Deutsche Bank National Trust Company v. Sumbillo et al

Filing 18

ORDER AFFIRMING BANKRUPTCY COURT'S DENIAL OF DEFENDANT-APPELLANT DEUTSCHE BANK NATIONAL TRUST COMPANY'S MOTION TO DISMISS re 1 - Signed by JUDGE J. MICHAEL SEABRIGHT on 8/31/2015. (emt, )CERTIFICATE OF SERVI CEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

In re JOSEPH DULLAS
SUMBILLO,

)
)
)
Debtor.
)
______________________________ )
)
DEUTSCHE BANK NATIONAL
)
TRUST COMPANY,
)
)
Defendant-Appellant,
)
)
vs.
)
)
DANE S. FIELD and LUCIA MALIT )
SUMBILLO,
)
)
Plaintiffs-Appellees.
)
_____________________________ )

CIV. NO. 15-00125 JMS-BMK
(Bankr. No. 11-01915, Adv. No. 1490052)
ORDER AFFIRMING BANKRUPTCY
COURT’S DENIAL OF DEFENDANTAPPELLANT DEUTSCHE BANK
NATIONAL TRUST COMPANY’S
MOTION TO DISMISS

ORDER AFFIRMING BANKRUPTCY COURT’S DENIAL OF
DEFENDANT-APPELLANT DEUTSCHE BANK NATIONAL TRUST
COMPANY’S MOTION TO DISMISS
I. INTRODUCTION
This is an interlocutory appeal under 28 U.S.C. § 158(a)(3) of a
March 30, 2015 Order of the U.S. Bankruptcy Court for the District of Hawaii
(“Bankruptcy Court”) that denied Deutsche Bank National Trust Company’s
(“Deutsche Bank”) Motion to Dismiss claims brought by Bankruptcy Trustee
Dane S. Field and Lucia Malit Sumbillo (collectively “Field”) in an adversary

proceeding pending in Bankruptcy Court. Based on the following, the Bankruptcy
Court’s March 30, 2015 Order is AFFIRMED.
II. BACKGROUND
This appeal presents a question of law regarding the four-year statute
of limitation set forth in Hawaii Revised Statutes (“HRS”) § 480-24(a), which
provides:
Any action to enforce a cause of action arising under this
chapter shall be barred unless commenced within four
years after the cause of action accrues, except as
otherwise provided in subsection (b) and section 480-22.
For the purpose of this section, a cause of action for a
continuing violation is deemed to accrue at any time
during the period of the violation.
(Emphasis added). In particular, the issue concerns the date that Field’s claims
under HRS Chapter 480 for unfair or deceptive acts or practices (“UDAP”)
“accrued.” Because the appeal turns on legal questions, the court only summarizes
the factual allegations of the underlying adversary Complaint (which the court
assumes as true for purposes of Deutsche Bank’s Motion to Dismiss) as necessary
to establish the context for the legal question.1
1

The court does not, for example, analyze all the factual allegations of the thirty-two
page First Amended Complaint to ascertain whether any specific alleged violation might be timebarred, even under the legal framework discussed in this Order. For purposes of this appeal, it is
enough that some or most of the claims are not barred. Neither the Bankruptcy Court nor the
parties performed such a detailed review of the facts, and such a fact-based analysis would be
(continued...)
2

A.

Factual Background
As alleged in the First Amended Complaint (“FAC”), on or about

August 9, 2006, Debtor Joseph Dullas Sumbillo (“Debtor”) executed a $348,000
promissory note, secured by real property located in Wahiawa, Hawaii (the
“subject property”), in favor of MortgageIt, Inc., as Lender. Doc. No. 3 (Bankr.
Ct. Adv. No. 14-90052), FAC ¶ 16. A corresponding August 2006 mortgage (with
Debtor and Plaintiff-Appellee Lucia Malit Sumbillo as mortgagors) incorporated a
“power of sale” clause allowing the mortgagee to use the non-judicial foreclosure
procedures in the former HRS § 667-5 (repealed in 2012) in the event of default.
Id. ¶¶ 17-19, 28. In April 2010, the mortgage was assigned to Deutsche Bank,
which invoked the mortgage’s power of sale clause, and commenced non-judicial
foreclosure proceedings after Debtor defaulted. Id. ¶ 19.
On April 21, 2010 Deutsche Bank recorded a “Notice of Mortgagee’s
Intention to Foreclose Under Power of Sale” (the “April 21, 2010 Notice”), which
was published in the Honolulu Star Advertiser on May 4, 11, and 18, 2010. Id.
¶¶ 20, 22. The April 21, 2010 Notice stated that Deutsche Bank “will hold a sale”
of the subject property at noon on June 24, 2010 at the front entrance of the First

1

(...continued)
well beyond the scope of this interlocutory appeal.
3

Circuit Court of the State of Hawaii. Id. ¶ 21. It also listed eight terms of sale,
and referenced additional terms on a website. Id. ¶¶ 40, 42. The auction was not
held on June 24, 2010, but was postponed to August 26, 2010, and was held at a
different location off court property (and such changes were not advertised in any
public notice). Id. ¶¶ 34-37. At the August 26, 2010 auction, Deutsche Bank
obtained the subject property for a credit bid of $303,138.63, which was less than
the assessed value of $399,000.00. Id. ¶¶ 57-58. After Deutsche Bank recorded a
quitclaim deed on October 8, 2010 (deeding the subject property to itself), the
subject property was sold for $390,000, with closing on February 1, 2011. Id.
¶¶ 55, 60-61.
B.

Procedural Background
As part of Debtor’s chapter 7 bankruptcy proceedings, Field

commenced an adversary proceeding against Deutsche Bank on August 25, 2014.
Doc. No. 1 (Bankr. Ct. Adv. No. 14-90052), and filed the FAC the next day. The
FAC alleges violations of HRS § 480-2(a),2 claiming three categories of UDAPs:
(1) “Unfair and Deceptive Statements About ‘Date’ and the Change in Date,” id. at
11, (2) “Unfair and Deceptive Statements About ‘Location’ and the Change in

2

Section 480-2(a) provides that “[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are unlawful.”
4

Location,” id. at 15, and (3) “Other Unfair and Deceptive Aspects of the Notice of
Sale.” Id. at 17.3 Field alleges that the terms of the April 21, 2010 Notice
contained several false and misleading statements about, for example, (1) the type
of conveyance the high bidder would receive (i.e., a quitclaim as opposed to a
limited warranty deed); (2) the deadline to close the sale (stating that successful
bidders must close their sales within thirty days, when they “virtually always”
were permitted to close in a longer period); and (3) the liquidated damages
provision, which stated that Deutsche Bank would retain a bidder’s ten percent
deposit, when such a provision was “rarely, if ever, enforced against a third-party
bidder and was in any event unenforceable.” Id. ¶¶ 48-50. These allegedly false
and misleading statements “had the effect of discouraging bidders.” Id. ¶¶ 50-51.
The alleged UDAPs violated Deutsche Bank’s duty to obtain the best
possible price for the benefit of the Sumbillos, and enabled Deutsche Bank to
obtain the subject property for a credit bid much less than the tax-assessed value
of the subject property. Id. ¶¶ 47, 54, 57, 58. The FAC describes Field’s injury, in
3

In his Answering Brief, Field notes that, regardless of the disposition of this appeal, its
“common-law claim for wrongful foreclosure is subject to a six-year statute of limitation and is
not time barred,” Doc. No. 11, Answering Br. at 1 n.1, and contends that “Deutsche never moved
to dismiss that common-law claim below.” Id. The Bankruptcy Court’s Order, however, did not
address a common-law wrongful foreclosure claim, and it is not clear that the FAC actually
alleges such a claim, or whether it could be construed as such. But, because the court ultimately
affirms the Bankruptcy Court’s denial of Deutsche Bank’s Motion to Dismiss, the court need not
reach this question.
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part, as follows:
14. . . . Deutsche foreclosed on the Sumbillos’ property
without satisfying the conditions precedent to exercise
its claimed right to foreclosure. . . . [T]he Sumbillos
were wrongfully deprived of the title, possession, and
use of their real property and are entitled to damages
therefor.
....
62. As a proximate result of the wrongful, unfair and/or
deceptive practices of Deutsche, the Sumbillos lost
possession of, title to and use of and occupancy of their
real property and home, including personal property
therein.
63. As a direct and proximate result of the wrongful acts
described above, the Sumbillos lost substantial equity in
their property, and lost the use and rental value of their
property from and after the date they lost possession, all
in amounts to be proved at trial.
Id. ¶¶ 14, 62, 63.
On December 18, 2014, Deutsche Bank filed a Motion to Dismiss in
the Bankruptcy Court, arguing that this action is barred by the four-year statute of
limitation in HRS § 480-24(a). It invoked the “occurrence rule,” which it
contends has been applied by Judges in this District Court for the past thirty-five
years in determining when a cause of action accrues under Chapter 480. See, e.g.,
Doc. No. 10, Opening Br. at 9. The “occurrence rule” states generally that the
four-year period in § 480-24(a) “begins to run from the date of the occurrence of

6

the violation, as opposed to the discovery of the alleged violation.” Rundgren v.
Bank of N.Y. Mellon, 2010 WL 4066878, at *6 (D. Haw. Oct. 14, 2010) (citing
McDevitt v. Guenther, 522 F. Supp. 2d 1272, 1289 (D. Haw. 2007)).
Deutsche Bank argued that the “violations” for Field’s § 480-2 claims
“occurred” on April 21, 2010 -- the date that the allegedly unfair and/or deceptive
“Notice of Mortgagee’s Intention to Foreclose Under Power of Sale” was
published. Because the action was not filed until August 25, 2014, Deutsche Bank
argued that the action was time-barred.
The Bankruptcy Court denied Deutsche Bank’s Motion. Doc. No. 23.4 Its March 19, 2015 oral ruling reasoned that there was no “occurrence” until a
UDAP claim under § 480-2(a) was actionable, and that requires an “injury.” Doc.
No. 2-7, Tr. (Mar. 19, 2015) at 15. The Bankruptcy Court explained that for
Field’s claims based on the April 21, 2010 notice, there could be no “injury” until
(at the earliest) the foreclosure auction was actually held. Id. Because the auction
was held on August 26, 2010, the action was timely -- having been filed on August
25, 2014, within the four-year limitation period. The Bankruptcy Court also
concluded that a “continuing violation” theory applied, reasoning that “[t]his is an

4

The March 30, 2015 written Order memorialized a March 19, 2015 oral ruling, with the
oral ruling explaining the Bankruptcy Court’s reasoning.
7

occurrence that took place over a period of a couple of months. There was a
notice, and a sale, and the fact that they weren’t compressed [at] the same instant,
doesn’t mean that there were two occurrence[s].” Id. at 16.
On April 14, 2015, Deutsche Bank filed a Motion for Leave to
Appeal under 28 U.S.C. § 158(a)(3), Doc. No. 2-1, which this court granted on
May 5, 2015. Doc. No. 7. Deutsche Bank filed its Opening Brief on June 15,
2015. Doc. No. 10. Field filed an Answering Brief on June 29, 2015, Doc. No.
11, and Deutsche Bank filed a Reply on July 6, 2015. Doc. No. 12. Oral
argument was held on July 20, 2015. After the hearing, Deutsche Bank filed a
Supplemental Memorandum on July 31, 2015, Doc. No. 16, and Field filed a
Supplemental Memorandum in Reply on August 11, 2015. Doc. No. 17.
III. DISCUSSION
Despite some posturing in their briefs, the parties now agree that the
“occurrence rule” applies -- the remaining question is how it applies. That is, a
cause of action under Chapter 480 accrues for purposes of § 480-24(a), and the
four-year period begins to run, “from the date of the occurrence of the violation, as
opposed to the discovery of the alleged violation.” Rundgren, 2010 WL 4066878,

8

at *6 (citing McDevitt, 522 F. Supp. 2d at 1289).5 The harder question, however,
is determining when a “violation” actually “occurs,” and this often depends on
specific facts. See Lizza v. Deutsche Bank Nat’l Trust Co., 1 F. Supp. 3d 1106,
1121-22 (D. Haw. 2014) (“[T]he appropriate date for the accrual of a UDAP claim
depends on the specific UDAP alleged.”).
The court concludes (consistent with the Bankruptcy Court’s Order)
that a “violation” does not “occur” until all the elements of a claim have occurred
-- and this includes “injury” and “damages.”6 Most, if not all, of the FAC’s claims
based on the April 21, 2010 Notice could not have been actionable until the
alleged § 480-2 violations caused injury and damages to the Sumbillos (and thus

5

The Hawaii Intermediate Court of Appeals recently applied the occurrence rule to
§ 480-24(a), albeit in an unpublished disposition. See Reyes v. HSBC Bank USA, N.A., 2015 WL
3476371, at *5 (Haw. App. May 29, 2015). And decisions from this District have also repeatedly
applied the occurrence rule under § 480-24(a). See, e.g., Teaupa v. U.S. Nat’l Bank N.A., 836 F.
Supp. 2d 1083, 1099-1100 (D. Haw. 2011), abrogated on other grounds by, Compton v.
Countrywide Fin. Corp., 761 F.3d 1046 (9th Cir. 2014); Au v. Republic State Mortg. Co., 2013
WL 1339738, at *13 (D. Haw. Mar. 29, 2013); Cablay v. Bank of Am., N.A., 2013 WL 1789770,
at *7 (D. Haw. Apr. 26, 2013); Hoilien v. OneWest Bank, FSB, 2012 WL 1379318, at *8 (D.
Haw. Apr. 20, 2012); Wallace v. BAC Home Loans Servicing, LP, 2011 WL 675354, at *7 (D.
Haw. Feb. 16, 2011); Franco v. Fed. Nat’l Mortg. Ass’n, 2011 WL 1842970, at *5 (D. Haw. May
13, 2011); Martin v. GMAC Mortg. Corp., 2011 WL 6002617, at *10 (D. Haw. Nov. 30, 2011);
Hoilien v. Bank of Am., 2011 WL 3494523, at *8 (D. Haw. Aug. 10, 2011)); Uy v. HSBC Bank
USA, N.A., 2015 WL 1966689, at *7 (D. Haw. Apr. 30, 2015).
6

This court applies the same standard of review applied by an appellate court when
reviewing a bankruptcy appeal. See In re JTS Corp., 617 F.3d 1102, 1109 (9th Cir. 2010). “The
court reviews the bankruptcy court’s findings of fact under the clearly erroneous standard and its
conclusions of law de novo.” In re Kimura, 969 F.2d 806, 810 (9th Cir. 1992).
9

to Field, in his capacity as Bankruptcy Trustee). And -- contrary to Deutsche
Bank’s argument that the injury and damages both occurred when the notice was
published -- the Sumbillos could not have been injured or damaged at least until
the date of the auction on August 26, 2010.
In this regard, although the FAC alleges a variety of § 480-2(a)
violations, Field’s claims are actually brought under HRS § 480-13(b), which
provides a “consumer” a private remedy for such violations. Section 480-13(b)
provides in pertinent part:
Any consumer who is injured by any unfair or deceptive
act or practice forbidden or declared unlawful by section
480-2:
(1) May sue for damages sustained by the consumer, and,
if the judgment is for the plaintiff, the plaintiff shall be
awarded a sum not less than $1,000 or threefold damages
by the plaintiff sustained, whichever sum is the greater,
and reasonable attorney’s fees together with the costs of
suit[.]
“To obtain relief under section 480-13(b)(1), a consumer must
establish three elements: ‘(1) a violation of [§] 480-2; (2) injury to the consumer
caused by such a violation; and (3) proof of the amount of damages.’”
Compton v. Countrywide Fin. Corp., 761 F.3d 1046, 1053 (9th Cir. 2014) (quoting
Davis v. Wholesale Motors, Inc., 86 Haw. 405, 417, 949 P.2d 1026 (Haw. App.

10

1997) (other quotation omitted) (emphasis added); see also Gurrobat v. HTH
Corp., 133 Haw. 1, 21, 323 P.3d 792, 812 (2014) (reiterating elements of a § 48013 claim as “(1) a violation of HRS Chapter 480; (2) which causes an injury to the
plaintiff’s business or property; and (3) proof of the amount of damages”) (citation
omitted). That is, a plaintiff must have “suffered an injury resulting in damages.”
Compton, 761 F.3d at 1056 (citing § 480-13(b)(1), and Zanakis-Pico v. Cutter
Dodge, Inc., 98 Haw. 309, 316, 47 P.3d 1222, 1239 (2002)) (emphasis added). An
injury must be “fairly traceable to the defendant’s actions.” Flores v. Rawlings
Co., 117 Haw. 153, 167 n.23, 177 P.3d 341, 355 n.23 (2008) (internal citation
omitted).
Deutsche Bank argues that “actual damages are not a prerequisite to a
UDAP damages claim because the statutory damages remedy [‘a sum not less than
$1,000’] exists as soon as there has been a UDAP and injury.” Doc. No. 16,
Deutsche Bank Supplemental Mem. at 3. But this argument is contrary to Hawaii
law. For example, Robert’s Hawaii School Bus, Inc. v. Laupahoehoe
Transportation Co., 91 Haw. 224, 982 P.2d 853 (1999), superseded by statute on
other grounds as stated in Davis v. Four Seasons Hotel Ltd., 122 Haw. 423, 435,
228 P.3d 303, 315 (2010), explained:
It has been argued that section 480-13(a) is an automatic
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damages provision. The plain language of HRS § 48013(a), however, requires some evidence of damage.
Indeed, ‘[w]hile proof of a violation of chapter 480 is an
essential element of an action under HRS § 480-13, the
mere existence of a violation is not sufficient ipso facto
to support the action; forbidden acts cannot be relevant
unless they cause [some] private damage.’”
Id. at 254 n.30, 982 P.2d at 883 n.30 (quoting Ai v. Frank Huff Agency, Ltd., 61
Haw. 607, 618, 620-21, 607 P.2d 1304, 1312-13 (1980)) (other citations omitted)
(emphasis added).7
Indeed, in interpreting the same Hawaii statute at issue here (the
former HRS § 667-5), In re Kakauoha-Alisa, 674 F.3d 1083, 1092 (9th Cir. 2012),
observed that “[the] conclusion that Lenders’ improper postponement [of the
auction] amounted to a deceptive practice [under § 480-2] does not automatically
entitle Debtor to monetary damages”). Instead, In re Kakauoha-Alisa reiterated
that “consumers are entitled to damages for a violation of HRS § 480-2 only if
they show that those acts cause private damage.” Id. (citations and internal
quotation marks omitted). See also Zanakis-Pico, 98 Haw. at 317, 47 P.3d at 1230

7

Although Robert’s Hawaii concerned unfair methods of competition under HRS § 48013(a)(1) (rather than a UDAP claim under HRS § 480-13(b)(1)), the language in the two sections
is nearly identical in relevant respects, and is construed similarly. See, e.g., Flores v. Rawlings
Co., 117 Haw. 153, 167 n.24, 177 P.3d 341, 355 n.24 (2008) (“Although a different provision,
both provisions require an ‘injury,’ and applying the concept of in pari materia, the meaning of
injury as interpreted by the court in [Ai v. Frank Huff Agency, 61 Haw. 607, 607 P.2d 1304
(1980),] may be of assistance when interpreting HRS § 480-13(b).”).
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(“[T]he $1,000.00 assured minimum recovery [in § 480-13] was intended to be
available to all consumers who could demonstrate damages.”); Sambor v. Omnia
Credit Servs., Inc., 183 F. Supp. 2d 1234, 1244-45 (D. Haw. 2002) (denying
statutory damages under § 480-13, where plaintiff did not suffer actual damages
resulting from a § 480-2 violation).
In other words, a viable § 480-13(b)(1) claim must allege nonspeculative damages that are “fairly traceable” to the violation. See, e.g., In re
Kakauoha-Alisa, 674 F.3d at 1093. Furthermore, Robert’s Hawaii emphasized
that “injury” and “damages” are “two distinct elements of HRS § 480-13.”
Robert’s Hawaii, 91 Haw. at 254 n.31, 982 P.2d at 883 n.31.
This well-settled interpretation is consistent with analogous federal
law, which is persuasive in analyzing provisions of Chapter 480. See HRS § 4803 (“This chapter shall be construed in accordance with judicial interpretations of
similar federal antitrust statutes, except that lawsuits by indirect purchasers may be
brought as provided in this chapter.”). In particular, recent Ninth Circuit law
explains that:
the limitations period [in 15 U.S.C. § 15b] may start to
run after the defendant’s initial violation of the antitrust
law, if it is “uncertain” or “speculative” whether the
defendants’ antitrust violation has injured the plaintiff at
the time of the violation. AMF, Inc. v. General Motors
13

Corp. (In re Multidistrict Vehicle Air Pollution), 591
F.2d 68, 72 (9th Cir. 1979) (citing Zenith [Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 339 (1971)]); see
also Samsung [Elecs. Co. v. Panasonic Corp., 747 F.3d
1199, 1204-05 (9th Cir. 2014)]. In such cases, the
statute of limitations period begins on the date that the
plaintiff’s damages first “accrued and became
ascertainable.” AMF, 591 F.2d at 73.
Oliver v. SD-3C LLC, 751 F.3d 1081, 1086 (9th Cir. 2014) (emphasis added).
And, contrary to Deutsche Bank’s arguments, this result is consistent
with decisions from this District that have applied the occurrence rule to time-bar
Chapter 480 claims in a mortgage foreclosure context that arose out of loan
origination (such as being wrongfully induced to enter into a refinancing
transaction, see, e.g., Teaupa, 836 F. Supp. 2d at 1088, 1099, or by changing a
loan’s terms at closing, see, e.g., Au v. Republic State Mortg. Co., 2013 WL
1339738, at *13 (D. Haw. Mar. 29, 2013)). In such cases, a borrower is injured
and damaged in a non-speculative manner when the borrower becomes
contractually bound to the terms of the loan that was obtained by unfair or
deceptive means. See, e.g., Ramos v. Chase Home Fin., 810 F. Supp. 2d 1125,
1129, 1139 (D. Haw. 2011) (reasoning that a § 480-2 claim “accrued” on the date
the loan transaction was consummated and was thus time-barred under § 48024(a)); Au, 2013 WL 1339798, at *13 (“Plaintiff . . . testified that he expected to

14

get a ‘loan modification’ with a 7.5% initial rate within the month after closing [in
February 2007]. . . . That is, Plaintiff knew in February 2007 that he had not
gotten the terms that [were] allegedly promised him[.]”).
Here, the Sumbillos could not have suffered injury and ascertainable
damages until, at minimum, the auction occurred -- that is, until the consequences
of the defective April 21, 2010 Notice caused them actual harm (i.e., private
damages). And this did not occur until the point when Deutsche Bank obtained
the subject property for a credit bid ($303,138.63) that was allegedly substantially
less than the tax-assessed value. Until then, they were not injured and damages
were speculative. Even assuming that the terms of the April 21, 2010 Notice were
unfair or deceptive, prior to the auction date, Deutsche Bank might have issued a
new notice that was not a violation (with no ascertainable injury or damages to the
Sumbillos). See Saiki v. LaSalle Bank Nat’l Ass’n, 2011 WL 601139, at *4 (D.
Haw. Feb. 10, 2011) (“Cal-Western rendered the Notice of Foreclosure void by
rescinding it. . . . Further, although Cal-Western appears to admit it did not
comply with the requirements of § 667-5, Plaintiff cannot seek equitable relief
because the Notice of Foreclosure is void, and Plaintiff is not otherwise entitled to
damages for this defect.”) (citations omitted). Indeed, a high bidder might have
appeared at the actual auction and offered $400,000 or more. In the language of
15

Robert’s Hawaii, “the mere existence of a violation [on April 21, 2010] is not
sufficient ipso facto to support [a claim]; forbidden acts cannot be relevant unless
they cause some private damage.” 91 Haw. at 254 n.30, 982 P.2d at 883 n.30
(square brackets omitted). That is, this injury alleged in the FAC (¶¶ 14, 62-63)
did not occur until the foreclosure (at a below-market price) actually took place.
See Nottage v. Bank of N.Y. Mellon, 2012 WL 5305506, at *9 (D. Haw. Oct. 25,
2012) (“BONY’s foreclosure of Plaintiffs’ home -- if wrongful -- would cause
damages to Plaintiffs [under § 480-13.]”). And this did not occur until the August
6, 2010 auction (at the earliest).8
In short, the Bankruptcy Court properly concluded that, based on the
allegations of the FAC, the statute of limitation in § 480-24(a) has not expired.
The action was timely filed.9
///
///
///

8

To be clear, this Order does not address the requirements for a claim seeking only
injunctive relief under HRS § 480-13(b)(2). For example, whether or not the Sumbillos might
have been able to file an action seeking only to halt an auction based on any defects in the April
21, 2010 Notice has no bearing on Field’s claims for damages here.
9

Given this conclusion, the court does not determine whether the continuing violation
doctrine might also apply.
16

IV. CONCLUSION
Because the action was timely filed, the court AFFIRMS the
Bankruptcy Court’s May 30, 2010 Order Denying Deutsche Bank’s Motion to
Dismiss.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 31, 2015.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Deutsche Bank Nat’l Trust Co. v. Field (In re Sumbillo), Civ. No. 15-00125 JMS-BMK, Order
Affirming Bankruptcy Court’s Denial of Defendant-Appellant Deutsche Bank National Trust
Company’s Motion to Dismiss

17