Report Title:

Foreclosure Action, Appellate Jurisdiction

Description:

Codifies appellate jurisdiction in foreclosure actions.

HOUSE OF REPRESENTATIVES

H.B. NO.

1076

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO APPELLATE JURISDICTION.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to codify appellate jurisdiction in foreclosure actions. The different orders from which appeals may and, indeed, must be taken in a foreclosure case have been characterized in the past as "traps for the unwary." Sturkie v. Han, 2 Haw. App. 140, 147, 627 P.2d 296 (1981). For more than the past thirty years, the appellate courts have been analyzing their jurisdiction over the various stages of the foreclosure process. See, e.g., MDG Supply v. Diversified Inv., 51 Haw. 375, 463 P.2d 525 (1969).

As recently as April, 2002, the Hawaii Supreme Court reconsidered its previous position and held that certain appeals from orders denying a Rule 60(b), Hawaii rules of civil procedure, motion were final and appealable orders. Beneficial Hawai'i, Inc. v. Casey, Jr. et al. (Supreme Court No. 22829, April 18, 2002). The court also impliedly held in that case that a Rule 54(b), Hawaii rules of civil procedure, certification of the order confirming sale did not make that order or the judgment entered pursuant to it a final and appealable judgment.

The legislature accordingly believes that it is in the best interest of borrowers, lenders, and their attorneys to codify the practice of appealing from orders in foreclosure actions in this jurisdiction.

SECTION 2. Section 641-1, Hawaii Revised Statutes, is amended to read as follows:

"§641-1 Appeals as of right or interlocutory, civil matters. (a) Appeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit and district courts and the land court, to the supreme court or to the intermediate appellate court, except as otherwise provided by law and subject to the authority of the intermediate appellate court to certify reassignment of a matter directly to the supreme court and subject to the authority of the supreme court to reassign a matter to itself from the intermediate appellate court.

(b) Upon application made within the time provided by the rules of court, an appeal in a civil matter may be allowed by a circuit court in its discretion from an order denying a motion to dismiss or from any interlocutory judgment, order, or decree whenever the circuit court may think the [same] appeal advisable for the speedy termination of litigation before it. The refusal of the circuit court to allow an appeal from an interlocutory judgment, order, or decree shall not be reviewable by any other court.

(c) Without limiting the class of orders not specified in this section from which appeals may also be taken, the following orders entered in a foreclosure case shall be final and appealable:

(1) A judgment entered on a decree of foreclosure, and if the judgment incorporates an order of sale or an adjudication of a movant's right to a deficiency judgment, or both, then the order of sale or the adjudication of liability for the deficiency judgment shall also be deemed final and appealable;

(2) A judgment entered on an order confirming the sale of the foreclosed property, if the circuit court has expressly found that there is no just reason for delay and has certified this judgment as final pursuant to rule 54(b) of the Hawaii rules of civil procedure; and

(3) A deficiency judgment; provided that an appeal from a deficiency judgment shall not raise issues relating to the judgment debtor's liability for the deficiency judgment (as opposed to the amount of the deficiency judgment) nor shall it affect the finality of the transfer of title to the foreclosed property pursuant to the order confirming sale.

[(c)] (d) An appeal shall be taken in the manner and within the time provided by the rules of court."

SECTION 3. Nothing in this Act is intended to or shall be construed to limit appellate jurisdiction over matters properly brought before the appellate courts such as the supreme court's recognition of appellate jurisdiction over an order denying a motion brought under rule 60(b) of the Hawaii rules of civil procedure, as explained in the Casey decision cited in section 1, or the doctrine that an appeal from a final judgment incorporates within its ambit all interlocutory orders and rulings leading to that final judgment.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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