NO.

_

IN THE SUPREME COURT OF THE STATE OF HAWAlflectronically Filed Supreme Court

SCPW·11·0000150 CIVIL NO. 07-1-0845-05 14.MAR.2011

PETITION FOR WRIT OF~~N~US AND/OR PROHIBITION

JEDWIN JAMES KAINA BARICUATRO, )

INDIVIDUALLY AND AS TRUSTEE OF )

THAT CERTAIN UNRECORDED TRUST ) DATED AUGUST 28, 1991; VIOLET LO ) BARICUATRO, INDIVIDUALLY AND AS ) TRUSTEE OF THAT CERTAIN ) UNRECORDED TRUST DATED AUGUST) 28, 1991, ) ) ) ) ) ) ) )

~

Respondent Judge, )

~

)

WELLS FARGO BANK, N.A. ON BEHALF) OF THE CERTIFICATE HOLDERS PARK )

PLACE SECURITIES, INC. ASSET- )

BACKED PASS-THROUGH )

CERTIFICATES SERIES 2005-WCW1, )

)

RespondenU ) Real Party in Interest, ) ) ) ) ) ) ) ) ) ) ) ) )

-----------------------~-)

Petitioners,

vs.

THE HONORABLE BERT I. AYABE, Judge of the First Circuit Court,

and

and

ASSOCIATION OF APARTMENT OWNERS OF THE CROWNE AT WAILUNA; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS 1-10,

Respondents.

PETITION FOR WRIT OF MANDAMUS AND/OR PROHIBITION

qJ RIG 1-N-A-L-,

MEMORANDUM IN SUPPORT OF PETITION

DECLARATION OF GARY VICTOR DUBIN

EXHIBITS 1 THROUGH 17

CERTIFICATE OF SERVICE

GARY VICTOR DUBIN 3181 FREDERICK J. ARENSMEYER 8471 SIMEON VANCE 9051

Dubin Law Offices

Suite 3100

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

Attorneys for Petitioners

2

NO. _

IN THE SUPREME COURT OF THE STATE OF HAWAII

JEDWIN JAMES KAINA BARICUATRO, )

INDIVIDUALLY AND AS TRUSTEE OF )

THAT CERTAIN UNRECORDED TRUST ) DATED AUGUST 28,1991; VIOLET LO ) BARICUATRO, INDIVIDUALLY AND AS ) TRUSTEE OF THAT CERTAIN ) UNRECORDED TRUST DATED AUGUST) 28,1991, ) )

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) )

.~

). )

Respondent Judge, )

~

)

WELLS FARGO BANK, N.A. ON BEHALF) OF THE CERTIFICATE HOLDERS PARK)

PLACE SECURITIES, INC. ASSET- )

BACKED PASS-THROUGH )

CERTIFICATES SERIES 2005-WCW1, )

RespondenU ~

Real Party in Interest, ) )

~ ~

!

.)

) )

---------------)

Petitioners,

vs.

THE HONORABLE BERT I. AYABE, Judge of the First Circuit Court,

and

and

ASSOCIATION OF APARTMENT OWNERS OF THE CROWNE AT WAILUNA; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS 1-10,

Respondents.

CIVIL NO. 07-1-0845-05

PETITION FOR WRIT OF MANDAMUS ANDIOR PROHIBITION

PETITION FOR WRIT OF MANDAMUS AND/OR PROHIBITION

COME NOW Petitioners JEDWIN JAMES KAINA BARICUATRO, individually and as trustee of that certain unrecorded trust dated August 28, 1991 and VIOLET LO BARICUATRO, individually and as trustee of that certain unrecorded trust dated August 28, 1991, by and through their undersigned attorneys, and hereby move this Honorable Court for the issuance of a writ of mandamus and/or prohibition compelling the lower court to vacate and set aside its following orders and judgment, for the reasons set forth herein:

1. "Findings of Fact, Conclusions of Law, and Order Granting Plaintiff's Motion For Summary Judgment and Decree of Foreclosure Against All Defendants on Complaint Filed May 10, 2007," filed March 3, 2008;

2. "Judgment on Findings of Fact, Conclusions of Law and Order Granting Plaintiff's Motion For Summary Judgment and Decree of Foreclosure Against All Defendants on Complaint Filed May 10, 2007," filed March 3, 2008; and

3. "Order Granting Plaintiff's Motion to Reopen Bidding and for Order Confirming Foreclosure Sale, Allowance of Costs, Commissions and Fees, Directing Conveyance and for Writ of Possession Filed July 6, 2010," filed September 21, 2010.

This Petition is being submitted pursuant to Rule 21 of the Hawaii Rules of Appellate Procedure, and the decisions in Kawamata Farms v. United Agri Products, 86 Haw. 214, 256-257, 948 P.2d 1055 (1997); Southwest Slopes, Inc. v. Lum, 81 Haw. 501,511,918 P.2d 1157 (App. 1996), and Matsuura v. E.I. du Pont de Nemours and Co., 102 Haw. 149, 157-158, 73 P.3d 687 (2003), and is further based upon the accompanying Memorandum in Support of Petition, the Declaration of Gary Victor Dubin, the Exhibits attached hereto, and the authorities cited in the Memorandum.

This Petition is further based upon the decision of the United States Supreme Court in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944):

2

[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 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.

DATED: Honolulu, Hawaii; March 14,2011.

GARY VICTOR DUBI~ FREDERICK J. ARENSMEYER SIMEON L. VANCE

Attorneys for Petitioners

Jedwin James Kaina Baricuatro And Violet Lo Baricuatro

3

NO. _

IN THE SUPREME COURT OF THE STATE OF HAWAII

JEDWIN JAMES KAINA BARICUATRO, )

INDIVIDUALLY AND AS TRUSTEE OF ),

THAT CERTAIN UNRECORDED TRUST) DATED AUGUST 28, 1991; VIOLET LO » BARICUATRO, INDIVIDUALLY AND AS TRUSTEE OF THAT CERTAIN ) UNRECORDED TRUST DATED AUGUST) 28,1991, )

~

)

)

'~

} ) )

Respondent Judge, )

) ) ) WELLS FARGO BANK, N.A. ON BEHALF) OF THE CERTIFICATE HOLDERS PARK)

PLACE SECURITIES, INC. ASSET- )

BACKED PASS-THROUGH )

CERTIFICATES SERIES 2005-WCW1, )

) RespondenU ) Real Party in Interest, )

~'

~ ~ ~

)

)

-~

---------------)

Petitioners,

vs,

THE HONORABLE BERT I. AYABE, Judge of the First Circuit Court,

and

and

ASSOCIATION OF APARTMENT OWNERS OF THE CROWNE AT WAILUNA; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS 1-10,

Respondents.

CIVIL NO. 07-1-0845-05

PETITION FOR WRIT OF MANDAMUS AND/OR PROHIBITION

MEMORANDUM IN SUPPORT OF PETITION

TABLE OF CONTENTS

A. INTRODUCTION

2

B. STATEMENT OF FACTS Question Presented Factual Background Procedural Background

3 3 3 5

C. ISSUES PRESENTED AND RELIEF SOUGHT

6

The Execution, Notarization and Recording of the Assignment Was Fraudulent 7

The Fraudulent Nature of the Assignment Denied Wells Fargo Standing 10

Wells Fargo and Its Attorneys Committed Fraud on the Court 12

D. REASONS FOR ISSUING THE WRIT

15

E. CONCLUSION

16

A. Introduction

1. As a result of either sloppy record keeping or outright fraud or a combination of the two, securitizing Mainland secondary mortgage market lenders have been victimizing homeowners nationwide in recent years by conducting nonjudicial foreclosures claiming falsely to own mortgages while lacking court supervision, or alternatively flooding state courts with phony mortgage assignments falsely claiming standing to foreclose residential loans.

2. A number of state and federal courts on the Mainland, thanks to recent successful efforts by private attorneys in exposing such fraudulent practices, have begun to tighten evidentiary rules and are rejecting suspicious mortgage assignments outright, while other state courts have now gone so far, sua sponte, to require foreclosure attorneys before being allowed to file foreclosure actions to certify under oath and subject to disciplinary action that they have thoroughly reviewed and have verified an unbroken chain of title for each promissory note and original mortgage and for all claimed mortgage assignments.

3. Hawaii state courts thus far have, however, failed to similarly scrutinize such mortgage assignments, and are currently denying borrowers the protections now being provided in other states, and the challenged decision below is one such example, where despite the incontrovertible existence of an obviously fraudulent mortgage assignment amounting to a fraud not only on the borrower defendants but a fraud on the Bureau of Conveyances and a fraud on the lower court, the lower court nevertheless has refused to set a judicial foreclosure sale aside on the grounds that the issue was not timely raised.

4. Petitioners seek the immediate intervention of this Court, not only to prevent irreparable harm to them, Mr. Baricuatro and his ill Mother who only recently was

2

returned home from a hospice, but on behalf of all borrowers in this State they seek the same prophylactic remedies other highest state courts have been providing their homeowners pursuant to theirs and this Court's responsibility to regulate the legal profession appearing before it and to safeguard the integrity of our evidentiary processes.

B. Statement of Facts Question Presented

5. This Petition seeks a determination as to whether, when a lender and its counsel secure a foreclosure decree and the transfer of title to a third party through false filings under oath, is there a time limit for setting aside the foreclosure decree and the confirmation of sale when it is shown eight weeks after title transfer that the assignment of mortgage through which the purported foreclosing mortgagee claimed to have standing to file the foreclosure action and to foreclose was a forgery.

6. Is that determination controlled by the decision of this Court in Kawamata

Farms v. United Agri Products, 86 Haw. 214, 256-257, 948 P.2d 1055 (1997) ("fraud, misrepresentation, and circumvention used to obtain a judgment are generally regarded as sufficient cause for the opening or vacating of the judgment," quoting approvingly from Southwest Slopes, Inc. v. Lum, 81 Haw. 501, 511, 918 P.2d 1157 (App. 1996), and in Matsuura v. E.I. du Pont de Nemours and Co., 102 Haw. 149, 157-158, 73 P.3d 687 (2003).

Factual Background

7. On March 9, 2005, Petitioners obtained a loan from Argent Mortgage Company, LLC ("Argent") in the principal sum of $448,000.00, memorialized by an Adjustable Rate Note, set forth in Exhibit 1, to refinance their home located at 98-2039 K Kaahumanu St., Apartment 76, Aiea, Hawaii 96701 (the "Subject Property").

3

8. In consideration for the loan, Petitioners granted Argent a Mortgage on the Subject Property, which Mortgage was recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 2005-053787 on March 18, 2005. A true and correct copy of the Mortgage is set forth in Exhibit 2.

9. By that certain Quitclaim Deed dated March 20, 2005 and recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 2005-093483, Petitioners conveyed the Subject Property as individuals to themselves as trustees of their respective trusts (as set forth in the caption), each dated August 28, 1991.

10. Wells Fargo has represented itself below throughout, as has its attorneys, as the assignee of the Mortgage by that certain Assignment of Mortgage executed March 17, 2005, a copy which is set forth in Exhibit 3 (the "Assignment").

11. The Assignment, however, is fraudulent on its face, having been signed and notarized before the Mortgage itself had ever even been recorded. Indeed, the Assignment was executed and notarized on March 17, 2005 (Exhibit 3), whereas the Mortgage itself was not even recorded at that time, not until March 18, 2005 (Exhibit 2).

12. Furthermore, after the Assignment was executed and notarized, it was fraudulently and illegally doctored. The date "March 18, 2005" was typed on the front of the Assignment at the bottom preceded by two asterisks after the document had been notarized. The name of the assignee, "Wells Fargo Bank, N.A. on behalf of the Certificate Holders Park Place Securities, Inc. Asset-Backed Pass-Through Certificates Series 2005-WCW1," was typed on the front of the Assignment in the middle of the document preceded by one asterisk at the beginning of the document after the document had been notarized.

13. As yet further evidence of fraud, the Securitization Trust that Plaintiff claims to represent, the "Certificateholders Park Place Securities, Inc. Asset-Backed Pass-

4

Through Certificates Series 2005-WCW1 ", did not even exist on the date placed on the Assignment, for attached hereto as Exhibit 4 is a copy of that Trust's actual Pooling and Servicing Agreement, which is dated May 1, 2005 - nearly two months after the date of the notarization and nearly two months after the date of the purported Assignment.

Procedural Background

14. As the official record on Ho'ohiki chronicles, Wells Fargo initiated its foreclosure action below with the filing of its Complaint on May 10, 2007. Wells Fargo then filed a motion for summary judgment and decree of foreclosure on August 21, 2007, with a hearing held on September 12, 2007. The motion was granted and the lower court's Findings of Fact, Conclusions of Law and Order Granting Plaintiff's Motion for Summary Judgment and Decree of Foreclosure was entered on March 3, 2008, appointing Davis D. Higa as Commissioner.

15. Commissioner Higa in due course held open houses on Monday, October 6, 2008 and on Sunday, October 12, 2008. The home was apparently set to be sold at public auction on October 28, 2008, and then rescheduled to December 12, 2008, then to January 15, 2009, then to February 19, 2009, then to April 23, 2009, then to June 4, 2009, and then postponed indefinitely without explanation.

16. Then, following an auction sale to Wells Fargo as high bidder, on July 6, 2010, Wells Fargo, this time with new counsel, filed a motion to reopen the bidding on the property, with a hearing set for August 3, 2010, at which time the lower court granted Wells Fargo's motion for confirmation of sale, selling the property instead, following their higher bid of $482,836.00, to third parties Mark and Jenny Chin.

17. When the bidding was reopened on August 3, 2010, the Commissioner's advertising of the property was nearly two years old and the open houses had been

5

held nearly two years earlier, during which time the housing market in Hawaii collapsed and the value of the Subject Property as did most if not all Hawaii properties dropped substantially.

18. On September 21, 2010, the Court entered its Judgment and Order Granting Plaintiff's Motion to Reopen Bidding and for Order Confirming Foreclosure Sale, Commissions and Fees, Directing Conveyance and for Writ of Possession Filed July 6,

2010.

19. Petitioners hired the undersigned thereafter, who immediately moved pursuant to Rule 60(b) of the Hawaii Revised Statutes to set aside the foreclosure sale based upon fraud on the Court, which the lower court denied on the grounds that the

motion was untimely.

20. Petitioners seek relief in this Court, as the purported purchasers, Mark and Jenny Chin, have by agreement set the outside date for Petitioners' eviction for today, March 14, 2011, having no effective remedy other than an emergency writ issued by this Court.

C. Issues Presented and Relief Sought

21. Rule 60(b) of the Hawaii Rules of Civil Procedure provides:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence by which due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable

6

time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken ....

The Execution, Notarization and Recording of the Assignment Was Fraudulent

22. Mortgage fraud has become a much talked about topic in the United States in recent months; this appears to be yet another variation - not only a fraud upon this borrower, but also upon this Court, the State Bureau of Conveyances, and this State's system of criminal justice for that matter, having been deliberately 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 this State (see especially those sections of Chapter 502 of the Hawaii Revised Statutes set forth in Exhibit 5):

a. Section 708-852 (prohibition against forgery),

b. Section 710-1061 (prohibition against false swearing in official matters),

c. Section 456-8 (prohibition against violation of rules governing notaries),

d. Section 501-196 (prohibition against recordation of fraudulent memoranda),

e. Section 502-41 (prohibition against false signature acknowledgments), and f. Section 502-3 (prohibition against validity of false acknowledgments).

23. In this case, as explained above, the Assignment was signed and notarized before the Mortgage itself had ever been recorded. Furthermore, after the Assignment was executed and notarized, as explained above it was fraudulently and illegally doctored. As further evidence of fraud as explained above, the Trust that Plaintiff claims to represent did not even exist on the date of the Assignment, as evidenced by its Pooling and Servicing Agreement as explained above.

24. The Assignment from Argent to Wells Fargo was fraudulently procured, fraudulently executed, and fraudulently notarized, requiring that it be expunged as a

7

matter of law, as such invalid notarization first of all violates the State Attorney General's Notary Rules.

25. Section 456-8 of the Hawaii Revised Statutes empowers the Hawaii State Attorney General to "prescribe such rules as the attorney general deems advisable concerning the administration of this Chapter [Notaries Public]," which "shall have the force and effect of law."

26. Pursuant to such statutory authority, the State Attorney General has promulgated its "Notary Public Manual" setting forth, inter alia, the duties and liabilities of Notaries Public in this State, a true and correct copy of which is set forth in Exhibit 6 attached hereto, of which administrative regulations this Court may take judicial notice pursuant to Evidence Code Rule 202, State v. Vallejo, 9 Haw. App. 73, 823 P.2d 154 (1992); State v. West, 95 Haw. 22, 26-28,18 P.3d 84, 889-890 (2001).

27. Page seven of said Manual specifically states that "no document containing interlineations, erasures or other changes will be recorded by the registrar of the State Bureau of Conveyances unless they are initialed by the notary," yet - even forgetting for the moment that the purported Assignment was unlawfully executed in blank with no assignee named - the later addition of the Wells Fargo's name and address were not initialed by the notary.

28. Moreover, according to that same Manual, its page seven, such a breach of a notary's "official duty" subjects the notary to "criminal liability," surely not the kind of misconduct to be rewarded in any way by the Courts of this State, as Wells Fargo was below.

29. Equally disquieting, such false swearing constitutes a fraud upon our State Courts, as Wells Fargo's attorneys misrepresented in Wells Fargo's Complaint that it was a valid assignment (Exhibit 7, paragraph 7) and Wells Fargo itself repeated that

8

misrepresentation under oath in its otherwise successful Motion for Summary Judgment swearing in its moving memorandum placing it in evidence that it was supposedly a valid assignment (Exhibit 8, Declaration of Indebtedness, Paragraph 4). Do we really know who owned the Mortgage? Who owned the Note?

30. Moreover, since time immemorial, such invalid notarization has rendered mortgages unrecordable in this State, currently pursuant to Sections 502-41, 502-42, and 502-43 of the Hawaii Revised Statutes, supra, making any such unauthorized recordation an absolute nullity and automatically to be expunged, Lalakea v. Hilo Sugar Co., 15 Haw. 570, 576 (1904).

31. Constituting a fraud also upon the State Bureau of Conveyances (Regular System), that false Assignment is furthermore void, as Section 502-53 of the Hawaii Revised Statutes expressly 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 ... "

32. 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.").

33. For example, in Missouri, in Monia v. Oberle, 530 S.W. 2d 452, 454 (1976) (Exhibit 9), the Missouri Court of Appeals, with an identical recording statute as here, 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 as void.

34. In New Jersey, in In re Buchholz, 224 B.R. 13 (D. N.J. 1998) (Exhibit 10), the United States Bankruptcy Court for the Northern District of New Jersey, again in a State

9

with an identical recording statute as here, held that an instrument improperly notarized could not thus be recorded as a matter of state law and was therefore wholly ineffective and void.

35. In New York, in Sobel v. Wolf, 216 N.Y. S. 2d 132 (1961) (Exhibit 11), the Supreme Court for Westchester County, again in a State with an identical recording statute as here, held that in the absence of a valid acknowledgment, the mortgage could not be recorded, and if it mistakenly was, it must be cancelled by being judicially expunged as void.

36. In Indiana, in Walters v. Hartwig, 106 Ind. 123,6 N.E. 5 (1886) (Exhibit 12), the Supreme Court of Indiana, again in a State with an identical recording statute as Hawaii, recognized a landowner's right to maintain an action to cancel an instrument improperly acknowledged as a void in instrument.

The Fraudulent Nature of the Assignment Denied Wells Fargo Standing

37. That false and fraudulent Assignment represents the basis of Wells Fargo's entire case below for, without it, it simply has no standing, which is even more disturbing when it and its attorneys in effect misrepresent the date of its creation and its legitimacy, since the validity of notary public acknowledgments constitutes the evidentiary foundation which alone maintains the essential credibility and integrity of land titles as well as mortgages in this State.

38. Generally, a Circuit Court's disposition of a Rule 60(b) motion is discretionary, Beneficial Hawaii. Inc. v. Casey, 98 Hawaii 159, 164, 45 P.3d 359, 364 (2002). The Circuit Court "abuses its discretion if it bases its ruling on an erroneous view of the law, or on a clearly erroneous assessment of the evidence." Id.

39. However, the Circuit Court's determination of whether a judgment is void pursuant to Rule 60(b)(4) is not a discretionary issue. "It has been noted that a

10

judgment is void only if the court that rendered it lacked jurisdiction of either the subject matter or the parties or otherwise acted in a manner inconsistent with due process of law." CitiCorp Mortgage. Inc. v. Bartolome, 94 Hawaii 422, 430, 16 P.3d 827, 836

(2000).

40. As this Court explained in Hawai'i Medical Association v. Hawai'i Medical

Service Association, Inc., 113 Hawaii 77, 94, 148 P.3d 1179, 1196 (2006):

"This court has long acknowledged that standing is that aspect of justiciability focusing on the party seeking a forum rather than on the issue he or she wants adjudicated." Sierra Club v. Hawai'i Tourism Auth., 100 Hawai'i 242, 271, 59 P.3d 877, 906 (2002) (brackets, citation, and internal quotation marks omitted); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."). It is well-settled that courts must determine as a threshold matter whether they have jurisdiction to decide the issues presented. Pub. Access Shoreline Hawai'i v. Hawai'i County Planning Comm'n, 79 Hawai'i 425, 431, 903 P.2d 1246, 1252 (1995). If a party is found to lack standing, the court is without subject matter jurisdiction to determine the action. See Pele Defense Fund v. Puna Geothermal Venture, 77 Hawai'i 64, 67, 881 P.2d 1210, 1213 (1994). Thus, "[i]f a court lacks jurisdiction over the subject matter of a proceeding, any judgment rendered in that proceeding is invalid." Bush v. Hawaiian Homes Comm'n,. 76 Hawai'i 128, 133,870 P.2d 1272, 1277 (1994).

41. "[B]ecause standing is a jurisdictional issue that may be addressed at any stage of a case, [even] an appellate court has jurisdiction to resolve questions regarding standing, even if that determination ultimately precludes jurisdiction over the merits,"

Kaho'ohanohano v. State, 114 Hawaii 302, 324, 162 P.3d 696, 718 (2007) (brackets in original omitted) (quoting Keahole Defense Coalition, Inc. v. Board of Land & Natural

Resources, 110 Hawai'i 419, 427-28,134 P.3d 585,593-94 (2006».

11

42. At the trial court level proceedings, "the plaintiff bears the burden of establishing that he or she has standing" before the court may decide the merits of the action, Hawai'i Medical Association, 113 Hawaii at 95,148 P.3d at 1197.

43. Thus, before a trial court reaches the merits of a motion for summary judgment, a Plaintiff must demonstrate that (1) it has suffered an injury in fact, (2) the injury is fairly traceable to the defendant's actions, and (3) the injury in fact is redressable by the court, Sierra Club v. Department of Transportation, 115 Hawaii 299, 319,167 P.3d 292,312 (2007).

44. "[T]he injury prong of the standing inquiry requires an assertion of a judiciallycognizable injury, that is, a harm to some legally-protected interest," Sierra Club v. Department of Transportation, 115 Hawaii at 314, 167 P .3d at 321.

45. Wells Fargo had no legally protected interest here, because it never had a valid contractual right to foreclose due to the fraudulent assignment through which it claims standing, and cannot satisfy the injury prong of the standing doctrine. Because Plaintiff thus lacked standing, the lower court lacked subject matter jurisdiction. Therefore, its judgments are void and should be set aside pursuant to Rule 60(b)(4).

Wells Fargo and Its Attorneys Committed Fraud on the Court

46. In Hawaii, as earlier as 1918, this Court instructed our trial courts that "courts

should be prompt to set aside a verdict which has been secured by corrupt or improper acts of the successful party, and this, not only in the interest of an honest and proper administration of justice, but also by way of punishment to the wrongdoer, Dwight v. Ichiyama, 24 Haw. 193, 195 (1918).

47. The need for redressing "fraud upon the court," no matter how long it may take to surface, was subsequently articulately explained by Justice Black in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944), a case similarly involving

12

false testimony: "[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 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." (Emphasis added)

48. The Hawaii Supreme Court on two occasions has relatively recently reaffirmed that important principle, in Kawamata Farms v. United Agri Products, 86 Haw. 214, 256-257, 948 P.2d 1055 (1997) ("fraud, misrepresentation, and circumvention used to obtain a judgment are generally regarded as sufficient cause for the opening or vacating of the judgment," quoting approvingly from Southwest Slopes, Inc. v. Lum, 81 Haw. 501, 511, 918 P.2 1157 (App. 1996), and in Matsuura v. E.I. du Pont de Nemours and Co., 102 Haw. 149, 157-158, 73 P.3d 687 (2003) ("HRCP Rule 60(b)(3) ... reflects this court's preference for judgments on the merits over finality of judgments procured through fraud").

49. This case, involving the now fully exposed, fraudulent pleading of licensed Hawaii attorneys as well as fraudulent misrepresentations of mortgage ownership under oath to the lower court by a Wells Fargo employee, is even worse than the misconduct sanctioned in Hazel-Atlas, in Kawamata Farms, in Southwest Slopes, and in Matsuura. There Is No Time Limit for Setting Aside Judgments Based on Fraud on the Court

50. The lower court at first denied Petitioners' Rule 60(b) Motion, ruling it "untimely" on December 21, 2010 (Exhibit 13), then after agreeing to rehear the motion, denied Petitioners' Rule 60(b) Motion again on February 1, 2011, this time ruling that

13

Petitioners' prior counsel failed to file "a timely appeal of the summary judgment and in any event "the property has already been sold to a third party" (Exhibit 14).

51. That, however, is not the law of this State; see. e.g.:

a. Hazel-Atlas (no time limit as "tampering with the administration of justice" is "a wrong against the [public] institutions," according to the United States Supreme Court, that cannot be dependent time-wise merely upon "the diligence of litigants," 322 U.S. at 246);

b. Kawamata (in which this Court, citing Hazel-Atlas, liberally interpreted "HRCP Rule 60(b)(3)," even departing "from federal case law," and intentionally announcing "a new precedent" so as "not to disallow a remedy" for "post-judgment discovery of fraud," since "a trial court has a duty and a right to determine that its judgments are correct and accurately reflect the truth," 86 Haw. at 256-257, and that findings procured "by fraudulent representations to opposing parties and to the circuit court ... in light of the strong public policy against litigants committing fraud within the courts" may be set aside and amended, 86 Haw. at 258);

c. Southwest Slopes (in an appeal from decisions of this Circuit Court, the Hawaii Intermediate Court of Appeals remanded the case "to the circuit court for appropriate investigation and action" so as to prevent fraud upon the Court, 81 Haw. at 511); and

d. Matsuura (this Court expressly holding that the next to the last sentence of Rule 60(b), set forth in paragraph 21 above, removes "any fixed time limit to directly attack a judgment based on fraud upon the court," and that "the one-year limitation in HRCP Rule 60(b) is not applicable when fraud was committed upon the court, and that accordingly "when there is an allegation of fraud, the policy of reinforcing the finality of judgments does not favor limiting liability in a subsequent proceeding," 102 Haw. at 158).

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D. Reasons for Issuing the Writ

52. The undersigned are well aware of this Court's continual reluctance to grant such emergency writs based on a conclusion that an alternative remedy is available by way of appeal.

53. However, it is respectfully submitted that this is the exceptional case where such a writ should and must be granted, not only if these Petitioners, facing eviction today, are to have an adequate remedy, but given the lower court's manifest lack of subject matter jurisdiction due to Wells Fargo's lack of standing and given the urgent public policy need for this Court to exercise its responsibility to protect the integrity of our evidentiary processes and this Court's responsibility to regulate lawyers who practice before our State Courts.

54. Hawaii borrowers and our Judiciary are under assault by literally thousands of false mortgage assignments, the existence of which nationally now amounts to an admitted mega-scandal (see Exhibit 15).

55. Petitioners in this proceeding seek the same type of protection for themselves and for every Hawaii borrower now being provided by the highest courts of other States which are, for instance, being issued sua sponte, in addition to reversal here.

56. For example, the New Jersey Judiciary, under the leadership and direction of its Supreme Court, "to protect the integrity of the process and ensure the veracity of filings with the court in foreclosure cases," is now recently requiring lenders and their counsel to verify under oath the accuracy of the chain of title of all promissory notes and mortgage assignments (Exhibits 16 and 17), as the New York Judiciary earlier has done.

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57. The Massachusetts Judiciary has even banned certain notorious predatory lenders, most notably Fremont Investment & Loan and Option One Mortgage Corporation, whose lending activities in Hawaii were once prolific, from having any of their originated subprime residential mortgage loans foreclosed on in that State without first being reviewed and foreclosure approved by that State's Attorney General; see, e.g., Commonwealth v. Fremont Investment & Loan, 452 Mass 733, 897 N.E. 2d 548 (2008), which was the forerunner for the now sua sponte issuance by State Judiciaries of specific foreclosure evidentiary rules and specific foreclosure attorney practice rules in the public interest in their States.

58. Homeowners in Hawaii are no less deserving of the same sua sponte protection of this Court.

59. Hawaii Courts have long recognized the special importance to the welfare of this State's residents of protecting a family's "single most important asset," its residence, not only from an economic point of view, but also for its inherent social values -- as its location often determines where children go to school, where families worship, where family and friends reside, and where the elderly spend their remaining years, in the absence of which borrowers may become dependent on public housing and welfare, if available, and parental control may be lost and marriages may break up as a result, see, e.g., Sawada v. Endo, 57 Haw. 608, 616-617, 561 P.2d 1291 (1977).

E. Conclusion

60. For the many reasons set forth above, each and all, Petitioners respectfully request that this Honorable Court enforce the notarization, the recording, the standing, and the jurisdictional rules of this State and reverse the challenged decisions below, and in the process providing needed guidance to the trial courts of this State, as well as the foreclosure Bar, on the proper evidentiary requirements and procedures for verifying

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a foreclosing mortgagee's standing in this jurisdiction in both judicial and nonjudicial foreclosures, the latter entering our courts in ejectment actions.

DATED: Honolulu, Hawaii; March 14, 2011.

'- 9 '55=.>

--

GARY VICTOR DUBIN FREDERICK J. ARENSMEYER SIMEON L.. VANCE

Attorneys for Petitioners

Jedwin James Kaina Baricuatro And Violet Lo Baricuatro

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ORIGINAL

NO. _

IN THE SUPREME COURT OF THE STATE OF HAWAII

JEDWIN JAMES KAINA BARICUATRO, )

INDIVIDUALLY AND AS TRUSTEE OF )

THAT CERTAIN UNRECORDED TRUST) DATED AUGUST 28, 1991; VIOLET LO ) BARICUATRO, INDIVIDUALLY AND AS ) TRUSTEE OF THAT CERTAIN ) UNRECORDED TRUST DATED AUGUST) 28,1991, ) )

.~

)

~ ..

THE HONORABLE BERT I. AYABE, )

Judge of the First Circuit Court, )

Respondent Judge, l

) WELLS FARGO BANK, N.A. ON BEHALF) OF THE CERTIFICATE HOLDERS PARK) PLACE SECURITIES, INC. ASSET- l BACKED PASS-THROUGH

CERTIFICATES SERIES 2005-WCW1, .

) RespondenU ) Real Party in Interest, )

:~

) ) ) ) ) ) ) ) ) )

--------------------------)

Petitioners,

vs.

and

and

ASSOCIATION OF APARTMENT OWNERS OF THE CROWNE AT WAILUNA; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE ENTITIES 1-10 and DOE GOVERNMENTAL UNITS 1-10,

Respondents.

CIVIL NO. 07-1-0845-05

PETITION FOR WRIT OF MANDAMUS AND/OR PROHIBITION

DECLARATION OF GARY VICTOR DUBIN

I, GARY VICTOR DUBIN, HEREBY DECLARE:

1. I am an attorney licensed to practice law in the Courts of the State of Hawaii, my law firm represents the Petitioners herein, having entered our appearance only shortly before the December 21, 2010 hearing to confirm sale, and I make the within statements of my own personal firsthand knowledge.

2. Attached to this Petition, set forth in Exhibits 1, 2, 3, 4, 7 and 8, are true and correct copies of relevant documents filed and authenticated below in this action.

3. Attached to this Petition, set forth in Exhibits 5, 6,9,10,11,12,16 and 17, are true and correct copies of statutory and judicial authorities downloaded from Westlaw and other research services.

4. Attached to this Petition, set forth in Exhibits 13 and 14, are true and correct copies of the lower court's Minutes explaining the challenged decisions below, as the lower court has yet to enter an order denying Petitioner's Rule 60(b) Reconsideration Motion.

5. Attached to this Petition, set forth in Exhibit 15, is a true and correct copy of a relevant commentary downloaded from the publication referenced.

6. This Petition is filed in good faith, in my professional judgment that there are good grounds in support of the requested relief, these facts comprising the type of extraordinary circumstances justifying the issuance of an extraordinary writ without the necessity to await the outcome of an appeal, as the issue presented is jurisdictional and as an appellate remedy is inadequate where someone is about to lose their home after today as a result of fraud upon the court in the procurement of a void judgment.

I declare under penalty of law that the foregoing is true and correct. Executed on March 14, 2011, at Honolulu, Hawaii.

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