Abing v. Evers

CHESTER NOEL ABING, DENNIS DUANE DESHAW, and SUSAN KAY BROER-DESHAW, Plaintiffs, v. JAMES F. EVERS, JOHN N. TOKUNAGA, STEPHEN H. LEVINS, LISA P. TONG, MELINDA D. SANCHES, CATHERINE AWAKUNI COLON, JO ANN UCHIDA TAKEUCHI, MICHAEL J.S. MORIYAMA, BRUCE B. KIM, BRADLEY R. TAMM, RYAN SUMMERS LITTLE, REBECCA SALWIN, YVONNE R. SHINMURA, CHARLENE M. NORRIS, ROY F. HUGHES, GAYLE J. LAU, JEFFREY P. MILLER, PHILIP H. LOWENTHAL, CLIFFORD NAKEA, BERT I. AYAB, and JEANNTTE H. CASTAGNETTI, Defendants.

CIVIL No. 21-00095 JAO-WRP

United States District Court, D. Hawaii

August 30, 2021

ORDER GRANTING IN PART AND DENYING IN PART (1) MOTION TO DISMISS PLAINTIFFS' COMPLAINT FILED ON FEBRUARY 16, 2021 [ECF NO 14]; AND (2) DEFENDANTS BRUCE B. KIM, BRADLEY R. TAMM, RYAN SUMMERS LITTLE, REBECCA SALWIN, YVONNE R. SHINMURA, CHARLENE M. NORRIS, ROY F. HUGHES, GAYLE J. LAU, JEFFREY P. MILLER PHILIP H. LOWENTHAL, CLIFFORD NAKEA, THE HONORABLE BERT I AYABE AND THE HONORABLE JEANNETTE H. CASTAGNETTI'S SUBSTANTIVE JOINDER AND MOTION TO DISMISS WITH PREJUDICE COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES [ECF NO. 46]

Jill A. Otake, United States District Judge

Pro se Plaintiffs Chester Noel Abing (“Abing”), Dennis Duane DeShaw (“DeShaw”), and Susan Kay Broer-DeShaw (“Broer-DeShaw”) (collectively “Plaintiffs”) are each homeowners who have faced or are facing foreclosure in state court proceedings. Plaintiffs filed a Verified Class-Action Complaint (“Complaint”), ECF No. 1, against various individuals affiliated with Hawaii's Office of Consumer Protection (“OCP”) and Office of Disciplinary Counsel (“ODC”) and two state court judges, all of whom allegedly engaged in a far-ranging conspiracy to unlawfully deprive various homeowners in Hawai‘i of their homes.

Defendants James F. Evers, John N. Tokunaga, Stephen H. Levins, Lisa P Tong, Melina D. Sanchez, ^[1] Catherine Awakuni Colón, ^[2] Jo Ann M. Uchida Takeuchi, and Michael J.S. Moriyama (collectively, the “OCP Defendants”)^[3] move to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction and failure to state a claim. ECF No. 14 (“Motion”). Defendants Bruce B. Kim, Bradley R. Tamm, Ryan Summers Little, Rebecca Salwin, Yvonne R. Shinmura, Charlene M. Norris, Roy F. Hughes, Gayle J. Lau, Jeffrey P. Miller, Philip H. Lowenthal, and Clifford Nakea (collectively, the “Disciplinary Defendants”);^[4] and the Honorable Bert I. Ayabe^[5] and the Honorable Jeannette H. Castagnetti^[6] (collectively, the “Judge Defendants”) substantively join in the OCP Defendants' Motion and seek dismissal on additional grounds. ECF No. 46 (“Substantive Joinder and Motion to Dismiss” or “Substantive Joinder”). The Court elects to decide this matter without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice for the U.S.

District Court for the District of Hawaii. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART the OCP Defendants' Motion and the Disciplinary Defendants and Judge Defendants' Substantive Joinder and Motion to Dismiss.

I. BACKGROUND

A. Facts^[7]

Plaintiffs are each homeowners whose homes are or have been subject to foreclosure by “Dummy Corporations” that allegedly pretended (1) to lend money to homeowners and (2) to own their mortgages, when they had no legal interest in the mortgaged properties. ECF No. 1 ¶ 1. Plaintiffs have been involved in seven separate lawsuits against the Dummy Corporations that have initiated foreclosure proceedings against them. Id. ¶ 31. Plaintiffs allege that the Judge Defendants wrongfully granted summary judgment to the respective mortgagees in foreclosure cases involving Plaintiffs' respective homes, and that they routinely grant summary judgment in favor of mortgagees without evidence that the mortgagee owns the mortgage and associated note. Id. ¶¶ 1-3.

According to Plaintiffs, wrongful foreclosures occur because there are no longer any attorneys in Hawai‘i who are willing and competent to represent defendants in foreclosure actions in a zealous manner. Id. ¶ 5. The various government officials named in the Complaint (whom Plaintiffs believe are former employees of and/or attorneys for the Dummy Corporations and reference in the Complaint as the “Conspirators” and to whom the Court will refer as “Defendants”) have allegedly entered into a “confederacy . . . to assist the Dummy Corporations in taking thousands of homes in this State.” Id. Defendants intimidate members of the foreclosure defense bar by disbarring its members for minor or trumped-up offenses, threatening to disbar them, subpoenaing their records, offering to bribe their former clients to complain about them, and suing them under consumer protection laws. Id.

Plaintiffs further allege that Defendants have acted together to “blacklist” and discriminate against homeowners like Plaintiffs who defend against foreclosure proceedings by intervening in foreclosure cases without leave of court, threatening and intimidating homeowners, harassing them by subpoenaing their records, assisting the mortgagees' attorneys, and stealing funds from one of the Plaintiffs' bank accounts. Id. ¶ 8.

On January 24, 2013, the ODC Lawyers and OCP Lawyers allegedly approached attorney Sandra D. Lynch, then an associate at a foreclosure defense law firm, and ordered her to “steal” 27 of the firm's clients and then stop working zealously on those clients' cases. Id. ¶ 35. As a result, most of those 27 clients lost their homes to the Dummy Corporations, and the law firm dissolved. Id. Abing and DeShaw were clients of that law firm and therefore were harmed by this sequence of events. Id. Plaintiffs maintain that the Supervisors of the OCP Lawyers either authorized the theft of clients from Lynch's law firm and the subsequent break-up of the firm, or negligently failed to supervise the OCP Lawyers. Id. ¶ 36.

On December 3, 2014, the ODC Lawyers filed a complaint against attorney Robert L. Stone (“Stone”) that Plaintiffs describe as “malicious and selective” for the purpose for forcing Stone to resign from the State bar, thereby depriving Plaintiffs of their choice of counsel and harming them in their efforts to defend against foreclosure actions. Id. ¶ 40.

The OCP Lawyers and ODC Lawyers allegedly threatened attorney R. Steven Geshell, which caused Geshell to turn on his clients and file unauthorized and inferior pleadings in foreclosure cases, including pleadings that defied Plaintiffs' clear instructions. Id. ¶ 42. The Supervisors of the OCP Lawyers authorized the OCP Lawyers' conduct or negligently failed to supervise the OCP Lawyers. Id. ¶ 43.

On August 30, 2018, the OCP Lawyers intervened without leave of court in a state court foreclosure proceeding to which Abing was a party. Id. ¶ 30. The OCP Lawyers subpoenaed Abing and his attorney, Keoni Agard, and questioned them both. Id. Plaintiffs alleged the OCP Lawyers threatened to prosecute Abing for an unspecified felony, bullied him, attempted to bribe him “with a (fake) offer of $10, 000, ” and ordered him to “discharge his attorney's paralegal assistant”^[8] and stop defending against the foreclosure action. Id. Plaintiffs maintain that the OCP Lawyers did this to trick Abing into making false statements that could be used against him in the foreclosure action. Id.

Plaintiffs assert that on December 10, 2018, the OCP Lawyers and ODC Lawyers threatened attorney Jason B. McFarlin, who had accepted Plaintiffs as clients, but, pursuant to instructions from Defendants, failed to represent them vigorously. Id. ¶ 44. The Supervisors of the OCP Lawyers either authorized the OCP Lawyers' actions or negligently failed to supervise them properly. Id. ¶ 45.

On December 13, 2018, the ODC Lawyers conducted a hearing before the Disciplinary Board regarding a complaint against attorney Gary V. Dubin (“Dubin”), which complaint Plaintiffs allege contained trivial and false accusations. Id. ¶ 37. Plaintiffs allege that the purpose of the complaint was to disbar Dubin to suppress the foreclosure defense bar, thereby depriving Plaintiffs of their choice of counsel and harming them in their efforts to defend against foreclosure actions. Id. On February 13, 2019, the Disciplinary Board Lawyers disbarred Dubin. Id. ¶ 38.

Plaintiffs contend that on February 8, 2019, the OCP Lawyers again intervened in Abing's state court case by stealing $800 from his credit card account to prevent Abing from using that sum to pay his legal fees, and then stole an additional $500 on March 23, 2019. Id. ¶¶ 32-33. Plaintiffs assert that the Supervisors of the OCP Lawyers either authorized the OCP Lawyers' conduct or negligently failed to supervise the OCP Lawyers. Id. ¶ 34.

Plaintiffs allege that on October 28, 2020 the OCP Defendants sent letters to Plaintiffs offering to pay large bribes to them if they would inform and file a false complaint against “their paralegal assistant” so the OCP Lawyers could show the false complaints to other Defendants in state court. Id. ¶ 47. Plaintiffs contend that the purpose of this scheme was to have the paralegal removed from Plaintiffs' foreclosure cases and thereby block Plaintiffs from filing appeals to the Hawai‘i Supreme Court. Id. The payment was never made. Id.

Plaintiffs further assert that the Judge Defendants work closely with the other Defendants and award “huge prizes” to the Dummy Corporations without requiring them to provide evidence of ownership in foreclosure cases, and that Judge Castagnetti gives foreclosure attorneys free rein to harass, trick, threaten, and investigate pro se defendants. Id. ¶ 48.

Plaintiffs allege that the Dummy Corporations forge documents in order to prevail in foreclosure actions and did so in Abing and DeShaw's respective foreclosure actions. Id. ¶ 58. Plaintiffs state that Defend...