NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 19 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WAYNE FERGERSTROM; No. 18-17012

SHENANDOAH K. KAIAMA; WINDY K.

KAIAMA, individually and on behalf of all D.C. No. persons similarly situated, 1:13-cv-00526-DKW-RLP

Plaintiffs-Appellants,

MEMORANDUM*

v.

PNC BANK, N.A., a national banking association,

Defendant-Appellee.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted February 5, 2020 Honolulu, Hawaii

Before: FARRIS, McKEOWN, and BADE, Circuit Judges.

This appeal involves non-judicial foreclosure sales of real property

registered in Hawaii’s Land Court. The mortgagors, Wayne Fergerstrom and

Shenandoah and Windy Kaiama (collectively “Appellants”), appeal the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. court’s grant of summary judgment in favor of the mortgagee, PNC Bank, N.A.

(“PNC”).1 The district court concluded that Appellants’ tort claims, in which they

alleged wrongful foreclosure, unfair and deceptive practices, and unfair methods of

competition, and sought monetary damages, were time barred by Hawaii Revised

Statute § 501-118 because they filed suit after the transfer certificates of title

(“TCTs”) were entered. See Haw. Rev. Stat. § 501-118. The district court also

denied as moot Appellants’ motion to certify a class.

Appellants argue that the district court erred in entering summary judgment

because there was a genuine dispute regarding when the TCTs were entered for

purposes of section 501-118, whether section 501-118’s time bar applied to

Appellants’ claims for money damages, and, if so, whether an exception applied.

Appellants also ask this court to take judicial notice of documents and statements

in an affidavit.

We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s

order granting summary judgment de novo, see Attorneys Liab. Prot. Soc’y, Inc. v.

Ingaldson Fitzgerald, P.C., 838 F.3d 976, 980 (9th Cir. 2016), and we affirm. We

deny the motion for judicial notice. See Fed. R. Evid. 201.

1. Appellants ask the court to judicially notice materials that they did not

1 Because the parties are familiar with the facts and procedural background, we include the facts only as necessary to explain our disposition.

2 submit to the district court when the motion for summary judgment was pending.

Those materials do not satisfy the criteria for judicial notice. See Fed. R.

Evid. 201. We deny the motion.

2. The district court correctly determined that PNC met its burden to show that

the TCTs were entered before Appellants brought their action and, thus,

Appellants’ claims were time barred. See Haw. Rev. Stat. § 501-118 (“Nothing in

this chapter shall be construed to prevent the mortgagor or other person in interest

from directly impeaching by action or otherwise, any foreclosure proceedings

affecting registered land, prior to the entry of a new certificate of title.”); see also

Wells Fargo Bank, N.A. v. Omiya, 420 P.3d 370, 377, 380-85 (Haw. 2018)

(discussing indicia of the “entry of” a certificate of title). Appellants did not

present sufficient evidence to establish a genuine dispute as to that material fact.

3. The district court correctly determined that section 501-118’s time bar

applied to Appellants’ tort claims for money damages. Appellants’ claims were

based on defects in the non-judicial foreclosure sales of their properties and

“directly impeach[ed] . . . the foreclosure proceedings.” Haw. Rev. Stat. § 501-

118; see Aames Funding Corp. v. Mores, 110 P.3d 1042, 1049 (Haw. 2005)

(holding that “defenses to mortgages foreclosed upon by exercise of the

mortgagee’s power of sale must be raised ‘prior to the entry of a new certificate of

title.’”) (quoting Haw. Rev. Stat. § 501-118). Thus, section 501-118 applied.

3 4. The district court properly concluded that a constructive fraud or voidness

exception did not excuse the time-bar to Appellants’ claims. See Scholes v.

Kawaguchi, 419 P.3d 1029, 1035 (Haw. Ct. App. 2017) (recognizing that “certain

fraud claims can challenge the conclusive nature of a certificate of title”); see also

Santiago v. Tanaka, 366 P.3d 612, 633 (Haw. 2016) (“Where 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.”).

The court has considered Appellants’ remaining arguments and finds them

to be without merit.

AFFIRMED.

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