Mount v. Apao. , 139 Haw. 167 ( 2016 )


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  • ***   FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***
    Electronically Filed
    Supreme Court
    SCWC-13-0002610
    01-NOV-2016
    09:45 AM
    IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
    ---oOo---
    GERALD K. MOUNT, JR. and JANE R. MOUNT,
    Respondents/Plaintiffs/Counterclaim Defendants/Appellees,
    vs.
    MARGARET APAO,
    Petitioner/Defendant/Appellant,
    and
    DIRK APAO as Co-Personal Representative of the
    ESTATE OF ROSE MARIE ALVARO, deceased,
    Petitioner/Defendant/Counterclaim Plaintiff/
    Third-Party Plaintiff/Appellant,
    and
    SESHA LOVELACE, as Co-Personal Representative of the
    ESTATE OF ROSE MARIE ALVARO, deceased,
    Petitioner/Defendant/Cross-Claim Defendant/Appellee,
    and
    U.S. BANK NATIONAL ASSOCIATION, A NATIONAL ASSOCIATION AS
    TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION
    MORTGAGE PASS-THROUGH CERTIFICATES 2005-SC1,
    Respondent/Third-Party Defendant/Cross-Claim Plaintiff/Appellee.
    SCWC-13-0002977, SCWC-13-0002610
    and SCWC-14-0000556
    CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-13-0002977, CAAP-13-0002610, and CAAP-14-0000556;
    CIV. NO. 11-1-2005)
    NOVEMBER 1, 2016
    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
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    OPINION OF THE COURT BY McKENNA, J.
    I.    Introduction
    This consolidated appeal arises from an ejectment action
    initiated after a nonjudicial foreclosure on real property
    pursuant to Hawai‘i Revised Statutes (“HRS”) § 667-5 (Supp.
    2008), which was repealed in 2012.1         The Circuit Court of the
    First Circuit (“circuit court”) entered a Final Judgment in
    favor of Gerald Mount Jr. and Jane R. Mount (“the Mounts”),
    purchasers of the property through the nonjudicial foreclosure
    sale, and mortgagee U.S. Bank National Association, a National
    Association as Trustee for Structured Asset Securities Corp.
    Mortgage Pass-Through Certificates, Series 2005-SC1 (“U.S.
    Bank”).   The Final Judgment was entered against Margaret Apao
    (“Margaret”), sister of decedent Rose Marie Alvaro (“Alvaro”),
    and Dirk Apao, Margaret’s son, as personal representative of
    Alvaro’s estate (“Dirk”) (Margaret and Dirk are sometimes
    collectively referred to as “the Apaos”).
    With respect to the issues we address on certiorari, the
    circuit court ruled that a nonjudicial foreclosure conducted
    pursuant to HRS § 667-5 is a “proceeding to enforce a mortgage”
    under HRS § 560:3-803(d)(1), exempt from the time limits for
    presentation of claims against a decedent’s estate, set out by
    1
    HRS § 667-5 was in Part I of chapter 667 and was repealed by the
    legislature in 2012. 2012 Haw. Sess. Laws Act 182, § 50 at 684.
    2
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    other subsections of HRS § 560:3-803.          The circuit court also
    ruled that U.S. Bank did not violate HRS § 667-5(c)(1) by
    failing to provide Dirk’s former co-personal representative
    Sesha Lovelace (“Lovelace”) with information she had requested
    regarding the funds that would be required to reinstate the loan
    and thereby cure the default (“reinstatement figures”).               The
    Intermediate Court of Appeals (“ICA”) affirmed.
    The Apaos raise various issues on certiorari, including the
    following:
    1.    Is a nonjudicial mortgage foreclosure under HRS § 667-5 a
    “proceeding to enforce a mortgage” under HRS § 560:3-803(d)(1),
    and if not, did U.S. Bank fail to comply with HRS § 560:3-
    803(c)’s requirements for presentation of claims, thereby barring
    its claims?
    2.    Was the nonjudicial foreclosure conducted in violation of
    HRS § 667-5(c)(1), when U.S. Bank failed to provide Lovelace with
    loan reinstatement figures?
    With respect to the first issue, we hold that a
    nonjudicial mortgage foreclosure conducted pursuant to HRS §
    667-5 is not a “proceeding to enforce a mortgage” under HRS §
    560-3-803(d)(1).     Therefore, a nonjudicial foreclosure conducted
    pursuant to HRS § 667-5 is not exempt from the time limits under
    HRS § 560:3-803 for presentation of claims against a decedent’s
    estate.2
    2
    HRS § 560-3-803(c), the subsection at issue in this case,
    provides in relevant part:
    (c)   All claims against a decedent’s estate which arise at
    or after the death of the decedent [] are barred []unless
    presented as follows:
    (continued. . .)
    3
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    With respect to the second issue, we hold that U.S. Bank’s
    failure to provide reinstatement figures to Lovelace violated
    HRS § 667-5(c)(1)’s requirement that “[u]pon the request of any
    person entitled to notice, the attorney [or] the mortgagee . . .
    shall disclose to the requestor . . . information . . .
    [regarding] the amount to cure the default. . . .”            We further
    hold that this failure rendered the nonjudicial foreclosure sale
    voidable at the Estate’s election, unless the Mounts are
    innocent purchasers for value; if the Mounts are innocent
    purchasers for value, then the circuit court must determine an
    appropriate remedy, which generally would be an award of
    damages.    Santiago v. Tanaka, 137 Hawaii 137, 158, 
    366 P.3d 612
    ,
    633 (2016) (holding that where the nonjudicial foreclosure of a
    property is wrongful, the sale of the property is invalid and
    voidable at the election of the mortgagor, who shall then regain
    title to and possession of the property, except where the
    property has passed into the hands of an innocent purchaser for
    value, under which circumstances, an action at law for damages
    is generally the appropriate remedy).
    (. . .continued)
    . . . .
    (2) . . . [W]ithin the later of four months after it
    arises . . . .
    4
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    Our resolution of the second issue resolves the Apaos’
    remaining four issues on certiorari, which we therefore do not
    address.3
    Accordingly, we vacate the ICA’s Judgment on Appeal and the
    circuit court’s Final Judgment along with all the orders, writs,
    and/or judgments referenced in the Final Judgment, and we remand
    the case to the circuit court for further proceedings consistent
    with this opinion.
    II.   Background
    A.    The Estate and the Nonjudicial Foreclosure Proceeding
    In 1999, Alvaro obtained a loan for $500,000, secured by a
    mortgage (“the Mortgage”) and promissory note (“the Note”) on
    the subject real property located on the slopes of Diamond Head
    at 2979 Makalei Place, Honolulu, Hawai‘i 96815 (“the Property”).4
    The Property was appraised in 2013 to have a fair market value
    of $3,535,000.
    3
    Issues 3 through 6 on certiorari concerned whether: (3) the entry
    of the writ of possession prior to a separate, final judgment resulted in an
    unlawful splitting of the ejectment claim in violation of this court’s
    Separate Judgment Rule; (4) the award of attorneys’ fees and costs was
    erroneous because this case was not an action in the nature of assumpsit; (5)
    the damages award based in part on the amount the Mounts paid to rent an
    alternate property was clearly erroneous; and (6) the supplemental damages
    award for actual costs incurred in carrying out the eviction was erroneous.
    4
    An assignment of Mortgage from Fremont Investment & Loan, the
    original mortgagee, to Mortgage Electronic Registration Systems, Inc. as
    nominee for First Union National Bank (“MERS”) was recorded on August 30,
    2001, and, a second assignment from MERS to U.S. Bank was recorded on
    December 17, 2009.
    5
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    Alvaro passed away on December 18, 2002.          On January 23,
    2003, a petition seeking informal probate of her will and for
    appointment of personal representatives was filed with the
    probate court in In the Matter of the Estate of Rose Marie
    Alvaro (“the Estate”), Probate Case No. 03-1-0018.            Margaret and
    Dirk were appointed co-personal representatives of the Estate.
    A death certificate was filed in the informal probate
    proceeding.
    Margaret and Dirk apparently did not notify U.S. Bank or
    its mortgage servicer, American Home Mortgage Servicing, Inc.
    (“AHMS”), of Alvaro’s death, but began making payments on the
    Note with the Estate’s funds.        The Note apparently went into
    arrears around November of 2004.          A notice of Alvaro’s death
    and regarding the informal appointment of Margaret and Dirk as
    co-personal representatives in an unsupervised administration
    was published in the Honolulu Star-Bulletin on three dates in
    May 2005.     The notice did not notify creditors of any deadlines
    to present their claims.
    Margaret apparently began living at the Property and
    collecting the mail in 2006 or 2007.         By an order entered on
    July 11, 2007, the informal probate was converted to a formal
    probate proceeding.      Dirk and Margaret remained as co-personal
    representatives.
    6
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    Letters asserting default under the Note, addressed to
    Alvaro, were mailed to the Property in 2008 and 2009; Margaret
    disputed receiving them.       By March 1, 2009, the Note was clearly
    in default.    AHMS sent a letter addressed to Alvaro dated April
    16, 2009 (“Default Notice”).        The Default Notice provided the
    amount to cure the default, $11,606.14, and stated that the loan
    would be accelerated if not cured within 30 days.
    Five months later, on August 5, 2009, Lovelace, as an
    Estate beneficiary, petitioned the probate court to remove
    Margaret and Dirk as co-personal representatives.            She alleged a
    conflict of interest between the Apaos and the Estate because
    they had been living on the Property rent-free for years.
    Lovelace also asserted:
    The current personal representatives would appear to have
    neglected their duties by failing to process this matter
    expeditiously. . . . Also, the Estate may owe additional
    penalties and taxes since the tax returns have not been
    filed on time. The estate may have claims against the
    current personal representatives for a surcharge. The
    current personal representatives are not in a position to
    handle fairly any such claims that the estate has against
    them.
    By the end of 2009, U.S. Bank was clearly aware of Alvaro’s
    death.   On December 14, 2009, the law firm of Routh Crabtree
    Olson (“Routh Crabtree”), as counsel for U.S. Bank, sent a
    “Notice Under Fair Debt Collection Practices Act” to the “Heirs
    and/or Devisees of Rose Marie Alvaro,” stating it had been
    retained to initiate foreclosure proceedings.
    7
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    On February 1, 2010, U.S. Bank recorded a Notice of Mortgagee’s
    Intent to Foreclose Under Power of Sale (“Notice of Intent to
    Foreclose”) in the Hawai‘i Bureau of Conveyances, setting an
    auction date of April 1, 2010.            According to Routh Crabtree,
    the Notice of Intent to Foreclose was forwarded to all parties
    who had recorded encumbrances, liens and/or other claims against
    the Property.     These parties included the “Heirs and/or Devisees
    of Rose Marie Alvaro,” “Dirk Apao Personal Representative for
    Rose Marie Alvaro,” and “Sesha Lovelace,” apparently in her
    personal capacity as a beneficiary of the Estate.
    Later that month, pursuant to an order filed February 23,
    2010, Lovelace’s petition to remove the personal representatives
    was partially granted by the probate court, and Lovelace was
    substituted as a co-personal representative in place of Margaret
    to serve with Dirk.      This change in co-personal representatives
    was handwritten on a document entitled “Second Amended Letters
    Testamentary,” on which Margaret’s name was crossed out and
    Lovelace’s name was written above, and which was signed and
    certified by the clerk of the probate court.5
    Although U.S. Bank was aware of Alvaro’s death, it
    continued to send correspondence addressed to Alvaro to the
    Property, which Margaret apparently received.           Then, despite the
    5
    Hawaii Probate Rules Rule 48 pertains to the “Delegation of
    Powers to Clerk and Deputy Clerks.” The fact that the letters were signed by
    the clerk and not the judge is not raised as an issue in this case.
    8
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    order two days earlier officially removing her as a co-personal
    representative, on February 25, 2010, Margaret, claiming to be
    Alvaro, called AMHS and obtained a verbal reinstatement quote of
    $72,645.42, valid until March 3, 2010,          which AHMS confirmed by
    a letter of the same date addressed to Alvaro and mailed to the
    Property.    The following day, March 31, 2010, Margaret faxed
    this reinstatement amount and mortgage balance to Dirk.
    The day before, on March 30, 2010, Margaret had called AHMS
    again, asking for an updated reinstatement quote, first
    pretending to be Alvaro and then claiming to be a personal
    representative of the Estate.        It appears that in order to
    establish her authorization to receive loan information,
    pursuant to AHMS’s request, Margaret faxed the first page of the
    July 11, 2007 probate court’s “Order Granting Petition to
    Transfer from Informal to Formal Proceeding and to Renew Letters
    Testamentary,” which had continued her and Dirk as co-personal
    representatives.
    U.S. Bank postponed the foreclosure sale scheduled for
    April 1, 2010.     On April 19, 2010, AHMS mailed updated
    reinstatement figures to Margaret, reflecting a reinstatement
    amount totalling $80,138.32, which she appears to have also
    forwarded to Dirk.
    Ten months later, on February 3, 2011, U.S. Bank officially
    served the original Notice of Intent to Foreclose on Lovelace as
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    “as personal representative.”        It also served Dirk “as personal
    representative” on February 5, 2011.         This notice still
    reflected the foreclosure sale date of April 1, 2010, which had
    already passed.
    In any event, pursuant to the Notice of Intent to
    Foreclose, which directed inquiries to AHMS, Lovelace began
    requesting reinstatement figures soon after she was served.
    Although Routh Crabtree had served Lovelace with the Notice of
    Intent to Foreclose as a personal representative, AHMS
    questioned Lovelace’s authority to receive the reinstatement
    figures.    Based on emails between Lovelace and her attorney, it
    appears that on February 9, 2011, her attorney faxed to AHMS the
    Second Amended Letters Testamentary of February 23, 2010.                On
    February 18, 2011, Lovelace emailed her attorney, however,
    stating, “The company will not accept this document because it
    doesn’t appear to be original with the names scratched out and
    hand written in.     Is there another copy that is more
    professional and credible?”        Lovelace also emailed her attorney
    that she was attempting to obtain the mortgage account number
    from Dirk because “[t]hey will not provide any information
    without [it].”     Lovelace made the following request to her
    attorney:
    Let me know once the documentation is faxed to American
    Home Mortgaging so I can follow-up with a phone call to
    determine the specifics on what is happening with [the
    Property]. I want to know exactly what we owe and how long
    10
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    they have been extending the issue before we make a final
    decision. I am concerned that the 6 month extention [sic]
    for the $250,000 would set us up for failure if [the
    Property] is foreclosed on.
    On February 23, 2011, Lovelace sent a follow-up email to
    Routh Crabtree.     The next day, Routh Crabtree billing assistant
    Julie Cihak (“Cihak”) responded to Lovelace’s email, stating, “I
    need the borrower to send in a signed auth [sic] for us to give
    you the figures, also I have requested the reinstatement figures
    3 times and they have only supplied payoff figures I have
    requested again.”
    AHMS mailed two payoff statements dated February 19 and 24,
    2011 to the Property, reflecting payoff amounts of $567,635.26
    and $573,146.86.     Margaret forwarded at least one of them to
    Dirk.
    On March 2, 2011, Lovelace provided the Estate account
    number to Cihak.     On March 3, 2011, Cihak responded that AHMS
    still had not provided the reinstatement figures to her, but
    that she would send them to Lovelace as soon as they did.                   In
    addition, Routh Crabtee foreclosure analyst Candice Yoo (“Yoo”)
    emailed Lovelace to ask if she had received her quote and
    stated, “It looks like the sale is still set for 3-7-11.                I
    believe our fees and costs department have been working on
    obtaining a reinstatement quote for you.”           Lovelace responded
    that she had not received the figures, and that “AHMSI is
    insisting that the auction is not scheduled because our property
    11
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    is not listed on their website.        Can I trust that this is true?
    They are also saying that [Routh Crabtree] is a third party and
    does not have the most updated information.”
    Yoo responded the following day, March 3, 2011, to explain
    that the “sale is still scheduled for 3-7-11, but I am having
    the sale postponed for two weeks for your reinstatement quote.”
    On March 7, 2011, Yoo informed Lovelace that the sale had been
    postponed to March 21, 2011, and asked if she had received the
    quote, to which Lovelace replied that she had not.
    On or about March 7, 2011, AHMS apparently posted a
    reinstatement quote to LPS, a service that lenders and their
    attorneys use to facilitate communications between each other.
    According to this reinstatement quote, the reinstatement figure
    as of March 7, 2011 was $145,486.69. According to AHMS, this
    reinstatement quote was intended to be released to Lovelace “if
    and when she provided the required authorization.”
    Neither Lovelace, Margaret, or Dirk ever received
    reinstatement figures at any time after April 2010, despite
    assurances to Lovelace that the March 7, 2011 continued
    foreclosure sale was being postponed in order to provide her
    with those figures.      Despite these assurances, U.S. Bank
    conducted a foreclosure auction on April 4, 2011.            At the
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    auction, the Mounts purchased the Property through their
    company, Fair Horizon LLC,6 for approximately $1.21 million.
    On April 6, 2011, Lovelace emailed Cihak to state that she
    had not received the reinstatement information, but that the
    Property had been sold.       On April 7, 2011, Routh Crabtree lead
    foreclosure analyst Monica Woodward told Lovelace that “Julie
    Cihak no longer works on Hawaii files[,]” and invited her to
    call regarding questions.       On April 10, 2011, Lovelace emailed
    her attorney regarding her conversation with Woodward, stating,
    “[Woodward] explained to me that the lender would not accept the
    document in question which is why I never received the
    reinstatement amount.      She emphasized that even though [Routh
    Crabtree] forwarded them the same document they wouldn’t accept
    it as reliable because of the handwritten notes.”
    Thus, U.S. Bank failed to provide Lovelace reinstatement
    figures, alleging she had failed to provide sufficient evidence
    of her status as a personal representative, despite having
    served her on February 3, 2011 with the Notice of Intent to
    Foreclose specifically identifying her as a personal
    representative of the Estate.
    6
    The Mounts were identified as the nominee for Fair Horizon LLC.
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    B.    The Mounts’ Ejectment Action Against the Apaos
    The Mounts received a limited warranty deed to the Property
    from U.S. Bank, which was recorded on July 22, 2011.             On
    September 7, 2011, the Mounts filed a Complaint in the circuit
    court against Margaret individually and Dirk and Lovelace as co-
    personal representatives, asserting claims for ejectment (Count
    I) and quiet title (Count II)(“Complaint”).
    On October 11, 2011, the Apaos filed a joint answer,
    asserting that the nonjudicial foreclosure and sale were illegal
    and void.    Dirk also filed a “Counterclaim and Third-Party
    Complaint for Wrongful Foreclosure, Quiet Title, and Damages”
    against the Mounts and U.S. Bank for violation of the Probate
    Code, HRS § 560:3-803 (Count I), violation of HRS § 667-5 (Count
    II), violation of the Mortgage (Count III), and defective and
    fraudulent transfer of the Mortgage (Count IV)
    (“Counterclaim and Third-Party Complaint”).           On October 31,
    2011, Lovelace filed an answer alleging invalidity of the
    foreclosure sale and incorporating by reference the Apaos’
    pleadings.
    On May 16, 2012, Lovelace filed a motion to substitute Dirk
    or, in the alternative, to dismiss any and all claims by and
    against her pursuant to a “Stipulated Settlement and Release
    Agreement and Order” filed in the probate court proceeding on
    November 23, 2011 (“Stipulated Settlement”).           The Stipulated
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    Settlement allowed Lovelace to resign as a co-personal
    representative, but also required her to cooperate and assist
    the Estate in its defense of the ejectment and foreclosure
    proceedings involving the Property.7            Although the circuit court8
    denied Lovelace’s motion by order dated August 8, 2012,                claims
    against Lovelace were later dismissed by stipulation.
    The Mounts and the Apaos filed various cross-motions for
    summary judgment on the Complaint, Counterclaim, and Third Party
    Complaint.9       A consolidated hearing on the various motions was
    held on May 21, 2013.         The circuit court first ruled that HRS §
    560:3-803(d)(1) exempted any proceeding to enforce a mortgage
    7
    Pursuant to the Stipulated Settlement, the named beneficiaries of
    Alvaro’s will agreed to an interim partial distribution of the assets of the
    Estate.”   As part of the interim partial distribution, the Lovelace family
    received two apartment units owned by the Estate, $100,000 in cash paid to
    her attorney-client trust account, and a guarantee that the Estate would
    perform its obligations, including the payment of taxes. In exchange, the
    parties agreed to “waive and release any and all claims relating to the
    Estate and/or to any assets of the Estate against the Estate and against each
    other, including any claims that any of the Parties failed to perform any
    duties owed to the Estate or to each other as Beneficiaries or Co-Personal
    Representatives . . . .”
    8
    The Honorable Karen T. Nakasone presided over the circuit court
    proceedings.
    9
    With respect to their Complaint, the Mounts filed motions for (1)
    summary judgment on Count I for ejectment, and (2) partial summary judgment
    on the Count II for quiet title regarding (a) their status as bona fide
    purchasers for value, and (b) the validity of the nonjudicial foreclosure
    sale. The Mounts also filed a motion for summary judgment on the
    Counterclaim in its entirety. With respect to the Apaos’ Third-Party
    Complaint, U.S. Bank filed a motion for partial summary judgment on Count I
    alleging a violation of HRS § 560:3-803’s presentation of claim requirement
    and Count IV alleging defective and fraudulent transfer of the Mortgage.
    Count IV was thereafter dismissed by stipulation. U.S. Bank also filed a
    substantive joinder in the Mounts’ motion for partial summary judgment as to
    Count II (quiet title) of their Complaint. The Apaos filed motions for (1)
    summary judgment on the Mounts’ complaint, and (2) partial summary judgment
    on the Counterclaim and Third-Party Complaint as to wrongful foreclosure and
    quiet title.
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    from presentation of claims requirements, and that a nonjudicial
    foreclosure is such a “proceeding” under HRS § 560:1-201.              The
    circuit court also ruled that HRS § 667-5(c)(1) was not violated
    because Lovelace failed to establish her entitlement to the
    reinstatement figures, and that, therefore, the foreclosure sale
    was valid.    The circuit court alternatively ruled that even if
    HRS § 667-5 had been triggered, U.S. Bank had complied with the
    requirement to provide the amount to cure because Dirk had
    received reinstatement figures through Margaret.            Based on its
    ruling that the foreclosure sale was valid, the circuit court
    granted the Mounts and U.S. Bank partial summary judgment
    quieting title, granted the Mounts summary judgment on their
    ejectment claim and on the Counterclaim, and denied the Apaos’
    cross-motions for summary judgment on the Complaint and for
    partial summary judgment on the Counterclaim and Third-Party
    Complaint.    In light of its ruling, the circuit court deemed
    moot the Mounts’ motion for partial summary judgment alleging
    bona fide purchaser status, and the Mounts withdrew that motion.
    These rulings were memorialized in orders filed on July 25 and
    26, 2013.
    The circuit court entered a writ of ejectment on July 25,
    2013, granting the Mounts possession of the Property.             Four days
    later, the circuit court entered a Judgment, reserving the issue
    of the Mounts’ alleged damages.
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    On August 6, 2013, the Apaos appealed the July 29, 2013
    Judgment, as well as the orders (1) granting the Mounts summary
    judgment as to Count II of the Complaint and U.S. Bank’s
    joinder, (2) granting the Mounts summary judgment as to Count I
    of the Complaint, (3) granting the Mounts summary judgment as to
    the Counterclaim, (4) denying the Apaos summary judgment as to
    the Complaint and partial summary judgment on the Counterclaim
    and Third-Party Complaint, (5) denying the Apaos’ request for
    judicial notice of their motion to dismiss filed in the district
    court, and (6) granting U.S. Bank partial summary judgment on
    Counts I and IV of the Third-Party Complaint.           This appeal
    initiated CAAP-13-2610.       On August 9, 2013, the Apaos were
    apparently served with a writ of execution, and were informed
    that they had 48 hours to vacate the property.            The Apaos
    appealed the Writ of Possession on August 22, 2013, initiating
    CAAP-13-2977.     After a hearing on the Mounts’ request for
    damages, the circuit court awarded the Mounts damages against
    the Apaos in the amount of $237,504.81 as well as attorneys’
    fees and costs in the amount of $208,592.23.           The circuit court
    also awarded U.S. Bank attorneys’ fees and costs of $175,423.45.
    On March 13, 2014, the circuit court entered a Final Judgment
    reflecting its various rulings.        The Apaos appealed the circuit
    court’s Final Judgment, initiating CAAP-14-556
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    C.    Appeal to the ICA
    The ICA consolidated the three appeals (CAAP-13-2610, CAAP-
    13-2977, and CAAP-14-556) under CAAP-13-2977 by orders dated
    November 13, 2013 and November 18, 2014.
    With respect to the issues on certiorari, the Apaos’ first
    point of error argued that the circuit court erred in granting
    judgment in favor of the Mounts and U.S. Bank and against the
    Apaos because the nonjudicial foreclosure was conducted in
    violation of (1) the Hawai‘i Probate Code, because U.S. Bank
    failed to make a proper claim against the Estate by raising it
    in the probate case or filing a judicial foreclosure action, and
    (2) HRS § 667-5, because reinstatement information was not
    provided to Lovelace after her request.10
    The ICA rejected the Apaos’ points of error as “without
    merit.”    Mount, SDO at 4.     First, the ICA affirmed the circuit
    10
    The Apaos presented four additional points of error, arguing that
    (1) the award of attorneys’ fees and costs to U.S. Bank and the Mounts was
    erroneous because this case was not an action in the nature of assumpsit; (2)
    the circuit court erred in entering the writ without first entering a
    separate judgment, and further, that its July 29, 2013 judgment violates the
    Separate Judgment Rule, resulting in an unlawful splitting of the ejectment
    claim; (3) the award of damages was clearly erroneous and inequitable where
    the Mounts failed to timely file their request, were not entitled to damages
    based on their rental of another unidentified property, and received a
    windfall from the extremely low sale price, and the dispute was not in the
    nature of assumpsit; and (4) the award of supplemental damages was clearly
    erroneous.
    The ICA determined that a sixth point of error, that the circuit court
    abused its discretion in setting an outrageously high supersedeas bond, was
    waived under Hawai‘i Rules of Appellate Procedure Rule 28(b)(7) because the
    Apaos made no argument to support it. Mount v. Apao, CAAP-13-2977, at 3 n.3
    (App. Jan. 9, 2015) (SDO).
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    court’s ruling that “[t]he non-judicial foreclosure was an
    exempt proceeding under HRS § 560:3-803(d)(1) because it was a
    proceeding to enforce a mortgage.”         Mount, SDO at 6.      Next, with
    respect to the alleged HRS § 667-5 violation, the ICA ruled that
    U.S. Bank, through American Home Mortgage Servicing
    (AHMS), provided Alvaro’s Estate (Estate) with
    reinstatement information over the phone with Margaret on
    February 25, 2010, and by letters dated February 25, 2010
    and April 19, 2010 and mailed to the Property where
    Margaret was residing, and also through two pay-off
    statements in February 2011, at least one of which Margaret
    received and shared with Dirk. The fact that Margaret
    received the information after resigning as co-personal
    representative (Co–PR) is irrelevant because Margaret
    misrepresented herself to AHMS as a Co–PR of the Estate and
    shared the reinstatement information she received with
    Dirk. Also, U.S. Bank informed Lovelace that it would
    provide her with the reinstatement information she
    requested if she could provide U.S. Bank with the Estate’s
    account number and a credible document showing that she was
    a Co–PR, but Lovelace did not provide U.S. Bank with
    either. U.S. Bank did not violate HRS § 667–5(a)(2) because
    it provided the Apaos with reinstatement information, and
    did not violate HRS § 667–5(c)(1) because Lovelace failed
    to establish that she was a “person entitled to notice”
    under HRS § 667–5.
    Mount, SDO at 7.     The ICA affirmed the circuit court’s Final
    Judgment in favor of the Mounts and U.S. Bank on all claims.
    D.    The Apaos’ Application for Writ of Certiorari
    As noted, we address the first two issues raised by the
    Apaos because they are dispositive of the remaining issues.                 The
    Apaos argue that the ICA gravely erred in (1) holding that a
    nonjudicial mortgage foreclosure conducted under HRS § 667-5 is
    exempt from the Hawaii Probate Code limitation of claims
    requirements; (2) affirming the Final Judgment in favor of the
    Mounts and U.S. Bank and against the Apaos on all claims because
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    the nonjudicial foreclosure was conducted in violation of HRS §
    667-5.11
    III. Standards of Review
    A.    Statutory Interpretation
    The standard   of review for statutory construction is well-
    established.   The interpretation of a statute is a question
    of law which   [the appellate] court reviews de novo. Where
    the language   of the statute is plain and unambiguous, our
    only duty is   to give effect to its plain and obvious
    meaning.
    Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 197, 
    202 P.3d 1226
    , 1242 (2009) (internal citations omitted).
    B.    Motion for Summary Judgment
    [An appellate] court reviews a trial court’s grant of
    summary judgment de novo. Oahu Transit Servs., Inc. v.
    Northfield Ins. Co., 107 Hawaii 231, 234, 
    112 P.3d 717
    , 720
    (2005). The standard for granting a motion for summary
    judgment is well settled:
    Summary 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, [the appellate court] must view all of
    the evidence and the inferences drawn therefrom in
    the light most favorable to the party opposing the
    motion.
    Price v. AIG Hawaii Ins. Co., 107 Hawaii 106, 110, 
    111 P.3d 1
    , 5 (2005) (original brackets and citation omitted).
    11
    See fn. 
    3, supra
    , for a description of the other issues on
    certiorari, which are not addressed based on our rulings on the first two
    issues.
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    Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawaii 92, 104,
    
    176 P.3d 91
    , 103 (2008).
    IV.   Discussion
    A.    A nonjudicial foreclosure is not a “proceeding to enforce a
    mortgage” exempt from HRS § 560:3-803, which sets time
    limitations for the presentation of claims against a
    decedent’s estate.
    In their first question on certiorari, the Apaos assert
    that U.S. Bank was prohibited from pursuing its claim because a
    HRS § 667-5 nonjudicial foreclosure is not a “proceeding to
    enforce a mortgage” exempt from HRS § 560:3-803(c)’s bar against
    claims against a decedent’s estate not presented within a
    prescribed time limit.         The Apaos also assert that U.S. Bank’s
    claim was not timely filed against the Estate.
    HRS § 560:3-803 (1997), provides in relevant part as
    follows:
    §560:3-803     Limitations on presentation of claims.
    (c)    All claims against a decedent's estate which arise at
    or after the death of the decedent []are barred [] unless
    presented as follows:
    . . . .
    (2) . . . [W]ithin []four months after it
    arises. . . .
    (d)     Nothing in this section affects or prevents:
    (1) Any proceeding to enforce any mortgage, pledge,
    or other lien upon property of the estate. . . .
    Whether a nonjudicial foreclosure conducted pursuant to HRS
    § 667-5 is a “proceeding to enforce a mortgage” under HRS §
    21
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    560:3-803(d)(1) exempt from the presentation of claims time
    limits reflected in other subsections of HRS § 560:3-803 is a
    matter of first impression in Hawaii.          Both the circuit court
    and ICA ruled that a nonjudicial foreclosure conducted pursuant
    to HRS § 667-5 so qualifies.        The Apaos assert that this ruling
    was in error.     For the following reasons, we agree.
    According to HRS § 560:1-201, “`Proceeding’ includes an
    action at law or a suit in equity.” Black’s Law Dictionary
    defines an “action at law” as “[a] civil suit stating a legal
    cause of action and seeking only a legal remedy.”            Black’s Law
    Dictionary 35 (10th ed. 2014).        It defines “suit in equity” as
    “A civil suit stating an equitable claim and asking for an
    exclusively equitable remedy.”        
    Id. at 1663.
        “Suit” is defined
    as “[a]ny proceeding . . . in a court of law.”            
    Id. Historically, before
    the merger of legal and equitable
    actions, actions at law were triable by a jury, while suits in
    equity were heard by a judge.        Mehau v. Reed, 76 Hawaii 101,
    110, 
    869 P.2d 1320
    , 1329 (1994).           Both actions at law and suits
    in equity, however, were presented in courts.           Yet, a
    nonjudicial foreclosure, by its very nature, avoids the court
    system.   See Lee v. HSBC Bank USA, 121 Hawai‘i 287, 289, 
    218 P.3d 775
    , 777 (2009) (explaining that HRS § 667-5 “authorizes
    nonjudicial foreclosure under a power of sale clause contained
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    in a mortgage”); Santiago, 137 Hawai‘i at 
    155, 366 P.3d at 630
    (“HRS § 667–5 does not provide the nonjudicial power of
    foreclosure but only allows its creation, if the parties choose
    to do so, within the four corners of a contract.”) (citations
    omitted).    Thus, a nonjudicial foreclosure is in the nature of a
    contractual self-help remedy,        Lee, 121 Hawai‘i at 
    292, 218 P.3d at 780
    , and is not “an action in law or a suit in equity.”
    U.S. Bank correctly argues, however, that according to HRS
    § 1-201, a “proceeding” includes “an action in law or a suit in
    equity.”    Thus, a “proceeding,” by definition, is not limited to
    “an action in law or a suit in equity.”          Therefore, if a
    nonjudicial foreclosure conducted pursuant to HRS § 667-5 is a
    “proceeding,” it could be a “proceeding to enforce a mortgage
    even if it does not qualify as “an action in law or a suit in
    equity.”
    “Proceeding” is not further defined by HRS § 560:1-201.
    “Because the term is not statutorily defined, this court ‘may
    resort to legal or other well accepted dictionaries as one way
    to determine [its] ordinary meaning.’”          Gillan v. Government
    Employees Ins. Co., 119 Hawaii 109, 116, 
    194 P.3d 1071
    , 1078
    (2008).12
    12
    See also County of Haw. v. C&J Coupe Family Limited Partnership,
    119 Hawaii 352, 365, 
    198 P.3d 615
    , 628 (2008), referring to Black’s Law
    Dictionary to define “proceedings” in the context of HRS § 101-27.
    23
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    Black’s Law Dictionary defines “proceeding” as follows:
    1. The regular and orderly progression of a lawsuit, including
    all acts and events between the time of commencement and entry of
    judgment. 2. Any procedure means for seeking redress from a
    tribunal or agency. 3. An act or step that is part of a larger
    action. 4. The business conducted by a court or other official
    body; a hearing. 5. Bankruptcy. A particular dispute or matter
    arising within a pending case – as opposed to the case as a
    whole. . . .
    “Proceeding” is a word much used to express the business
    done in courts. A proceeding in court is an act done by
    the authority or direction of the court, express or
    implied. It is more comprehensive than the word ‘action,’
    but it may include in its general sense all the steps taken
    or measures adopted in the prosecution or defense of an
    action, including the pleadings and judgment. . . .
    The definition continues to further explain “action,” making it
    clear that “action” also means a lawsuit brought in court. 
    Id. The definition
    lists various types of “proceedings.” With one
    exception, “administrative proceeding,” all of the examples
    concern matters in court.
    A nonjudicial foreclosure conducted pursuant to HRS § 667-5
    is a contractual self-help remedy and is not conducted under the
    auspices of or supervised by any court or administrative agency.
    Therefore, it is not a “`proceeding’ to enforce a mortgage”
    under HRS § 560:1-803(d)(1).13       Thus, U.S. Bank’s nonjudicial
    foreclosure against the Estate was not exempt from the
    13
    Although another state’s interpretation of similar statutes
    would not be binding on this court, it could be persuasive. In this regard,
    we note that HRS §§ 560:1-201 and 560:3-803 are part of the Hawaii Uniform
    Probate Code and that the Uniform Probate Code has been adopted by many other
    states. Despite the many nonjudicial foreclosures nationwide, U.S. Bank does
    not cite a single case construing “proceeding to enforce a mortgage” under
    the probate code to include a nonjudicial foreclosure.
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    presentation of claim requirement and deadline under HRS §
    560:3-803.
    U.S. Bank alternatively argues that even if a nonjudicial
    foreclosure is not a “proceeding to enforce a mortgage,” it met
    the presentation of claims requirement of HRS § 560:3-803(c)(2).
    It asserts that the April 16, 2009 Default Notice, which was
    mailed to the Property, where Margaret resided, satisfied HRS §
    560:3-804(1),14 and was timely presented within four months of
    the Estate’s default in early 2009, as required by HRS § 560:3-
    803(c)(2).
    The circuit court did not address this alternative
    argument, which involves factual issues.           We therefore do not
    decide whether U.S. Bank met the presentation of claim
    14
    HRS § 560:3-804(1) provides:
    §560:3-804 Manner of presentation of claims. Claims
    against a decedent's estate may be presented as follows:
    (1) The claimant may deliver or mail to the personal
    representative a written statement of the claim indicating its
    basis, the name and address of the claimant, and the amount
    claimed, or may file a written statement of the claim, in the
    form prescribed by rule, with the clerk of the court. The claim
    is deemed presented on the first to occur of receipt of the
    written statement of claim by the personal representative, or the
    filing of the claim with the court. If a claim is not yet due,
    the date when it will become due shall be stated. If the claim
    is contingent or unliquidated, the nature of the uncertainty
    shall be stated. If the claim is secured, the security shall be
    described. Failure to describe correctly the security, the
    nature of any uncertainty, and the due date of a claim not yet
    due does not invalidate the presentation made. . . .
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    requirement with respect to the nonjudicial foreclosure and, if
    not, the effect of any such failure.         These issues are not
    before us.    We merely address the question of law raised in the
    certiorari application and hold that a nonjudicial foreclosure
    conducted pursuant to HRS § 667-5 is not a “proceeding to
    enforce a mortgage” under HRS § 560:3-803(d)(1), as further
    defined by HRS § 560:1-201, exempt from HRS § 560:3-803’s time
    limits for presentation of claims against a decedent’s estate.
    B.    The nonjudicial foreclosure sale was conducted in violation
    of HRS § 667-5(c)(1), which requires that information to
    reinstate a loan be provided within five days of a request,
    rendering the sale voidable, unless the Mounts are innocent
    purchasers for value.
    We next address the second issue on certiorari, whether the
    nonjudicial foreclosure sale was conducted in violation of HRS §
    667-5(c)(1), based on U.S. Bank’s failure to provide
    reinstatement figures to Lovelace in 2011 and, if so, the
    appropriate remedy.
    1.    As personal representative, Dirk has standing
    to assert U.S. Bank’s failure to provide Lovelace
    with reinstatement figures, as Lovelace was acting
    as a co-personal representative when she made the
    request.
    As a preliminary matter, U.S. Bank asserts that the Apaos
    lack standing to raise the issue of its alleged failure to
    provide Lovelace with reinstatement figures in 2011.             As
    explained above, although U.S. Bank served Lovelace with a
    Notice of Intent to Foreclose in February 2011 as a personal
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    representative of the Estate, it refused to provide her with the
    reinstatement figures.       We therefore address U.S. Bank’s
    threshold argument that the Apaos lack standing to raise a HRS §
    667-5(c)(1) violation.       Keahole Def. Coal., Inc. v. Bd. of Land
    & Nat. Res., 110 Hawai‘i 419, 427, 
    134 P.3d 585
    , 593 (2006), as
    amended (May 26, 2006) (standing may be addressed at any stage
    of a case).
    As noted, in the Final Judgment, all claims against
    Lovelace were dismissed, and the Counterclaim and Third-Party
    Claim were brought only by Dirk.           At all relevant times, Dirk
    was a co-personal representative of the Estate with Lovelace.
    Dirk now remains as sole personal representative of the Estate.
    He asserted claims against U.S. Bank and the Mounts as a co-
    personal representative on behalf of the Estate.            U.S. Bank
    asserts that Dirk also lacks “standing” because Lovelace’s
    request allegedly was not made on behalf of the Estate, but
    rather, to evaluate a settlement in the probate proceeding in
    which she and her family were adverse to the Estate.15            We
    disagree.
    15
    In her deposition, Lovelace testified that she hired an attorney
    in 2008 to bring the probate case against Margaret and Dirk due to “[y]ears
    of non-action on their part and mismanagement of the estate[,]” including
    non-payment of taxes, and failure to make any effort to distribute assets to
    the beneficiaries.
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    With respect to U.S. Bank’s assertion, whether or not
    Lovelace asserted claims against the Estate before being
    appointed a co-personal representative, there is no dispute that
    Lovelace requested reinstatement information beginning in
    February 2011 only after she was served with the Notice of
    Intent to Foreclose, and that she requested reinstatement in her
    capacity as co-personal representative, acting on behalf of the
    Estate.
    A personal representative is a fiduciary acting on behalf
    of an estate.     HRS § 560:3-703(a)(1997).       Actions taken by a
    personal representative that are beneficial to an estate inure
    to the benefit of the estate.        HRS § 560:3-701 (1996).          As
    Lovelace’s requests for reinstatement figures were made on
    behalf of the Estate, any rights that inure to the Estate based
    upon her requests for reinstatement figures belong to the
    Estate.    Dirk, as the current sole personal representative of
    the Estate, therefore has standing to raise the HRS § 667-
    5(c)(1) violation on behalf of the Estate.
    2.    U.S. Bank violated HRS § 667-5(c)(1) by not providing
    Lovelace with reinstatement figures.
    HRS § 667-5(c)(1) provides in relevant part:
    (c) Upon the request of any person entitled to notice
    pursuant to this section and sections 667–5.5 and 667–6,
    the attorney, the mortgagee, successor, or person
    represented by the attorney shall disclose to the
    requestor the following information:
    (1) The amount to cure the default, together with the
    estimated amount of the foreclosing mortgagee’s
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    attorneys’ fees and costs, and all other fees and
    costs estimated to be incurred by the foreclosing
    mortgagee related to the default prior to the auction
    within five business days of the request[.]
    In Santiago, 137 Hawaii 137, 
    366 P.3d 612
    , we stated:
    The purpose that prompted the addition of HRS § 667–
    5(c) to the foreclosure statute in 2008 was to “ensure that
    the different nonjudicial foreclosure processes include
    provisions for interested parties to receive sufficient
    notice and obtain information about the intent to foreclose
    [and] amounts to cure the mortgage default.” Conf. Comm.
    Rep. No. 3–08, in 2008 House Journal at 1710, 2008 Senate
    Journal at 793. Evident from the legislative history of
    HRS § 667–5(c) is the recognition that the right to cure a
    default is intrinsic in the law and that, therefore, HRS §
    677–5(c) merely codified this right to ensure that
    interested parties were adequately apprised of it.
    The common-law right to cure a default originated
    from the fundamental premise that mortgage foreclosure is a
    proceeding equitable in nature and is thus governed by the
    rules of equity. Because equity abhors forfeitures, and
    regards and treats as done what ought to be done, it is
    typical in foreclosure cases that a right to cure a default
    and stop the foreclosure continues up to the day of the
    confirmation of the sale. Thus, Hawaii’s courts would not
    prevent a mortgagor from curing the default and halting the
    foreclosure prior to the entry of a written order
    confirming the foreclosure sale. Accordingly, our
    interpretation that HRS § 667–5(c) provides a right to cure
    is directed by HRS § 667–5(c)’s codification of the same
    right under the common law. To hold otherwise would be to
    disregard the emanating purpose of HRS § 667–5(c) and to
    indirectly nullify the common-law right to cure as
    incorporated in HRS § 667–5(c).
    
    Id., 137 Hawaii
    at 631-32, 
    366 P.3d 156-57
    (emphases in
    original, internal footnotes, case citations, and case quotation
    marks omitted).     The circuit court and the ICA ruled that HRS §
    667-5(c)(1) was not triggered because Lovelace failed to
    establish herself as entitled to notice.          They alternatively
    ruled that U.S. Bank had complied with the requirement to
    provide reinstatement figures because Dirk had received
    reinstatement figures on two occasions through Margaret in
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    February and April of 2010, and two payoff statements in
    February 2011.     U.S. Bank also argues that it did not have a
    “continuing obligation to provide reinstatement figures at the
    whim of the Estate after having previously complied.”
    Dirk, on the other hand, argues that U.S. Bank’s failure to
    provide reinstatement figures to Lovelace after her repeated
    requests from February 2011 until the foreclosure sale on April
    4, 2011 render the nonjudicial foreclosure sale void.
    Even if U.S. Bank had provided reinstatement figures to
    Margaret in February and April of 2010, there is no dispute that
    U.S. Bank, for whatever reason, aborted the original nonjudicial
    foreclosure sale scheduled for April 1, 2010.           Ten months later,
    on February 3, 2011, it served the Notice of Intent to Foreclose
    on Lovelace as a personal representative (which still reflected
    a foreclosure sale date of April 1, 2010).           Reinstatement
    figures from early 2010 which were less than $90,000, were
    obviously no longer valid in early 2011, and were not the
    amounts required to “cure” the default.          As conceded by AHMS,
    the reinstatement figure was actually $145,486.69 as of March 7,
    2011.   This was the amount required to “cure” the default.             The
    fact that AHMS mailed two payoff statements dated February 19
    and 24, 2011 to the Property, reflecting payoff amounts of
    $567,635.26 and $573,146.86 is immaterial, because these amounts
    were not necessary to “cure” the default.
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    After U.S. Bank’s attorneys served Lovelace with the
    Notice of Intent to Foreclose as personal representative of the
    Estate, AHMS refused to provide her with reinstatement figures,
    alleging that she had to provide proof that she was a personal
    representative entitled to reinstatement figures.            Her alleged
    failure to provide sufficient authorization to receive the
    figures was the sole reason given by AHMS for refusing to
    provide Lovelace with the reinstatement figures.            HRS § 667-
    5(c)(1), however, explicitly obligated U.S. Bank and/or its
    attorney to provide Lovelace with information regarding the
    amount required to cure the default.         Therefore, Routh Crabtree
    repeatedly attempted to secure reinstatement figures to provide
    to Lovelace.    Even though Routh Crabtree had explicitly
    acknowledged Lovelace as a personal representative and informed
    AHMS that she was entitled to reinstatement figures, AHMS
    ignored Routh Crabtree and told Lovelace it would not provide
    her with reinstatement figures unless she provided satisfactory
    evidence that she was a personal representative.            She therefore
    emailed the order appointing her as co-personal representative,
    yet AHMS refused to accept it on the grounds it had handwritten
    information on it.
    Routh Crabtree’s attorneys served Lovelace with the Notice
    of Intent to Foreclose in her capacity as a personal
    representative.     Routh Crabtree repeatedly acknowledged Lovelace
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    was entitled to receive the reinstatement figures she was
    requesting and repeatedly postponed the foreclosure sale. Yet,
    for whatever reason, the foreclosure sale took place on April 4,
    2011.
    As a co-personal representative of the Estate, Lovelace
    requested reinstatement figures after U.S. Bank’s decision to
    proceed with the nonjudicial foreclosure sale in early 2011.
    Dirk’s receipt of reinstatement figures in early 2010 did not
    eliminate U.S. Bank’s obligation to provide “cure” or
    reinstatement figures in early 2011, after it chose to abort the
    April 2010 foreclosure sale, then rescheduled it in 2011. In
    addition, whether or not Margaret received payoff figures in
    February 2011, and whether she provided those figures to Dirk is
    immaterial, as the “amount to cure the default” under HRS § 667-
    5(c)(1) were the reinstatement figures, as clearly acknowledged
    by AHMS and Routh Crabtree.
    Based on the undisputed factual chronology and record of
    this case, U.S. Bank’s argument that it did not have a
    “continuing obligation to provide reinstatement figures at the
    whim of the Estate after having previously complied” is devoid
    of merit.    Even its law firm acknowledged U.S. Bank’s obligation
    to provide reinstatement figures to Lovelace before proceeding
    with a foreclosure sale.       Therefore, U.S. Bank failed to comply
    with its obligation under HRS § 667-5(c)(1).
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    The Mounts and U.S. Bank argue that the Apaos’
    interpretation of HRS § 667-5(c) is pre-empted by the federal
    Gramm Leach Bliley Act, 15 U.S.C.A. § 6801 et seq. (“GLBA”) “to
    the extent it required the mortgagee to provide reinstatement
    information to anyone other than the customer on the account,
    unless the person requesting the information established that
    he/she was legitimately entitled to receive the information.”
    Regarding the protection of nonpublic personal information, the
    GLBA provides, in pertinent part, “It is the policy of the
    Congress that each financial institution has an affirmative and
    continuing obligation to respect the privacy of its customers
    and to protect the security and confidentiality of those
    customers’ nonpublic personal information.”           15 U.S.C.A. §
    6801(a).    In addition, the GLBA pre-empts state laws that are
    inconsistent with the GLBA “only to the extent of the
    inconsistency.”     15 U.S.C.A. § 6807(a).       This argument lacks
    merit because Lovelace was obviously entitled to receive the
    information, as clearly acknowledged by U.S. Bank’s law firm.
    3.    The foreclosure sale is voidable, unless the Mounts
    are innocent purchasers for value.
    Based on U.S. Bank’s failure to provide reinstatement or
    cure information to Lovelace, as required by HRS § 667-5(c)(1),
    the nonjudicial foreclosure sale was conducted in violation of
    HRS § 667-5.
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    As far back as 1884, this court voided a mortgage sale of
    real estate and livestock because the mortgagee had not complied
    with the conditions of the power of sale by scheduling the
    foreclosure sale one day too early.         Silva v. Lopez, 
    5 Haw. 262
    (1884)   In Lee, 121 Hawaii at 
    296, 218 P.3d at 784
    , we held that
    “an agreement created at a foreclosure sale conducted pursuant
    to HRS section 667-5 is void and unenforceable where the
    foreclosure sale is invalid under the statute.            The Ninth
    Circuit Court of Appeals has noted that, under Hawaii law,
    “[m]ortgagee violations of the nonjudicial foreclosure
    requirements of HRS § 667-5, whether those violations are
    grievously prejudicial or merely technical, voids a subsequent
    foreclosure sale. . . .”       In re Kekauoha-Alisa, 
    674 F.3d 1083
    ,
    1089-90 (9th Cir. 2012).
    The facts in Lee and Kekauoha-Alisa differ from the facts
    in this case.     In Lee, the high bidder at the nonjudicial
    foreclosure sale had not completed the sale.           121 Hawaii at 289.
    Under those facts, we held that the sale was void and that the
    high bidder was entitled only to return of his down payment plus
    accrued interest.     
    Id. In Kekauoha-Alisa,
    the lender itself had
    purchased the property through a credit bid, so no third party
    was 
    involved. 674 F.3d at 1086
    .
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    In this case, however, the Mounts completed the sale, took
    possession of the Property, and have now had the Property for
    some time, similar to the facts in Santiago.           In Santiago, we
    held that “[w]here it is determined that the nonjudicial
    foreclosure of a property is wrongful, the sale of the property
    is invalid and voidable at the election of the mortgagor, who
    shall then regain title to and possession of the property.”                 137
    Hawai‘i at 
    158, 366 P.3d at 633
    .           We also held that 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. As noted
    earlier, based on its other rulings in favor of
    the Mounts, the circuit court deemed moot their motion for
    partial summary judgment alleging bona fide purchaser status,
    and the Mounts withdrew that motion.           Therefore, the circuit
    court never addressed whether the Mounts qualify as “innocent
    purchasers for value” under the Santiago rule.            Upon remand, the
    circuit court is to apply Santiago to determine an appropriate
    remedy for the wrongful foreclosure.
    U.S. Bank’s nonjudicial foreclosure was conducted in
    violation of the requirements of HRS § 667-5(c)(1).16            Because
    16
    As stated in footnote 1, HRS § 667–5 was repealed in 2012, before
    the filing of the Final Judgment. The repeal of HRS § 667–5, however, does
    (continued. . .)
    35
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    the foreclosure sale was wrongful we need not address the
    additional issues raised by the Apaos concerning the writ of
    possession, damages, and attorneys’ fees and costs, as those
    rulings are also vacated.
    V.    Conclusion
    Based on the foregoing, we vacate the ICA’s Judgment on
    Appeal and the circuit court’s Final Judgment along with all the
    orders, writs, and/or judgments referenced in the Final
    Judgment, and we remand the case to the circuit court for
    further proceedings consistent with this opinion.
    Frederick J. Arensmeyer             /s/ Mark E. Recktenwald
    for petitioners
    /s/ Paula A. Nakayama
    Paul Alston and
    J. Blaine Rogers                    /s/ Sabrina S. McKenna
    for respondent
    U.S. Bank National                  /s/ Richard W. Pollack
    Association, a
    National Association                /s/ Michael D. Wilson
    as Trustee for the
    Structured Asset
    Securities Corporation
    Mortgage Pass-Through
    Certificates 2005-SC1
    Mary Martin,
    Michael C. Bird, and
    (. . .continued)
    not affect this appeal. Pursuant to HRS § 1–10 (2009), “[t]he repeal of any
    law shall not affect any act done, or any right accruing, accrued, acquired,
    or established, or any suit or proceedings had or commenced in any civil
    case, before the time when the repeal takes effect.” See Graham Constr.
    Supply, Inc. v. Schrader Constr., Inc., 
    63 Haw. 540
    , 544 n.6, 
    632 P.2d 649
    ,
    651 n.6 (1981) (recognizing HRS § 1–10 as a “general saving statute”).
    Because the nonjudicial foreclosure was conducted pursuant to HRS § 667-5,
    its repeal does not affect this appeal.
    36
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    Summer H. Kaiawe
    for respondents
    Gerald K. Mount, Jr.
    and Jane R. Mount
    37