IN THE LAND COURT OF THE STATE OF HAWAII

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rT1 ......, In the Matter of the Application of ) Application No.1 069 )

THE ESTATE OF JAMES CAMPBELL, ) 1 L.D. Case No. 10-1-3068

DECEASED. )

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PETITIONERS FREDERICK ANTOINE WALLER AND TANYA DAVELYN-SANTIAGO WALLER'S MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AS TO THEIR PETITION TO AMEND TRANSFER CERTIFICATE OF TITLE 806,482 AND TO STRIKE AND EXPUNGE TRANSFER CERTIFICATE OF TITLE 970,858, FILED SEPTEMBER 28, 2010

EXHIBITS 1 THROUGH 7

CERTIFICATE OF SERVICE

DATE: February 28,2011

TIME: 3:00 p.m.

JUDGE: Gary W.B. Chang

GARY VICTOR DUBIN 3181 FREDERICK J. ARENSMEYER 8471 BENJAMIN R. BROWER 9070 Dubin Law Offices

Suite 3100

55 Merchant Street Honolulu, Hawaii 96813 (808) 537-2300

Attorneys for Petitioners

PETITIONERS FREDERICK ANTOINE WALLER AND TANYA DAVEL YN-SANTIAGO WALLER'S MEMORANDUM IN OPPOSITION TO RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AS TO THEIR PETITION TO AMEND TRANSFER CERTIFICATE OF TITLE 806,482 AND TO STRIKE AND EXPUNGE TRANSFER CERTIFICATE OF TITLE 970,858, FILED SEPTEMBER 28, 2010

A. Introduction

This case began on February 23, 2010 as an ejectment action following a

nonjudicial foreclosure sale, which was assigned to the Honorable Karl K. Sakamoto in

Civil No. 10-1-0405-02 KKS, who, after hearing Respondent's motion for summary

judgment there, denied Respondent's motion for failure to submit into evidence certified

copies of supporting documents in violation of Land Court Section 501-88 of the Hawaii

Revised Statutes, and thereafter stayed the ejectment action pending a decision by this

Land Court as to the validity of the underlying supporting documents once certified.

Set forth in Exhibit 1 for the convenience of the Court, of which judicial notice

may be taken, is a copy of the docket sheet in the underlying ejectment action, together

with the Court's Minutes, no formal order having been entered before that action was

stayed in favor of a decision by this Court.

The Respondent has now filed its motion for summary judgment in this Court,

although curiously again falling, after being warned once already by Judge Sakamoto,

to submit certified copies of its supporting documents.

Assuming that this Court nevertheless, unlike Judge Sakamoto, chooses to

consider Respondent's motion for summary judgment, Petitioners hereby oppose the

motion on the grounds set forth in their sworn and verified Petition, a copy of which

without its exhibits is set forth in Exhibit 2, of which this Court may take judicial notice.

B. Summary Judgment Standards of Review

The policy of the law favors disposition of litigation on the merits. Webb v.

Harvey, 103 Haw. 63, 67,'79 P.3d 681, 685 (2003) (citing Compass Development, Inc. v. Blevins, 10 Haw. App. 388,402,876 P.2d 1335,1341 (1994»; Rearden Family Trust v. Wisenbaker, 101 Haw. 237, 255, 65 P.3d 1046 (2003) (citing Oahu Plumbing & Sheet Metal. Inc. v. Kona Constr.! Inc., 60 Haw. 372, 380, 590 P.2d 570, 576 (1979) (noting "the preference for giving parties an opportunity to litigate claims or defenses on the merits").

Summary judgment should not be granted by a trial court unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the opposing party cannot prevail under any circumstances. Balthazar v. Verizon Hawaii. Inc., 109 Haw. 69, 123 P.3d 194 (2005).

On ruling on a motion for summary judgment, a Court must view the evidence and all inferences that can be drawn therefrom in a manner most favorable to the opposing party. Nuuanu Valley Ass'n v. City and County of Honolulu, 119 Haw. 90, 96, 194 P.3d 531, 537 (2008) (quoting Kahale v. City and County of Honolulu, 104 Haw. 341,344,90 P.3d 233, 236 (2004».

Summary judgment must be used by a Court with due regard for its purpose and should be cautiously invoked so that no party will be improperly deprived of a trial of disputed factual issues. Bhatka v. County of Maui, 109 Haw. 198, 124 P.3d 943 (2005).

In summary judgment adjudications in this State, the moving party must establish the absence of each and every element of the claim for relief. GECC Financial Corp. v.

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Jaffarian, 79 Haw. 516, 521-22, 904 P.2d 530 (App. 1995), modified on other grounds, 80 Haw. 118,905 P.2d 624 (1995).

In such summary adjudications, a Court may not under any circumstances resort

to speculation beyond inferences of which the evidence is reasonably susceptible.

Waimea Falls Park, Inc. v. Brown, 6 Haw. App. 83, 97,712 P.2d 1136, 1146 (1985).

Moreover, in summary adjudications, judgment for the moving party is universally

considered to be a drastic remedy, depriving a party of the right to a trial on the merits

of the dispute, and therefore must always only be cautiously invoked. IndyMac Bank v.

Miguel, 117 Haw. 506, 519,184 P.3d 821, 834 (App. 2008) (citing Ocwen Fed. Bank,

FSB v. Russell, 99 Haw. 173, 182, 53 P.3d 312, 321 (App.2002)).

The same strict evidentiary burdens imposed upon a party moving for summary

judgment are not imposed upon those opposing summary judgment. In Miller v. Manuel,

9 Haw. App. 56, 66, 828 P.2d 286, 292 (1991), cerl. denied, 72 Haw. 618, 841 P.2d

1075 (1992), the Hawaii Intermediate Court of Appeals explained:

Courts will treat the documents submitted in support of a motion for summary judgment differently from those in opposition. Although they carefully scrutinize the materials submitted by the moving party to ensure compliance with the requirements of Rule 56(e), HRCP (1990), the courts are more indulgent towards the materials submitted by the nonmoving party. This is because of the drastic nature of summary judgment proceedings, which should not become a substitute for existing methods of determining factual issues.

U[A]ny doubt concerning the propriety of granting the motion [for summary

judgment] should be resolved in favor of the non-moving party." IndyMac Bank, 117

Haw. at 519, 184 P.3d at 834 (quoting GECC Financial Corp. v. Jaffarian, 79 Haw. 516, 521,904 P.2d 530, 535 (App. 1995), modified on other grounds, 80 Haw. 118,905 P.2d

624 (1995)).

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B. Why Summary Judgment Should Not Be Granted

Not only are Respondent's uncertified arguments nonsensical as a matter of law.

Its uncertified exhibits actually contradict and defeat its own motion for summary

judgment, its own exhibits evidencing that that the claimed 2006 assignment to its

alleged predecessor assignee, through which it solely claims ownership of the

underlying promissory note and mortgage, was a complete sham in violation of not only

Land Court Rules, but the criminal laws and the notary laws of the State of Hawaii, and

now constitutes an attempted fraud on this Court.

Point One

Petitioners Are Not Precluded From Challenging The Validity Of The Subject 2006 ASSignment Of Mortgage Due To New Century's Bankruptcy Petition.

It is axiomatic pursuant to 11 U.S.C. §959 of the United States Code that when

an entity files for Chapter 11 protection, that entity loses its prior status and assumes

the new status of a Debtor in Possession until and unless a Trustee is appointed by the

Bankruptcy Court, whereupon it must conduct its business affairs in its new federal

statutory capacity and standing as Debtor in Possession, signing in that capacity only

and cannot sell or otherwise transfer its assets pursuant to 11 U.S.C. ~363 except on

motion and only thereupon with a formal sale and with formal Bankruptcy Court

approval, none of which has been exhibited as none exists here.

Moreover, the alleged 2006 Assignment of Mortgage on its face shows, as

Respondent is forced to admit, was not executed by the Debtor, but by the pre-petition

entity, New Century Mortgage, that by filing for Bankruptcy protection had already lost

its capacity to act post-petition over its property.

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This is not a situation in which the Petitioners are seeking to set aside that 2006

Assignment in Bankruptcy Court as fraudulent against creditors there as Petitioners are

not creditors of that Bankruptcy Estate, but where the Petitioners here are disputing the

validity of its Land Court recordation here as fraudulent and invalid.

Point Two

The 2006 Promissory Note and 2006 Mortgage Were Not Properly Transferred To The Respondent's Assignee LaSalle, as Trustee, As A Matter Of Law.

The validity of Respondent's claim for summary judgment first depends upon the

validity of the assignment from New Century to Respondent's predecessor, LaSalle, as

Trustee, shown as Exhibit "C" attached to the moving papers.

Assuming that New Century in bankruptcy had the capacity and the standing

without Bankruptcy Court approval, which remains at the very least disputed and

nowhere proven in the moving papers, to have assigned its interest in the 2006

Promissory Note and Mortgage to anyone, that 2006 Assignment is fraudulent and

invalid on its face.

The Court will note that the 2006 Assignment of Mortgage was dated and

notarized on July 6, 2006, and at that time supposedly assigned with a rubber stamp to

"LaSalle Bank National Association, as trustee for the C-BASS Mortgage Loan Asset-

Backed Certificates, Series 2006-CB7, without recourse," as shown on the following

page.

However, thanks to Respondent's thoughtful submission into evidence of its

Exhibit "T" containing a partial copy of the underlying 2006 Pooling and Servicing

Agreement that created that securitized entity of which LaSalle became Trustee, we now know that it was impossible for that rubber stamp to have been placed on that

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Assignment of Mortgage when it was notarized, for that Pooling and Servicing

Agreement creating that Trusteeship of LaSalle was not even in existence until

"September 1,2006," as shown on the following page.

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On this 6t:b day of o7al.y

.2006

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to me persooally knowD, who, being by me duly swam (or ~ did say thBt bel_ is ~'.P.IAtC46.M ~~

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wDOie address is ,.ldIlIWa St,a._ClltillD.l-, ,

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LASALLE BANK NATIONAL ASSOCIATION, Trustee

POOLING AND SERVICING AGREEMENT

Dated as of September I, 2006

C-BASS 2006-CB7 Trust

C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB7

On the 5th day of October 2006, before me, Christine M. Orsi, a notary public in and for said State, personally appeared Michelle Duffy, known to me to be a Vice President of LaSalle Bank N.A., one of the corporations that executed the within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged to me that such corporation executed the within instrument.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

Christine M. o!si My Commission Expires: 05/05/2010

Mortgage fraud has become a much talked about topic in the United States in

recent months, and here we have a clear instance of fraud upon this Court, the Land

Court System, the State Bureau of Conveyances, and Hawaii's system of criminal

justice for that matter -- that 2006 Assignment of Mortgage having been deliberately

signed and notarized and recorded in violation of at least six controlling Sections of the

Hawaii Revised Statutes, in addition to other numerous common law protections and

remedies against such fraud and deceit in Hawaii:

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1. Section 708-852 (prohibition against forgery);

2. Section 710-1061 (prohibition against false swearing in official matters);

3. Section 456-8 (prohibition against violation of rules governing notaries);

4 Section 501-196 (prohibition against recordation of fraudulent memoranda);

5. Section 502-41 (prohibition against false signature acknowledgments); and

6. Section 502-3 (prohibition against validity of false acknowledgments).

Such invalid notarization, since time immemorial, has rendered mortgages unrecordable in Hawaii and subject to expungement, currently pursuant to Sections 502-41, 502-42, 502-43 and 502-53 of the Hawaii Revised Statutes, making any such unauthorized recordation an absolute nullity, Lalakea v. Hilo Sugar Co., 15 Haw. 570, 576 (1904) as a matter of Hawaii statutory and case law.

When a defective acknowledgment is found to have been recorded, the universal remedy in the case law throughout the United States, including Hawaii, has always been expungement and nonenforcement, which has been affirmed in virtually every reported case in American history which has directly or indirectly addressed the issue.

Therefore, the 2006 Assignment should, sua sponte, be expunged by this Land Court in its supervisory authority over the integrity of Land Court recordations.

For example, in In re School Street Land Title, 32 Haw. 680, 682-683 (1933), the Supreme Court of the Territory of Hawaii, well before Statehood, adopted the jurisdictional principle that Courts have the authority and the responsibility to expunge mortgage instruments and to ignore their enforcement where not properly notarized.

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In Missouri, in Monia v. Oberle, 530 S.W. 2d 452, 454 (1976), the Missouri Court of Appeals, with an identical recording statute as here in Hawaii, held that an instrument must be properly acknowledged before it can be recorded, the accepted remedy for the violation of which is to strike the instrument from the State's official records and refuse enforcement.

In New Jersey, in In re Buchholz, 224 B.R. 13 (D. N.J. 1998), the United States Bankruptcy Court for the Northern District of New Jersey, finding that the challenged, recorded document, again in a State with an identical recording statute as here in Hawaii, was not property acknowledged, held that it could not thus be recorded as a matter of state law and was therefore wholly ineffective and unenforceable.

In New York, in Sobel v. Wolf, 216 N.Y. S. 2d 132 (1961), the Supreme Court for Westchester County, again in a State with an identical recording statute as here in Hawaii, held that in the absence of a valid acknowledgment, the mortgage could not be recorded, and if it was, it must be cancelled by being judicially expunged, if necessary sua sponte.

In Indiana, in Walters v. Hartwig, 106 Ind. 123, 6 N.E. 5 (1886), the Supreme Court of Indiana, again in a State with an identical recording statute as here in Hawaii, recognized a landowner's right to maintain an action to cancel an instrument not properly acknowledged.

The governing statutes in Hawaii are virtually identical to those in use throughout the United States since time immemorial as illustrated above.

Section 502-41 of the Hawaii Revised Statutes, supra, mandates moreover the form of acknowledgment required for every recorded instrument in this State.

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And Section 502-53 of the Hawaii Revised Statutes, supra, further mandates that "no certificate of acknowledgment contrary to this chapter is valid in a court of the State, nor is it entitled to be recorded in the bureau of conveyances."

This strict recording requirement was not invented in Hawaii, but is universally enforced in every American jurisdiction, 1A Corpus Juris Secundum, Acknowledgments, Section 14 ("[A]n instrument not acknowledged as required by the recording acts is inadmissible to record.").

What is especially unique in Hawaii is that the subject property is registered in Land Court at the Hawaii State Bureau of Conveyances, and with Land Court titles, no interests in land exist unless and until properly recorded.

A mortgage assignment of Land Court Property when signed creates only contractual rights and does not affect ownership of mortgage rights affecting title to Land Court property until the date that the mortgage assignment is properly signed and notarized and recorded in Land Court at the Hawaii State Bureau of Conveyances, Section 501-101 of the Hawaii Revised Statutes; In the Matter of the Application of Bishop Trust Company, Limited, to Reregister and Confirm Title. to Land, 35 Haw. 816, 825 (1941); Honolulu Memorial Park, Inc. v. City and County of Honolulu, 50 Haw. 189, 193-194,436 P.2d 207,210 (1967).

Justice Black explained the absolute necessity for rejecting such "fraud upon the court" in Hazel-Atlas Glass Co. v. Ha.rtford-Empire Co., 322 U.S. 238, 246 (1944) (involving the fabrication of trial evidence), in the following terms: "[T]ampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and

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safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that the preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud."

And that is not the only thing highly suspicious if not outright fraudulent in the

moving papers, for with respect to the Promissory Note, on July 22, 2010 Respondent

submitted a version of that Note to Judge Sakamoto bearing no rubber-stamped

assignment to LaSalle, accompanied by a sworn Declaration from someone at "Litton"

stating that it was a true and correct copy, as shown in Exhibit 3 attached hereto.

Whereas, for its new motion before Judge Chang, Respondent has now a few

months later submitted on February 2, 2011 a new version of that Note this time bearing

a rubber-stamped assignment to LaSalle, again accompanied by a sworn Declaration

from someone else at "Litton" this time stating that it is also a true and correct copy, as

shown in Exhibit 4 attached hereto.

Point Three

The 2006 Promissory Note and 2006 Mortgage Were Not Properly Transferred To The Respondent From Assignee LaSalle, as Trustee, As A Matter Of Law.

The moving papers appear to have included the merger papers for Mellon Bank

and not those relevant here. It appears that the moving memorandum is arguing that

LaSalle and Respondent merged, but that argument would be another nonsensical

attempt to confuse this Court, for it is claimed that it was "LaSalle Bank National

Association" in its individual corporate capacity that merged with Respondent and not

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LaSalle in its fiduciary capacity as "LaSalle Bank National Association, as trustee for the

C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-CB7."

That distinction is critical, lest we throw out all traditional legal rules, for the

Respondent is mistaken to claim that the alleged corporate merger in any way

transferred trustee obligations as a matter of trust law, the two legal capacities being

completely different, as any transfer of trustee obligations would instead depend upon

the terms and conditions of the trust instrument controlling the replacement and

succession of trustees as well as the merger agreement, neither of which has been

submitted into evidence in these proceedings, but for a carefully selected few pages of

the Pooling and Servicing Agreement set forth in Respondent's Exhibit "T'.

What is factually compelling is that a cursory Internet search has revealed that

LaSalle Bank National Association is alive and well as of today, functioning nationwide

in its fiduciary capacity as a securitization Trustee, as shown in Exhibit 5 (see "starred"

highlighted portions), of which this Court may take judicial notice, conducting

foreclosure sales in its own fiduciary name, LaSalle Bank National Association, as

Trustee (and not in the name of this Respondent!), contradicting the disingenuous,

sleight-of-hand, non-evidentiary representations of this Respondent in faking its claim to

superior title here without full documentation.

Point Four

Respondent's Quitclaim Deed Is Similarly Suspect.

The Quitclaim Deed (Respondent's Exhibit "H") through which Respondent

claims superior title here is similarly suspect, in that it is signed before a notary in the

State of Texas by two alleged officers of Respondent, "Diane Dixon" and "Denise

Bailey," who purport to be the Assistant Vice President and Assistant Secretary of the

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Bank of America whose offices are not in the State of Texas, when in fact these same

two "robo-signer" individuals have been representing themselves in similar corporate

capacities, signing foreclosure instruments nationwide at one and the same time, for a

number of separate companies similarly not located in the State of Texas, such as

Mortgage Electronic Registration Systems, HSBC Bank USA, National Association,

Deutsche Bank National Trust Company, and Fremont Investment & Loan, and for

many others (see Exhibit 6), of which this Court may take judicial notice.

Such false posturing by alleged secondary mortgage market "trustees," including

especially this Movant in other cases, and by its alleged boilerplate officers, is becoming

commonplace in mortgage foreclosure proceedings throughout the United States, and

state courts everywhere are questioning the standing of such phantom mortgagees to

prosecute such cases without first proving something as elemental as that they are in

fact the owners of the mortgage and the underlying note, resulting from an unbroken

chain of title.

Such well publicized trickery is what in part led Judge Watanabe in another of

this same opposing counsel's cases, HSBC Bank. USA at Trustee. etc. v. Freepartner.

et al.. Civil No. 09-1-0233, to reject summary judgment in a virtually identical ejectment

attempt (see Exhibit 7, pages 2-3), of which this Court may take judicial notice, finding

that:

Upon considering the written submissions of the parties, reviewing the records and files in this case, and hearing the oral arguments of counsel, the Court finds that numerous genuine issues of material fact remain in dispute, which issues include but may not be limited to the following:

'It * * *

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2. Whether Plaintiff HSBC Bank USA lacks standing to sue for ejectment for any and all of the following reasons:

a. Whether the Assignment of Mortgage and Note ("Assignment") by MERS as nominee for the Lender, Freemont Investment & Loan, to Plaintiff HSBC Bank USA on October 17, 2008 was null and void given Freemont's bankruptcy status at the time;

b. Whether the signatories on the October 17, 2008 Assignment, Marti Noriega and Denise Bailey, intentionally and/or materially misrepresented under oath their official capacities and authorities as purported corporate officers of MERS and thereby fraudulently assigned the note and mortgage to Plaintiff HSBC Bank USA, rendering the Assignment legally null and void; and

c. Whether the signatories on the May 8, 2009 Quitclaim Deed, Diane Dixon and Denise Bailey, intentionally and/or materially misrepresented under oath their official capacities and authorities as purported corporate officers of Plaintiff HSBC Bank USA, rendering the Quitclaim Deed legally null and void.

While it is true that Respondent has now presently this Court with "proof' that

these two robo-signers were so authorized (see Respondent's Exhibit "K"), that

authorization is suspiciously recorded four months after the signing and recording on

the Quitclaim Deed.

C. Conclusion

For each and for all of the above reasons, Respondent's motion for summary

judgment should be denied, and since the trial of this matter is approaching, this Court

should proceed to enter findings of fact and conclusions of law striking and expunging

the invalid instruments above described upon which Respondent's legal arguments are

based.

Moreover, this Court should consider what other Courts have done, sua sponte,

faced with an increasing barrage of submission of loan-related document containing

false recordations, which is to order that counsel submitting such documentation must

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submit Declarations under penalty of perjury and subject to discipllnary action that they have reviewed the chain of title of all such notes and mortgages and attest to the fact

that the copies they are submitting are henceforth genuine and valid.

DATED: Honolulu, Hawaii; Februa.ry 18, 2011.

GARY VICTOR DUBIN FREDERICK J. ARENSMEYER BENJAMIN R. BROWER Attorneys for Petitioners

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