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 Our Successful Appellate Record


Dubin Law Offices
55 Merchant Street, Suite 3100
Honolulu, Hawaii 96813
Telephone: (808) 537-2300
Facsimile: (808) 523-7733

     

  

  

   

     

YOU CAN CLICK ON THE NAME OF EACH CASE
PRINTED IN BOLD TYPE BELOW TO READ EACH OPINION.

    

     

Takushi v. BAC Home Loans Servicing, LP, 2015 U.S. LEXIS 634, 135 S. Ct. 1152, 190
L. Ed. 2d 909 (United States Supreme Court, reversing, in favor of our client, the Ninth
Circuit Court of Appeals, granted certiorari and held, resolving a conflict among Circuits in
a Hawaii case, that a Truth-in-Lending Act (TILA) cancellation notice was effective if sent
within three years, whether suit was brought within three years or not).

  

Lee v. Mortgage Electronic Registration Systems, lnc. (ln re Mortgage Electronic
Registration Systems (MERS))
, 555 Fed. Appx. 661, 2014 U.S. App. LEXIS 2019, 2014
WL 351358 (2014) (Ninth Circuit Court of Appeals, reversing, in favor of our client, the
United States District Court for the District of Arizona, held. that summary judgment was
improper where MERS' assignment occurred while lender was in bankruptcy).

  

Association of Apartment Owners of Century Center v. Young Ja An, aka Young Ja
Kim, Ambrosia-Spa, lnc.,
SCWC-14-000431 (2016) (Hawaii Supreme Court, affirming, in
favor of our clients, the Hawaii lntermediate Court of Appeals, held. that the Honolulu
District Court lacked jurisdiction to enforce a nonjudicial foreclosure with title in disputed).

  

Mount v. Apao, 2016 Haw. LEXIS 274 (2016) (Hawaii Supreme Court, reversing, in favor
of our clients, the Hawaii lntermediate Court of Appeals, granted certiorari and held in three
consolidated appeals, that summary judgment enforcing a nonjudicial foreclosure was
improper by the First Circuit Court (Honolulu) where the lender failed to file a probate claim
or to provide requested reinstatement figures to the personal representative).

      

Santiago v. Tanaka, 137 Haw. 137, 366 P.3d 612 (2015) (Hawaii Supreme Court, reversing,
in favor of our clients, the Hawaii lntermediate Court of Appeals, granted certiorari and held
that summary judgment enforcing a nonjudicial foreclosure was improper by the First Circuit
Court (Honolulu) where the lender failed to provide a right to cure notice and our clients had
cured prior to receiving a default notice, the Hawaii Supreme Court itself awarding our
clients $1,412,790.79, plus attorneys' fees and costs).

  
Krog v. Koahou, 133 Haw. 186, 324 P.3d 996 (2014) (Hawaii Supreme Court, reversing, in
favor of our clients, the Hawaii Intermediate Court of Appeals, granted certiorari and held
that the award of attorney's fees and costs by the First Circuit Court (Honolulu) was
improper).

   
Bank of Hawaii v. Shinn, 120 Haw. 1, 200 P.3d 370 (2008) (Hawaii Supreme Court,
affirming by a 3 to 2 split decision the Hawaii lntermediate Court of Appeals which had
unanimously ruled against our clients, granted certiorori and held that the extension of
judgment without notice by the First Circuit Court (Honolulu) was improper and that the
Hawaii lntermediate Court of Appeals affirming the First Circuit Court's extension of
judgment without notice was also improper, but affirmed nevertheless, finding harmless
error; however the Hawaii State Legislature disagreed and immediately changed the law to
conform to our advocacy).

     

Moyle v. Y & Y Hyup Shin Corporation, 118 Haw. 385, 191 P.3d 1062, amended 2008
Haw. LEXIS 205 (2008) (Hawaii Supreme Court, reversing, in favor of our client, the Hawaii
lntermediate Court of Appeals, granted certiorari and held that the jury instructions by the
First Circuit Court (Honolulu) in a personal injury case were erroneous, failing to articulate
the scope of a nightclub's duty to a patron as a business visitor, and also for having included
a nonparty for contribution as a joint tortfeasor in the special verdict form).

    

808 Development, LLC v. Murakami, 111 Haw. 349 (2006) (Hawaii Supreme Court,
affirming, in favor of our clients, the Hawaii lntermediate Court of Appeals, held that the
First Circuit Court (Honolulu) correctly dismissed developer's $1,830,500.00 mechanic's lien
application, denying however an award of fees and costs).


KNG Corporation v. Kim, 107 Haw. 73, 110 P. 397 (2005) (Hawaii Supreme Court,
vacating, in favor of our clients, the Honolulu District Court's judgment for possession and
writ of possession, held that the trial court erred in failing to conduct a hearing to justify the
imposition of a $20,833.29 tenant rent trust fund).


Hawaií Community Federal Credit Union v. Keka, 94 Haw. 2I3, 11 P.3d 1 (2000)
(Hawaii Supreme Court, reversing, in favor of our clients, a foreclosure summary judgment
by the Third Circuit Court (Kona), held that there remained genuine issues of material fact
concerning violations of the Truth-in-Lending Act (TILA) as well as Hawaii's deceptive
practices act prohibiting "bait and switch" tactics where promises were made at closing to
correct mistakes but never were, and specifically finding that a borrower's declaration stating
that two notices of the right to cancel were never delivered prevented summary judgment if
the loan had been cancelled within three years, and holding that a foreclosure summary
judgment is improper in the absence of a sworn loan general ledger).

    

Associates Financial Services Company of Hawaii v. Mijo, 87 Haw. 19, 950 P.2d 1219
(1998) (Hawaii Supreme Court, reversing a unanimous Hawaii lntermediate Court of
Appeals' decision that had unanimously reversed in favor of our client the enforcement by
the First Circuit Court (Honolulu) of a settlement agreement against our clients, granted
certiorari and held that it was not improper for the judge assigned the trial of a case to also
conduct settlement conference discussions and found no implied threats by the trial judge to
settle or lose at trial; however the Hawaii Judiciary thereafter immediately abandoned that
combined judicial practice in Hawaii, henceforth separating the role of the trial judge and
the settlement judge to conform to our advocacy).


Lewis v. Lewis, 69 Haw. 497, 748 P.2d 1362 (1988) (Hawaii Supreme Court, reversing, in
favor of our client, the Hawaii lntermediate Court of Appeals that had affirmed the First
Circuit Court (Honolulu), held that the Family Court had erred in refusing to enforce a
premarital agreement as to spousal support and also vacated the Family Court's order of
division of property).


Federal Home Loan Mortgage Corporation v. Moore, 2016 Haw. App. LEXIS 514 (2016)
(Hawaii lntermediate Court of Appeals, reversing, in favor of our clients, the First Circuit
Court (Honolulu), held that summary judgment enforcing a nonjudicial foreclosure was
improper where the First Circuit Court failed to allow non-parties to the note and mortgage
who as property owners had an interest affected to defend a subsequent quiet title/ejectment
action by asserting that the foreclosure failed to conform to the requirements of the law).

    

First Horizon Home Loans v. Galiza, 138 Haw. 142, 377 P.3d 1060 (2016) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our clients, the Second Circuit Court
(Maui), held that summary judgment enforcing a nonjudicial foreclosure was improper where the non-judicial foreclosure was a self-dealing transaction with no evidence presented
concerning the adequacy of the purchase price).

    

Bank of Hawaii v. Mostoufi, 138 Haw. 141, 377 P.3d 1059 (2016) (Hawaii lntermediate
Court of Appeals, reversing, in favor of our clients, the First Circuit Court (Honolulu), held
that a foreclosure summary judgment was improper where there were genuine issues of
material fact concerning alleged misrepresentations made to the borrowers about no negative
credit reporting, inducing them to accept a loan modification offer to make reduced payments,
only to be denied the modification while having their credit ruined, injuring their business,
when absent those misrepresentations they would have paid off the mortgage and not been
subject to foreclosure).


Association of Apartment Owners of Century Center lnc. v. Nomura, 138 Haw. 141,
377 P.3d 1059 (2016) (Hawaii lntermediate Court of Appeals, reversing, in favor of our
clients, the Honolulu District Court, held that summary judgment enforcing a nonjudicial
foreclosure was improper where the Honolulu District Court had no jurisdiction since title
was at issue as borrowers sufficiently set forth the scope, nature, and extent of their claim to
superior title in a manner that was not speculative, but clearly stated).


Association of Apartment Owners of Century Center lnc. v. Thai Hawaiian
Massage, lnc.
, 138 Haw. 140, 377 P.3d 1058 (2016) (Hawaii lntermediate Court of Appeals,
reversing, in favor of our clients, the Honolulu District Court, held in two consolidated
appeals that summary judgment enforcing a nonjudicial foreclosure was improper where the
Honolulu District Court had no jurisdiction since title was at issue).

     

The Bank of New York Mellon v. Lizarraga, 138 Haw. 51, 375 P.3d 1289 (2016) (Hawaii
Intermediate Court of Appeals, reversing, in favor of our clients, the Fifth Circuit Court
(Kauai), held that summary judgment enforcing a nonjudicial foreclosure was improper
where the nonjudicial foreclosure was a self-dealing transaction with no evidence presented
that the sale was conducted in a manner that was fair, reasonably diligent, and in good faith
and that the purchase price was adequate).


Association of Apartment Owners of Century Center lnc. v. Nomura, 138 Haw. 51,
375 P.3d 1289 (2016) (Hawaii Intermediate Court of Appeals, reversing, in favor of our
clients, the Honolulu District Court, held that summary judgment enforcing a nonjudicial
foreclosure was improper where the Honolulu District Court had no jurisdiction since title
was at issue as borrowers sufficiently set forth the scope, nature, and extent of their claim to
superior title in a manner that was not speculative, but clearly stated).


JPMorgan Chase Bank, National Association v. Benner, 137 Haw. 326, 372 P.3d 358
(2016) (Hawaii lntermediate Court of Appeals, reversing, in favor of our clients, the First
Circuit Court (Honolulu), held that summary judgment enforcing a nonjudicial foreclosure
was improper where the nonjudicial foreclosure was a self-dealing transaction with no
evidence presented that the sale was conducted in a manner that was fair, reasonably
diligent, and in good faith and that the purchase price was adequate).

     

Association of Apartment Owners of Century Center lnc. v. Young Jin An, 137 Haw.
204, 356 P.3d 1083 (2016) (Hawaii Intermediate Court of Appeals, reversing, in favor of our
clients, the Honolulu District Court, held, in two consolidated appeals that summary
judgment enforcing a nonjudicial foreclosure was improper where the Honolulu District
Court had no jurisdiction since title was at issue as borrowers sufficiently set forth the scope,
nature, and extent of their claim to superior title in a manner that was not speculative, but
clearly stated).

     

U.S. Bank National Association v. Smith, 137 Haw. 53, 365 P.3d 389 (2016) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our clients, the First Circuit Court
(Honolulu), held that a foreclosure summary judgment was improper because the borrowers
gave notice of a Truth-in-Lending Act (TILA) rescission within three years of loan
consummation and did not have to sue within that time, and because they had standing to
claim rescission also based upon unfair and deceptive trade practices (UDAP) rendering the
note and mortgage void and unenforceable even if nothing showed the current holder of the
note and mortgage committed unfair and deceptive trade practices).


Mount v. Apao, 136 Haw. 365, 361 P.3d 1268 (2015) (Hawaii Intermediate Court of Appeals,
reversing, in favor of our clients, the First Circuit Court (Honolulu), held that a Circuit Court
is prohibited from ordering garnishment of a probate estate's funds to satisfy a judgment
against a decedent or personal representative of the probate estate).


Hawaii National Bank v. Chirayunon, 136 Haw. 372, 362 P.3d 805 (2015) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our client, the First Circuit Court
(Honolulu), held that the statute of frauds did not apply to a purported agreement regarding
a cooperative unit converted from an apartment because the owner's substantial
improvements constituted partial performance, rendering summary judgment reversible
because the agreement's existence depended upon the owner's credibility and that there
remained a genuine issue of material fact whether the owner signed a cancellation agreement
under duress).

     

Pappas v. Duran, 134 Haw. 179, 339 P.3d 533 (2014) (Hawaii Intermediate Court of
Appeals, reversing, in favor of our clients, the First Circuit Court (Honolulu), held it was
error for the First Circuit Court to have granted summary judgment, enforcing a promissory
note where genuine issues of material fact remained as to whether the lender had waived his
rights and as to whether the lender had offered to settle the note and accepted consideration
with regard to the borrowers' accord and satisfaction defense).


Tanaka v. Santiago, 133 Haw. 510, 331 P.3d 488 (2014) (Hawaii lntermediate Court of
Appeals, reversing, in favor of our clients, the Lihue District Court, held that our clients were
entitled to attorneys' fees and costs as the prevailing parties below).

    
American Savings Bank, F.S.B. v. Riddel, 134 Haw. 114, 334 P.3d 777 (2014) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our clients, the Fifth Circuit Court
(Kauai), held that a foreclosure summary judgment was improper because genuine issues of
material fact remained as to whether the lender had switched the maturity date at closing
and as to whether an unknown "gift" of $60,000.00 was used to qualify him for the loan, each
potentially constituting an unfair and deceptive trade practices (UDAP) rendering the note
and mortgage void and unenforceable).

      

Federal National Mortgage Association v. Brown, 133 Haw. 452, 330 P.3d 390 (2014)
(Hawaii lntermediate Court of Appeals, reversing, in favor of our client, the Maui District
Court, held that summary judgment enforcing a nonjudicial foreclosure was improper where
the Maui District Court had no jurisdiction since title was at issue as the borrower
sufficiently set forth the scope, nature, and extent of his claim to superior title based upon a
breach of contract claim, having fulfilled all of his obligations under a loan modification offer
which terms included a promised not to pursue foreclosure if in full compliance as he was,
yet his loan servicer failed to provide him with a permanent loan modification).

    

Scroggin v. Mandarin Oriental Management (USA) lnc., 129 Haw. 106, 294 P.3d 1092
(2013) (Hawaii Supreme Court, reversing, in favor of our clients, the Hawaii lntermediate
Court of Appeals, held that the jury instructions by the First Circuit Court (Honolulu) in a
personal injury case against a restaurant based on food poisoning in which our clients at trial
appeared pro se were erroneous, failing to provide instructions as to strict liability).

    
Karpeles Manuscript Library v. Duarte, 129 Haw. 90, 294 P.3d 1076 (2013) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our clients, the Fifth Circuit Court
(Kauai), held that summary judgment enforcing a nonjudicial foreclosure was improper
where the borrowers allegedly had timely rescinded the loan based on a Truth-in-Lending
(TILA) rescission, not having been given two accurate notices of the right to cancel, but where
the Fifth Circuit Court nevertheless concluded that the borrowers could not repay the
reduced TILA principal balance of the loan even though the amouut required for repayment
had not yet been determined, with therefore a genuine issue of material fact deemed
remaining as to their ability to repay the loan by whatever means, ordered to be determined
only after the amount required for repayment becomes known upon being awarded a
conditional TILA rescission).

    

Wells Fargo Bank, N.A. v. Markley, 126 Haw. 265, 269 P.3d 800 (2012) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our client, the First Circuit Court
(Honolulu), held that a foreclosure summary judgment was improper because the borrower
filed a declaration attesting to having given notice of a Truth-in-Lending Act (TILA)
rescission within three years of loan consummation based upon not having received two
copies of the required notice of right to cancel, raising genuine issues of material facts
precluding summary judgment).


Low v. Minichino, 126 Haw. 99, 267 P.3d 683 (2011) (Hawaii lntermediate Court of
Appeals, reversing, in favor of our client, the Second Circuit Court (Maui), held that the
confirmation of an arbitration award was improper and thereby vacated with instructions to
the Second Circuit Court to hold an evidentiary hearing due to uncontroverted evidence of
fraud on the part of the seller of real property telling an arbitrator that the buyer had not
given notice of her inability to secure financing).


U.S. Bank National Association v. Salvacion, 2011 Haw. App. LEXIS 387 (2011) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our client, the Fifth Circuit Court
(Kauai), held that a foreclosure summary judgment was improper, vacating and ordering
further proceedings by the First Circuit Court to determine whether Rule 60(b)(6)
"exceptional circumstances" existed because the homeowner's prior counsel committed gross
negligence in not properly defending against the foreclosure lawsuit).

    

Doe v. Doe, 120 Haw. 149, 202 P.3d 610 (2009) (Hawaii lntermediate Court of Appeals,
reversing, in favor of our client, the Second Circuit Court (Maui), held that the Family Court
had erred awarding custody and relocation, depriving the mother of custody without the
required procedural due process protections, and that it abused its discretion in granting
without limitation the Guardian Ad Litem's request to preclude production of her documents
and the Family Court's approval of his fees, further holding that the mother was entitled to
requested discovery of the therapist's opinions, ordering the restoration of her custody and
visitation rights, the appointment of a new Guardian Ad Litem, a detailed parenting plan,
and adjustment of child support).

    

Western Financial Bank, F.S.B. v. Raras, 2008 Haw. App. LEXIS 313 (2008) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our client, the First Circuit Court
(Honolulu), held in two consolidated appeals that in confirming a foreclosure sale the First
Circuit Court erred in awarding attorneys' fees and costs for work allegedly done prior to the
foreclosing mortgagee's receipt of its assignment of the note and mortgage in one case and
erred in awarding it alleged attorneys' fees and costs in the other case in which it was a
defendant only, and vacated the cost award to it below due to lacking detail and including
unrecoverable charges).


Dunster v. Dunster, 2003 Haw. App. LEXIS 46 (2003) (Hawaii lntermediate Court of
Appeals, affirming, in favor of our client, the First Circuit Court (Honolulu), held that the
Family Court properly determined pursuant to the terms of their Divorce Decree that the
wife's subsequent actions without Family Court permission terminated the husband's
obligation to repay any loans he made to her and caused her to repay any amounts he loaned
to her, remanding for a final determination of minor offsets).


Mellon Mortgage Company v. Bumanglag, 2002 Haw. App. LEXIS 21 (2002) (Hawaii
lntermediate Court of Appeals, denying reconsideration have reversed, in favor of our client,
the First Circuit Court (Honolulu), held that a foreclosure summary judgment was improper
because a dismissal of the case although approved by minute order had not been set aside by
written order and that it therefore could not reconsider its reversal).


Associates Financial Services Company of Hawaii, lnc. v. Richardson, 99 Haw. 446,
56 P.3d 748 (2002) (Hawaii lntermediate Court of Appeals, reversing, in favor of our client,
the First Circuit Court (Honolulu), held that there were genuine issues of material fact in
dispute as to whether the loan was for personal or business purposes, since the borrower gave
notice of a Truth-in-Lending Act (TILA) rescission within three years of loan consummation).

Norwest Mortgage, lnc. v. De Rego, 2002 Haw. App. LEXIS 9 (2002) (Hawaii lntermediate
Court of Appeals, reversing, in favor of our clients, the Second Circuit Court (Maui), held that
a foreclosure summary judgment was improper because the borrowers gave notice of Truth-in-Lending Act (TILA) rescission within three years of loan consummation and submitted a
declaration stating that they had not received two notices of the right to cancel as well as
having received incorrect material payment disclosures).


GE Capital Hawai'i, lnc. v. Yonenaka, 96 Haw. 32, 25 P.3d 807 (2001) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our client, the First Circuit Court
(Honolulu), held that a foreclosure summary judgment was improper where the lender had
submitted a hearsay declaration regarding the borrower's payment history (loan general
ledger) without submitting the loan general ledger itself, and that the failure of the borrower
to object to the absence of the loan general ledger below was not a waiver).


GE Capital Hawai'i, lnc. v. Barlan, 2000 Haw. App. LEXIS 113 (2000) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our clients, the First Circuit Court
(Honolulu), held that a foreclosure summary judgment was improper where the lender had
submitted a hearsay declaration regarding the borrowers' payment history (loan general
ledger) without submitting the loan general ledger itself, and where there was no evidence
that a summary sufficed because the records were too voluminous).

     

GE Capital Hawai'i, Inc. v. Miguel, 92 Haw. 236, 990 P.2d 134 (1999) (Hawaii
lntermediate Court of Appeals, reversing, in favor of our clients, the First Circuit Court
(Honolulu), held that a foreclosure summary judgment was improper where the lender had
submitted a hearsay declaration regarding the borrowers' payment history (loan general
ledger) without submitting the loan general ledger itself, rendering the loan officer's
testimony that the borrowers were in default inadmissible hearsay).


Rapp v. Dubin, 825 P.2d 73 (1992) (Hawaii Intermediate Court of Appeals, affirming, in
favor of our client, the First Circuit Court (Honolulu), held that the First Circuit Court
properly granted summary judgment in the absence of any evidence supporting the
allegations on the complaint).


Wong v. Frank, 9 Haw. App.249, 833 P.2d 85 (1992) (Hawaii lntermediate Court of Appeals,
reversing, in favor of our client attorney, the First Circuit Court (Honolulu), held that the
First Circuit Court improperly sanctioned client attorney, ordering the return of his fine
monies ($500.00), based on an absence of any evidence of alleged tardiness of attendance at
trial proceedings, the First Circuit Court having failed to conduct an evidentiary hearing; the
case was remanded to the First Circuit Court, which took no further action).