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

Filing 108

ORDER DENYING (1) "PLAINTIFF'S EMERGENCY EX PARTE MOTION TO REJECT DEFENDANTS' 'FINDINGS OF FACTS; AND CONCLUSIONS OF LAW; AND ORDER GRANTING' BECAUSE OF MATERIALLY SIGNIFICANT FALSE STATEMENTS OF FACT; MOTION TO VACATE OR RE VERSE ORDER GRANTING DEFENDANTS AN 'INTERLOCUTORY OF FORECLOSURE'" AND (2) "EX PARTE MOTION TO SHORTEN TIME FOR HEARING" re 106 ; 107 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/4/12. (emt, )CER TIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed 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. shall be served by first class mail at the addresses of record on April 5, 2012.

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,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
)
)
et al.,
)
Defendants.
)
)
)
_____________________________ )

CIVIL NO. 11-00140 SOM/BMK
ORDER DENYING (1)
“PLAINTIFF’S EMERGENCY EX
PARTE MOTION TO REJECT
DEFENDANTS’ ‘FINDINGS OF
FACTS; AND CONCLUSIONS OF
LAW; AND ORDER GRANTING’
BECAUSE OF MATERIALLY
SIGNIFICANT FALSE STATEMENTS
OF FACT; MOTION TO VACATE OR
REVERSE ORDER GRANTING
DEFENDANTS AN 'INTERLOCUTORY
OF FORECLOSURE,'" AND (2) “EX
PARTE MOTION TO SHORTEN TIME
FOR HEARING”

ORDER DENYING (1) “PLAINTIFF’S EMERGENCY EX PARTE
MOTION TO REJECT DEFENDANTS’ ‘FINDINGS OF FACTS;
AND CONCLUSIONS OF LAW; AND ORDER GRANTING’ BECAUSE
OF MATERIALLY SIGNIFICANT FALSE STATEMENTS OF FACT;
MOTION TO VACATE OR REVERSE ORDER GRANTING DEFENDANTS
AN 'INTERLOCUTORY OF FORECLOSURE,'" AND
(2) “EX PARTE MOTION TO SHORTEN TIME FOR HEARING”
Plaintiff Linda Wunder Del Piano has filed a document
with the title "Plaintiff's Emergency Ex Parte Motion to Reject
Defendants' 'Findings of Facts; and Conclusions of Law; and Order
Granting' Because of Materially Significant False Statements of
Fact; Motion To Vacate or Reverse Order Granting Defendants an
'Interlocutory Decree of Foreclosure'"

(referred to in this

order as the "Motion To Reject and Vacate").

She has also

submitted an “Ex Parte Motion To Shorten Time for Hearing” on the
Motion To Reject and Vacate.

The court denies the motions.

This case was initiated by Del Piano, who brought
claims against those she felt had mishandled the loan on her
property.

Defendant HSBC Bank USA, N.A., a National Association,

as Trustee for BCAP 2008-IN1, filed a counterclaim seeking
foreclosure and moved for summary judgment on the counterclaim.
The court issued an order granting the motion and a separate
order that included the foreclosure decree.

Del Piano now seeks

to undo the court’s rulings.
Del Piano seeks relief based on her argument that HSBC
Bank USA, N.A., a National Association, as Trustee for BCAP 2008IN1, is erroneously identified by this court as the current
holder/owner of Del Piano's Note and Mortgage.

Del Piano argues

that the court should therefore not allow HSBC to foreclose on
Del Piano's property.
In support of the argument she now makes, Del Piano
attaches to the Motion To Reject and Vacate what appears to be
material printed from an internet site that she apparently
searched in connection with inquiries she was making about what
lender had an interest in her property.

According to Del Piano,

the internet site, which appears to have the address
http://www.mers-servicerid.org, refers on one page to an
"investor" with the name "HSBC Bank USA as Trustee," and on
another page to "HSBC Bank USA, National Association."

The first

of these two pages has a date of January 22, 2011, which appears

2

to have been a date automatically included in the printout.

The

second has a date of March 30, 2012, which appears to have been
typed in by Del Piano.

Del Piano contends that the holder of the

Note and Mortgage must have "changed from 'HSBC Bank USA, N.A., a
National Association, as Trustee for BCAP 2008-IN1' trust to
'HSBC Bank USA, National Association' itself."
or Vacate at 2.

Motion To Reject

This argument does not follow.

The court cannot conclude from the way the website,
which does not appear to be an HSBC website, identifies HSBC that
a change in status or identity has actually occurred.

What Del

Piano has submitted is not sufficient to create an issue of fact
that precludes summary judgment.
Moreover, it is not at all clear to the court why Del
Piano only now submits the material she relies on.

Del Piano

filed a response to HSBC's motion for summary judgment on January
27, 2012.

Presumably, she could have searched the website before

submitting that response, to update her apparent search of about
a year earlier (January 22, 2011).

Instead, she waited until

after this court had ruled to do that.

She provides no reason

that she could not have done this earlier.

A party seeking

reconsideration of an order cannot fail to be diligent, then
belatedly try to undo what the court has done.
The untimeliness of Del Piano's submission is
particularly problematic because the foreclosure decree entered

3

on April 3, 2012, was preceded by the order filed on February 24,
2012, granting summary judgment to HSBC.

The April 3 order

included the actual foreclosure decree, named the foreclosure
commissioner, and included the foreclosure details, but it flowed
inevitably from the February 24 order.

Whatever Del Piano wanted

the court to consider with respect to HSBC's status should have
been submitted well before the April 3 order issued.

Even if it

were appropriate for Del Piano to submit material in a
reconsideration motion, that reconsideration motion should have
addressed the February 24 order.

By now, the period for seeking

reconsideration of the February 24 order has passed, regardless
of whether reconsideration is sought pursuant to Local Rule 60.1,
Rule 59 of the Federal Rules of Civil Procedure, or Rule 60 of
the Federal Rules of Civil Procedure.
For all of the reasons set forth above, the motions
submitted by Del Piano today are denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 4, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
LINDA WUNDER DEL PIANO, et al. v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et
al.; CIVIL NO. 11-00140 SOM/BMK; ORDER DENYING (1) “PLAINTIFF’S EMERGENCY EX PARTE
MOTION TO REJECT DEFENDANTS’ ‘FINDINGS OF FACTS; AND CONCLUSIONS OF LAW; AND ORDER
GRANTING’ BECAUSE OF MATERIALLY SIGNIFICANT FALSE STATEMENTS OF FACT; MOTION TO VACATE
OR REVERSE ORDER GRANTING DEFENDANTS AN 'INTERLOCUTORY OF FORECLOSURE,'" AND (2) “EX
PARTE MOTION TO SHORTEN TIME FOR HEARING”

4

5