Tiburcio et al v. REO Properties Corporation et al

Filing 55

ORDER REGARDING DEFENDANTS' MOTIONS TO DISMISS AND JOINDERS THERETO re 21 Motion to Dismiss re 26 Motion for Joinder re 31 Motion to Dismiss re 32 Motion for Joinder re 15 Motion to Dismiss re 19 M otion for Summary Judgment re 20 Motion to Dismiss Signed by JUDGE LESLIE E. KOBAYASHI on 05/29/2015. The Court thus DISMISSES WITH PREJUDICE Counts II and XXI in their entirety, and Count XXII, to the exten t that it is covered by the State Case. The Court DISMISSES WITHOUT PREJUDICE Counts I, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and XX. The Court does not rule on Count XXII as to Whang and Cayetano, insofar a s that claim may not be entirely covered by the State Case. That part of Count XXII is the only claim remaining in the Complaint. The Court Directs the Clerk's Office to terminate Judge Ayabe, Prudential, and Island Realtors as parties. (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NES SARMIENTO TIBURCIO, ET
AL.,

)
)
)
)
Plaintiffs,
)
vs.
)
)
REO PROPERTIES CORPORATION, A )
DELAWARE CORPORATION, ET AL., )
)
)
Defendants.
_____________________________ )

CIVIL 15-00039 LEK-RLP

ORDER REGARDING DEFENDANTS’ MOTIONS
TO DISMISS AND JOINDERS THERETO
Before the Court are: (1) Defendants Ocwen Loan
Servicing, LLC (“Ocwen”) and Mortgage Electronic Registration
Systems, Inc.’s (“MERS,” collectively “Ocwen Defendants”) Motion
to Dismiss [Dkt. # 1] Verified Complaint for Damages and
Declaratory and Injunctive Relief, Filed February 12, 2015
(“Ocwen Motion”), filed March 16, 2015;1 (2) Defendant Clay
Chapman Iwamura Pulice & Nervell’s (“Clay Chapman”) Motion to
Dismiss and/or for Summary Judgment (“Clay Chapman Motion”),
filed March 16, 2015; (3) Defendant the Honorable Bert I. Ayabe’s
(“Judge Ayabe”) Motion to Dismiss with Prejudice Verified
Complaint for Damages and Declaratory and Injunctive Relief
(“Judge Ayabe Motion”), filed March 17, 2015; (4) Defendant

1

MERS represents that it has not been served with the
complaint in this case, and enters a special appearance to join
in the Ocwen Motion. [Mem. in Supp. of Ocwen Motion at 1 n.1.]

Prudential Advantage Realty’s (“Prudential”) Motion to Dismiss
with Prejudice Plaintiffs’ Verified Complaint for Damages and
Declaratory and Injunctive Relief (“Prudential Motion”), filed
March 18, 2015; (5) Defendants Sandra Whang (“Whang”) and
Thomas Cayetano’s (“Cayetano”) substantive joinder in the Clay
Chapman Motion (“Whang-Cayetano Joinder”), on March 23, 2015;
(6) Defendant Island Realtors, LLC’s (“Island Realtors”) Motion
to Dismiss Plaintiffs’ Verified Complaint, Filed February 12,
2015 (“Island Realtors Motion”), filed April 2, 2015; and
Defendant Hawaii Self Storage’s (“Self Storage”) joinder in the
Clay Chapman Motion (“Self Storage Joinder,” all collectively
“Motions”), on April 2, 2015.
32.]

[Dkt. nos. 15, 19, 20, 21, 26, 31,

Pro se Plaintiffs Nes Sarmiento Tiburcio, Yolie C.

Tiburcio, Neslie Joy Tiburcio-Ancheta, Mark Ancheta, and
Hazel Tiburcio, all on behalf of themselves and all others
similarly situated (collectively “Plaintiffs”), filed their
memorandum in opposition to the Judge Ayabe Motion on May 12,
2015.2

[Dkt. no. 54.]

Prudential filed its reply on May 1, 2015

2

Plaintiffs did not file memoranda in opposition to the
other four motions currently pending, and their single memorandum
was filed more than two weeks late. Apparently to excuse the
tardiness of their filing and failure to file other memoranda,
Plaintiffs state that not all of them are currently residing at
the address of record, and thus they are not all receiving mail
there. [Mem. in Opp. at 2.] The Court understands that this may
be a challenging time for Plaintiffs, but reminds them that they
are responsible for meeting all court deadlines, just as other
litigants before this Court. The Court cautions Plaintiffs, that
(continued...)
2

(“Prudential Reply”), and the Ocwen Defendants filed their reply
on May 4, 2015 (“Ocwen Reply”).3

[Dkt. nos. 46, 48.]

The Court finds these matters suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

After careful consideration of the

Motions, supporting and opposing memoranda, and the relevant
legal authority, the Court rules on the Motions as follows:

the

Judge Ayabe Motion and the Island Realtors Motion are HEREBY
GRANTED; the Whang-Cayetano Joinder is HEREBY GRANTED IN PART;
the Ocwen Motion, Clay Chapman Motion, and Prudential Motion are
HEREBY GRANTED IN PART AND DENIED IN PART; and the Self Storage
Joinder is DENIED.
BACKGROUND
On February 12, 2015, Plaintiffs filed their seventytwo page Verified Complaint for Damages and Declaratory and
Injunctive Relief (“Complaint”), asserting twenty-two counts
against more than twenty defendants.4

[Dkt. no. 1.]

Plaintiffs

2

(...continued)
while it will consider their memorandum in this instance, it may
not in the future if Plaintiffs miss additional filing deadlines.
3

Additionally, the Ocwen Defendants filed a statement of no
opposition to the other defendants’ motions, on April 27, 2015.
[Dkt. no. 44.]
4

Although on the caption Plaintiffs include thirty-two
claims, in the body of the Complaint they only bring twenty-two
(continued...)
3

allege that, on or about March 1, 2006, they acquired a home in
Honolulu (“Property”), “via mortgagor, Faustino Luis Castillo and
Joselyn Giron Vaquila.”

[Complaint at ¶ 61.]

On August 19,

2008, MERS, as nominee of Fremont Investment and Loan (“Fremont”)
initiated an action to foreclose on the mortgage securing the
Property (“Mortgage”) in Hawai`i state court (“State Case”).
[Id. at ¶ 64.]

On September 23, 2009, Judge Ayabe entered

summary judgment in favor of MERS (“Foreclosure”) and, on
September 19, 2012, he issued a writ of ejectment (“Writ”).5
[Id. at ¶¶ 65, 70.]

On September 7, 2014, Defendants Cayetano

and Whang executed the Writ (“Lock-Out”).6

[Id. at ¶ 69.]

Boiled down to its essentials, Plaintiffs’ Complaint
challenges: (1) the State Case, including Judge Ayabe’s rulings,
the Foreclosure, the Writ, and the ejectment process; (2) the

4

(...continued)
claims. [Complaint at pgs. 1-5.]
5

The Complaint does not clearly allege facts related to the
sale of the Property, but based on allegations and statements in
the Complaint, it appears that the Property was sold. See, e.g.,
Complaint at pg. 69 (requesting, in prayer for relief, to “vacate
and set aside the foreclosure sale”).
6

Although this goes to the merits of Plaintiffs’ arguments
related to the validity of the Writs – which this Order does not
address for reasons set forth below – Defendants argue and
present evidence that the Lock-Out was delayed because some of
the defendants in the state case (Plaintiffs here) entered
bankruptcy and filed numerous motions to stay the ejectment
subsequent to the issuance of the Writ. See, e.g., Clay
Chapman’s Separate Concise Statement of Facts (“Clay Chapman
CSOF”), filed 3/16/15 (dkt. no. 19-2), Decl. of Counsel, at ¶ 6;
id., Exh. B (State Case docket).
4

mortgagees’, servicers’, and banks’ acts related to the Mortgage,
and mortgage industry practices in general; and (3) Cayetano and
Whang and their team’s conduct during the Lock-Out.7

The

Complaint includes numerous state claims, such as negligence,
fraud, breach of contract, and quiet title.

It also includes

federal claims, specifically for: unfair methods of competition
against the “Foreclosing Defendants,” pursuant to 15 U.S.C. § 45
(“Count XIII”);8 conspiracy to violate rights against Ayabe,
Cayetano, and Whang, pursuant to 18 U.S.C. § 241 (“Count XXI”);
and deprivation of civil rights against Ayabe, Cayetano, and
Whang, pursuant to 42 U.S.C. § 1983 (“Count XXII”).

Plaintiffs

seek the following relief: a declaratory judgment that the
Foreclosure was wrongful; cancellation of the deed of sale; quiet
title in favor of Plaintiffs; compensatory, general, special,
treble, and punitive damages; attorneys’ fees and costs; and all
other just relief.

[Id. at pgs. 69-70.]

7

Whang, who was incorrectly named in the Complaint as
Sandra Pile-Whang, see Whang-Cayetano Joinder at 3, is a process
server, and Cayetano is an officer employed by the Honolulu
Police Department. See Complaint at ¶¶ 47-48.
8

Plaintiffs do not specify who are the “Foreclosing
Defendants.” The Court interprets that group to include the
mortgagees, servicers, and banks and their attorneys, such as
Ocwen, MERS, and Clay Chapman.
5

DISCUSSION
I.

State Case Claims
All of the Motions argue that the Rooker-Feldman

doctrine bars this lawsuit.

The Court agrees that some, but far

from all, of Plaintiffs’ claims are barred by the doctrine,
because those claims attempt to have this Court review the State
Case and Judge Ayabe’s decisions therein.

It is impermissible

for this Court to sit in judgment over a state court case.
“The Rooker–Feldman doctrine provides that federal
district courts lack jurisdiction to exercise appellate review
over final state court judgments.”

Henrichs v. Valley View Dev.,

474 F.3d 609, 613 (9th Cir. 2007) (some citations omitted)
(citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.
Ct. 149, 68 L. Ed. 362 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S. Ct. 1303, 75 L.
Ed. 2d 206 (1983)).

“Essentially, the doctrine bars ‘state-court

losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced’ from
asking district courts to review and reject those judgments.”
Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005)).
There are a couple of exceptions to this doctrine.
First, the doctrine does not apply to “general constitutional
challenges” where the plaintiffs argue that their constitutional
6

rights were violated in ways that would not require the federal
court to review the state court’s decision.

Doe & Assocs. Law

Offices v. Napolitano, 252 F.3d 1026, 1029 (9th Cir. 2001).
However, if the constitutional claims are “inextricably
intertwined” with the state court decision, Rooker-Feldman bars
jurisdiction.

Manufactured Home Communities Inc. v. City of San

Jose, 420 F.3d 1022, 1030 (9th Cir. 2005).

Second, claims for

fraud, wherein the plaintiffs argue that the fraudulent conduct
was “extrinsic” to the state case and kept them from presenting
their claims to the state court, are not barred by RookerFeldman.

Kougasian v. TMSL, Inc., 359 F.3d 1136, 1141 (9th Cir.

2004).
In this case, Plaintiffs claim that: Judge Ayabe
reached erroneous decisions regarding the Foreclosure and
issuance of the Writ; the sheriff and process server waited too
long to evict Plaintiffs; and the realtors should not have
attempted to sell the Property after the Foreclosure.

All of

these allegations go to the merits of the State Case and,
therefore, are barred by Rooker-Feldman.

See, e.g., Henrichs,

474 F.3d at 613.
To the extent that Plaintiffs argue that the RookerFeldman doctrine does not bar their claims because they sound in
fraud against Judge Ayabe, this Court rejects that argument.
[Mem. in Opp. at 4-5.]

Plaintiffs simply argue that Judge

7

Ayabe’s decisions were based on “winner’s chicanery,” [id. at 4,]
and then proceed to explain that the execution of the Writ was
untimely.

These arguments are inextricably intertwined with the

merits of the State Case, and the purported fraud is not
extrinsic to what was before the state court.

See Manufactured

Home, 420 F.3d at 1030; Kougasian, 359 F.3d at 1141.

Thus,

neither of the exceptions apply.9
The Court CONCLUDES that Plaintiffs’ claims related to
the State Case, including those against Judge Ayabe, Whang,
Cayetano, Prudential, and Island Realtors, are barred by the
Rooker-Feldman doctrine.10

The Court thus GRANTS the Judge Ayabe

Motion, Prudential Motion, Island Realtors Motion, and WhangCayetano Motion insofar as the allegations against those
Defendants are barred by Rooker-Feldman.11

Accordingly, it

9

If Plaintiffs want to challenge the state court decisions,
the proper procedure is to appeal in state court. This Court
offers no opinion on whether an appeal would be timely at this
point.
10

The only allegation against Prudential and Island
Realtors is that they advertised the sale of the house. See
Complaint at ¶ 168, Exh. XI. Insofar as these allegations turn
on whether the Foreclosure was proper, they relate to the State
Case and are barred. Even if they were not jurisdictionally
barred, the Court questions whether they would be sufficient to
state a claim against these defendants.
11

The Court denies the Ocwen Motion and the Clay Chapman
Motion insofar as the allegations against Ocwen, MERS, and Clay
Chapman do not go to the merits of the State Case, see infra
Section II, and thus are not barred by the Rooker-Feldman
doctrine. Since Self Storage does not provide any argument as to
(continued...)
8

DISMISSES the claims that go to the merits of the State Case.
While the allegations in the claims are quite vague, the Court
finds that the following counts seek review of the State Case:
negligence (“Count II”); and conspiracy of rights, pursuant to 18
U.S.C. § 241 (“Count XXI”).

The Court, therefore, DISMISSES

Counts II and XXI.
The dismissal of these claims is WITH PREJUDICE since
it would be impossible for Plaintiffs to successfully amend them.
See, e.g., Heilman v. Sanchez, 583 F. App’x 837, 839-40 (9th Cir.
2014) (holding that “the district court did not abuse its
discretion by refusing to grant leave to amend because those
aspects of the complaint could not be cured by amendment” (citing
Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007))).
To the extent that Prudential seeks sanctions, the
motion is DENIED.

While the claims may ultimately be found

frivolous, Prudential has made an insufficient showing at this
time.

If it so chooses, it may bring a separate motion showing

11

(...continued)
why the allegations against it are barred by Rooker-Feldman, or
how any of the other arguments in the Clay Chapman Motion apply
to it, the Court denies its joinder.
Although the Whang-Cayetano Joinder relies on the Clay
Chapman Motion and its Rooker-Feldman argument (which this Court
here denies), based on its memorandum in support of joinder, it
is clear that Rooker-Feldman applies to some of the allegations
against Whang and Cayetano. Accordingly, the Court grants in part
the Whang-Cayetano Joinder. See infra Section III (regarding
allegations not covered).
9

its entitlement to the requested fees.
II.

Mortgage Practice Claims
The vast majority of the Complaint consists of

allegations related to the mortgage industry, much of which has
nothing to do with the Property or Mortgage at issue in this
case.

As written, it is impossible for the Court to determine:

what exactly the defendants allegedly did wrong related to the
Mortgage; which defendants were involved; and which laws those
defendants purportedly violated.

The Court thus agrees with the

Ocwen Defendants that the Complaint fails to state a basis for
this Court’s jurisdiction.

Related, even if this Court has

jurisdiction, Plaintiffs have failed to state claims sufficient
to put the Defendants (and this Court) on notice of what
Defendants purportedly did wrong to Plaintiffs.
In other words, Plaintiffs must do two things.
they must provide a basis for this Court’s jurisdiction.

First,
See,

e.g., Robinson v. United States, 586 F.3d 683, 685 (9th Cir.
2009) (“the party asserting subject matter jurisdiction has the
burden of proving its existence” (citation and internal quotation
marks omitted)).

They may do this by challenging the conduct of

the defendants under the United States Constitution or a federal
statute, see 28 U.S.C. § 1331, or by showing that there is
diversity among the parties, see 28 U.S.C. § 1332.

Diversity

means that each Plaintiff is a citizen of a different state from

10

each defendant.

See, e.g., Lincoln Prop. Co. v. Roche, 546 U.S.

81, 89 (2005).

For diversity purposes, the Complaint must allege

the citizenship of each party.
Second, for each claim, Plaintiffs must explain how
each Defendant wronged them, with enough detail to let the
Defendant know the conduct being challenged and to inform the
Court how Plaintiffs are entitled to relief.

Neither stating the

elements of the law, nor making general statements about
Defendants’ bad behavior will be sufficient for this Court to
hear the claim.

The law is that “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice” to state a claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In this case, Plaintiffs only allege the citizenship of
one Defendant, Reo Properties Corporation, and do not provide
their own citizenship, though presumably it is Hawai`i since the
basis of the lawsuit is the Foreclosure of their family home.
This is insufficient to invoke this Court’s diversity
jurisdiction.

Thus, Plaintiffs must show that they bring their

claims under federal law.
However, all but one of the claims related to mortgage
practices appear to challenge Defendants’ conduct under state
law: negligence (“Count I”); two fraud claims (“Counts III
and IV”); cancellation of voidable contract (“Count V”); contract

11

claim to set aside trustee’s sale (“Count VI”); contract claim to
void trustee’s deed (“Count VII”); contract claim to void
assignment of deed (“Count VIII”); wrongful foreclosure
(“Count IX”); breach of contract (“Count X”); breach of implied
covenant of good faith and fair dealing (“Count XI”); unjust
enrichment (“Count XII”); quiet title (“Count XIV”); slander of
title (“Count XV”); conversion (“Count XVI”); impermissible loan
modification (“Count XVII”); violation of Hawai`i Bueau of
Conveyance regulations (“Count XVIII”); mistake (“Count XIX”);
and unfair or deceptive practices, pursuant to Haw. Rev. Stat.
Chapter 480 (“Count XX”).

None of these claims alone provide a

basis for this Court’s jurisdiction.12

Plaintiffs bring one

claim – for deceptive business practices – pursuant to both Haw.
Rev. Stat. Chapter 480 and 15 U.S.C. § 45 (“Count XIII”).

To the

extent that Count XIII is brought under federal law, this Court
has jurisdiction over it.

Since Plaintiffs do not provide

sufficient allegations to show that this Court has jurisdiction,
the Court DISMISSES Counts I, III, IV, V, VI, VII, VIII, IX, X,

12

In theory, this Court could find that it has supplemental
jurisdiction over the state law claims if the allegations in them
“form part of the same case or controversy” with Plaintiffs’
federal law claim. See 28 U.S.C. § 1367. That means Plaintiffs
would have to allege enough detail in their state law claims and
federal law claim that this Court could determine whether the
claims, in essence, arose from the same set of facts such that
the Court should consider the state law claims as well. However,
neither claims currently provide sufficient detail to make such a
determination as explained immediately below.
12

XI, XII, XIV, XV, XVI, XVII, XVIII, XIX, and XX.
As to the state law claims, even if there was
diversity, the Court questions whether there are factual
allegations sufficient to state plausible claims against the
Defendants.

See Iqbal, 556 U.S. at 678 (“To survive a motion to

dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” (citation and quotation marks omitted)).
true as to Count XIII.

The same is

The Court thus DISMISSES Count XIII for

failure to state a claim.

See Fed. R. Civ. P 12(b)(6).

The Court notes, however, that it must interpret the
Complaint liberally since Plaintiffs are not represented by
counsel.

For this reason, the dismissal of the claims in this

Section is WITHOUT PREJUDICE.

See Akhtar v. Mesa, 698 F.3d 1202,

1212 (9th Cir. 2012) (“A district court should not dismiss a pro
se complaint without leave to amend unless it is absolutely clear
that the deficiencies of the complaint could not be cured by
amendment.” (citation and internal quotation marks omitted)).
Conceivably, Plaintiffs could possibly amend their
claims to state a claim against Defendants, including the Ocwen
Defendants and Clay Chapman, over which this Court would have
jurisdiction.

But to do so, Plaintiffs must allege enough facts

to clearly show what they are claiming, and must do more than
simply allege that their federal rights were violated.

13

See,

e.g., Iqbal, 556 U.S. at 678.

On the other hand, although the

Court acknowledges that legalese can appear impenetrable, and pro
se individuals may attempt to emulate this, in many cases, such
as this one, the better practice is to keep the claims short,
clear, and focused.
The Court thus GRANTS the Ocwen Motion and the Clay
Chapman Motion insofar as it dismisses the Counts against them,
but DENIES the motions insofar as the dismissal is WITHOUT
PREJUDICE.13

Moreover, for the same reasons as with the

Prudential Motion, the Court DENIES the Clay Chapman Motion
insofar as it seeks sanctions.

If it so chooses, Clay Chapman

may bring a separate motion showing its entitlement to the
requested fees at the appropriate time.
III. Civil Rights Claim
Finally, Plaintiffs allege that Whang and Cayetano’s
conduct during the Lock-Out violated their federal rights.

They

allege that, at approximately 7:30 a.m. on Sunday, September 7,
2014, “the Plaintiffs’ minor-aged daughter woke up to the face of
a Deputy Sheriff Lt. Thomas Cayetano, parting the curtains in her
bedroom window, leering at her partially-clothed, sleeping on her

13

The Court does note that, if Plaintiffs are simply
challenging the assignment of the Mortgage to MERS, they likely
do not have standing to bring that claim, unless they can also
allege that the assignor did not exist at the time of assignment.
See Lowther v. U.S. Bank N.A., 971 F. Supp. 2d 989, 1012-13 (D.
Hawai`i 2013).
14

bed and ordering her to, ‘Open the door.’”

[Complaint at ¶ 69.]

Further, they allege that the eviction may have caused labor
complications for a pregnant member of the household,14 and that
Plaintiff Yolie Tiburcio, who apparently was away from the
Property at the time, was told that “if she returns to the
property she would be arrested.”

[Id. at ¶ 72.]

Moreover, it

appears that Cayetano and Whang placed two toddler-aged household
members in the care of an “unidentified woman” who Plaintiffs
feared was employed by Child Protective Services and planned to
take the children away.

[Id. at ¶ 79.]

Plaintiffs bring Count XXII, alleging deprivation of
civil rights, pursuant to 42 U.S.C. § 1983.

Section 1983

provides in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or
usage . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding
for redress . . . .
In Count XXII, Plaintiffs quote this language.

The sole other

allegation in that Count is that, “Defendants, Circuit Court
Judge Bert I. Ayabe, Sheriff Deputy Thomas Cayetano, and
Sandra R.S. Pile-Whang, described acts, unlawful conducts and

14

It is not clear from the Complaint who exactly the
pregnant household member was or whether she is one of the
Plaintiffs in this case.
15

practices involved material representations, omissions or
practices, Plaintiffs have been damaged, and continues to be
damaged, in an amount yet to be determined at trial.”

[Complaint

at ¶ 303.]
The basis for this claim is not entirely clear.

To the

extent that Count XXII challenges the issuance and execution of
the Writ, it is barred by the Rooker-Feldman doctrine.

However,

insofar as it relates to Paragraphs 69, 72, and 79, it could
theoretically state a claim for a constitutional violation for
the manner in which Whang and Cayetano and their team executed
the Writ.15

This theory, however, does not relate to Judge

Ayabe, and thus the Court DISMISSES WITH PREJUDICE Count XXII as
to him.16

15

Count XXI is also a civil rights claim against Judge
Ayabe, Whang and Cayetano. However, the allegations in that
claim clearly relate to the efficacy of the Writ and thus are
barred by the Rooker-Feldman doctrine. See supra Section I.
16

Further, as to Judge Ayabe, all of the claims against him
relate to decisions he made in his capacity as state court judge,
and thus are also barred by absolute judicial immunity. “‘A
judge will not be deprived of immunity because the action he took
was in error, was done maliciously, or was in excess of his
authority; rather, he will be subject to liability only when he
has acted in the clear absence of all jurisdiction.’” Ramirez v.
Pasternak, 408 F. App’x 55, 55-56 (9th Cir. 2011) (some citations
and internal quotation marks omitted) (quoting Stump v. Sparkman,
435 U.S. 349, 356–57, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978)).
Plaintiffs do not challenge, nor can they, Judge Ayabe’s
jurisdiction over the State Case. He had jurisdiction pursuant
to state law. See Haw. Rev. Stat. § 603-21.7(a)(3) (giving
jurisdiction to state circuit courts for, among other things,
“foreclosure of mortgages”).
16

Although Whang and Cayetano have filed a joinder in the
Clay Chapman Motion, the Court does not construe that motion to
address Count XXII, insofar as that claim may extend beyond
issues handled in the State Case.17

See Whang-Cayetano Joinder

(seeking to join Clay Chapman Motion without mentioning the Judge
Ayabe Motion).18

Since Whang and Cayetano have not moved the

Court to dismiss this claim against them, the Court does not
consider any additional arguments against Count XXII allegations
not barred by the Rooker-Feldman doctrine.
CONCLUSION
On the basis of the foregoing, the Ocwen Motion, filed
March 16, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART.
The Court GRANTS the motion insofar as it DISMISSES all claims
against the Ocwen Defendants for lack of jurisdiction and failure
to state a claim.

It DENIES the motion insofar as the dismissal

is WITHOUT PREJUDICE.
The Clay Chapman Motion, filed March 16, 2015, is
HEREBY GRANTED IN PART AND DENIED IN PART.

The Court GRANTS the

motion insofar as it DISMISSES all claims against Clay Chapman

17

Even though the Court did not rely on it in reaching its
ruling, the Clay Chapman Motion argued that the Rooker-Feldman
doctrine applied, so the Court considered it as to Whang and
Cayetano.
18

The Judge Ayabe Motion addressed the federal claims and
moved to dismiss pursuant to the Eleventh Amendment, see Mem. in
Supp. of Judge Ayabe Motion at 6-8, which may apply to Whang and
Cayetano.
17

for lack of jurisdiction and failure to state a claim.

It DENIES

the motion insofar as the dismissal is WITHOUT PREJUDICE and Clay
Chapman seeks sanctions.
The Whang-Cayetano Joinder, filed March 23, 2015, is
HEREBY GRANTED IN PART.

The Court DISMISSES all claims against

Whang and Cayetano related to the State Case, which are barred by
the Rooker-Feldman doctrine.

It does not, however, address the

entirety of Count XXII against Whang and Cayetano.
The Self Storage Joinder is HEREBY DENIED.

The basis

for the motion is unclear and so the Court cannot determine
whether Rooker-Feldman applies to the claims against Self
Storage.
The Judge Ayabe Motion is HEREBY GRANTED in its
entirety.

The Court DISMISSES WITH PREJUDICE all claims against

Judge Ayabe, based on the Rooker-Feldman doctrine and absolute
judicial immunity.
The Prudential Motion is HEREBY GRANTED IN PART AND
DENIED IN PART.

The Court GRANTS the motion insofar as it

DISMISSES WITH PREJUDICE all claims against Prudential as barred
by the Rooker-Feldman doctrine.

It DENIES the motion insofar as

Prudential seeks sanctions.
The Island Realtors Motion is HEREBY GRANTED.

The

Court DISMISSES WITH PREJUDICE all claims against Island Realtors
as barred by the Rooker-Feldman doctrine.

18

The Court thus DISMISSES WITH PREJUDICE Counts II and
XXI in their entirety, and Count XXII, to the extent that it is
covered by the State Case.

The Court DISMISSES WITHOUT PREJUDICE

Counts I, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV,
XV, XVI, XVII, XVIII, XIX, and XX.

The Court does not rule on

Count XXII as to Whang and Cayetano, insofar as that claim may
not be entirely covered by the State Case.

That part of

Count XXII is the only claim remaining in the Complaint.

The

Court Directs the Clerk’s Office to terminate Judge Ayabe,
Prudential, and Island Realtors as parties.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 29, 2015.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

NES SARMIENTO TIBURCIO, ET AL. VS. REO PROPERTIES CORPORATION, ET
AL.; CIVIL 15-00039 LEK-KSC; ORDER ON DEFENDANTS’ MOTIONS TO
DISMISS AND JOINDERS THERETO

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