon
Hawaii, Inc., 123 P.3d 194, 197 n.4 (Haw. 2005), subject to
review under a clearly erroneous standard.

The test for whether a practice is “deceptive” under HRS
§ 480-2 is distinct from whether a practice is “unfair,” and
both tests are established by case law rather than by statute.
State ex rel. Bronster v. U.S. Steel Corp., 919 P.2d 294, 313
(Haw. 1996). “A deceptive act or practice is ‘(1) a representa-
tion, omission, or practice that (2) is likely to mislead con-
sumers acting reasonably under the circumstances where (3)
the representation, omission, or practice is material.’ ”
Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087,
1092 (9th Cir. 2010) (quoting Courbat v. Dahana Ranch, Inc.,
141 P.3d 427, 435 (Haw. 2006)) (alterations omitted). This
inquiry is objective — the test is whether the practice was
“capable of misleading a reasonable consumer.” Id. at 1089.
There need not be an intent to deceive nor actual deceit. Cour-
bat, 141 P.3d at 435 n.9.

[12] The bankruptcy court found that failure to make a
public announcement “is likely to mislead a consumer acting
reasonably under the circumstances . . . . Proper notice of the
actual date of a foreclosure auction is essential to ensure that
foreclosed properties bring adequate prices and that the public
has an appropriate opportunity to bid.” The court’s factual
finding is a reasonable one to which we must defer.

The BAP’s reversal of this finding is premised on two
errors. First, by focusing on whether there were, in fact, any
consumers in the vicinity that would have heard a public
announcement, the BAP failed properly to apply the requisite
objective test. Given that “actual deception need not be
shown; the capacity to deceive is sufficient,” State ex rel.
Bronster, 919 P.2d at 313, the BAP’s concern with the fact
that no potential buyers appeared to be present was an
improperly subjective inquiry into whether there was actual

Second, the BAP did not afford the bankruptcy court’s fac-
tual finding the required degree of deference when it reasoned
that it was “not required to accept [the bankruptcy court’s]
conclusions as to the legal effect of [its factual findings].”
Whether a reasonable consumer would likely be misled by a
practice is a question of fact unless “no reasonable person
would determine the issue in any way but one.” Courbat, 141
P.3d at 436 (internal quotation marks omitted). Under this
standard, the bankruptcy court’s determination that improper
postponement of this sort would deceive a reasonable con-
sumer is not clearly erroneous. See Anderson v. City of Besse-
mer City, 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).

Because we affirm the bankruptcy court’s finding that
Lenders’ improper postponement was a deceptive practice
under HRS § 480-2, we need not consider whether it was also
an unfair practice.

[13] However, our conclusion that Lenders’ improper post-
ponement amounted to a deceptive practice does not automat-
ically entitle Debtor to monetary damages.2 Under HRS
§ 480-13(b)(1), a consumer injured by a violation of § 480-2
“[m]ay sue for damages sustained by the consumer, and, if the
judgment is for the plaintiff, the plaintiff shall be awarded a
sum not less than $1,000 or threefold damages.” Under this
statute, consumers are entitled to damages for a violation of
HRS § 480-2 only if they show that those acts “cause private
damage.” Ai v. Frank Huff Agency, Ltd., 607 P.2d 1304, 1312
(Haw. 1980), overruled in part on other grounds by Robert’s
Haw. Sch. Bus. Inc. v. Laupahoehoe Transp. Co., 982 P.2d
853 (Haw. 1999); see also Haw. Med. Ass’n v. Haw. Med.
Serv. Ass’n, 148 P.3d 1179, 1216 (Haw. 2006) (to receive
damages under HRS § 480-13 the injured consumer must
show “(1) a violation of HRS chapter 480; (2) injury to the
plaintiff ’s business or property resulting from such violation;
and (3) proof of the amount of damages” (footnotes omitted)).

Any injury must be fairly traceable to the defendant’s
actions. Flores v. Rawlings Co., LLC, 177 P.3d 341, 355 n.23

We do not consider Lenders’ argument that they cannot be held vicari-
ously liable for the actions of an independent contractor because that argu-
ment was not made before the BAP and was therefore forfeited. See
Resolution Trust Corp. v. First Am. Bank, 155 F.3d 1126, 1129 (9th Cir.
1998) (issues raised for first time before appellate court are generally for-

(Haw. 2008). Under HRS § 480-13, the injury is measured
through standard expectation damages, i.e., damages suffi-
cient to make the plaintiff whole. Leibert v. Fin. Factors, Ltd.,
788 P.2d 833, 836-37 (Haw. 1990). The Hawaii Supreme
Court has emphasized that “ ‘[d]eception [is] the evil that con-
sumer fraud statutes seek to rectify.’ ” Flores, 177 P.3d at 357
(second alteration in original) (quoting Zanakis-Pico v. Cutter
Dodge, Inc., 47 P.3d 1222, 1231 (Haw. 2002)).

[14] The proper calculation of damages and causation are
questions of fact under Hawaii law, which we do not disturb
unless they are clearly erroneous. Kato v. Funari, 191 P.3d
1052, 1058 (Haw. 2008) (damages are question of fact); Doe
Parents No. 1 v. State Dep’t of Educ., 58 P.3d 545, 569 (Haw.
2002) (causation is question of fact). In this instance, how-
ever, the bankruptcy court failed to make the requisite factual
findings. See Jess v. Carey (In re Jess), 169 F.3d 1204, 1208-
09 (9th Cir. 1999) (Bankruptcy Rule 7052 requires the bank-
ruptcy court to make findings of fact and conclusions of law).
While the bankruptcy court’s decision acknowledges that cau-
sation is a required element of Debtor’s case, the court made
no finding — explicit or otherwise — that the enumerated
damages were caused by and fairly traceable to Lenders’
improper postponement. Rather, the court simply listed as
damages Debtor’s loss of equity in her property, the rental
value of the property for the time Debtor was apparently
excluded from possession, and attorneys’ fees accrued in the
state court ejectment action.

Debtor urges us to overlook this omission and to construe
the bankruptcy court’s calculation of damages as including an
implicit factual finding of causation. If we were to adopt
Debtor’s suggestion, which we do not, we would be com-
pelled by the record to conclude that the bankruptcy court’s
“implicit” finding of causation was clearly erroneous. The
damages the bankruptcy court awarded all flow from the fore-
closure on Debtor’s home and appear to give Debtor an inap-
propriate windfall. This seems irreconcilable with the
bankruptcy court’s finding that Debtor did not experience
foreclosure of her home because of Lenders’ imperfect post-
ponement procedure. As the bankruptcy court phrased it,
“There is no question, . . . that the Mortgage was in default
and that the mortgagee was entitled to foreclose. The only
question is whether the proper party foreclosed the Mortgage
in the proper manner.” In sum, the court’s findings of fact
appear to establish that Debtor’s losses “result[ed] from” her
default, rather than Lenders’ failure to shout out the postpone-
ment of the foreclosure. Haw. Med. Ass’n, 148 P.3d at 1216.

[15] However, rather than reading an erroneous finding of
causation into the bankruptcy court’s decision, we follow our
ordinary procedure when a necessary factual finding is absent,
and remand the case to the bankruptcy court to make the
proper requisite findings of fact under HRS § 480-13. See
Graves v. Myrvang (In re Myrvang), 232 F.3d 1116, 1124
(9th Cir. 2000). This is the appropriate course because the fac-
tual record may not be complete — Debtor suggests, for
example, that she can prove that but for Lenders’ improper
postponement, she might have succeeded in curing her
default. This fact, if proven, might establish that Debtor’s
temporary loss of possession of the property was “fairly trace-
able” to Lenders’ deceptive practice. Flores, 177 P.3d at 355
n.23. Therefore, on remand the bankruptcy court must deter-
mine the difference, if any, between Debtor’s situation had
Lenders properly postponed the foreclosure sale and Debtor’s
actual situation, given that the sale was improperly postponed.
This framing properly narrows the inquiry to the damage
caused by Lenders’ deceptive postponement. Id. at 357.

D. Attorneys’ Fees

[16] We also vacate the bankruptcy court’s order awarding
attorneys’ fees and remand for calculation of reasonable attor-
neys’ fees in light of our remand of the damages-causation
issue in Debtor’s HRS § 480-13 claim. See UFJ Bank Ltd. v.
Ieda, 123 P.3d 1232, 1233 (Haw. 2005) (vacatur of attorneys’
fees judgment and remand appropriate where judgment on
which fees are based is remanded). Because the issues are
“likely to arise again on remand” we address the parties’ chal-
lenges to the bankruptcy court’s original calculation of attor-
neys’ fees. Everett v. Perez (In re Perez), 30 F.3d 1209, 1216
(9th Cir. 1994).

First, on remand, the bankruptcy court may, in its discre-
tion, consider evidence of the settlement offer purportedly
made by Lenders early in the course of this litigation. The
bankruptcy court initially ruled that it was prohibited from
admitting evidence of the settlement offer by Federal Rule of
Evidence Rule 408. With the benefit of our recent decision in
Ingram v. Oroudjian, 647 F.3d 925 (9th Cir. 2011) (per
curiam), it is now clear that this evidence is admissible. In
Ingram we adopted the reasoning of the Third Circuit’s opin-
ion in Lohman v. Duryea Borough, 574 F.3d 163 (3d Cir.
2009), and held that Rule 408 does not preclude admission of
evidence of a settlement agreement for the purpose of calcula-
tion of attorneys’ fees. Ingram, 647 F.3d at 927. Therefore,
the bankruptcy court may consider evidence of a settlement
offer to the degree such evidence is relevant to the calculation
of reasonable attorneys’ fees under Hawaii law.

[17] Second, Debtor challenges the bankruptcy court’s
decision limiting the portion of attorneys’ fees allotted to the
breach of contract claim to twenty-five percent of Debtor’s
lost equity on the house. The bankruptcy court’s ruling was
based on the twenty-five percent limit contained in HRS
§ 607-14, the statute governing attorneys’ fees in contract
cases. That statute states that “[I]n all actions in the nature of
assumpsit . . . there shall be taxed as attorneys’ fees, to be
paid by the losing party . . . a fee that the court determines to
be reasonable; . . . provided that this amount shall not exceed
twenty-five per cent of the judgment.” HRS § 607-14.

Debtor argues that the twenty-five percent limit does not
apply to her under the exception created in Food Pantry, Ltd.
v. Waikiki Business Plaza, Inc., 575 P.2d 869, 880 (Haw.
1978), because the avoidance of the foreclosure sale was not
a monetary judgment subject to the twenty-five percent limit.
In Food Pantry, the Hawaii Supreme Court held that an action
to enforce a lease did not trigger the twenty-five percent limit
because it “could not result in a money judgment to which the
twenty-five percent limitation could be applied.” Id.

[18] The bankruptcy court did not err in applying the
twenty-five percent limit on attorneys’ fees. The Food Pantry
exception applies only “if no money damages are sought or
awarded, as in a complaint for declaratory judgment, [where]
there is no monetary amount on the basis of which to calcu-
late the twenty-five percent statutory ceiling.” Amfac, Inc. v.
Waikiki Beachcomber Inv. Co., 839 P.2d 10, 35 (Haw. 1992).
Debtor’s complaint requested only damages and attorneys’
fees for her breach of contract claim. The monetary damages
for the contract claim were easily discernible as Debtor’s lost
equity in her property, and the bankruptcy court noted that
Debtor later “elected to recover the Mortgaged Property” in
lieu of monetary damages. Debtor’s election of remedies does
not render the value returned to Debtor an “economic incident
of the judgment” that can escape the twenty-five percent limit.
DFS Group L.P. v. Paiea Props., 131 P.3d 500, 504 n.5
(Haw. 2006).


We AFFIRM the decision of the bankruptcy court with
respect to its findings of liability for a violation of HRS
§ 667-5, a violation of HRS § 480-2, and breach of contract.
We also AFFIRM the bankruptcy court’s order voiding the
foreclosure sale of Debtor’s property. We VACATE the bank-
ruptcy court’s award of money damages under § 480-13 and
attorneys’ fees under HRS § 607-14 and HRS § 480-13(b)(1),
and we REMAND so that the bankruptcy court may (1) make
the necessary findings of causation and damages under HRS
§ 480-13 and (2) properly calculate attorneys’ fees.

AFFIRMED in part, VACATED and REMANDED in part.

The parties shall bear their own costs on this appeal.

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Court sides with Nevada in BoA foreclosure case

Court sides with Nevada in BoA foreclosure case


A federal appeals court on Friday granted Nevada’s request to send its lawsuit alleging mortgage modification and foreclosure abuses against Bank of America Corp back to Nevada state court.

The 9th U.S. Circuit Court of Appeals reversed a decision by a lower court, which had concluded that the lawsuit belonged in federal court.

Nevada’s complaint, filed in Clark County, Nevada, in January 2011, alleges that Bank of America misled consumers about the terms of its home mortgage modification and foreclosure processes.

Nevada also accused the bank of violating terms of a consent judgment it and several of its subsidiaries had entered into with the state in February 2009.

After Bank of America removed the lawsuit to federal court, Nevada’s request to send it back to state court was denied.

Chief Judge Robert Clive Jones of the District of Nevada ruled that the lawsuit belonged in his court because the lawsuit was a class action, which gives federal courts jurisdiction.


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BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”

BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”




National Banking Association;
USA Funding, a California corporation;
LOANS, INC., DBA America’s
Wholesale Lender, a New York
corporation; MOR CAZAKOV, an
individual; GALENA KOROL, an
individual; DOES 1 through 10,
Defendants-Appellees. þ

Appeal from the United States District Court
for the Southern District of California

Michael M. Anello, District Judge, Presiding
Argued and Submitted

June 9, 2011—Pasadena, California

Filed December 29, 2011


KOZINSKI, Chief Judge:

The Balderases allege that they are immigrants who were
rooked by a bank that signed them up for loans it knew they
couldn’t afford, on terms they didn’t agree to. These are the
facts as recited in the complaint: Mor Cazakov, a mortgage
broker, cold-called the Balderases, representing that he could
refinance their home, switch them to a fixed rate mortgage
and let them cash out $50,000, all without a penalty. Subsequently,
Soraya Qassim, a “duly authorized agent” of Countrywide
Bank (Countrywide), filled out a uniform residential
loan application (URLA) for them and showed up unannounced
at their home, urging the Balderases to sign it. But
the form was in English, which they can’t read, and it overestimated
their income by over $40,000 per year. Qassim told
them it was an informal document the bank needed, so the
Balderases signed.

Three days later, on the evening of Monday, September 25,
2006, Cazakov showed up at their home with a notary public
and loan documents also written in English. He told them that
Countrywide “demanded” their signatures “that night” and he
couldn’t and wouldn’t leave without getting them. The
Balderases protested and asked to arrange the loan signing
when their English-literate daughter could attend. But Cazakov
said that Countrywide had instructed him to stay until he
got the signatures, and he “engaged in a series of actions
designed to intimidate, harass, and pressure [the Balderases]
into signing the loan documents.” After six hours of unrelenting
pressure by Cazakov and several unsuccessful attempts to
read the paperwork, the Balderases capitulated and signed the
documents just after midnight. On Wednesday, they called
Cazakov and asked him to rescind the loans. He refused. They
then called Countrywide a day later seeking the same relief.
Countrywide also refused, falsely representing it was too late.
In fact, the three-day statutory rescission period extended
through the next day, Friday, September 29.

The Balderases filed a complaint alleging, among other
things, a violation of the Truth In Lending Act (TILA). See
15 U.S.C. §§ 1601 et seq. Countrywide filed a 12(b)(6)
motion, which the district court granted. This timely appeal

* * *

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CARNEY vs. BANK OF AMERICA | 9th Circuit Ct. Appeals “It is clear that MERS and ReconTrust act to usurp Appellant’s property without lawful authority”

CARNEY vs. BANK OF AMERICA | 9th Circuit Ct. Appeals “It is clear that MERS and ReconTrust act to usurp Appellant’s property without lawful authority”

MERS, something of a phantom entity and ReconTrust, subsidiary of BAC and not an independent entity, acting in BAC/BANA/Countrywide’s interests, now are trying to come in and clean up the mess made by the fraudulent DOT and Note by BondCorp in a conspiracy with Countrywide, not because they are any real beneficiary and have or will experience any real loss, but rather to gain substantial fees from the SARM 2005-19XS Trust for foreclosing on Appellant’s property.

It is truly curious as to why the proper parties in this matter are not named and Appellant posits that other, unrelated legal actions are likely a reason. That said, Appellant has shown good cause why a trustee’s sale should not proceed so that the status quo is maintained while he presses his case in the District Court.”

No. 11-56421






III. Merits Of Case Are Compelling And Clear And Likely to Be Successful.
It is clear that MERS and ReconTrust act to usurp Appellant’s property
without lawful authority. MERS Cannot be and in fact is not the beneficiary of the
DOT. There is no named beneficiary in the SOT and ANY and ALL beneficiaries
must be named in the SOT. Therefore the SOT (and consequently the NTS) is
seriously defective and void as an instrument to be implemented to supplant
Appellant from his property.

Defendants act hurriedly and without authority not because they are
uninformed or have made an excusable mistake, but rather because they wish to
elude the central facts and claims against them, hold the wrongful trustee’s sale
and gain title and possession of Appellant’s property to gain a superior position.

The facts are that BondCorp, who has yet to respond to any complaint or
motion related to this case, was in fact named as “Grantee” when it never proffered
any funds and was used by Countrywide to both gain secret, concealed fees and
allow Countrywide to further gain based on intentional concealments, lies,
misrepresentations and related actions.

As has been stated, the core of this matter is the claims against BondCorp
acting at the behest of Countrywide. If BondCorp was found to have acted
fraudulently, as asserted and supported by facts, every other claim and defense is
affected accordingly.

What this court is presented with is a defendant in BondCorp who has
chosen to remain silent in the face of substantial allegations and facts against it,
and a foreclosing entity defendant (MERS) that is acting without authority and in
clear violation of the law.

Meanwhile, Appellant has had to defend and counter all such actions and to
drag out all the facts, all while in the face of losing his family home and efforts to
understand what options would be available to him to avert such a catastrophic

Up until August/September of 2010, Appellant was resigned to the fact that
his misfortune would likely lead to the loss of his family home. It wasn’t until he
received and further researched the information regarding the assignment/transfer
of his DOT and Note to US BANK (June 2010) that was entirely first time news to
him, that he began to understand and realize the fraud, malfeasance and
misfeasance enacted upon him and then which drove him to seek relief and
damages for.

The facts of the case as pertains to BondCorp are clear and undisputed.
BondCorp was not the “lender”. It only acted as such to attain secret fees.
BondCorp utilized illegal, fraudulent means to sell and convince Appellant that the
loan BondCorp wished to engage him in was in his best interests, when it was not
and that all the facts represented to him regarding the alleged loan were true, when
they were not and the real facts were concealed from him and that he was
defrauded of tens of thousands of dollars in the process.

Countrywide was an active conspirator as it allowed BondCorp to utilize its
technological assets, its underwriting resources, account numbering system and
other aids and benefits to entrap Appellant into a loan that was damaging, stated
the wrong parties and took illegal and undisclosed fees.

MERS, something of a phantom entity and ReconTrust, subsidiary of BAC
and not an independent entity, acting in BAC/BANA/Countrywide’s interests, now
are trying to come in and clean up the mess made by the fraudulent DOT and Note
by BondCorp in a conspiracy with Countrywide, not because they are any real
beneficiary and have or will experience any real loss, but rather to gain substantial
fees from the SARM 2005-19XS Trust for foreclosing on Appellant’s property.
It is truly curious as to why the proper parties in this matter are not named
and Appellant posits that other, unrelated legal actions are likely a reason. That
said, Appellant has shown good cause why a trustee’s sale should not proceed so
that the status quo is maintained while he presses his case in the District Court

[Order Granting Stay Via 9Th Cir. PDF]


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DARREL BLOMBERG points out that the 9th Circuit might be just as confused as trial judges about MERS. The Court acknowledges in the opinion that MERS owns nothing and in fact is intended to own nothing, acting merely as a placeholder for whatever entity is eventually “designated” by unknown players in the securitization game. Yet at page 16985, the court’s opinion contains the following paragraph:

“At the origination of the loan, MERS is designated in the deed of trust as a nominee for the lender and the lender’s “successors and assigns,” and as the deed’s “beneficiary” which holds legal title to the security interest conveyed. If the lender sells or assigns the beneficial interest in the loan to another MERS member, the change is recorded only in the MERS database, not in county records, because MERS con- tinues to hold the deed on the new lender’s behalf. If the ben- eficial interest in the loan is sold to a non-MERS member, the transfer of the deed from MERS to the new lender is recorded in county records and the loan is no longer tracked in the MERS system.”

Darrel’s point is that the court is confused, if it is reporting that MERS or any actual beneficiary is the holder of any title. The Deed of Trust is signed by the homeowner and vests title in a Trustee for the benefit of the beneficiary. If the beneficiary were the actual recipient of title, the non-judicial power of sale would be inapplicable. In order for non-judicial sale to occur, there MUST be an intervening “objective” party that provides some assurance of due diligence to protect the interests of the homeowner and the beneficiary.

It is possible that the Court was merely reporting the scheme of the “lenders” rather than the actuality, but if that is the case, the opinion is unclear. As it stands,  the opinion appears to be saying that the actual title is vested in the named beneficiary. If so, besides the point raised above, the deed on foreclosure would need to be issued and executed by MERS or whatever party was named as beneficiary. Thus the chain of title would be further corrupted by  having an on-record transfer from homeowner to trustee followed by an on-record transfer of title from beneficiary to whomever submitted the “credit bid.”

Darrel is right, I think. And I don’t think it is merely some scrivener’s error. It demonstrates the confusion of even the higher courts of appeal with the entire process of non-judicial sale, a CHOICE that is selected by “lenders” which was intended to be a very narrow window but has now become the greatest escape hatch of all time. Through that window pretender lenders are throwing millions of homes that otherwise could not have been foreclosed because the pretenders were just that — pretenders, who had no interest in the loan, and who had no right to submit a credit bid because they were not the creditor. How could US Bank or BOA et al submit a credit bid on a loan where they were neither the holder nor the owner of the debt, much less both the holder and the owner?

These parties are using non-judicial foreclosure to side-step the due process requirements of Arizona law and the law of other states that allow non-judicial foreclosure. If they truly could prevail in a well-pleaded complaint and prove their case according to established rules of evidence, they undoubtedly would have done so, just to prove that the borrowers’ cries of “foul” were mere technicalities and not based upon the reality that they took out a loan and now don’t want to pay for it. A few cases in each state and the argument would be over. The pretenders are avoiding reality — the one in which THEY are seeking to get a free house.

The 9th Circuit was mistaken in its language quoted above. MERS, or for that matter ANY beneficiary holds an equitable interest, not legal title. They are the beneficiaries of a trust enabled by statute in which the home is the asset, the trustor is the homeowner and the trustee is a party who will hold title until the loan obligation is satisfied. The beneficiary does not hold legal title. It holds no title at all. It is the beneficiary of the trust and is entitled to receive the proceeds of sale should the house be sold to satisfy the loan.

The error quoted here is an example of how the courts are attempting to accommodate the banks and in so doing trying to put their left foot in their right pocket. Adding the name “MERS” adds nothing to the rights of a beneficiary, because to even entertain any other construction would be to violate the enabling non-judicial statute, and violate the due process clauses in the U.S. and State constitutions. Where MERS is named as beneficiary, it has the right to receive the proceeds of sale if the home is sold in foreclosure. The problem is that MERS was intentionally named only as a placeholder (nominee, straw-man) and the deed of trust says so, because it distinguishes between the “lender” and the “beneficiary.”

Nothing in legislative notes in any state that I have researched indicates that this dichotomy between “lender” and “beneficiary” was considered, nor is there anything to suggest it would have been permitted by any of the legislatures if it had been considered. Quite the reverse is true.

The legislative presumption was that the lender and beneficiary were one and the same. The presumption was that non-judicial sale applied in non-adversarial  situations in which it was necessary to conduct a foreclosure sale, the lender was the beneficiary and therefore was also the creditor, and therefore capable of submitting a credit bid and worthy of receiving, without objection from the homeowner, the deed from the foreclosure sale. It is only in this context that enabling statutes for non-judicial sales are constitutional in their construction and application.

Here we have a different situation. MERS specifically disclaims any rights to such proceeds even though it is named as beneficiary. It does so consistent with the new distinction, created outside the enabling statutes for the power of sale, in which there is a  difference between “lender” and beneficiary.” So the “lender” is actually the beneficiary even though MERS is named as beneficiary. Although awkward, this might fly if the lender actually made the loan and was the creditor. But in most cases, the “lender” is also a placeholder. See any of the bankruptcy schedules and orders entered for mortgage originators that were designated as “lenders.”

Thus Cervantes stands on a loose foundation: we have a beneficiary that admits it is not entitled to anything and a lender who in fact is not entitled to anything because it was also just a placeholder for an undisclosed principal. Neither one of them can submit a credit bid and neither one of them has ever possessed the power to instruct the Trustee on the deed of trust to issue the notice of default and notice of sale. The original trustee would obviously have no part of a foreclosure sale in which it was receiving instructions from parties that never appeared on the deed of trust or the chain of title. And that, my friends, is the reason why we have yet another new entry of new terms without meaning: the substitute trustee.

When you think about it, the securitizers were obviously making it up as they went along, which is why there were lawyers who refused to draft any of these documents, because in their own words, they thought it was not just illegal it was probably criminal. By inserting a nominee lender and nominee beneficiary into the transaction without disclosing the principal from whom the loan was obtained and by substituting their own people as trustees, they were assured of grabbing millions of properties while appearing to comply with statutes. They neither complied with statutes nor with the standards of good faith and fairness required under those statutes.

But here is the rub for them which the banks are desperately trying to avoid: in the vast majority of transactions in which a securitized debt was involved, the use of a placeholder, in lieu of a real party in interest, was not just part of the transaction — it was the whole transaction. At the time of execution of the mortgage, there was no real party in interest named or described in the mortgage — the very thing that the legislature of each state meant to avoid when they passed recording statutes.

Thus at the time of execution, the homeowner borrower was being intentionally kept in the dark about the identity of the creditor. In fact, when the mortgage was recorded, the general public was being intentionally kept in the dark about the identity of the creditor. There is no state in which that kind of document gives rise to a valid lien against the property, nor could it. Recording is intended to provide notice to the world that someone has a lien. In the case of nearly all transactions involving securitized debt, the “someone” that had a lien was a fictitious character, like Donald Duck. In all such instances, state law provides that the mortgage  does not attach as a lien.

The promissory note is another story entirely subject to its own problems. Suffice it to say, that if you check with an attorney who is competent and licensed in the jurisdiction in which your property is located, you will find that your mortgage, while it exists, is not a lien against your property. That might sound like a contradiction in terms, but it is nevertheless true. Thus the obligation you owe, if any, is unsecured. Do not act on this until you consult with counsel.

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