NO. 25508
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
BANK OF HAWAI`I, Plaintiff-Appellee
vs.
LAKEVIEW HOME, INC., EDWARD AQUAS ALQUERO,
and ARLENE TOLENTINO ALQUERO, Defendants-Appellants
and
DEPARTMENT OF TAXATION, STATE OF HAWAI`I;
DIRECTOR OF BUDGET AND FISCAL SERVICES, CITY AND COUNTY OF HONOLULU;
JOHN DOES 1-50; DOE ENTITIES 1-50, Defendants
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-1-0998)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears we do not have jurisdiction over
Defendants-Appellants Lakeview Home, Inc., Edward Aquas Alquero, and Arlene
Tolentino Alquero's (the Appellants) appeal from the Honorable Karen N.
Blondin's
November 4, 2002 "Order Granting Plaintiff's Motion for Confirmation
of Sale, for Deficiency Judgment, for Writ of Possession and Cancellation
of Notice of Pendency of Action Filed on June 20, 2002," or her January
22, 2003 "Judgment." We have "previously noted that foreclosure cases are
bifurcated into two separately appealable parts: (1) the decree of foreclosure
and the order of sale, if the order of sale is incorporated within the
decree; and (2) all other orders." Beneficial
Hawai`i, Inc. v. Casey, 98 Hawai`i 159, 165, 45 P.3d 359, 365 (2002)
(citations and internal quotation marks omitted). Therefore, although the
foreclosure decree in part-one of a foreclosure case is immediately appealable
upon entry, the "matters subsequent to the foreclosure decree, such as
the confirmation of sale or the issuance and enforcement of the writ of
possession . . . would have to wait until entry of the circuit court's
final order in the case." Id.
(citation omitted). "In foreclosure cases which result in a deficiency,
the last and final order . . . is usually the deficiency judgment." Security
Pacific Mortgage Corporation v. Miller, 71 Haw. 65, 70, 783 P.2d
855, 858 (1989) (citation and internal quotation marks omitted); Hoge
v. Kane, 4 Haw. App. 246, 247, 663 P.2d 645, 647 (1983) ("In foreclosure
cases, which result in a deficiency, the last and final order . . . is
usually the deficiency judgment."). The Appellants are attempting to appeal
from
part-two of this foreclosure case, but the circuit court has not entered
a deficiency judgment in a specific amount.
We note that, on May 27, 2003, Governor Linda Lingle signed into law
2003 Hawai`i Session Laws Act 89 (2003 H.B. No. 1076). Under Act 89, a
judgment in part-two of a foreclosure case is final and appealable if the
circuit court (1) enters the judgment on an order confirming the sale of
the foreclosed property and (2) certifies the judgment as final pursuant
to Rule 54(b) of the Hawai`i Rules of Civil Procedure. 2003 H.B. No. 1076
§ 2. Nevertheless, Act 89 was not yet in effect when the
circuit court entered the January 22, 2003 judgment, and, thus, Act
89 does not apply to this case.
HRS § 641-1(a) (1993) authorizes appeals only from final judgments, orders, or decrees. According to Hawai`i law during the relevant time period, absent the entry of a deficiency judgment, this appeal is premature and we lack appellate jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for lack of jurisdiction.
DATED: Honolulu, Hawai`i, August 4, 2003.