Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-FEB-2026
09:59 AM
Dkt. 34 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---________________________________________________________________
MICHAEL C. GREENSPON,
Petitioner/Plaintiff-Appellant,
vs.
DEUTSCHE BANK NATIONAL TRUST COMPANY; OCWEN LOAN SERVICING,
LLC; JAMES BLAINE ROGERS III; J. BLAINE ROGERS III, ALC; ALAN
JARREN MA; and DENTONS US LLP,
Respondents/Defendants-Appellees.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2CC191000092)
FEBRUARY 12, 2026
McKENNA, ACTING C.J., EDDINS, GINOZA, AND DEVENS, JJ., AND
CIRCUIT JUDGE KAWASHIMA, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, ACTING C.J.
I. INTRODUCTION
This appeal is from a dismissal of claims against a
lender’s attorneys in one of various lawsuits filed by
Michael C. Greenspon (“Greenspon”). The lawsuits originated
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from an attempted nonjudicial foreclosure of a Maui property
Greenspon purchased in 2003 (“the Property”).
In 2010, Deutsche Bank National Trust Company
(“DBNTC”) obtained title to the Property after an attempted
nonjudicial foreclosure sale by a predecessor in interest.
DBNTC then filed an ejectment action against Greenspon in the
District Court of the Second Circuit, which was dismissed
without prejudice.
In 2011, Greenspon filed a wrongful nonjudicial
foreclosure lawsuit against DBNTC and others (“Main Action”).
Summary judgment was entered in favor of DBNTC. On appeal, in
2016, the Intermediate Court of Appeals (“ICA”) vacated the
summary judgment and remanded.
On remand, in 2018, DBNTC, now represented by Dentons
US LLP, filed an amended counterclaim against Greenspon and a
third-party complaint impleading the lender from which it had
obtained title. DBNTC noted that Greenspon had remained in
possession of the Property since 2008 and had not made payments
toward the mortgage. DBNTC sought to revoke the nonjudicial
foreclosure and instead proceed with a judicial foreclosure.
In 2019, Greenspon filed the underlying separate
lawsuit against DBNTC and Ocwen Loan Servicing, LLC (“Ocwen”),
as well as law firms and attorneys that represented them:
Dentons US LLP, Alston Hunt Floyd and Ing (which became Dentons
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Honolulu), and attorneys with Dentons as well as Watanabe Ing
LLP. (The Dentons-related attorneys are collectively referred
to as “Dentons”.) Greenspon’s claims included fraud, unfair and
deceptive acts and practices (“UDAP”) under Hawaiʻi Revised
Statutes (“HRS”) § 480-2 (2008), wrongful foreclosure, and other
torts.
In 2020, all claims in the underlying lawsuit were
settled, except for Greenspon’s claims against Dentons. In
addition, all claims in the Main Action were settled, except for
Greenspon’s claims against one set of opposing attorneys in that
case.
In the underlying lawsuit, Dentons moved for a
judgment on the pleadings on all of Greenspon’s claims. Dentons
also moved to declare Greenspon a vexatious litigant. The
Circuit Court of the Second Circuit 1 (“circuit court”) granted
both motions and entered final judgment.
Greenspon appealed, challenging the dismissal of his
claims against Dentons and the vexatious litigant order. The
ICA largely affirmed but ruled that “[w]hen considering the
allegations in the complaint, and deeming them true as we must,
the circuit court erred in dismissing Greenspon’s fraud claim to
1 The Honorable Peter T. Cahill presided.
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the extent it alleged fraud on the court.” Greenspon v.
Deutsche Bank Nat’l Tr. Co. (“Greenspon v. DBNTC”),
No. CAAP-XX-XXXXXXX, 2025 WL 212336, at *3. (Haw. App. Jan. 16,
2025) (SDO).
On certiorari, Greenspon contends that all of his
claims against Dentons should be reinstated and that the
vexatious litigant order was improper. We hold that the ICA did
not err by affirming the circuit court’s dismissal of
Greenspon’s claims against Dentons and by affirming the
vexatious litigant order.
We also ordered supplemental briefing regarding the
ICA’s reinstatement of a fraud on the court claim. We hold that
the ICA erred by reinstating this claim against Dentons.
Courts must assess the sufficiency of allegations to
determine whether they meet the high threshold for a finding of
fraud on the court. Only the most egregious misconduct will
constitute fraud on the court. Even assuming Greenspon’s
allegations against Dentons to be true, they do not meet the
high threshold required for an independent action for fraud on
the court.
We therefore vacate in part the ICA’s April 7, 2025,
Judgment on Appeal to the extent it reinstated Greenspon’s claim
against Dentons based on an alleged fraud on the court theory.
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We affirm the circuit court’s August 28, 2020, Final Judgment in
its entirety.
II. BACKGROUND
A. Factual and Procedural Background
This appeal is one in a series of lawsuits and appeals
that began with a nonjudicial foreclosure of a Maui property
owned by Greenspon.
1. Background up to nonjudicial foreclosure
On March 31, 2003, Michael C. Greenspon obtained a
$650,000.00 loan, later modified to $800,000.00, from IndyMac
Bank, F.S.B. (“IndyMac”) and signed a note (“Note”) secured by a
mortgage (“Mortgage”) encumbering the Property.
On July 11, 2008, IndyMac was closed by the Office of
Thrift Supervision and the Federal Deposit Insurance Corporation
(“FDIC”). IndyMac Federal Bank, F.S.B. (“IndyMac Federal”)
assumed control of IndyMac’s assets.
In November 2008, IndyMac Federal sent a letter to
Greenspon, demanding payment of $27,664.44 to cure the default
on the Mortgage. In January 2009, IndyMac Federal filed a
notice of intent to foreclose on the Property. In February
2009, after IndyMac was closed and placed into receivership,
IndyMac executed an assignment of Greenspon’s Mortgage to
IndyMac Federal. This assignment was signed on behalf of
IndyMac by an individual who identified himself as Vice
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President of IndyMac, who had also identified himself a month
earlier as Vice President of IndyMac Federal. In March 2009,
IndyMac Federal was sold to OneWest Bank, F.S.B. (“OneWest”).
In early 2010, a nonjudicial foreclosure sale of the
Property took place. On February 26, 2010, FDIC, as receiver
for IndyMac, signed a deed for the Property to DBNTC. On
March 12, 2010, a person identified as an officer of FDIC, as
receiver for IndyMac Federal, by Cal-Western Reconveyance
Corporation (“Cal-Western”) as agent, apparently filed a
mortgagee’s affidavit of this nonjudicial foreclosure under
power of sale. FDIC’s deed to DBNTC was not notarized or
recorded until April 13 and May 7, 2010, respectively.
2. Greenspon’s Main Action and appeal
In 2011, through counsel, Greenspon filed the Main
Action against DBNTC, IndyMac Federal, OneWest, and Cal-Western
alleging wrongful nonjudicial foreclosure and asserting other
claims for relief. 2 Summary judgment was granted in favor of the
defendants and Greenspon appealed.
On June 14, 2016, the ICA filed a memorandum opinion
affirming in part and vacating in part. Greenspon v. Deutsche
2 Originally case number 1CC111000194 in the Circuit Court of the First Circuit. After the ICA vacated summary judgment in favor of DBNTC on Greenspon’s wrongful foreclosure claim in Greenspon v. Deutsche Bank Nat’l Tr. Co., No. CAAP-XX-XXXXXXX, 2016 WL 3280366 (Haw. App. June 14, 2016) (mem. op.), the First Circuit transferred venue of the Main Action to the Circuit Court of the Second Circuit, and the Main Action case number became 2CC171000090.
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Bank Nat’l Tr. Co., No. CAAP-XX-XXXXXXX, 2016 WL 3280366 (Haw.
App. June 14, 2016) (mem. op.). The ICA determined that
Greenspon stopped making mortgage payments altogether by August
2008 and was in default at the time of the February 26, 2010,
foreclosure sale. 2016 WL 3280366, at *5. With respect to its
affirmance of summary judgment on Greenspon’s HRS § 480-2 UDAP
and fraud claims, the ICA determined (1) none of the alleged
actions dealt with transactions in which Greenspon was a
consumer as required for a UDAP claim; and (2) that “like all
torts, Greenspon must have alleged that [DBNTC and/or OneWest]
breached a duty owed to Greenspon and the breach caused injury
to Greenspon,” and Greenspon did not allege any injury caused by
DBNTC or OneWest. 2016 WL 3280366, at *7 (citing Exotics HawaiiKona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawaiʻi 277,
298, 172 P.3d 1021, 1042 (2007)).
But the ICA found genuine issues of material fact as
to the validity of the nonjudicial foreclosure procedures
employed; it therefore vacated the circuit court’s grant of
summary judgment as to title, and remanded. 2016 WL 3280366, at
*2, *4, *7.
We rejected Greenspon’s certiorari application on
November 22, 2016. Greenspon v. Deutsche Bank Nat’l Tr. Co.,
No. SCWC-XX-XXXXXXX, 2016 WL 6879563 (Haw. Nov. 22, 2016)
(order).
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3. Dentons’ counterclaims in Main Action
After the remand from the ICA, on March 21, 2018,
Greenspon filed a second amended complaint against DBNTC and
others relating to the origination of his loan, the loan
modification, the nonjudicial foreclosure, the 2010 foreclosure
sale, and subsequent eviction efforts.
On May 16, 2018, DBNTC, now represented by Dentons,
filed an amended counterclaim against Greenspon as well as a
third-party complaint impleading IndyMac Federal. On behalf of
DBNTC, Dentons also recorded a Notice of Pendency of Action
(“NOPA”) in the Bureau of Conveyances, noting that the amended
counterclaim could affect the title or right to possession of
the Property. On July 5, 2018, Dentons also recorded an
Assignment and Transfer of Lien in the Bureau of Conveyances.
The amended counterclaim noted that Greenspon had
remained in possession of the Property after his 2008 default
and after the 2010 nonjudicial foreclosure, without any payment.
DBNTC sought to rescind the nonjudicial foreclosure, reinstate
the Mortgage on the Property, and initiate a judicial
foreclosure. DBNTC also sought an equitable lien, recovery for
unjust enrichment, and an ejectment of Greenspon from the
Property.
The Main Action ended up being resolved by way of a
June 10, 2020, final judgment; all claims between Greenspon and
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DBNTC were settled, but Greenspon’s claims against Aldridge Pite
LLP, the law firm that had represented Cal-Western, were
dismissed by the court over Greenspon’s objection.
Greenspon appealed the dismissal of his claims against
Aldridge Pite, and the ICA affirmed. Greenspon v. Deutsche Bank
Nat’l Tr. Co., Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, 2024 WL
2874544, at *2 (Haw. App. June 7, 2024) (SDO). This court
rejected certiorari on January 21, 2025. Greenspon v. Deutsche
Bank Nat’l Tr. Co., No. SCWC-XX-XXXXXXX, 2025 WL 252849 (Haw.
Jan. 21, 2025) (order).
B. Underlying 2019 Lawsuit Against Dentons
1. Lawsuit and partial settlement
In the meantime, in a separate 2019 lawsuit, Greenspon
sued DBNTC and Ocwen based on the filing of their May 2018
amended counterclaim in the Main Action.
In a fifty-eight page first amended complaint filed on
September 25, 2019, Greenspon added Dentons, a Dentons attorney,
and a Watanabe Ing attorney as defendants. Although the Main
Action was still pending at the time, Greenspon’s first amended
complaint alleged that the actions Dentons took in representing
DBNTC, through its filings, recordings, and litigation efforts,
constituted fraud, unfair or deceptive practices, and other
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torts. Greenspon sought damages and declaratory and injunctive
relief regarding title. 3
On March 30, 2020, all of Greenspon’s claims in the
subject 2019 lawsuit were settled and dismissed via stipulation,
except Greenspon’s claims against Dentons.
2. Dentons’ motion for judgment on the pleadings
On April 27, 2020, Dentons moved for a judgment on the
pleadings under Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule
12(c) (eff. 2000), asserting that Greenspon’s remaining claims
were barred as a matter of law. Dentons argued that Greenspon’s
allegations were prohibited by the Noerr-Pennington doctrine, 4
improperly targeted protected litigation activity, were
3 Greenspon’s first amended complaint contained 14 counts: (I) “Fraud/Intentional Misrepresentation”; (II) “Wrongful Foreclosure;” (III) “Unfair and Deceptive Acts and Practices in Violation of HRS § 480-2”; (IV) “Abusive, Unfair and Deceptive Collection Practices In Violation of the Hawaii Collection Practices Act § 480D”; (V) “Unfair and Deceptive Acts and Practices as Prohibited by HRS § 480;” (VI) “Conversion/Slander of Title/Quantum Meruit”; (VII) “Gross Negligence/Recklessness”; (VIII) “Breach of Fiduciary Duty”; (IX) “Tortious Interference”; (X) “Intentional Infliction of Emotional Distress (IIED)”; (XI) “Damages”; (XII) “Punitive/Exemplary Damages”; (XIII) “Quiet Title/Constructive Trust”; and (XIV) “Injunctive Relief.”
4 In certain circumstances, the Noerr-Pennington doctrine provides counsel general immunity from statutory liability for their litigation activity based on the First Amendment right to petition the government for a redress of grievances. See Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006). Counsel, however, is not immune from liability for activity in “sham litigation.” Sosa, 437 F.3d at 938 (citing Prop. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993)). Dentons argued its counterclaim against Greenspon did not fall under the “sham litigation” exception to the Noerr-Pennington doctrine because Greenspon “never advanced a viable basis for avoiding his Mortgage, . . . let alone one that ma[de] the foreclosure action ‘objectively baseless.’” The applicability of the Noerr-Pennington doctrine is not at issue on appeal and we decline to address it further in this opinion.
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precluded by the litigation privilege and this court’s decision
in Hungate v. Law Office of David B. Rosen, 139 Hawai‘i 394, 391
P.3d 1 (2017), and otherwise failed to plead the necessary
elements of fraud, UDAP, and related claims.
The circuit court granted Dentons’ motion. Even
taking the allegations as true, the circuit court concluded
Greenspon’s remaining claims were barred by applicable
privileges and did not state a cognizable claim for relief. The
circuit court entered a written order in Dentons’ favor.
3. Vexatious litigant motion
In addition to the motion for judgment on the
pleadings, Dentons moved to declare Greenspon a vexatious
litigant under HRS Chapter 634J. 5 Dentons cited Greenspon’s
5 HRS § 634J-1 (2016) defines “vexatious litigant” as a plaintiff who does any of the following:
(1) In the immediately preceding seven-year period
has commenced, prosecuted, or maintained in propria persona
at least five civil actions other than in a small claims
court that have been:
(A) Finally determined adversely to the plaintiff; or
(B) Unjustifiably permitted to remain pending at
least two years without having been brought to trial or
hearing;
(2) After litigation has been finally resolved
against the plaintiff, relitigates or attempts to
relitigate in propria persona and in bad faith, either:
(A) The validity of the determination against the
same defendant or defendants as to whom the litigation was
finally determined; or
(B) The cause of action, claim, controversy, or any
of the issues of fact or law, determined or concluded by
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years-long pattern of frivolous, burdensome, and harassing
litigation arising from the 2010 nonjudicial foreclosure,
including more than a dozen lawsuits he filed in Hawaiʻi,
Florida, and Delaware, as well as two denied mandamus petitions
against judges. They also described abusive conduct — personal
attacks, violation of a civility directive, deposition
misconduct, obstruction of site inspections, and discovery
noncompliance.
Greenspon opposed, arguing HRS § 634J-1 did not apply,
challenging Dentons’ factual characterizations, disputing
Dentons’ reliance on Florida and Delaware proceedings, and
denying bad faith.
The circuit court granted the motion, noting
“approximately eight and a half inches” of printed materials
documenting Greenspon’s conduct in Florida courts as well as his
conduct in Hawaiʻi proceedings. The circuit court took judicial
(continued . . .)
the final determination against the same defendant or
defendants as to whom the litigation was finally
determined;
(3) In any litigation while acting in propria
persona, files, in bad faith, unmeritorious motions,
pleadings, or other papers, conducts unnecessary discovery,
or engages in other tactics that are frivolous or solely
intended to cause unnecessary delay; or
(4) Has previously been declared to be a vexatious
litigant by any state or federal court of record in any
action or proceeding based upon the same or substantially
similar facts, transaction, or occurrence.
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notice of a Florida order restricting Greenspon’s filings and
determined that the Florida matter involved substantially
similar facts to the Hawaiʻi actions. The circuit court also
made Hawaiʻi-specific findings, including that Greenspon
habitually failed to comply with court orders and that he stated
he would not comply “under any circumstances.”
The circuit court concluded Greenspon filed
unmeritorious papers, conducted unnecessary discovery, and
engaged in tactics solely intended to cause delay; his repeated
filings burdened the court systems (including overtaxing
Florida’s e-filing system and creating difficulty accessing
filings in Hawaiʻi), and that, taken together, these warranted a
vexatious litigant determination under HRS § 634J-1(3) and (4).
4. Reconsideration motions
After the judgment on the pleadings in favor of
Dentons and the vexatious litigant order, Greenspon moved to set
aside the circuit court’s rulings under HRCP Rules 54(b) (eff.
2000), 59(e) (eff. 2000), and 60(b) (eff. 2006), which the
circuit court denied. The circuit court entered final judgment
based on (1) the March 30, 2020, stipulated dismissal with
prejudice of claims against the settling non-Dentons parties,
and (2) the July 7, 2020, order granting Denton’s motion for a
judgment on the pleadings, dismissing all remaining claims with
prejudice.
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C. ICA Proceedings
Greenspon appealed the circuit court’s final judgment
in the underlying lawsuit to the ICA, asserting five points of
error concerning (1) the dismissal of UDAP claims under HRS §
480-2; (2) the dismissal of Fair Debt Collection Practices Act
(“FDCPA”), and HRS Chapter 480D (Collection Practices) claims
premised on attorney debt collection activity; (3) the dismissal
of all common law tort claims; (4) an alleged abuse of
discretion in granting the vexatious litigant motion; and (5)
alleged judicial bias.
In a summary disposition order, the ICA affirmed
almost entirely except to the extent Greenspon’s fraud claim
alleged fraud on the court. Greenspon v. DBNTC, 2025 WL 212336.
The ICA noted that the litigation privilege generally
bars claims by a civil litigant against the opposing party’s
attorney. Greenspon v. DBNTC, 2025 WL 212336, at *2 (citation
omitted). The ICA affirmed dismissal of the UDAP claims under
HRS § 480-2 based on Hungate, 139 Hawaiʻi at 405, 413, 391 P.3d
at 12, 20. Greenspon v. DBNTC, 2025 WL 212336, at *2-3. It
also affirmed dismissal of Greenspon’s wrongful foreclosure
claim, noting such claims are not permitted against a lender’s
attorney and that any abuse of process theory was not pled.
Greenspon v. DBNTC, 2025 WL 212336, at *3. Additionally, the
ICA affirmed the vexatious litigant order and rejected
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Greenspon’s judicial bias claim as waived and, alternatively,
meritless. Greenspon v. DBNTC, 2025 WL 212336, at *3-4.
But the ICA ruled that the circuit court erred by
dismissing Greenspon’s fraud claim to the extent it alleged
fraud on the court. Id. The ICA noted its opinion in Domingo
v. James B. Nutter & Co., that “an attorney is not immune from
liability or civil damages based upon the attorney’s own fraud
upon the court in prior litigation proceedings.” 153 Hawaiʻi
584, 609, 543 P.3d 1, 26 (App. 2023) (holding that the
litigation privilege is not an absolute bar against an action by
a borrower against a foreclosing lender’s attorney arising out
of the attorney’s fraud on the court in a prior foreclosure
action).
The ICA reasoned:
In his fraud claim, Greenspon maintained among other things
that the defendants filed fraudulent documents and made
false representations to the court. When considering the
allegations in the complaint, and deeming them true as we
must, the circuit court erred in dismissing Greenspon's
fraud claim to the extent it alleged fraud on the court.
See [Domingo, 153 Hawaiʻi] at 599-600, 543 P.3d at 16-17
(explaining we must deem the allegation in the complaint as
true).
Greenspon v. DBNTC, 2025 WL 212336, at *3.
Thus, the ICA vacated the circuit court’s final
judgment only as to the fraud on the court theory and otherwise
affirmed.
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D. Certiorari Application and Supplemental Briefing
Greenspon timely filed an application for writ of
certiorari. Greenspon contends all of his claims should be
reinstated and that the vexatious litigant order was erroneously
entered.
We accepted certiorari without oral argument and
pursuant to Hawaiʻi Rules of Appellate Procedure (“HRAP”) Rule
28(b)(4)(D) (eff. 2022), 6 we also ordered supplemental briefing
on the following regarding the ICA’s reinstatement of a fraud on
the court claim against Dentons:
[W]hether the Intermediate Court of Appeals’ (“ICA”)
determination that [Greenspon]’s fraud claim survives to
the extent it alleged “fraud upon the court” is consistent
with or contradicts:
(1) this court’s opinion in James B. Nutter & Co. v.
Namahoe, 153 Hawaiʻi 149, 153, 528 P.3d 222, 226 (2023); (2)
the ICA’s opinion in Domingo v. James B. Nutter & Co., 153
Hawaiʻi 584, 616, 543 P.3d 1, 33 (App. 2023); (3) the ICA’s
June 14, 2016 memorandum opinion in Greenspon v. Deutsche
Bank Nat’l Tr. Co., No. CAAP-XX-XXXXXXX, 2016 WL 3280366
(Haw. App. June 14, 2016); and (4) the August 5, 2020
vexatious litigant order in Greenspon v. Deutsche Bank
Nat’l Tr. Co., Case No. 2CC191000092.
6 HRAP Rule 28(b)(4)(D) provides in relevant part:
Points not presented in accordance with this section
will be disregarded, except that the appellate court,
at its option, may notice a plain error not
presented. If an appellate court, when acting on a
case on appeal, contemplates basing the disposition
of the case wholly or in part upon an issue of plain
error not raised by the parties through briefing, it
shall not affirm, reverse, or vacate the case without
allowing the parties the opportunity to brief the
potential plain-error issue prior to disposition.
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III. STANDARDS OF REVIEW
A. Motion for Judgment on the Pleadings
We review a circuit court’s order granting a motion
for judgment on the pleadings de novo. See Haw. Med. Ass’n v.
Haw. Med. Serv. Ass’n, Inc., 113 Hawaiʻi 77, 91, 148 P.3d 1179,
1193 (2006).
In a motion for judgment on the pleadings under HRCP Rule
12(c), the movant must clearly establish that no material
issue of fact remains to be resolved and that [they are]
entitled to judgment as a matter of law. In considering a
motion for judgment on the pleadings, the [trial] court is
required to view the facts presented in the pleadings and
the inferences to be drawn therefrom in the light most
favorable to the nonmoving party.
[O]ur task on appeal is to determine whether the [trial]
court’s order . . . supports its conclusion that the
[movant] is entitled to judgment as a matter of law and, by
implication, that it appears beyond a doubt that the
[nonmoving party] can prove no set of facts in support of
[its] claim that would entitle [it] to relief under any
alternative theory.
Id. (quoting citations and brackets omitted).
B. Vexatious Litigant Determination
A vexatious litigant determination is reviewed under an
abuse of discretion standard. Ek v. Boggs, 102 Hawaiʻi 289,
294, 75 P.3d 1180, 1185 (2003). “[A]n abuse of discretion
occurs where the trial court has clearly exceeded the
bounds of reason or disregarded rules or principles of law
or practice to the substantial detriment of a party
litigant.” Id. (alteration in original) (quoting Ass’n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100
Hawaiʻi 97, 119, 58 P.3d 608, 630 (2002)).
Trs. of Est. of Bishop v. Au, 146 Hawaiʻi 272, 278, 463 P.3d 929,
935 (2020).
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IV. DISCUSSION
A. The Circuit Court did not Err in Granting the Motion for
Judgment on the Pleadings as to All Claims Against Dentons
1. The circuit court did not err in dismissing the claims
for which dismissal was affirmed by the ICA
Greenspon alleges the ICA erred by affirming the
circuit court’s dismissal of his claims against Dentons, other
than the fraud on the court claim the ICA reinstated. We
disagree.
Our opinion in Hungate precludes Greenspon’s UDAP
claim against Dentons. There, the plaintiff alleged that the
mortgagee and its counsel conducted an unlawful nonjudicial
foreclosure of his property 7 and that they did so in violation of
common law duties and HRS § 480-2. 8 Hungate, 139 Hawaiʻi at 400,
391 P.3d at 7. The mortgagee’s attorney filed a motion to
dismiss under HRCP 12(b)(6), which the circuit court granted,
and plaintiff appealed. Id.
In affirming the dismissal, we opined, “[g]enerally, a
duty imposed on an attorney in favor of an adversary of the
attorney’s client poses an unacceptable conflict of interest
[and] [f]or that reason, absent special circumstances attorneys
7 The nonjudicial foreclosure statutes at issue were HRS §§ 667-5 and -7 (Supp. 2008), which have since been repealed. Hungate, 139 Hawaiʻi at 398, 400, 391 P.3d at 5, 7.
8 The plaintiff alleged these claims under HRS § 480-2. Hungate, 139 Hawaiʻi at 409, 391 P.3d at 16.
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owe no duty of care to non-clients.” Hungate, 139 Hawaiʻi at
405, 391 P.3d at 12 (internal quotation marks and citations
omitted). Further, we reasoned that allowing UDAP claims to be
asserted under HRS Chapter 480 against an opposing attorney
could compromise the attorney’s representation of the client:
[T]he role of an attorney involves representing a
client’s interests against those of an opposing party
within an adversary system. Attorneys bear a duty to
zealously represent clients within the bounds of the law.
Permitting a party to sue [their] opponent’s attorney
for [claims under HRS Chapter 480] in foreclosure actions
presents [a]n . . . issue in that an attorney’s concern
with being sued by a party opponent could compromise
[their] representation of the client.
Hungate, 139 Hawaiʻi at 413, 391 P.3d at 20. We
also noted that an attorney would be “especially
vulnerable” because actual deception is not required under
HRS § 480-2, as the “capacity to deceive” is all that is
required. Id. We explained:
a plaintiff would need only to allege that opposing counsel
has breached the statutory duty under HRS § 480-2 not to
engage in unfair or deceptive acts or practices in the
conduct of any trade or commerce in a way that caused
private damages in order to state a claim.
Id. (ellipses, brackets, and internal quotation marks
omitted).
In addition, Greenspon’s claims against Dentons arose
indisputedly from the firm’s practice of law. Claims by a civil
litigant against the opposing party’s counsel are also generally
barred by litigation privilege. Kahala Royal Corp. v. Goodsill
Anderson Quinn & Stifel, 113 Hawaiʻi 251, 269, 151 P.3d 732, 750
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(2007). Granted, “an attorney may be liable for malicious
prosecution if [they] act[] for an improper purpose” and “an
attorney may also be sued and held personally liable if [they]
maliciously participate[] in [an] abuse of process.” Id.
(citation omitted). But Dentons’ actions did not vitiate the
litigation privilege.
In Hungate, we did recognize an exception to the
general prohibition on bringing civil claims against an opposing
party’s attorney – the exception for patently illegal
activities. We stated in footnote twenty-two that “[o]ur desire
to avoid creating unacceptable conflicts of interest in this
context, to protect attorney-client counsel and advice from the
intrusion of competing concerns, and to allow adequate room for
zealous advocacy, does not encompass, for example, allowing
attorneys to conduct patently illegal activities on behalf of
clients.” 139 Hawaiʻi at 413 n.22, 391 P.3d at 20 n.22.
Here, there is nothing to indicate patently illegal
activities by Dentons. Rather, the record indicates Greenspon
stopped paying the mortgage but was not dispossessed of the
Property, and that Dentons — acting on behalf of DBNTC in the
Main Action — sought and obtained leave to file a counterclaim
for judicial foreclosure. Dentons followed its counterclaim
with standard filings of a NOPA and Assignment and Transfer of
Lien.
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These actions are not patently illegal and the circuit
court correctly determined Greenspon’s claims of misconduct
against Dentons lacked any factual or legal basis.
2. The ICA erred by reinstating a fraud on the court
claim against Dentons
While otherwise affirming the circuit court’s judgment
in favor of Dentons, the ICA vacated the judgment to the extent
Greenspon’s allegations constituted fraud on the court.
Greenspon v. DBNTC, 2025 WL 212336, at *3-*4.
For the following reasons, we hold that the ICA erred
by reinstating a claim against Denton based on a fraud on the
court theory.
“This court has defined fraud on the court as a wrong
against the institutions set up to protect and safeguard the
public, institutions in which fraud cannot complacently be
tolerated consistently with the good order of society.”
Namahoe, 153 Hawaiʻi at 166, 528 P.3d at 239 (internal quotation
marks and citations omitted). In Namahoe, we applied the fraud
on the court theory against a lender to allow relief from a
final judgment based on an inaccurate and incomplete attorney
affirmation in support of foreclosure. 153 Hawaiʻi at 170, 528
P.3d at 243. Then, in Domingo, the ICA recognized a cause of
action for damages against an attorney based on a fraud on the
court theory for an “egregious, legally and factually deficient,
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inaccurate and incomplete, materially false and misleading
[judicial foreclosure attorney] affirmation.” 153 Hawaiʻi at
613, 543 P.3d at 30.
But not all fraud connected with the presentation of a
case amounts to “fraud on the court”:
Fraud on the court cannot be neatly defined, but it
is understood by courts, including this court, to affect
more than the litigants in the underlying dispute.
Cvitanovich-Dubie [v. Dubie], 125 Hawaiʻi [128,] 144-46, 254
P.3d [439,] 455-57 [(2011)]. Like other jurisdictions, we
narrowly interpret fraud on the court. Compare id., with
Ray v. Ray, 374 S.C. 79, 647 S.E.2d 237, 239 (2007)
(“Generally speaking, only the most egregious misconduct
. . . in which an attorney is implicated will constitute
fraud on the court.”) (citation omitted), and SEC v. N. Am.
Clearing, Inc., 656 F. App'x 947, 949 (11th Cir. 2016)
(stating that the fraud on the court standard “is more
exacting than the standard for fraud under [Federal Rules
of Civil Procedure (FRCP)] Rule 60(b)(3), encompassing only
the most egregious misconduct. . . .”). Otherwise,
judgments would remain subject to challenge in perpetuity,
and the one-year time limitation on motions for relief
predicated on regular fraud pursuant to HRCP Rule 60(b)(3)
would be hollowed.
Namahoe, 153 Hawaiʻi at 167, 528 P.3d at 240.
And, in Namahoe, we ruled that courts need to assess
the sufficiency of allegations to determine whether they meet
“the high threshold for a finding of fraud on the court.” Id.
(emphasis added). Even if Greenspon’s allegations are taken as
true, there are no well-pleaded, particularized factual
allegations of fraud implicating Dentons that meets this high
threshold. See HRCP Rule 9(b) (eff. 2000) (“In all averments of
fraud . . . , the circumstances constituting fraud . . . shall
be stated with particularity.”). Moreover, the fraud on the
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court standard is more exacting than the general standard for
fraud.
Namahoe and Domingo are distinguishable from the
circumstances here. The fraud on the court in Namahoe consisted
of a deficient and misleading attorney affirmation filed in a
foreclosure action, which led to a grossly inequitable
foreclosure of a reverse mortgage for an alleged failure to make
$500 worth of repairs, which had actually been made. 153 Hawaiʻi
at 153, 166, 528 P.3d at 226, 239. The egregious facts in that
case supported a finding of fraud on the court that warranted
relief from judgment. Namahoe, 153 Hawaiʻi at 166, 528 P.3d at
239.
And in Domingo, the ICA recognized a fraud on the
court claim against an attorney based on the attorney
affirmation this court determined in Namahoe to be so egregious
that it constituted a fraud on the court. 153 Hawaiʻi at 592,
543 P.3d at 9. As stated by the ICA, the affirmation was
“egregious legally and factually deficient, inaccurate and
incomplete, materially false and misleading.” Domingo, 153
Hawaiʻi at 613, 543 P.3d at 30.
Here, Dentons’ attorney affirmation, assuming
Greenspon’s fraud allegations to be true, contained errors
concerning the legal status of which entity held the Note and
Mortgage after IndyMac ceased operations during the 2008
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financial crisis. Even if there were legal errors in that
regard, it has been decisively determined that Greenspon stopped
making payments altogether on the Note by August 2008 and was in
default to his obligations to some entity at the time of the
attempts to foreclose. Greenspon, 2016 WL 3280366, at *5. And,
in contrast to Namahoe and Domingo, there was no foreclosure and
Greenspon retained the Property. Even taking Greenspon’s
allegations as true, in assessing their sufficiency, they simply
do not meet “the high threshold for a finding of fraud on the
court.” See Namahoe, 153 Hawaiʻi at 167, 528 P.3d at 240.
Dentons’ filings were not “egregious, legally and factually
deficient, inaccurate and incomplete, materially false and
misleading,” as in Domingo.
As we made clear in Namahoe, courts must assess the
sufficiency of allegations to determine whether they meet the
high threshold for a finding of fraud on the court and that only
the most egregious misconduct in which an attorney is implicated
will constitute fraud on the court. 153 Hawaiʻi at 167, 528 P.3d
at 240. Greenspon’s allegations do not meet this standard.
Therefore, the ICA erred by reinstating Greenspon’s claims on
the grounds they alleged a cognizable fraud on the court claim.
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B. We Affirm the Vexatious Litigant Determination
Finally, we address Greenspon’s assertion that the
ICA erred by affirming the circuit court’s vexatious litigant
order.
HRS Chapter 634J applies where a litigant continuously
makes improper filings or engages in bad-faith litigation
conduct. Ek, 102 Hawaiʻi at 297–98, 75 P.3d at 1188–89. There
is ample evidence in the record supporting the circuit court’s
vexatious litigant findings.
First, under HRS § 634J-1(4), a party may be deemed
vexatious if they were previously declared so in another court
proceeding involving substantially similar facts. The circuit
court took judicial notice of a Florida court order declaring
Greenspon a vexatious litigant. The circuit court noted that
those proceedings arose from facts related to this matter and
other foreclosure-related litigation Greenspon filed in Hawaiʻi.
Greenspon acknowledged the connection as he stated in Florida
that he was there “because of [his] Hawaiʻi state claims.”
Therefore, the circuit court properly considered the Florida
court orders under HRS § 634J-1(4).
Second, Greenspon’s conduct in Hawaiʻi standing alone
satisfies the definition of a vexatious litigant under HRS
§ 634J-1(3). HRS § 634J-1(3) defines a “vexatious litigant” as
a plaintiff who “[i]n any litigation while acting in propria
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persona, files, in bad faith, unmeritorious motions, pleadings,
or other papers, conducts unnecessary discovery, or engages in
other tactics that are frivolous or solely intended to cause
unnecessary delay.”
Contrary to Greenspon’s assertions, the statute does
not require an explicit finding of “bad faith.” Further, there
was substantial evidence of Greenspon’s independent vexatious
conduct in Hawaiʻi courts. See, e.g., Greenspon v. CIT Bank,
N.A., No. SCWC-20-000055, 2025 WL 2144094, at *2 (Haw. July 29,
2025) (SDO) (“As to the vexatious litigant ruling, the record []
supports the circuit court’s conclusion that Greenspon made
‘unnecessary and unmeritorious filings’ and had ‘a history of
disregarding rules and orders and personally disparaging
counsel.’”).
The record is replete with numerous examples of
vexatious conduct, including Greenspon’s repeated failures to
comply with discovery obligations and pretrial orders, his
obstruction of court-ordered site inspections, and his
submission of inflammatory and improper filings, including in
the instant case. For example, during one hearing in the
underlying lawsuit, Greenspon was instructed to refrain from
insulting opposing counsel. He nevertheless persisted.
Greenspon also arrived late to a deposition, refused videotaping
despite advance notice, and gave non-responsive and hostile
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answers. Due to Greenspon’s behavior, the court reporter left
the proceeding, prompting opposing counsel to seek court
intervention. Even after the circuit court ordered the
deposition to proceed, Greenspon resisted and further delayed
the process. Greenspon also failed to comply with court-ordered
site inspections between 2017 and 2019, sent threatening emails
to opposing counsel warning that entry onto the Property would
prompt police involvement, and named previously stricken
witnesses in violation of court directives.
The circuit court cited this pattern as evidence that
Greenspon “habitually fails to comply with court orders” and
that his conduct disrupted judiciary proceedings. In light of
this record, the circuit court did not abuse its discretion when
it determined Greenspon to be a vexatious litigant and the ICA
did not err by affirming this designation.
We therefore affirm the designation of Greenspon as a
“vexatious litigant” under HRS Chapter 634J.
V. CONCLUSION
Based on these reasons, we vacate in part the ICA’s
April 7, 2025, Judgment on Appeal to the extent it reinstated
Greenspon’s claims against Dentons based on a fraud on the court
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theory. We affirm the circuit court’s August 28, 2020, Final
Judgment in its entirety.
Michael C. Greenspon, /s/ Sabrina S. McKenna pro se petitioner
/s/ Todd W. Eddins
Paul Alston
John-Anderson L. Meyer, /s/ Lisa M. Ginoza
for respondents
James Blaine Rogers III, /s/ Vladimir P. Devens J. Blaine Rogers III, ALC,
Dentons US LLP, and /s/ James S. Kawashima Jenny J.N.A. Nakamoto
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