Del Piano et al v. Mortgage Electronic Registration Systems, Inc. et al

Filing 103

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 MU RRAY'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' MOITON FOR SUMMARY JUDGMENT RE: AMENDED COMPLAINT FOR VERIFICATION OF DEBT ELSE RELEASE OF CLAIM AND FOR DECLAR ATORY 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 DECR EE OF FORECLOSURE - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/3/12. -- " Summary Judgment and Interlocutory Decree of Foreclosure in favor HSBC and against Plaintiffs is hereby entered. Pursuant to Rule 54(b), Federal Rules of C ivil Procedure, this Court expressly directs that said summary judgment and interlocutory decree of foreclosure be and are hereby entered as final judgments as to HSBC's Counterclaim for Foreclosure as there is no just reason for delay." Ro bert D. S. Kim is appointed as Commissioner by this Court. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address l isted on the Notice of Electronic Filing (NEF). Linda Wunder Del Piano, Douglas B. Hackett, Bradley R. Pulice, Esq., Franklin D. Pacarro, Jr., Esq. and Robert D. S. Kim, Esq. served by first class mail at the addresses of record on April 3, 2012.

DAVID B. ROSEN (7152-0)
LAUREN M. AKITAKE (8858-0)
THE LAW OFFICE OF DAVID B. ROSEN, ALC
810 Richards Street, Suite 880
Honolulu, HI 96813
Ph.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., ONEWEST BANK, FSB, HSBC BANK USA, N.A., A
NATIONAL ASSOCIATION, as Trustee for BCAP 2008-IN1, SUCHAN
MURRAY, and INDYMAC FINANCIAL SERVICES, INC. (incorrectly named in
the Amended Complaint as INDYMAC FINANCIAL SERVICES)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LINDA WUNDER DEL PIANO, and
DOUGLAS B. HACKETT, as Trustee
of the Paulehia Street Trust,

CIVIL NO. CV 11-00140 SOM-BMK

FINDINGS OF FACT;
CONCLUSIONS OF LAW; AND
ORDER GRANTING: (1) [77]
Plaintiffs, Pro se,
DEFENDANTS MORTGAGE
vs.
ELECTRONIC REGISTRATION
SYSTEMS, INC.’S, ONEWEST
MORTGAGE ELECTRONIC
BANK, FSB’S, HSBC BANK USA,
REGISTRATION SYSTEMS, INC.,
N.A., A NATIONAL
“MERS,” its successors in interest
ASSOCIATION, AS TRUSTEE
and/or assigns, INDYMAC
FINANCIAL SERVICES, a division of FOR BCAP 2008-IN1’S, SUCHAN
MURRAY’S, AND INDYMAC
OneWest Bank, FSB, its successors in
FINANCIAL SERVICES, INC.’S
interest and/or assigns, ONEWEST
(INCORRECTLY NAMED IN THE
BANK, FSB, its successors in interest
AMENDED COMPLAINT AS
and/or assigns, EXPRESS CAPITAL
INDYMAC FINANCIAL
LENDING, its successors in interest
SERVICES) MOTION FOR
and/or assigns, HSBC BANK USA,
N.A., a National Association, as Trustee SUMMARY JUDGMENT (RE:
AMENDED COMPLAINT FOR
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,

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’
Defendants.
MOTION FOR SUMMARY
________________________________ JUDMGENT RE: AMENDED
HSBC BANK USA, N.A., a National
COMPLAINT FOR
Association, as Trustee for BCAP 2008- VERIFICATION OF DEBT ELSE
IN 1, its successors in interest and/or
RELEASE OF CLAIM AND FOR
assigns,
DECLARATORY AND
INJUNCTIVE RELIEF; and (3)
Counterclaimant,
[75] DEFENDANT HSBC BANK
USA, N.A., A NATIONAL
vs.
ASSOCIATION, AS TRUSTEE
FOR BCAP 2008-IN1’S MOTION
LINDA WUNDER DEL PIANO,
FOR SUMMARY JUDGMENT
DOUGLAS B. HACKETT,
(RE: HSBC BANK USA, N.A.’S
individually, and THE PAULEHIA
COUNTERCLAIM FOR
STREET TRUST, through its Trustee
FORECLOSURE), AND FOR
Douglas B. Hackett,
INTERLOCUTORY DECREE OF
FORECLOSURE
Counterclaim Defendants,
and
BANK OF HAWAII; DOES 1-10,

HEARING
Date: February 13, 2012
Time: 9:00 a.m.
Judge: Hon. Susan Oki Mollway

Third-Party Defendants.

2

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
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]
3

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:
4

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
5

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. 2011067149 (“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.

6

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 costs, expenses, attorneys' fees and late fees, all of which
are secured by the Mortgage.
14.

By reason of said breach, HSBC has exercised, and does hereby

exercise, its option under the terms and covenants of the Note and Mortgage to
declare the entire principal balance due under the Note and Mortgage, together
with interest, immediately due and payable.
15.

Due notice has been given to DEL PIANO of HSBC's exercise of its

option, and although HSBC (through its predecessor in interest) has made demand
upon DEL PIANO for payment of the sum due under the Note and Mortgage, DEL
PIANO has failed to pay the same.
16.

As of March 8, 2011, there was due and owing from DEL PIANO to

HSBC under the Note and Mortgage a principal balance of $474,890.57, plus
interest and late fees in amounts to be shown, plus any further advances made by
HSBC for property expenses (real property taxes, fire and/or mortgage insurance
7

premiums, inspection and/or property preservation fees, etc.), until the closing of
the sale herein, together with attorneys' fees and costs and such other and further
amounts and charges as may be proper and allowed, all of which constitute a valid
first lien on the Mortgaged Property.
17.

By reason of the facts hereinbefore set forth and alleged, HSBC is

entitled to the foreclosure of its Mortgage and the sale of the Mortgaged Property.
18.

The Mortgage provides that in the event of foreclosure, HSBC may be

awarded all amounts secured by the Mortgage, including reasonable attorneys' fees
and all costs, expenses or advances made by HSBC for the benefit or protection of
the Mortgage and Mortgaged Property or in connection therewith.
19.

HSBC has incurred other fees, costs and expenses in connection with

the transaction described in the Complaint, which fees, costs and expenses will be
shown at the hearing on the confirmation of the sale of the Mortgaged Property.
20.

The Mortgage provides that the mortgagee (i.e., HSBC) may be the

purchaser at any foreclosure sale.
21.

This Court has jurisdiction of the parties and the subject matter of this

action, and venue is proper in this Court.
22.

All parties entitled to notice of the motions, in particular HSBC’s

Motion for Summary Judgment for Foreclosure, have been provided with due and
adequate notice.
8

There is no just reason for delay in entering a final judgment as to HSBC's
Counterclaim for Foreclosure pursuant to Federal Rules of Civil Procedure 54(b).
CONCLUSIONS OF LAW
Pursuant to the foregoing findings of fact, the Court concludes:
1.

The Note represents a valid and binding legal obligation, as to which

HSBC has performed and DEL PIANO has defaulted.
2.

The Note is secured by the Mortgage on the Mortgaged Property.

3.

HSBC is entitled to judgment on the Note. As of March 8, 2011 there

was due and owing from DEL PIANO to HSBC under the Note and Mortgage a
principal balance of $474,890.57, plus interest and late fees in amounts to be
shown, plus any further advances made by HSBC for property expenses (real
property taxes, fire and/or mortgage insurance premiums, inspection and/or
property preservation fees, etc.), until the closing of the sale herein, together with
attorneys' fees and costs and such other and further amounts and charges as may be
proper and allowed.
4.

The amounts due and to become due to HSBC constitute a valid first

lien upon said Mortgaged Property.
5.

HSBC is entitled to have its Mortgage foreclosed upon the Mortgaged

Property and to have the Mortgaged Property sold in a manner subscribed by law.

9

6.

This Court has jurisdiction of the parties and the subject matter of this

action, and venue is proper in this Circuit.
7.

HSBC is entitled to judgment as a matter of law on its Counterclaim

to Foreclose.
8.

Pursuant to FRCP 54(b), this Court expressly directs that final

judgment shall be entered as to HSBC's Counterclaim for Foreclosure as there is no
just reason for delay.
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
WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
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 200810

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), is granted in its entirety;
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, is granted in its entirety; 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, is granted in its entirety as follows:
a. Summary Judgment and Interlocutory Decree of Foreclosure in favor
HSBC and against Plaintiffs is hereby entered. Pursuant to Rule 54(b), Federal
Rules of Civil Procedure, this Court expressly directs that said summary judgment
and interlocutory decree of foreclosure be and are hereby entered as final
11

judgments as to HSBC's Counterclaim for Foreclosure as there is no just reason for
delay.
b. Plaintiff DEL PIANO is in default under the Note and Mortgage
currently held by HSBC. There is due and owing and unpaid to HSBC from DEL
PIANO the principal sum of $474,890.57, plus interest and late fees in amounts to
be shown, plus any further advances made by HSBC for property expenses (real
property taxes, fire and/or mortgage insurance premiums, inspection and/or
property preservation fees, etc.), until the closing of the sale herein, together with
attorneys' fees and costs and such other and further amounts and charges as may be
proper and allowed, all as lawfully chargeable under the provisions of the Note and
Mortgage held by HSBC, the total of which the Court shall determine at a
subsequent hearing, all of which said sums constitute a valid first lien upon the
Mortgaged Property prior to all other liens, and all of which allowable and
awarded sums shall be paid at the date of closing of the sale hereinafter authorized.
The Mortgage currently held by HSBC shall be and is hereby foreclosed as prayed,
and the Mortgaged Property shall be sold at public auction, without an upset price,
as authorized by law and under the provisions of said Mortgage, or by way of
private sale. The sale shall not be final until approved and confirmed by the Court.

12

c. Robert D. S. Kim, whose address is P.O. Box 188, Kealakekua,
Hawaii 96750, and whose telephone number is 808-323-2100, is hereby appointed
as Commissioner by this Court and such Commissioner shall henceforth hold all
equitable and legal title to the Mortgaged Property, and is hereby authorized and
directed to take possession of the Mortgaged Property, to rent the Mortgaged
Property pending foreclosure, if appropriate, and to sell the Mortgaged Property in
its "AS-IS" condition, without any representations or warranties whatsoever as to
title or possession, and by way of quitclaim conveyance, by public Commissioner's
sale, without an upset price, in accordance with this Order.

No public

Commissioner's sale shall occur until after notice of such sale is given by the
Commissioner by publication in the classified section of a daily newspaper of
general circulation printed and published in the State of Hawaii, as may be directed
by the Court from time to time. 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 Mortgaged Property, and
shall disclose all of the terms of the foreclosure sale. The Commissioner may
continue the sale from time to time in the Commissioner's discretion. No bond
shall be required of the Commissioner. The Commissioner shall be awarded a
reasonable fee as Commissioner in an amount to be subsequently determined by
the Court. The Commissioner's fees and costs shall be deemed to be secured by
13

HSBC's Mortgage lien on the Mortgaged Property.

In the event the person

appointed in this order refuses or becomes unable to act as Commissioner, the
Court may appoint another person to serve as Commissioner, without further
notice or hearing.
d. The Commissioner shall hold all proceeds of sale of the Mortgaged
Property to the credit of this cause subject to the directions of this Court. A further
hearing shall be held in this action to consider confirmation of the foreclosure sale.
At the hearing, the Court shall hear proof of the claim of any other party and shall
determine the priority among the claims of the parties besides HSBC. At the
hearing, the Court may, upon a showing of good cause, also allow reopening of the
auction by accepting higher bids, the first of which must be at least one hundred
five percent (105%) of the highest bid at the Commissioner's sale; anyone may
reopen the auction by bidding, including all parties to this action and any other
interested person, whether or not any such party or interested person had bid, or
could have bid, at the Commissioner's sale. The Court reserves jurisdiction to
determine the party or parties to whom any surplus shall be awarded. The Court
shall determine the amount of the fee of the Commissioner and the amount of the
attorneys' fees and costs of HSBC and shall direct the final payment of the
proceeds of the foreclosure sale. Upon distribution of the sale proceeds according
to the directions of the Court, the Commissioner shall file an accurate accounting

14

of receipts, expenses and distributions.
e. DEL PIANO and all parties hereto, and all persons claiming by,
through or under DEL PIANO, except for any governmental authority enforcing a
lien for unpaid real property taxes as to the Mortgaged Property, will be
perpetually barred of and from any and all right, title and interest in the Mortgaged
Property or any part thereof upon closing of the sale herein authorized.
f. Pursuant to Section 501-151 of the Hawaii Revised Statutes, as
amended, any and all other or further encumbrances or purchasers in respect of the
Mortgaged Property or any part thereof, whose interest arises from and after March
8, 2011, will be hereby forever barred of and from any and all right, title and
interest in and to the Mortgaged Property and every part thereof upon the closing
of the sale herein authorized.
g. HSBC and all parties are hereby authorized to purchase the
Mortgaged Property at the foreclosure sale. The successful bidder at the sale shall
make a down payment to the Commissioner in an amount not less than ten percent
(10%) of the highest successful bid price. This payment shall be in cash, money
order, by cashier's check or by certified check, provided that HSBC may satisfy the
down payment by way of offset up to the amount of its secured debt; prior to
bidding, any person not hereby authorized to credit bid must show the
Commissioner such person's present ability to make the required down payment in
such form immediately upon the close of the bidding. At the Court's discretion, the
15

10% down payment may be forfeited in full or in part if the purchaser shall fail to
pay the balance of the purchase price as hereinafter set forth. In no event shall the
purchaser be liable for damages greater than the forfeiture of the 10% down
payment. The balance of the purchase price shall be paid to the Commissioner
upon approval and confirmation of the sale, provided that if HSBC is the purchaser
at the foreclosure sale, HSBC may satisfy the balance of the purchase price by way
of offset up to the amount of its secured debt. The Commissioner may require that
the sale close through an escrow, even if the purchaser does not require one. All
costs and expenses of closing, including without limitation, the costs of
conveyance, including preparation of the conveyance document, conveyance tax,
escrow and recording fees, any proof of title or title insurance, and notary fees, as
well as the costs of securing possession of the Mortgaged Property, shall be the
responsibility of and paid by the purchaser. Neither the availability of the title
insurance nor securing possession of the Mortgaged Property shall be a condition
of closing.
[SIGNATURE PAGE FOLLOWS]

16

DATED: Honolulu, Hawaii, April 3, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

APPROVED AS TO FORM:

______________________________
LINDA WUNDER DEL PIANO

Plaintiff Pro Se

__________________________________________________________________
LINDA WUNDER DEL PIANO, et al v. MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., et al; CIVIL NO. CV 11-00140 SOM-BMK; 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.

17