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Aames Funding Corp. v. Mores4/22/2005
1 to hold the same free from all encumbrances except those noted on the certificate and the statutory encumbrances enumerated.
Id. at 825 (emphasis added).
VI.
In their reply brief, the Moreses seemingly attempt to distinguishIn re Bishop Trust Co. by citing to language in that case that qualifies the "conclusive and unimpeachable" nature of title in instances "otherwise provided by law" as "in cases of fraud," but only where "the rights of the purchaser for value and in good faith had intervened." Id. at 825-26.
Three types of fraud have been recognized in this jurisdiction in the mortgage context: (1) fraud in the factum, (2) fraud in the inducement, and (3) constructive fraud. Honolulu Fed. Sav. & Loan Ass'n v. Murphy, 7 Haw. App. 196, 201, 753 P.2d 807, 811 (1988). "'Fraud in the factum is fraud which goes to the nature of the document itself.'" Id. at 201 n.6, 753 P.2d at 811 n.6 (quoting Adair v. Hustace, 64 Haw. 314, 320 n.4, 640 P.2d 294, 299 n.4 (1982)). "'Fraud in the inducement is fraud which induces the transaction by misrepresentation of motivating factors.'" Id. at 201, 753 P.2d at 811 (quoting Adair, 64 Haw. at 320 n.4, 640 P.2d at 299 n.4 (internal quotation marks and citation omitted)). "Constructive fraud is characterized by the breach of fiduciary or confidential relationship." Id. at 201 n.6, 753 P.2d at 811 n.6 (citing Silva v. Bisbee, 2 Haw. App. 188, 190, 628 P.2d 214, 216 (1981)). However, the Moreses do not provide a discernible factual or legal argument in support of their position that the case at bar involves any one of the three types of fraud mentioned. See Hawaii Rules of Appellate Procedure Rule 28(b)(7) (2001) ("Points not argued may be deemed waived.")
As to the Moreses' assertion that Aames was not a "purchaser for value," this assertion is based on contentions that (1) Aames declared default, scheduled and auctioned off the property, filed a HRS § 667-5 affidavit, and transferred title to itself without the Moreses' approval; and (2) Aames's counsel signed the "Commissioner's Deed" and conveyed the property to Aames as "Grantor" in contravention of Hawaii Rules of Professional Conduct (HRPC) Rule 3.7(a) (2001). However, the Moreses do not indicate why Aames's actions, pursuant to HRS § 667-5 (1993), required their approval or make clear why Aames's actions contravene HRPC Rule 3.7(a). In any event, inasmuch as the Moreses have not set forth a legal basis for fraud, the question of whether Aames was a purchaser for value whose rights would be protected even where fraud had been perpetuated on the Moreses, does not arise.
Insofar as Aames is the registered owner of the Property as evidenced by TCT No. 587,098 and this title is conclusive and unimpeachable, see discussion supra, Aames was entitled to a writ of ejectment. Carter v. Kaikainahaole, 14 Haw. 515, 516 (1902) (explaining that "a complainant who has the title to and right of possession of certain land and from whom possession is unlawfully withheld by another" is entitled to "the ordinary remedy of law of an action of ejectment").
VII.
Based on the foregoing, we affirm the district court's October 11, 2001 order granting Aames a writ of possession and the October 24, 2001 order denying the Moreses' motion to dismiss filed on October 3, 2001.
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