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March v. Mortgage Electronic Registration Systems, Inc.

United States District Court, District of Hawaii

May 6, 2015

DEBRA L. MARCH, Plaintiff,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; JPMORGAN CHASE BANK, N.A.; BANK OF AMERICA, N.A.; and U.S. BANK, N.A., Defendants. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CERTIFICATE-HOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I LLC, ASSET-BACKED CERTIFICATES, SERIES 2005-HE8, Counterclaimant and Third-Party Plaintiff,
v.
DEBRA L. MARCH; and DOES 1 through 20, inclusive, Counterclaim Defendants, and UNITED STATES OF AMERICA, DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE; STATE OF HAWAII, DEPARTMENT OF TAXATION; and DOES 1 through 20, inclusive, Third-Party Defendants.

ORDER ADOPTING MAGISTRATE JUDGE’S MARCH 31, 2015 FINDINGS OF FACT AND RECOMMENDATION THAT DEFENDANT U.S. BANK’S MOTION FOR CONFIRMATION OF SALE, FOR APPROVAL OF COMMISSIONER’S REPORT, AND FOR WRIT OF POSSESSION BE GRANTED

Derrick K. Watson, J.

Plaintiff Debra L. March (“March”) objects to a March 31, 2015 Findings of Fact and Recommendation (“F & R”) of United States Magistrate Judge Barry Kurren. The F & R addressed Defendant U.S. Bank National Association’s (“U.S. Bank”) Motion for Confirmation of Sale, for Approval of Commissioner’s Report, and for Writ of Possession (“Motion”), made factual findings, and recommended that the Motion be granted. Dkt. No. 142. Because the Magistrate Judge properly found in favor of U.S. Bank, the Court ADOPTS the F & R and overrules March’s objections. The Motion is GRANTED according to the terms set forth in the F & R.

BACKGROUND

In her First Amended Complaint filed on December 19, 2012, March sought declaratory relief that a $463, 000 note, the mortgage executed as security in conjunction with that note, as well as subsequent assignments of the same, all relating to her property in Hanalei, Hawai‘i (the “Property”), were void and invalid. Dkt. No. 28 (First Amended Complaint (“FAC”) ¶¶ 8, 11, 15–16); Dkt. No. 88-2 (Exh. A).

On October 15, 2014, this Court entered its Findings of Fact, Conclusions of Law, and Order Granting Defendants' Motion for Summary Judgment on All Claims Contained in Plaintiff's First Amended Complaint, filed on December 19, 2012 and Defendant U.S. Bank National Association, as Trustee, Successor in Interest to Bank of America, National Association as Successor by Merger to LaSalle Bank National Association, as Trustee for Certificate Holders of Bear Stearns Asset Backed Securities I LLC, Asset-Backed Certificates, Series 2005-HE8's Counterclaim and Third-Party Complaint for Foreclosure Against Plaintiff Debra L. March; and Granting Third Party Defendant Department of Taxation, State of Hawaii's Motion for Summary Judgment Against Plaintiff Debra L. March (“Foreclosure Decree”) (Dkt. No. 115) foreclosing the subject mortgage (“Mortgage”).

The Foreclosure Decree duly appointed Frank D. Rothschild, as Commissioner (“Commissioner”), to sell the Property. Dkt. No. 115 at 12-13. The Foreclosure Decree authorized and directed the Commissioner to, among other things:

[S]ell the Property on foreclosure sale to the highest bidder at public Commissioner’s sale by auction, without an upset price, after notice of such sale first being given by said Commissioner by publication in the classified section of a daily newspaper of general circulation printed and published in the county in which the Property lies. The notice shall be published once in each week for three (3) consecutive weeks, with the sale to take place no sooner than fourteen (14) days after the third date of publication. The notice shall give the date, time and place of sale and an intelligible description of the Property, and shall disclose all of the terms of sale herein mentioned.

Dkt. No. 115 at 13.

The Foreclosure Decree permitted any person, including the parties, to purchase the Property at the foreclosure sale. Dkt. No. 115 at 15. Thereafter, the Commissioner reported in his Commissioner’s Report (Dkt. No. 132) that he --

Published in the classified section of the Garden Island, a newspaper having general circulation in the State of Hawaii on November 12 and November 19, 2009[1] and November 26, 2014, an advertisement titled Notice of Foreclosure Sale setting forth a summary description of the property; the date and time of Open Houses which were held on November 29 and December 6, 2014; the date, time and place for the public auction, and other pertinent information.

Dkt. No. 132 at 3.

The Commissioner further reported that U.S. Bank submitted an opening bid of $345, 072.20, that U.S. Bank’s bid was the highest bid, and that he declared the Property sold to U.S. Bank. Dkt. No. 132 at 3-4. The Commissioner believed that the bid price of $345, 072.20 is “a fair and reasonable one” and recommended that the Court confirm the sale of the Property to U.S. Bank. Dkt. No. 132 at 4.

On January 23, 2015, U.S. Bank filed the instant Motion for Confirmation of Sale, for Approval of Commissioner’s Report, and for Writ of Possession. Dkt. No. 133. The matter was referred to Magistrate Judge Kurren. On March 9, 2015, Magistrate Judge Kurren held an oral hearing on the matter. Dkt. No. 140. March did not appear at the hearing, nor did she make arrangements with the Court to appear at the ...


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