Mather v. First Hawaiian Bank et al

Filing 60

ORDER DENYING SECOND AND THIRD MOTIONS BROUGHT UNDER RULE 60(b)(4) OF THE FEDERAL RULES OF CIVIL PROCEDURE re 53 , 54 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/19/2014. (emt, )CERTIFICATE OF SERVICEPa rticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Diane E. Mather served by first class mail at the address of record on December 19, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DIANE E. MATHER, individually
and as trustee of the
HANA2008 LIVING TRUST and the
VIOLET BLACK TRUST,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
FIRST HAWAIIAN BANK, a Hawaii )
corporation,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 14-00091 SOM/RLP
ORDER DENYING SECOND AND THIRD
MOTIONS BROUGHT UNDER RULE
60(b)(4) OF THE FEDERAL RULES
OF CIVIL PROCEDURE

ORDER DENYING MOTION FOR RELIEF FROM FINAL JUDGMENT AND ORDER
Before the court are two more motions by Plaintiff
Diane E. Mather, proceeding pro se, seeking relief from orders of
this court.

See ECF Nos. 53 and 54.

The motions are denied.

Mather is a real estate agent who owned multiple
properties.

When she stopped making payments on the various

loans she had, the banks foreclosed in state court.

Mather then

filed multiple cases in federal court, asking the federal court
to essentially sit as an appellate court over the state-court
orders and judgements.
Eventually, another judge of this court declared Mather
a vexatious litigant.

See Order Granting Defendants’ Motion for

Order Declaring Plaintiff Diane E. Mather a Vexatious Litigant,
Civ. No. 14-00384 HG-KSC (Dec. 2, 2014).

The present case involves property located on Dole
Street, in Honolulu, Hawaii.

As detailed in the court’s order of

June 24, 2014, Mather obtained two loans from First Hawaiian Bank
that were secured by the Dole Street property.

As detailed in

the same order, Mather schemed to get rid of the mortgage on her
property by sending First Hawaiian Bank a letter in which she
stated that, if First Hawaiian Bank did not respond within three
days, the $686,000 and $224,000 notes securing the property would
be null and void, and First Hawaiian Bank would instead owe her
$1,459,703.35.

Eventually, Mather stipulated to having the

documents she filed in Hawaii’s Bureau of Conveyances to that
effect expunged.
In a state-court order of August 23, 2013, the state
court determined that Mather had defaulted on the loans and that
First Hawaiian Bank was entitled to foreclose on its security
interest in the Dole Street property.

The state court ordered

the Dole Street property to be sold via a public action by a
court-appointed commissioner.

The state court further ruled

that, pursuant to Rule 54(b) of the Hawaii Rules of Civil
Procedure, the Interlocutory Decree of Foreclosure “shall be
considered as a final order and judgment and there shall be no
just reason for delay.”

See Judgment re: Findings of Fact,

Conclusions of Law and Order Granting Plaintiff's Motion for
Summary Judgment as to All Claims and All Parties, Interlocutory

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Decree of Foreclosure and Order of Sale, Civ. No. 12-1-3080 (Haw.
Cir. Ct. Aug. 23, 2013), ECF No. 9-12.
Mather filed a Chapter 11 bankruptcy petition.

That

bankruptcy case was dismissed because Mather failed to file
required documents.

See Order Dismissing Case with 180-Day Bar

to Refiling for Failure to File Required Documents, ECF No. 9-13,
PageID # 420.
The Dole Street property was sold at public auction to
First Hawaiian Bank, and the state court confirmed the sale.

See

Order Granting Plaintiff’s Motion for Confirmation of Sale,
Directing Distribution of Proceeds, for Deficiency Judgment, Writ
of Possession and Disposal or Personal Property, Civ. No.
12-1-3080 (Haw. Cir. Ct. Mar. 21, 2014), ECF No. 21-3, and
Judgment re: Order Granting Plaintiff’s Motion for Confirmation
of Sale, Directing Distribution of Proceeds, for Deficiency
Judgment, Writ of Possession and Disposal or Personal Property,
Civ. No. 12-1-3080 (Haw. Cir. Ct. Mar. 21, 2014), ECF No. 21-4.
Mather did not appeal the state-court foreclosure proceeding
orders and/or judgments.
Mather’s original Complaint in this matter asserted
claims of 1) lack of standing to foreclose, 2) fraud in the
concealment, 3) fraud in the inducement, 4) intentional
infliction of emotional distress, 5) quiet title, 6) slander of
title, 7) declaratory relief, 8) violations of the Truth in

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Lending Act, 9) violations of the Real Estate Settlement
Procedures Act, 10) rescission, and 11) a request for an
accounting.

See ECF No. 1.

Each of these claims arose out of

First Hawaiian Bank’s foreclosure with respect to the Dole Street
property.

Id.
On June 24, 2014, this court dismissed Mather’s

original Complaint, ruling that Mather’s federal question claims
were barred by the applicable limitations periods.

The court

declined to exercise supplemental jurisdiction over Mather’s
remaining state-law claims.
an amended complaint.

The court gave Mather leave to file

See ECF No. 28.

Instead of simply filing an amended complaint, Mather
filed a motion for leave to file an amended complaint in the form
attached as an exhibit to her motion.

See ECF No. 33.

22, 2014, the court denied that motion.

On August

See ECF No. 48.

Mather’s proposed amended complaint was prolix, containing many
irrelevant allegations covering 69 pages.

The court ruled that

the proposed amended complaint violated Rule 8(a)(2) of the
Federal Rules of Civil Procedure.

The court also ruled that some

of the claims were barred by the Rooker-Feldman doctrine, by res
judicata, and/or by the collateral estoppel doctrine.

Id.

The

court additionally noted that, although Mather cited the Fair
Debt Collection Practices Act and the Real Estate Settlement
Procedures Act, she did not actually state claims under those

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acts.

Id.

The court gave Mather leave to file another motion

seeking leave to file an amended complaint, requiring Mather to
attach any new proposed pleading to the motion.

Any such motion

was required to be filed by September 12, 2014.

The court warned

Mather that failure to meet that deadline would result in the
automatic closure of this case.

Id.

Mather did not timely file a motion seeking leave to
file a new amended complaint, and the court entered judgment
against Mather on September 15, 2014.

See ECF No. 50.

Mather

did not appeal the judgment or any of this court’s orders.
Instead, on September 16, 2014, Mather filed her first motion
under Rule 60(b)(4) of the Federal Rules of Civil Procedure,
seeking relief from the court’s order of August 22, 2014.

The

court construed the motion as also seeking relief from the
judgment entered on September 15, 2014.

The motion was denied on

September 18, 2014, because it incorrectly argued that the
Rooker-Feldman was no longer viable.

See ECF No. 52.

To the

extent Mather requested in a single sentence that she be allowed
to assert a RICO claim under 18 U.S.C. § 1964(a) and (c) after
the entry of judgment against her, the court denied that request.
The court notes that Mather then filed a new action asserting
that claim anyway.

See Civil No. 14-00429 SOM/RLP.

Mather has now filed two more motions under Rule
60(b)(4) of the Federal Rules of Civil Procedure, arguing that

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the court’s orders of June 22, 2014, and August 22, 2014, are
void because the court referred to loans in its orders for which
First Hawaiian Bank failed to provide evidence of the original
notes.

Mather also argues that the state-court foreclosure

proceedings violated RICO.

Mather misses the point.

Rule 60(b)(4) provides that a court may relieve a party
of the effect of a final judgment if “the judgment is void.”

The

Supreme Court has held that a void judgment is “one so affected
by a fundamental infirmity that the infirmity may be raised even
after the judgment becomes final.”

United Student Aid Funds,

Inc. v. Espinosa, 559 U.S. 260, 271 (2010).
void judgment is a legal nullity.”

In other words, “[a]

A judgment is not considered

void “simply because it is or may have been erroneous.”

Id.

Instead, Rule 60(b)(4) applies only “in the rare instance where a
judgment is premised either on a certain type of jurisdictional
error or on a violation of due process that deprives a party of
notice or the opportunity to be heard.”

Id.

Rule 60(b) motions

are committed to the discretion of the trial court.

See Barber

v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994) (“Motions for
relief from judgment pursuant to Federal Rule of Civil Procedure
60(b) are addressed to the sound discretion of the district
court.”).
In its dismissal order of June 22, 2014, the court
noted that the federal causes of action were clearly barred by

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the applicable limitations period.

The court declined to

exercise supplemental jurisdiction over Mather’s remaining statelaw claims.

Whether the existence of Mather’s original note

could be proven and whether the foreclosure proceedings violated
RICO were matters not essential to the claims asserted in the
original Complaint.

Similarly, the court’s order of August 22,

2014, which was based on Mather’s violation of Rule 8(a)(2) of
the Federal Rules of Civil Procedure, as well as Rooker-Feldman
and the res judicata/collateral estoppel bars to claims
challenging the state-court orders and judgment that Mather
failed to appeal, is not rendered void by the absence of proof of
the original note or by any RICO violation.
Mather cannot come to federal court to raise an
untimely argument that the state-court orders and final judgments
are void, essentially asking this court to sit as an appellate
court over those orders and judgment.

Rule 60(b)(4) does not

allow this court to vacate state-court orders and judgments as
void.

See Schroeder v. Bank of Am., 2012 WL 6929272, *4 (M.D.

Pa. Nov. 19, 2012) (“a litigant simply cannot rely upon Rule
60(b)(4) to . . . seek an order from a federal court vacating
some prior state court order”).

Although Rule 60(b)(4) allows

this court to grant relief from its own judgments and orders,
Mather shows no justification for such relief with respect to
this court’s orders of June 24 and August 22, 2014.

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Mather’s

motions under Rule 60(b)(4), ECF Nos. 53 and 54, are therefore
denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 19, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Mather, et al. v. First Hawaiian Bank, Civil No. 14-00091 SOM/RLP; ORDER
DENYING SECOND AND THIRD MOTIONS BROUGHT UNDER RULE 60(b)(4) OF THE FEDERAL
RULES OF CIVIL PROCEDURE

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