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Posted on March 29, 2012 Details By DeadlyClear The Securitization Curtain is Lifting in Hawaii!

One of the most important decisions for Borrowers Rights in the history of Hawaii has been made with this decision, remarked Honolulu attorney Gary Dubin. Honorable Judge J. Michael Seabright of the Hawaii United States District Court, today GRANTED the homeowners Motion to Dismiss the case filed against them in federal district court by Plaintiff Deutsche Bank National Trust Company, as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007NC1 Mortgage Pass-Through Certificates, Series 2007-NC1. The Williamses (Leigafoalii Tafue Williams and Papu Christopher Williams),

who were represented by Honolulu attorney, James J. Bickerton (Jim), of Bickerton Lee Dang & Sullivan, filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), in which they argue, among other things, that Plaintiff has no standing to foreclose because it has not established that it was validly assigned the Mortgage and Note.

The Court noted that: Because the court finds that Plaintiff has failed to establish its standing to bring this action, the court need not reach the Williamses other arguments for dismissal.

Honorable Judge J. Michael Seabright gets it! And his ORDER (see attached) was detailed. In the Discussion, Judge Seabright notes an argument that homeowners have being trying to persuade the courts (especially at the lower state levels) to grasp: STANDING and JURISDICTION. Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to show that the conduct of which he complains has caused him to suffer an injury in fact that a favorable judgment will redress. Id. at 12. In comparison, prudential standing encompasses the general prohibition on a litigants raising another persons legal rights. Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009). Lets continue but well get back to that injury issue later in the post. The WILLIAMSES ORDER continues: The Williamses factually attack Plaintiffs prudential standing to foreclose, arguing that there is no evidence establishing that Plaintiff was validly assigned the Mortgage and Note on the subject property. The issue of whether Plaintiff was validly assigned the Mortgage and Note is inextricably intertwined with the merits of the Plaintiffs claims seeking to foreclose

Of course, this was a New Century Mortgage (Home123) and the Plaintiffs were taking part in a fabricated assignment in 2009 to a 2007 Trust (that boat had sailed 2 years before because theTrust had long since closed) but even more compelling in the Motion to Dismiss-Memorandum (see attached) was the Williamses assertion that New Century aka Home123 was in a liquidating bankruptcy as of August 1, 2008 and they had nothing to assign in January 2009.

Deutsche argued that the Williamses were not parties or beneficiaries to the assignment such that they cannot challenge it [we've heard that before, yeah?]. However, the Judge Seabright clarifies a valid point: Plaintiffs argument confuses a borrowers, as opposed to a lenders, standing to raise affirmative claims. InWilliams v. Rickard, 2011 WL 2116995, at *5 (D. Haw. May 25, 2011), which involved the same parties in this action and in which Lei Williams asserted affirmative claims against Deutsche Bank Chief Judge Susan Oki Mollway explained the difference between the two: Standing is a plaintiffs requirement, and Defendants must

establish standing to defend themselves. Judge Seabright continues: Deutsche Bank asserts affirmative claims against the Williamses seeking to enforce the Mortgage and Note, and therefore must establish its legal right (i.e., standing) to do so. See, e.g.,IndyMac Bank v. Miguel, 117 Haw. 506, 513, 184 P.3d 821, 828 (Haw. App. 2008) (explaining that for standing, a mortgagee must have a sufficient interest in the Mortgage to have suffered an injury from [the mortgagor's] default).

Attorney Bickerton faced off in court and explained to the Judge in oral argument that the banks didnt just miss the date to file their assignments or needed to tidy up paperwork, this was a Business model using the loans for overnight lending. Bickerton told the Court that if this wasnt dismissed, his first line of discovery would be geared to uncover the outside financial advantages being derived from the use of the Williamses loan.

Understanding the premeditated intentions of these banks, how they pledge, collaterize, swap, sell, lease,and trade these loans that are SUPPOSED to have been in a static trust will open the eyes of lawmakers to the real moral hazard the fraud upon the homeowners, the courts and the state. Jim Bickerton profoundly says that, every foreclosure in the state is a victim of this shadow banking scam. James J. Bickerton Bickerton Lee Dang & Sullivan Fort St Tower 745 Fort St Ste 801 Honolulu, HI 96813 808-599-3811 Email: bickerton@bsds.com Security trusts will no longer be able to hide behind the hocus pocus of the pooling and servicing agreements. The ramifications of this decision are extraordinary, praises Gary Dubin.

INJURY Remember that issue from above?

Lets discuss the trusts. We can see by the assignments that they were not made timely and NY trust laws call them VOID. The REMIC has failed. But maybe the investors ARE getting paid with the behind the scenes shadow banking scheme. And lets suppose we can see the trading in the trust is active, numerous investors have already been paid off where is the injury.hmmm? Were connecting the dots, people with above average intelligence are realizing, just like Judge Seabright, that there are huge schemes behind the scenes of an everyday mortgage that the borrower never intended to participate in and eventually well know whether the application for a mortgage started the securitization process before the borrower signed the note making them securities with no disclosure, how many insurance policies were attached to the loans and when (we never agreed to be over insured which would give someone the incentive to off us) its coming soon to a court room near you and the Securitization curtain will be lifting for the big show. _____________________________________________________________ ______ Details by DeadlyClear Honorable Judge J. Michael Seabright Thank you. Mahalo! This is why he gets the Gets It award: HEADLINE: Seabright confirmed as U.S. judge An assistant U.S. attorney who prosecuted several high-profile white-collar criminal cases here is on his way to becoming Hawaiis fourth full-time federal judge. Michael Seabright: As an assistant U.S. attorney, he put three isle politicians behind bars. The U.S. Senate voted 98-0 yesterday to confirm J. Michael Seabright as a U.S. district judge for the District of Hawaii. Im very honored to have

received that vote, said Seabright, 46, an assistant U.S. attorney since 1990 and head of the white-collar crime section since 2002. The Honorable John Michael Seabright

___________________________________________Older News Brooklyn Senator faces foreclosure May 11, 2009 08:57AM State Senator Kevin Parkers two-story Flatbush home is facing foreclosure, according to the Post. The four-term Democrat representing Brooklyns 21st district hasnt paid his $488,000 mortgage in more than a year. Parker obtained the mortgage in 2006 with lender New Century Mortgage Corp., which folded, and the loan now belongs to DLJ Mortgage Capital. DLJ claims in a lawsuit that it received only eight monthly payments, and the lender waited just over a year to start foreclosure action. Neighbors said there has been a for sale sign in front of the house for six months, and no one has been living there. Parker has been an advocate for foreclosure relief, and last summer announced he supported Operation Protect Your Home, an effort to help homeowners keep their properties.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1, Plaintiff, vs. LEIGAFOALI'I TAFUE WILLIAMS, fka LEIGAFOALI'I TAFUE KOEHNEN; PAPU CHRISTOPHER WILLIAMS; REAL TIME RESOLUTIONS, INC.; CAROLYN RUTH KOEHNEN, AS TRUSTEE OF THE CAROLYN R. KOEHNEN REVOCABLE LIVING TRUST UIA, DATED APRIL 14,1986; and JOHN DOES 1-5, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 11-00632 JMS RLP MEMORANDUM IN SUPPORT OF MOTION

------------)
MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION Plaintiff cannot show complete diversity because its principal place of business as reflected in its mortgage assignment is Texas, identical to Defendant Real Time Resolutions, Inc. Plaintiff has no standing. It has actual notice that its assignment is a nullity

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without liquidation trustee approval. Finally, this identical foreclosure dispute was removed to the federal district court for the District of Hawaii on November 11,2009. After the entry of several summary judgment orders by the federal district court by the Hon. Susan Oki Mollway, this case was remanded to state court. No final judgment has been entered in the state court proceedings. II. This Court Has No Jurisdiction to Hear This Matter Due to a Lack of Complete Diversity of the Parties. In Plaintiff Deutsche Bank National Trust Company, as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NC1 Mortgage Pass-Through Certificates, Series 2007-NC1 (hereafter "Deutsche Bank")'s complaint herein at page 3, ~2, it alleges that its "principal place of business" for purposes of this Court's jurisdiction is California. That same complaint also alleges at page 3, ~5 that Defendant Real Time's principal place of business is Texas. The problem with Plaintiffs allegations regarding its principal place of business is that the mortgage and note assignment on which it relies for standing to foreclose herein (Exhibit 4 to the complaint) states in part: Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc., MSAC 2007-NC1, whose principal place of business and post office address is c/o Saxon Mortgage Services, Inc., 4708 Mercantile Dr. N., Fort Worth, TX 761373605., hereinafter called the "Assignee." 2

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Since Plaintiff s principal place of business for purposes of foreclosure herein is Texas rather than California, complete diversity does not exist.

Mayes v. Fujimoto, 181 F.R.D. 453 (1998).


This discrepancy is not an inadvertent oversight. The designation of Plaintiff s principal place of business for purposes of foreclosure around the United States is part of a nationwide scheme by Plaintiff, as one judge holds, to perpetrate a fraud or malfeasance on the Court. In Plaintiff s mortgage foreclosure practice, it designates its principal place of business in different states, based on its strategy to perfect foreclosure with the use of mortgage assignments, signed by "robosigners." Judge Arthur M. Schack, Supreme Court, King's County, New York, has concluded that this ongoing scheme by Plaintiff is the "Kansas City Shuffle."

Deutsche Bank National Trust Company as Trustee under the Pooling and Service Agreement Series Index 2006-AR6 v. Maraj, 856 N.Y.S.2d 497, WL 253926
(2008). Exhibit A. In Maraj, supra, Plaintiff Deutsche Bank, upon the default of defendants in a foreclosure action, made an application for an order of reference, (i.e., foreclosure) on premises located at 255 Lincoln Avenue, Brooklyn, New York. Judge Schack denied the Plaintiff s application because he believed that Plaintiff Deutsche Bank may be committing fraud or malfeasance on the court. In

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this decision dated January 31, 2008, the court was concerned with the fact that Deutsche Bank claimed its principal place of business was Kansas City, Missouri, and had the identical office address of the assignor, defunct Indymac Bank and MERS at Building B, 901 East 104th Street, Suite 400/500, Kansas City, Missouri. The court was also concerned that the authorized representative who signed for the assignor, Ms. Johnson-Seck, was a "robo-signer" who also signed a default affidavit as a vice president of the assignee, Deutsche Bank. The Kansas City assignment documents and affidavit were notarized in Texas. The Johnson-Seck signatures on both the July 3, 2007, assignment to Deutsche Bank and the July 31, 2007, affidavit are identical. The Court held in part: Did Ms. Johnson-Seck change employers from July 3, 2007 to July 31, 2007, or does she engage in self-dealing by wearing two corporate hats? The Court is concerned that there may be fraud on the part of plaintiff DEUTSCHE BANK, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from Ms. Johnson-Seck, describing her employment history for the past three years. Further, the Court requires an explanation from an officer of plaintiff DEUTSCHE BANK as to why, in the middle of our national subprime mortgage financial crisis, DEUTSCHE BANK would purchase a non-performing loan from INDYMAC, and why DEUTSCHE BANK, INDYMAC and MERS all share office space in Suite 400/500. With the assignor MERS and assignee DEUTSCHE BANK appearing to be engaged in possible fraudulent activity by: 4

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having the same person execute the assignment and then the affidavit of facts in support of the instant application; DEUTSCHE BANK's purchase of a non-performing loan from INDYMAC; and, the sharing of office space in Suite 400/500 in Kansas City, the Court wonders if the instant foreclosure action is a corporate "Kansas City Shuffle," a complex confidence game. In the 2006 film, Lucky Number Slevin, Mr. Goodkat, (a hitman played by Bruce Willis), explains (in memorable quotes from Lucky Number Slevin, at www.imdb/title/425210/quotes). A Kansas City Shuffle is when everybody looks right, you go left ... It's not something people hear about. Falls on deaf ears mostly ... No small matter. Requires a lot of planning. Involves a lot of people. People connected by the slightest of events. Like whispers in the night, in that place that never forgets, even when those people do. In this foreclosure action is plaintiff DEUTSCHE BANK, with its "principal place of business" in Kansas City attempting to make the Court look right while it goes left?

Maraj, supra, at,-r,-r 1, 2.


Another case involved in this same "Kansas City Shuffle" is Scarola v.

Deutsche Bank National Trust Company as Trustee for the Holders ofGsaa Home Equity Trust 2004-10 Asset-Backed Certificates Series 2004-10,2011 WL
5335618 (M.D.Fla.) (8/15/2011). Exhibit B. This case involves the filing of a foreclosure action by Deutsche Bank in Florida state court. The foreclosure defendant filed a second case against Deutsche Bank in another Florida state court. The second case was removed from the state court by Defendant Deutsche Bank on February 9,2011. The federal court examined the question of whether or not there

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was diversity as follows: Deutsche Bank removed the case to this Court base[d] on diversity of citizenship. The Plaintiff is a citizen of Florida and the Defendant Deutsche Bank is a national banking association with its principle place of business in New York. Based on Deutsche Bank's representations that its principal place of business was New York, the federal district court found that it had diversity jurisdiction. The next Deutsche Bank case involving the "Kansas City Shuffle" is

Kunzman v. Deutsche Bank National Trust Company, as trustee for Argent Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2005-W4, 2011
WL 4055286 (D. Colo.) (9/12/11). Exhibit C. In Kunzman, this case was before the United States District Court for the District of Colorado, Philip A. Brimmer, District Judge. It is an order of remand by Judge Brimmer in a mortgage foreclosure case for the failure of Deutsche Bank to prove diversity. Deutsche Bank invoked 28 USC 1332(a) (1) as the basis for the court's diversity jurisdiction. Deutsche Bank alleged that it was incorporated in New York and therefore a citizen of that state. Deutsche Bank represented to the Colorado federal district court that, pursuant to its state court complaint, it was only a citizen of New York. The federal district court judge, however, pointed out that in that same state court complaint, Deutsche Bank had alleged that it was a corporation with a corporate address in California. The federal district court judge also pointed to 6

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another Deutsche Bank case, Roper v. Saxon Mortgage Services, Inc., 2009 WL 1259193, at *2 (N.D.Ga. May 5, 2009), where Deutsche Bank alleged, ("Defendant Deutsche Bank National Trust Company exists under the laws of the State of California with its principal place of business in California.") Judge Brimmer held as follows: The foregoing deficiencies in Deutsche Bank's jurisdictional averments raise a number of uncertainties regarding the Court's exercise ofjurisdiction over this matter. Where uncertainties exist regarding the Court's jurisdiction, those uncertainties are resolved in favor of remand. The complaint herein was filed in this Court on October 20,2011, alleging complete diversity. Based on the above, Plaintiff Deutsche Bank has the burden in this court to demonstrate how its principal place of business was Kansas City, Missouri, in January of2008; in Tarrant County, Texas, January, 2009; in New York, August and September 2011, and now, one month later, it is California. Defendants Williams suggest that Plaintiff needs to either produce numerous corporate moving van receipts for the past three years or just admit that this is nothing more than forum shopping, utilizing what Judge Schrack has described as the "Kansas City Shuffle."
III. Deutsche Bank's Assignment Is a Nullity. It Has No Standing.

The assignment which forms the basis of Plaintiff s standing herein is a

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nullity. When it was executed on January 13,2009, Plaintiffhad actual knowledge that without liquidation trustee approval, it was a nullity. Trustee approval is not reflected on the assignment. The assignment notarization provides as follows: STATE OF Texas COUNTY OF Tarrant ) ) ss. )

On this 13 th day of January, 2009, before me personally appeared Valerie Clark, to be[sic] personally known, who by me duly sworn, did say that they are [sic] the Authorized Signatory, respectively[sic], of Home 123 Corporation, and that said instrument was signed on behalf of said corporation by authority of its Board of Directors, and the said officers acknowledged said instrument to be the free act and deed of said corporation. (seal) Angelo Dupon Mayfield Notary Public, State of Texas My Commission expires October 12, 2012

At the time Valerie Clark made her attestation as the Authorized Signatory for Home 123's Board of Directors, there was no Home 123 Board of Directors or any corporate officers legally in existence to authorize anything. Six months before the assignment, a bankruptcy liquidation trustee was appointed as the legal successor to Home 123. August 1,2008, is the effective date of the New Century Liquidating Trust in joint bankruptcy. In re New Century TRS Holdings, Inc. v. New Century Liquidating Trust, 407 B.R. 576 (2009) at 585. Exhibit D. In New Century, above, the court held as follows: 8

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The [liquidation] plan had become effective on August 1, 2008 (the "effective date") ... On the effective date, the liquidating trust was created with Alan M. Jacobs as trustee... Also on that date, the Creditors' Committee was dissolved; the Plan Advisory Committee (the "PAC") was formed; debtors' officers and directors ceased serving and were replaced by Jacobs; debtors' assets were distributed to the liquidating trust; and NCFC's outstanding common and preferred stock, as well as all notes, securities, and indentures, were cancelled. [emphasis added] Because Plaintiff is a maj or creditor in the identical bankruptcy proceedings, In re
New Century TRS Holdings, Inc., 390 B.R. 140 (2008), fn. 12 at 148, Plaintiff

Deutsche Bank had actual notice that Home 123 had no board of directors and officers as of August 1, 2008. It also knew that all of Home 123 's assets were transferred to the Liquidating Trust on the same date so that Home 123 had nothing to assign on January 13, 2009. As such, Plaintiff's efforts herein to claim standing on an assignment from a legally non-existent board of directors, and corporation without assets on the date of assignment and without express authorization of the liquidation trustee reflected on the assignment document is, without further explanation, a nullity, an unfair and deceptive practice, and a fraud on the court.
Mara}, supra; Kawamata Farms v. United Agri Products, 88 Hawai'i 214 (1997)

at [69][70][71][72][73][74] at 257-258.

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A case directly on point requiring express post-August 1, 2008, approval for assignment from the identical liquidation trustee is New Century Mortgage

Corporation v. Braxton, 2010 WL 59277 (Mass.Land.Ct.) (2010). Exhibit E. In Braxton, where foreclosure plaintiffs attempted to utilize post-August 1, 2008
assignments from bankrupt New Century for standing, the court held that plaintiffs had not proved standing without express trustee approval, as follows: Plaintiffs have the additional obstacle of the pending bankruptcy of New Century to overcome; essentially they must show not only that the mortgages were transferred from New Century to Consumer Solutions REO, but that the transfers took place either before the bankruptcy, or with leave of the bankruptcy court or liquidating trustee. The Plaintiffs bear the burden of proving their standing, and their factual allegations are not viewed in an indulgent light. See Callahan, supra, at 710-11.

Braxton, supra, at 5. [emphasis added]


In addition to the above failure to secure trustee approval, it is also impossible for Plaintiff to have standing as the "trustee" of the Morgan Stanley ABS Capital I Inc. Trust 2007-NC1 ("Morgan Stanley Trust") based on the January 13,2009, assignment. The owner/seller of all of the mortgages securitized in this January 2007 investment trust was not Home 123; it was NC Capital Corporation, a corporation affiliated with Home 123Corporation, and which is also a debtor in the identical bankruptcy proceedings. Exhibit F, p.1, fnl. Home

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123 originally held title in 2006 to the mortgage on Defendants' premises as the retail lender. According to the bankruptcy debtors' lawyer, NC Capital Corporation then purchased the loans from Home 123 and resold them for inclusion into securitized trusts. See Exhibit G, p. 4, ~9, 11; p. 9, ~28, 32. In order for Plaintiff to have standing as trustee of the Morgan Stanley Trust, Defendants Williams' mortgage and mortgage note had to be included in the Pooling and Servicing Agreement formed by Morgan Stanley ABS Capital I, Inc., and Plaintiff in January 2007. See Exhibit U. This Pooling Agreement indicates on its face

that it opened on January 1,2007, and closed on January 26,2007. Exhibit U at pp. 2, 20. As owner/seller of all the mortgages in the trust, NC Capital Corporation represents that as of the date of closing on January 26, 2007, it had fee simple title to all the mortgage notes and mortgages included in the trust: The Seller is the sole owner and holder of the Mortgage Loan and the indebtedness evidenced by each Mortgage Note[.]
See Exhibit U at pp. 78, 79.

Next, the "depositor" into the trust, Morgan Stanley ABS Capital I Inc. Trust 2007-NCl, Inc., also represents at p. 84 of Exhibit U that as of the January 26, 2007, closing date, "the Depositor has good title to the Mortgage Loans, free and clear of any liens, charges, claims or encumbrances whatsoever." Finally, Plaintiff Deutsche Bank as the trustee of this trust represents at p. 107 of
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Exhibit U that it has "received the original Mortgage Note ... with all intervening endorsements showing a complete chain of endorsement from the originator [Home 123] to the last endorser."
1

None of this is reflected on the January 13,

2009, assignment from Home 123 to Plaintiff. The January 13, 2009, assignment bypasses all the intervening owners endorsees without explanation as if they did not exist. They do.
It is impossible based on the above for Home 123 to have had title to this

mortgage loan on January 13, 2009. Since Plaintiff is claiming standing as the trustee of a mortgage loan that had to have been securitized in January 2007, two years before the January 13, 2009, assignment, the 2009 assignment conflicts with and thus negates Plaintiff s express "trustee" basis for standing before this court. IV.
Dismissal is Warranted Under the Defense of Abatement or the Pending Action Doctrine

"Abatement, also known as the "pending action doctrine," holds that where a claim involves the same subject matter and parties as a previously filed action so that the same facts and issues are presented, resolution should occur through the prior action and the second suit should be dismissed." Planned Parenthood of
Kansas v. Donnelly, 2009 WL 2341890, *3 (Mo.App. W.D., July 31, 2009). "The

rule in question is not limited to cases in which the second action is brought by the

1 The loan schedules on the 2007 Trust do not itemize any specific mortgage loans or notes that have been securitized.

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same party as the first, and may apply where the plaintiff in the second action can, as a defendant in the first action, properly assert a counterclaim." Nielsen v.
Nielsen, 491 A.2d 1112, 1115 (Conn.App. 1985).

This identical foreclosure dispute was before the Hawai'i federal district court in USDC Civil No. 09-00535 SOM-KSC, after the 2009 removal from state court. This court is requested to take judicial notice of same, pursuant to 201, 28 USCA. That case has been remanded to the state court and is presently before the Hon. Bert I. Ayabe, Circuit Court Judge of the First Circuit. No final judgment has been entered in that case. Defendant Lei Williams has before the state court the motion attached hereto (without exhibits) as Exhibit F, raising some of the identical issues raised herein and for entry of a final, appealable order. That motion is set for hearing on Tuesday, January 24,2012. THEREFORE, for the above reasons, this claim should be dismissed. Dated: Honolulu, Hawaii, December 19, 2011. /s/JAMES J BICKERTON JAMES B. BICKERTON Attorney for Defendants Leigafoali'i Tafue Williams and Papu Christopher Williams

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIl

DEUTSCHE BANK NATIONAL ) TRUST COMPANY, AS TRUSTEE ) MORGAN STANLEY ABS CAPITAL ) I INC. TRUST 2007-NC1 MORTGAGE) PASS-THROUGH CERTIFICATES, ) SERIES 2007-NC1, ) ) Plaintiff, ) ) vs. ) ) LEIGAFOALIl TAFUE WILLIAMS, ) ka LEIGAFOALIl TAFUE ) KOEHNEN; PAPU CHRISTOPHER ) WILLIAMS; REAL TIME ) RESOLUTIONS, INC.; CAROLYN ) RUTH KOEHNEN, AS TRUSTEE OF ) THE CAROLYN R. KOEHNEN ) REVOCABLE LIVING TRUST U/A, ) DATED APRIL 14, 1986; and JOHN ) DOES 1-5, ) ) Defendants. )

CIVIL NO. 11-00632 JMSIRLP ORDER GRANTING DEFENDANTS WILLIAMSES' MOTION TO DISMISS COMPLAINT FILED 10/20/11, DOC. NO. 13

------------)
ORDER GRANTING DEFENDANTS WILLIAMSES' MOTION TO DISMISS COMPLAINT FILED 10/20/11, DOC. NO. 13 I. INTRODUCTION
On October 20,2011, Plaintiff Deutsche Bank National Trust Company, as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NC1 Mortgage Pass-Through Certificates, Series 2007-NC 1 ("Plaintiff' or "Deutsche

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Bank") filed this foreclosure action against Leigafoalii Tafue Williams, fka Leigafoalii Tafue Koehnen ("Lei Williams") and Papu Christopher Williams ("Papu Williams") (collectively, the "Williamses"); Real Time Resolutions, Inc. ("Real Time"); and Carolyn Ruth Koehnen, as Trustee of the Carolyn R. Koehnen Revocable Living Trust UIA, dated April 14, 1986 ("Koehnen"). Plaintiff asserts that it is holder of a Mortgage and Note on real property located at 45 Lama Street, Hilo, Hawaii 96720 (the "subject property") and that Lei Williams, the mortgagor, defaulted such that Plaintiff is entitled to foreclose. Currently before the court is the Williamses' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), in which they argue, among other things, l that Plaintiff has no standing to foreclose because it has not established that it was validly assigned the Mortgage and Note. Based on the following, the court agrees that Plaintiff has not established its standing to foreclose and therefore GRANTS the Williamses' Motion to Dismiss.
III III III

1 Because the court finds that Plaintiff has failed to establish its standing to bring this action, the court need not reach the Williamses' other arguments for dismissal.

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II. BACKGROUND
A. Factual Background
As alleged in the Complaint, on August 17, 2006, Lei Williams entered into a mortgage transaction with Home 123 Corporation ("Home 123") for $280,000, secured by the subject property. 2 CompI. ,-r,-r 10-11. Although the mortgage requires the lender's written consent prior to the transfer of any legal or beneficial interest in the subject property, on October 31,2007 Lei Williams conveyed the subject property to herself and Papu Williams as tenants by the entirety without written notice to the lender. Id.,-r,-r 12-13. The Complaint asserts that by instrument dated January 13,2009 and recorded in the State of Hawaii Bureau of Conveyances on January 21, 2009, the Mortgage and Note were assigned from Home 123 to Plaintiff. See id. ,-r 14; CompI. Ex. 4. Lei Williams has allegedly failed to pay the Note in accordance with its terms, resulting in her owing $358,409.37 as of October 1,2011. CompI.,-r 19. Plaintiff therefore asserts that it is entitled to foreclose on the Mortgage and, if appropriate, obtain a deficiency judgment. Id. ,-r 21. Plaintiff further asserts that Lei Williams' transfer of the subject property to Papu Williams and herself as

2 According to the Complaint, Real Time and Koehnen are second and third mortgage holders, respectively. See Compi. ~~ 5-6.

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tenants by the entirety was fraudulent and should be voided to the extent necessary to satisfy the amounts due and owing under the Mortgage and Note. Id.,-r,-r 25-27.
B. Procedural Background

On October 20,2011, Plaintiff filed this action asserting claims for breach of contract and fraudulent transfer. On December 19, 2011, the Williamses filed their Motion to Dismiss pursuant to Rule 12(b)(1). Plaintiff filed an Opposition on February 13,2012, and the Williamses filed a Reply on February 7,2012. A hearing was held on March 27,2012.
III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over which it lacks proper subject matter jurisdiction. A Rule 12(b)(1) jurisdictional attack is either facial (attacking the sufficiency of the complaint's allegations to invoke federal jurisdiction) or factual (disputing the truth of the allegations of the complaint). Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack "[w]here the

jurisdictional issue is separable from the merits of the case, the judge may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary." Thornhill Publ'g Co., Inc. v. Gen.

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Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In such case, "no
presumptive truthfulness attaches to plaintiff s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself' the existence of subject matter jurisdiction. Id. Where, however, the jurisdictional issue and substantive issues are so intertwined that the question ofjurisdiction is dependent on the resolution of factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial.

Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). Where "the
jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment." Autery v. United States, 424 F.3d 944,956 (9th Cir. 2005) (quoting

Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987)); see also Augustine,
704 F.2d at 1077; Careau Grp. v. United Farm Workers, 940 F.2d 1291, 1293 (9th Cir. 1991). "The Court 'must therefore determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact .... '" Autery, 424 F.3d at 956 (quoting Suzuki Motor Corp. v.

Consumers Union of us., Inc., 330 F.3d 1110, 1131 (9th Cir. 2003) (en bane));
5

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see also Roberts v. Corrothers, 812 F.2d 1173, 1777 (9th Cir. 1987) ("In such a
case, the district court assumes the truth of allegations in a complaint or habeas petition, unless controverted by undisputed facts in the record.").

IV. DISCUSSION
Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v.

Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have
both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to "show that the conduct of which he complains has caused him to suffer an 'injury in fact' that a favorable judgment will redress." Id. at 12. In comparison, "prudential standing encompasses the general prohibition on a litigant's raising another person's legal rights." Id. (citation and quotation signals omitted); see also Oregon v. Legal

Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).


The Williamses factually attack Plaintiff s prudential standing to foreclose, arguing that there is no evidence establishing that Plaintiff was validly assigned the Mortgage and Note on the subject property. The issue of whether Plaintiff was validly assigned the Mortgage and Note is inextricably intertwined

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675

with the merits of the Plaintiffs claims seeking to foreclose on the subject property -- that is, Plaintiff must prove that it was assigned the Mortgage and Note before it has the ability to foreclose. As a result, the court determines whether the evidence presented, viewed in a light most favorable to Plaintiff, establishes a genuine issue of material fact that Plaintiff was validly assigned the Mortgage and Note. See

Autery, 424 F.3d at 956.


The basis of Plaintiffs standing to foreclose on the subject property (at least as alleged in the Complaint) is a January 13,2009 assignment of the Mortgage and Note from Home 123 to Plaintiff. The assignment, attached to the Complaint, provides: This Assignment, made this 13th day of January, 2009, by and between Home 123 Corporation, a California corporation, hereinafter called the "Assignor", and Deutsche Bank National Trust Company, as trustee for Morgan Stanley ABS Capital I Inc., MSAC 2007NC1, whose principal place of business and post office address is c/o Saxon Mortgage Services, Inc., 4708 Mercantile Dr. N., Forth Worth TX 76137-3605, hereinafter called the "Assignee." WITNESSETH: In consideration of the sum of ONE DOLLAR ($1.00) and other valuable consideration paid by the Assignee, the receipt of which is hereby acknowledged, the Assignor does hereby, without recourse, sell, assign, transfer, set over and deliver unto the Assignee, its successors and assigns, the mortgage and note hereinafter described ....

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CompI. Ex. 4. The Williamses argue that this assignment cannot be valid because Home 123 was in bankruptcy liquidation as of January 13,2009. Specifically, Home 123 filed for Chapter 11 bankruptcy in 2007, Home 123 filed a liquidation plan in March 2008, and the bankruptcy court confirmed the liquidation plan in July 2008. In re New Century TRS Holdings, Inc., 407 B.R. 576, 579-80 (Bankr. D. Del. 2009). Effective August 1, 2008, the liquidation plan: was created with Alan M. Jacobs as trustee. Also on that date, the Creditors' Committee was dissolved; the Plan Advisory Committee (the "PAC") was formed; debtors' officers and directors ceased serving and were replaced by Jacobs; debtors' assets were distributed to the liquidating trust; and NCFC's outstanding common and preferred stock, as well as all notes, securities, and indentures, were cancelled.
Id. at 585-86 (citations omitted). Given this liquidation, it appears that Home 123

could not have validly assigned the Mortgage and Note to Plaintiff on January 13,

2009. And in Opposition, Plaintiff presents no evidence (or even argument) explaining how this January 13,2009 assignment is valid despite Home 123 's bankruptcy and liquidation. In fact, Plaintiff argues -- without factual support -that NC Capital Corporation ("NC Capital") first bought the Note from Home 123 and Plaintiff subsequently received it through a securitized trust. See PI. 's Opp'n at 20. And at the hearing, Plaintiff's counsel inexplicably stated that discovery is
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required to deternrine the Note's assignment, even though all facts concerning any valid assignment should certainly be known to Plaintiff without having to conduct discovery. In other words, even Plaintiff, who is master of its Complaint and by all accounts should know the basis of its claims, apparently disclaims the allegations in the Complaint and at this time cannot establish its legal right to enforce the Mortgage and Note. The Complaint's assertion that Plaintiff obtained the Mortgage and Note through the January 13,2009 assignment is further called into doubt by the fact that Plaintiff brings this action as "Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NCI Mortgage Pass-Through Certificates, Series 2007-NC-I"-suggesting (as Plaintiff now argues) that Plaintiff may have received the Mortgage and/or Note through a Pooling and Servicing Agreement ("PSA") in 2007. From the evidence presented by the Williamses (Plaintiff presented no evidence on standing in Opposition), Home 123 generally sold mortgages to its affiliate NC Capital, who then resold the mortgages for inclusion into securitized trusts. See Williamses' Ex. Gat 4,-r,-r 9, 11. And NC Capital and Morgan Stanley ABS Capital I Inc., with Plaintiff as trustee, entered into a PSA dated January 1, 2007.
See Williamses' Ex. U. The PSA requires NC Capital to deliver to Plaintiff

assignments of mortgage for each mortgage loan, and for Plaintiff to certify

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"receipt of a Mortgage Note and Assignment of Mortgage for each applicable Mortgage Loan." Id. at 41-42. This evidence presents two problems for Plaintiff. First, if Plaintiff did indeed obtain the Mortgage and Note through a 2007 PSA, then the 2007 PSA is yet another reason why the January 13,2009 assignment is a nullity and the Complaint's assertion that Plaintiff obtained the Mortgage and Note from Home 123 is untrue. Second, the evidence presented does not actually establish that Plaintiff received the Mortgage and Note through the PSA -- there is no evidence on the record establishing what mortgages were included in the PSA. Thus, although Plaintiff might have obtained the Mortgage and Note through this PSA, there is no evidence showing or even suggesting that this is indeed the case. As a result, there is no evidence -- at least on the record presented before the court -creating a genuine issue of material fact that Plaintiff was assigned the Mortgage and Note on which it now seeks to foreclose. In opposition, Plaintiff argues that the Williamses are not parties or beneficiaries to the assignment such that they cannot challenge it. In making this argument, Plaintiff relies on caselaw from this court rejecting that a plaintiff/mortgagee can assert claims raising assignment irregularities and/or noncompliance with a PSA. See Fed. Nat'! Mortg. Ass'n v. Kamakau, 2012 WL

10

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622169, at *3-4 (D. Haw. Feb. 23, 2012) (relying on Velasco v. Sec. Nat'l Mortg.

Co., --- F. Supp. 2d ----, 2011 WL 4899935, at *4 (D. Haw. Oct. 14,2011), to
reject "slander of title" claim challenging assignment of the note and mortgage because where the borrower is not a party or intended beneficiary of the assignment, he cannot dispute the validity of the assignment); Abubo v. Bank of New York Mellon, 2011 WL 6011787, at *8 (D. Haw. Nov. 30,2011) (rejecting claim asserting violation of a PSA because a third party lacks standing to raise a violation of a PSA and noncompliance with terms of a PSA is irrelevant to the validity of the assignment). Plaintiffs argument confuses a borrower's, as opposed to a lender's, standing to raise affirmative claims. In Williams v. Rickard, 2011 WL 2116995, at *5 (D. Haw. May 25,2011), -- which involved the same parties in this action and in which Lei Williams asserted affirmative claims against Deutsche Bank -- Chief Judge Susan Oki Mollway explained the difference between the two: [Lei Williams is] confused about the doctrine of legal standing. [Lei Williams] believers] that, because Deutsche Bank and Real Time have not proven that they have standing to enforce the loan documents, they lack standing to seek summary judgment on the affirmative claims asserted against them. Had Deutsche Bank or Real Time filed affirmative claims to enforce the notes and mortgages, they would have had to establish their legal right to enforce those documents. However, Williams has sued Deutsche Bank and Real Time, and
11

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the banks are merely seeking a determination that they are not liable to Williams for the claims Williams asserts against them. The banks need not establish that they are the legal owners of Williams's loans before they defend against Williams's claims. "Standing" is a plaintiff's requirement, and Williams misconstrues the concept in arguing that Defendants must establish "standing" to defend themselves. (emphasis added). In this action, the proverbial shoe is on the other foot -Deutsche Bank asserts affirmative claims against the Williamses seeking to enforce the Mortgage and Note, and therefore must establish its legal right (i.e., standing) to do so. See, e.g., IndyMac Bank v. Miguel, 117 Haw. 506, 513, 184 P.3d 821, 828 (Haw. App. 2008) (explaining that for standing, a mortgagee must have "a sufficient interest in the Mortgage to have suffered an injury from [the mortgagor's] default"). As explained above, Deutsche Bank has failed to do so. The court therefore GRANTS the Williamses' Motion to Dismiss. This dismissal is without prejudice. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) ("The court's dismissal ofa plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction."); Frigard v. United States, 862 F.2d 201,204 (9th Cir. 1988) ("Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert his claims in a
12

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competent court."). Although the court considered materials outside of the Complaint and applied the summary judgment standard in determining whether Plaintiff had established its standing, the Williamses brought a Motion to Dismiss for lack of subject matter jurisdiction and not a motion for summary judgment. See

Atkins v. Louisville and Nashville R. Co., 819 F.2d 644,647 (6th Cir. 1987)
(stating that even where the court considered materials outside the pleadings, it made clear that dismissal was without prejudice and did not contemplate the entering of summary judgment); Thompson v. United States, 291 F.2d 67,68 (lOth Cir. 1961) ("A motion for summary judgment lies whenever there is no genuine issue as to any material fact. It is not a substitute for a motion to dismiss for want ofjurisdiction."). Thus, this dismissal does not prevent Plaintiff from performing due diligence (as it should have done before filing the instant Complaint) to determine whether and how it validly received the Mortgage and Note and bringing a new action seeking foreclosure. III III III III

13

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v.

CONCLUSION

Based on the above, the court GRANTS the Williamses' Motion to Dismiss. The court DISMISSES the Complaint without prejudice. The Clerk of Court is directed to close the case file. IT IS SO ORDERED. DATED: Honolulu, Hawaii, March 29,2012.

/s/ J. Michael Seabright 1. Michael Seabright United States District Judge

Deutsche Bank Nat 'I Trust Co., as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NCl Mortg. Pass-Through Certificates, Series 2007-NC-l v. Williams et ai., Civ. No. 11-00632 JMSIRLP, Order Granting Defendants Williamses' Motion to Dismiss Complaint Filed 10/20111, Doc. No. 13

14