Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dr. Stephen M. Schwartz, and Dr. Alma v. Bank of Hawaii Corporation

June 28, 2012

DR. STEPHEN M. SCHWARTZ, AND DR. ALMA SCHWARTZ, PLAINTIFFS,
v.
BANK OF HAWAII CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

I. INTRODUCTION

Before the court is a Motion for Temporary Restraining Order ("TRO") filed by pro se Plaintiffs Stephen M. Schwartz and Alma Schwartz ("Plaintiffs") on June 26, 2012. In their Motion for TRO, Plaintiffs seek to postpone a foreclosure sale relating to real property located at 72-4075 Alahee Place, Kailua-Kona, Hawaii 96740 ("the subject property"). The foreclosure sale is scheduled to occur on June 29, 2012. The court has reviewed the Motion, the Opposition, and the filings in this action and in other related actions. Based on the following, the Motion for TRO is DENIED.

II. BACKGROUND

On May 18, 2012, Plaintiffs filed a 66-page document entitled "Action for Relief from Void Judgment Pursuant to Federal Rules of Court 60(B)(2)(3) and (4)" ("the original Complaint"). Doc. No. 1, Compl. The original Complaint makes a variety of confusing allegations against Defendants Bank of Hawaii Corporation, Bank of Hawaii, Peter S. Ho, Derek J. Norris, Mark Rossi, Mary Sellers, Gary Williams, Mitzi Lee, Randy Muraoka, Lawrence Johnson, and Lawrence R. Johnson Construction, Inc. (collectively "Defendants") relating to a promissory note and mortgage secured by the subject property, and a corresponding state court judgment and pending foreclosure proceedings. Id. at 2, 4, 11, 22.

On June 26, 2012, Plaintiffs filed a 130-page "Amended Independent Action for Relief from Void Judgment Pursuant to Federal Rules of Court 60(B)(2)(3) and (4)," Doc. No. 23, which the court construes as an Amended Complaint filed in response to a now-moot Motion to Dismiss, which sought to dismiss the original Complaint. The Amended Complaint clarifies in some respects the allegations of the original Complaint by attaching a copy of a Mortgage on the subject property recorded in the Hawaii Bureau of Conveyances on September 6, 2005. The Mortgage corresponds to a Promissory Note of $1,499,999 secured by the subject property. Id., Am. Compl. at 16 & Ex. A. The Amended Complaint also attaches a February 9, 2010 Judgment and Foreclosure Decree from the Circuit Court of the Third Circuit, State of Hawaii. Id. Ex. B.*fn1

The record confirms that a foreclosure action concerning the subject property was filed in August 2009 against Plaintiffs by Bank of Hawaii in the Circuit Court of the Third Circuit, State of Hawaii. Bank of Hawaii prevailed in that action and obtained an Interlocutory Decree of Foreclosure and Order of Sale on February 9, 2010. See Bank of Haw. v. Schwartz et al., Civ. No. 3CC09-1-00340K (Haw. Cir. Ct), docket available at http://hoohiki2.courts.state.hi.us/jud/ Hookiki/main.htm) (last visited June 28, 2012). After that state court judgment was entered, Plaintiffs filed a counterclaim in that proceeding, raising similar claims that they assert in this action, in an attempt to prevent the foreclosure sale. See Doc. No. 28-2, Defs.' Opp'n Ex. A. The state court dismissed that counterclaim. Id. Ex. C.

Thereafter, Plaintiffs filed bankruptcy actions in Hawaii and Pennsylvania. On April 17, 2012, the U.S. Bankruptcy Court for the Eastern District of Pennsylvania ("Pennsylvania Bankruptcy Court") dismissed Plaintiff Alma Schwartz's bankruptcy action, finding in part that pursuant to 11 U.S.C. § 362(d)(4), [Alma Schwartz] filed the petition in this case as part of a scheme to delay, hinder and defraud [Bank of Hawaii] that involved (i) multiple transfers by Debtor and her spouse, Stephen M. Schwartz, or all or part ownership of [the subject property] without the consent of [Bank of Hawaii], whose claim is secured by an interest in [the subject property], and without court approval, and (ii) multiple bankruptcy filings by [Alma Schwartz] and her spouse, Stephen M. Schwartz, affecting [the subject property.]

Doc. No. 28-5, Defs.' Opp'n Ex. 5 (Order of U.S. Bankruptcy Court for the Eastern District of Pennsylvania) at 2. The Pennsylvania Bankruptcy Court further found and ordered that:

[Bank of Hawaii] is hereby permitted to exercise its state law rights and remedies with respect to the [subject property] by commencing and/or continuing a state foreclosure proceeding, conducting a Sheriff's sale of [the subject property], taking possession of [the subject property], and/or exercising any other remedies to which it is entitled under the Existing Loan Documents . . . in order to recover the obligations and indebtedness due and owing to [Bank of Hawaii] by [Alma Schwartz] and Stephen M. Schwartz[.]

Id. at 2-3. As to timing, it found that "[Bank of Hawaii] may immediately enforce and implement this Order and pursue its state law remedies as it relates to [the subject property]." Id. at 3.

On June 26, 2012, Plaintiffs filed their Motion for TRO, in which they seek an Order "temporarily enjoining Defendants' [sic] and/or any party from any further action against Plaintiff [sic], including, but not limited to, postponing the Foreclosure Sale to occur on June 29, 2012." Doc. No. 24, Mot. at 3. Defendants (aside from Gary Williams, Lawrence Johnson, Lawrence R. Johnson Construction, Inc., and Guy Sakamoto) filed an Opposition to the Motion on June 28, 2012. Doc. No. 28. Pursuant to Local Rule 7.2(d), the court finds the Motion suitable for disposition without an oral hearing.

III. STANDARD OF REVIEW

A court may issue a TRO without written or oral notice to the adverse party only if the party requesting the relief provides an affidavit or verified complaint providing specific facts that "clearly show that immediate and irreparable injury, loss, or damage will result to the movant before ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.