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Linda Wunder Del Piano, and Douglas B. Hackett, As Trustee v. Mortgage Electronic Registration Systems

April 3, 2012

LINDA WUNDER DEL PIANO, and DOUGLAS B. HACKETT, as Trustee of the Paulehia Street Trust, Plaintiffs, Pro se,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., “MERS,” its successors in interest and/or assigns, INDYMAC FINANCIAL SERVICES, a division of OneWest Bank, FSB, its successors in interest and/or assigns, ONEWEST BANK, FSB, its successors in interest and/or assigns, EXPRESS CAPITAL LENDING, its successors in interest and/or assigns, HSBC BANK USA, N.A., a National Association, as Trustee for BCAP 2008-IN 1, its successors in interest and/or assigns, FIRST AMERICAN TITLE INSURANCE CO., its successors in interest and/or assigns, SUCHAN MURRAY, employee of OneWest Bank, ROUTH CRABTREE OLSEN, P.S., PETER T. STONE, and DOES 1 TO 10, Defendants.
HSBC BANK USA, N.A., a National Association, as Trustee for BCAP 2008- IN 1, its successors in interest and/or assigns, Counterclaimant,
v.
LINDA WUNDER DEL PIANO, DOUGLAS B. HACKETT, individually, and THE PAULEHIA STREET TRUST, through its Trustee Douglas B. Hackett, Counterclaim Defendants, and BANK OF HAWAII; DOES 1-10, Third-Party Defendants.



The opinion of the court was delivered by: Judge: Hon. Susan Oki Mollway

FINDINGS OF FACT; CONCLUSIONS OF LAW; AND ORDER GRANTING: (1) [77] DEFENDANTS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.'S, ONEWEST BANK, FSB'S, HSBC BANK USA, N.A., A NATIONAL ASSOCIATION, AS TRUSTEE FOR BCAP 2008-IN1'S, SUCHAN MURRAY'S, AND INDYMAC FINANCIAL SERVICES, INC.'S (INCORRECTLY NAMED IN THE AMENDED COMPLAINT AS INDYMAC FINANCIAL SERVICES) MOTION FOR SUMMARY JUDGMENT (RE: AMENDED COMPLAINT FOR VERIFICATION OF DEBT ELSE RELEASE OF CLAIM AND FOR DECLARATORY AND INJUNCTIVE RELIEF, FILED MAY 20, 2011); (2) [83] DEFENDANT FIRST AMERICAN TITLE INSURANCE CO.'S JOINDER IN [77] DEFENDANTS' MOTION FOR SUMMARY JUDMGENT RE: AMENDED COMPLAINT FOR VERIFICATION OF DEBT ELSE RELEASE OF CLAIM AND FOR DECLARATORY AND INJUNCTIVE RELIEF; and (3) [75] DEFENDANT HSBC BANK USA, N.A., A NATIONAL ASSOCIATION, AS TRUSTEE FOR BCAP 2008-IN1'S MOTION FOR SUMMARY JUDGMENT (RE: HSBC BANK USA, N.A.'S COUNTERCLAIM FOR FORECLOSURE), AND FOR INTERLOCUTORY DECREE OF FORECLOSURE

AMENDED COMPLAINT AS MOTION FOR SUMMARY JUDGMENT AMENDED COMPLAINT FOR RELEASE OF CLAIM AND FOR DECLARATORY AND INJUNCTIVE RELIEF, FILED DEFENDANT FIRST AMERICAN TITLE INSURANCE CO.'S JOINDER IN [77] DEFENDANTS' MOTION FOR SUMMARY JUDMGENT RE: AMENDED HSBC BANK USA, N.A., a National COMPLAINT FOR VERIFICATION OF DEBT RELEASE OF CLAIM AND FOR DECLARATORY AND INJUNCTIVE RELIEF; and (3) [75] DEFENDANT HSBC BANK USA, N.A., A NATIONAL ASSOCIATION, AS TRUSTEE FOR BCAP 2008-IN1'S MOTION FOR SUMMARY JUDGMENT

The following came on for hearing before the Honorable Susan Oki Mollway on February 13, 2012: (1) [77] DEFENDANTS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.'S, ONEWEST BANK, FSB'S, HSBC BANK USA, N.A., A NATIONAL ASSOCIATION, AS TRUSTEE FOR BCAP 2008-IN1'S, SUCHAN MURRAY'S, AND INDYMAC FINANCIAL SERVICES, INC.'S (INCORRECTLY NAMED IN THE AMENDED COMPLAINT AS INDYMAC FINANCIAL SERVICES) MOTION FOR SUMMARY JUDGMENT (RE: AMENDED COMPLAINT FOR VERIFICATION OF DEBT ELSE RELEASE OF CLAIM AND FOR DECLARATORY AND INJUNCTIVE RELIEF, FILED MAY 20, 2011) ("[77] Defendants' MSJ re: FAC"); (2) [83] DEFENDANT FIRST AMERICAN TITLE INSURANCE CO.'S JOINDER IN Defendants' MSJ re: AMENDED COMPLAINT FOR VERIFICATION OF DEBT ELSE RELEASE OF CLAIM AND FOR DECLARATORY AND INJUNCTIVE RELIEF ("[83] First American's Joinder"); and (3) [75] DEFENDANT HSBC BANK USA, N.A., A NATIONAL ASSOCIATION, AS TRUSTEE FOR BCAP 2008-IN1'S MOTION FOR SUMMARY JUDGMENT (RE: HSBC BANK USA, N.A.'S COUNTERCLAIM FOR FORECLOSURE), AND FOR INTERLOCUTORY DECREE OF FORECLOSURE ("[75] HSBC's MSJ for Foreclosure").

David B. Rosen, Esq. appeared on behalf of Defendants MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS"), ONEWEST BANK, FSB ("OneWest"), HSBC BANK USA, N.A., A NATIONAL ASSOCIATION, as Trustee for BCAP 2008-IN1 ("HSBC"), SUCHAN MURRAY ("Murray"), and INDYMAC FINANCIAL SERVICES, INC. (incorrectly named in the Amended Complaint as INDYMAC FINANCIAL SERVICES) ("IMFS") (collectively, "Defendants"). David J. Minkin, Esq. appeared on behalf of Defendant FIRST AMERICAN TITLE INSURANCE CO ("First American"). Plaintiff LINDA WUNDER DEL PIANO ("DEL PIANO") appeared pro se via telephone.

The Court having heard and considered the evidence presented, and being fully advised in the premises, finds as follows:

FINDINGS OF FACT

1. HSBC is, and at all times relevant was, a national banking association, authorized to do business in the State of Hawaii.

2. DEL PIANO was a resident of the County of Hawaii, State of Hawaii, and was an individual whose ownership, use or possession of real property in Kailua-Kona, gives rise to this action.

3. Former Plaintiff DOUGLAS B. HACKETT, as Trustee of the Paulehia Street Trust ("HACKETT") is, and at all times relevant was, a resident of the State of Hawaii.

4. Pursuant to the Court's Order filed July 1, 2011, HACKETT was stricken as a Plaintiff from the instant case.

5. For valuable consideration, on or about March 27, 2007, DEL PIANO executed and delivered a written Promissory Note dated March 16, 2007, in favor of Express Capital Lending, a California corporation ("Express") in the principal amount of $453,250.00 (hereinafter referred to as the "Note").

6. At the time of the execution and delivery of the Note, and as part of the same transaction and for the purpose of securing payment to the payee or holder of the Note of the principal sum and interest mentioned therein when the same should become due and payable, DEL PIANO, as mortgagor, secured the Note by execution of that certain Mortgage dated March 16, 2007, in favor of MERS solely as nominee for Express, which was recorded on March 30, 2007 in the Bureau of Conveyances of the State of Hawaii, as Regular System Document No. 2007-058303 (the "Mortgage").

7. The Mortgage constitutes a first priority lien interest in the mortgaged property, located at 75-6116 Paulehia Street, Kailua-Kona, Hawaii 96740 (TMK No. (3) 7-5-042-092-0000) ("Mortgaged Property").

8. The Mortgage was subsequently assigned by MERS to HSBC pursuant to an Assignment of Mortgage, recorded on December 9, 2010, in the Bureau of Conveyances of the State of Hawaii, as Regular System Document No. 2010-190976 (the "Assignment").

9. HSBC is now the current holder/owner of the Note and Mortgage. 10. On April 25, 2011, a quitclaim deed was recorded in the Bureau of Conveyances of the State of Hawaii, as Regular System Document No. 2011-067149 ("Deed"), conveying DEL PIANO's interest in the Mortgaged Property to the Paulehia Street Trust (the "Trust"). The conveyance made by the Deed was done subject to HSBC's Mortgage interest in the Mortgaged Property.

11. DEL PIANO is the sole beneficiary of the Trust. Although HACKET is the trustee of the Trust, the Court deems DEL PIANO to be the real party in interest and the owner of the Trust.

12. As such and regardless of the Deed, DEL PIANO is the sole owner of the Mortgaged Property.

13. DEL PIANO is in default under the terms of the Note and Mortgage in that DEL PIANO has breached her covenant to pay the sums owed thereunder at the time the same became due and payable. Under the terms of the Note and Mortgage, the entire remaining principal balance and interest thereon is due and payable, together with ...


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