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Olson v. Coronel2/11/2005
or mortgage, as the case may be, is inoperative and void, and this either in a court of law or equity."); Ladder Energy Co. v. Intrust Bank, 931 P.2d 83, 85 (Okla. Civ. App. 1996) ("It is fundamental that a party may not mortgage an interest in property greater than that which it owns," such that "a party cannot give a valid mortgage in property in which it has no interest."); Lange v. Wyoming Nat'l Bank of Casper, 706 P.2d 659, 663 (Wyo. 1985) ("The mortgage is void by virtue of the fact that it was based on an invalid deed."); Jennings Realty Corp. v. First Nat'l Bank of N. Vernon, 485 N.E.2d 149, 152 (Ind. Ct. App. 1985) ("Generally, one who has no ownership interest in property has no right to mortgage it without the owner's consent."); Ins. Co. of N. Am. v. First Nat'l Bank of Cincinnati, 444 N.E.2d 456, 459 (Ohio Ct. App. 1981) (declaring mortgage a "nullity" and "of no legal consequence" when given by one not having "legal and equitable titles to the subject property"); (3) the circuit court did not abuse its discretion in declining to deduct ASB's attorneys' fees and costs from the foreclosure proceeds, inasmuch as (a) the doctrine of equitable subrogation does not require the subrogee to be equitably assigned the entire obligation owed the subrogor when equitable considerations warrant only a partial assignment, (b) in this case, the circuit court ordered Olson to file the quiet title action that challenged the ASB Mortgage's validity, and (c) in light of that order, the circuit court was within its discretion to conclude that, as a matter of equity, ASB should not be subrogated to the prior mortgagee's right to recover the fees and costs of foreclosure, see generally, Jenkins v. Wise, 58 Haw. 592, 598, 574 P.2d 1337, 1342 (1978) (trial courts have equitable power "to fashion a decree to conform to the equitable requirements of the situation"); Fleming v. Napili Kai, Ltd., 50 Haw. 66, 70, 430 P.2d 316, 319 (1967) ("One of the glories of equity jurisprudence is that it . . . can mold its decrees to do justice amid all the vicissitudes and intricacies of life."); (4) ASB's remaining arguments are duplicative and therefore without merit; and (5) the circuit court did not abuse its discretion in taxing attorneys' fees and costs against Coronel, inasmuch as (a) Coronel executed and delivered the promissory note upon which ASB's foreclosure action was based, (b) the note obligated Coronel to pay ASB's attorneys' fees and costs in the event of default, and (c) Coronel defaulted on the note. Therefore,
IT IS HEREBY ORDERED that Coronel's appeal from the June 15, 2000 judgment is dismissed, and the October 23, 2000 judgment is affirmed.
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