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Mariano v. Bank of Hawaii

United States District Court, D. Hawaii

January 22, 2016

ELVIRA R. MARIANO; ALEJANDRO B. MARIANO, JR.; and ESTATE OF CRISOSTOMO R. RAGUINE, deceased, Plaintiffs,
v.
BANK OF HAWAII; PETER HO; RICK MURPHY; RAECHELLE HESTER; SUN LUM; MITZI A. LEE; LORRIN A. KAU; JEROME ADARNA; DEPARTMENT OF COMMERCE; el al. Defendants.

ORDER DENYING DEFENDANTS’ BANK OF HAWAII, PETER HO, RAECHELLE HESTER, SUI LUM, AND MITZI A. LEE’S MOTION TO DISMISS COMPLAINT AND JEROME ADARNA’S JOINDER THEREIN; ORDER GRANTING DEFENDANT LORRIN A. KAU’S MOTION TO DISMISS COMPLAINT; ORDER GRANTING DEFENDANT DEPARTMENT OF COMMERCE & CONSUMER AFFAIRS MOTION TO DISMISS; ORDER DENYING PLAINTIFF ELVIRA R. MARIANO’S MOTION FOR SUMMARY JUDGMENT

SUSAN OKI MOLLWAY CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION.

Plaintiffs Elvira R. Mariano, her husband Alejandro B. Mariano, Jr., and the Estate of Crisostomo R. Raguine, deceased, have filed a Complaint against various Defendants arising out of a state-court action that resulted in the foreclosure of the mortgage on their home. Plaintiffs name as Defendants: 1) Bank of Hawaii; 2) its President, Peter Ho; 3) its former Vice President, Rick Murphy; 4) two of its employees, Raechelle Hester and Sui Lum; 5) its attorney, Mitzi A. Lee; 6) the court-appointed foreclosure commissioner, Lorrin A. Kau, 7) the purchaser of their home at the public auction, Jerome Adarna; and 8) the State of Hawaii Department of Commerce and Consumer Affairs. See ECF No. 1.

Before the court are a number of motions. Pursuant to Local Rule 7.2(d), the court decides these motions without a hearing.

On June 11, 2015, Defendants Bank of Hawaii, Peter Ho, Raechelle Hester, Sui Lum, and Mitzi A. Lee (collectively, “Bank of Hawaii”) moved to dismiss Plaintiffs’ Complaint for lack of subject matter jurisdiction.[1] See ECF No. 18. On June 22, 2015, Defendant Jerome Adarna filed a Joinder in Bank of Hawaii’s motion to dismiss. See ECF No. 25. The court denies the motion and joinder, as special counsel for Alejandro Mariano has clarified that federal claims are being asserted that provide this court with subject matter jurisdiction.[2]

On June 15, 2015, Defendant Lorrin A. Kau moved to dismiss Plaintiffs’ Complaint, arguing that it fails to state a claim upon which relief can be granted. See ECF No. 22. The court grants the motion, as the Complaint lacks any factual allegations of wrongdoing on Kau’s part.

On August 20, 2015, Defendant Department of Commerce and Consumer Affairs filed a motion to dismiss. See ECF No. 48. That motion is granted, as the Rooker-Feldman doctrine bars this court from reviewing the state-court foreclosure judgments and orders. Additionally, the Complaint lacks any factual allegations of wrongdoing on the part of the Department of Commerce and Consumer Affairs.

On June 28, 2015, Plaintiff Elvira Mariano filed a response to the motions to dismiss. See ECF No. 28. She also attached her own motion for summary judgment to her response, arguing that the foreclosure was wrongful. See ECF No. 28-1. That motion is denied. As noted above, she may not seek to have this court review the state-court foreclosure proceedings.

II. FACTUAL BACKGROUND.

Although Plaintiffs’ Complaint is unclear, the court has gleaned from it the gist of what Plaintiffs say has occurred.

Plaintiffs purchased real property in Aiea, Hawaii, which they financed through a loan from Bank of Hawaii. The loan was secured by a mortgage on the property. See ECF No. 1, PageID # 2. Plaintiffs lived in the home for close to two decades. See id., PageID #s 6-7.

In 2009, Plaintiffs requested a loan modification from Bank of Hawaii. See id., PageID # 3. Bank of Hawaii agreed to temporarily modify the loan, reducing the amount of Plaintiffs’ monthly mortgage payments for a period of one year. See id. In June, 2010, Plaintiffs requested a permanent loan modification, which Bank of Hawaii denied. See id.

In April 2011, Plaintiffs received a letter from Bank of Hawaii, demanding immediate payment of the remaining balance of their loan of $237, 327.87, because Plaintiffs had allegedly defaulted on their mortgage payments. See id., PageID # 15. The court takes judicial notice of an action in state court in which Bank of Hawaii, represented by its attorney, Defendant Mitzi A. Lee, sued Plaintiffs and sought to foreclose Bank of Hawaii’s mortgage liens and security interests on Plaintiffs’ home. See Bank of Hawaii v. Mariano, Civil No. 11-1-0994-05. The state court determined that Bank of Hawaii was entitled to foreclose on the mortgage, ordered that the home be sold, and appointed Defendant Lorrin Kau as the court’s foreclosure commissioner to sell the home. See ECF No. 22-3, PageID #s 120-24.

With respect to the foreclosure proceedings and/or the loan modification request, Plaintiffs sought assistance from Bank of Hawaii’s President, Defendant Peter Ho; its Vice President, Defendant Rick Murphy; and one of its employees, Defendant Sui Lum. See ECF No. 1, PageID # 4. ...


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