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HomeMy WebLinkAbout2008-03-17_Daniel_Johnson_v_State_Civil_06-1-0303_Defendant_County_of_Hawaii's_Motion_for_Summary_Judgment_filed_March_17_2008 LINCOLN S.T. ASHIDA 4478 Corporation Counsel MAR 1 -7 PPS 2; 39 MICHAEL J. UDOVIC 5238 BRANDON A.K. GONZALEZ 7413 Deputies Corporation Counsel THI J- All W l CLERK �;�- 1,1°COURT County of Hawaii A,,, � Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone No. 961-8251 Facsimile No. 961-8622 Email: mudovicaco.hawaii.hi.us Attorneys for Defendant COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII DANIEL A. JOHNSON, CIVIL NO. 06-1-0303 Plaintiff, DEFENDANT COUNTY OF HAWAI`I'S vs. MOTION FOR SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF STATE OF HAWAII; COUNTY OF MOTION; DECLARATION OF TY A. HAWAII; PETER MACDONALD, MEDEIROS; DECLARATION OF KAREN MAYS; RUTH FORBES; ALVINA MICHAEL J. UDOVIC; EXHIBITS "A"— KAHOONEI; MARIA MILLER; AND "G"; NOTICE OF MOTION; CERTIFICATE JOHN DOES 1-50. OF SERVICE Defendants. Hearing: Date: April 23, 2008 Time: 8:00 a.m. Judge: Honorable Glenn Hara sA1it\Johnson\doc\mtn for summary judgment 1-28-08 MJUjen.doc DEFENDANT COUNTY OF HAWAI`I'S MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant County of Hawaii ("County"), by and through its undersigned counsel, move this court for summary judgment against Plaintiff Daniel A. Johnson (hereinafter "Plaintiff'). 0 This motion is made pursuant to Rules 7, 8, and 56 of the Hawaii Rules of Civil Procedure, and Rules 7, 7.1 and 8 of the Hawaii Rules of the Circuit Courts, and is based upon the Declaration of Ty A. Medeiros, the Declaration of Michael J. Udovic, the exhibits attached thereto, the Memorandum in Support of Motion and the records and files herein. Dated: Hilo, Hawaii, March 17, 2008. COUNTY OF HAWAII, efendant By MICHAEL J. UDOVIC Deputy Corporation Counsel Its Attorney i 2 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII DANIEL A. JOHNSON, CIVIL NO. 06-1-0303 Plaintiff, MEMORANDUM IN SUPPORT vs. OF MOTION STATE OF HAWAII; COUNTY OF HAWAII; PETER MACDONALD, KAREN MAYS; RUTH FORBES; ALVINA KAHOONEI; MARIA MILLER; AND JOHN DOES 1-50. Defendants. MEMORANDUM IN SUPPORT OF MOTION I. STANDARD FOR SUMMARY JUDGMENT Rule 56(c) of the Hawaii Rules of Civil Procedure ("HRCP") provides that summary judgment shall be "rendered forthwith" if. [T]he pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. Hawai`i Community Federal Credit Union v. Keka, 94 Hawaii 213, 221, 11 P.3d 1, 9 (2000). The moving party has the initial burden of demonstrating that if the case went to trial, there would be no competent evidence to support a judgment for his opponent. See First Hawaiian Bank v. Weeks, 70 Hawaii 392, 396, 772 P.2d 1187, 1190 (1989). If the moving party Q meets the initial burden of showing an absence of a genuine issue of material fact, "then the burden shifts to the opponent to come forward with specific facts showing that there remains a genuine issue for trial." Arimizu v. Financial Sec. Ins. Co., 5 Haw.App. 106, 110, 679 P.2d 627, 632 (1984)[citing Securities & Exchange Commission v. Murphy, 626 F.2d 633, 640 (9`h Cir. 1980)]. The opposing party may not merely rely on the allegations of his pleadings. Costa v. Able Distributor, Inc., 3 Haw.App. 486, 488, 653 P.2d 101, 104 (1982). The opposing party cannot discharge his burden by alleging conclusions nor is he entitled to a trial on the basis of a hope that he can produce some evidence at that time. Young v. Planning Commission of County of Kauai, 89 Hawaii 400, 407, 974 P.2d 40, 47 (1999). The existence of a duty owed by one party to another is entirely a question of law. Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987). II. ANALYSIS A. Plaintiff Daniel A. Johnson ("Plaintiff') has no ownership interest in the property. Plaintiff has pled no facts other than his unsupported statement that he is an owner of the property located at 14-3405 Oahu Road in Nanawale Estates (the "subject property"). A search of instruments recorded which affect title to the subject property shows no transfer to or from Daniel A. Johnson from 1976 to the present date. (See Declaration of Michael J. Udovic). The Bureau of Conveyances shows a Warranty Deed with Assumption of Mortgage for the subject property from Blake Townsend and Diane Townsend to Donna May Tarape recorded on or about April 1, 1997. (See Exhibit "A" attached hereto). A Quitclaim Deed to Donna May Tarape recorded January 13, 2006 from OCWEN Loan Servicing, LLC (See Exhibit "B" attached hereto) and a Mortgage recorded January 13, 2006 from Laurie Ann Bass to Donna May Tarape 2 0 0 (See Exhibit"C"attached hereto). The Bureau of Conveyances also shows that on September 9, 2005, Donna May Tarape deeded the subject property to Laurie Ann Bass which Quitclaim Deed was recorded February 12, 2007. (See Exhibit "D" attached hereto). The evidence in the form of recorded conveyances shows that a person by the name of Laurie Ann Bass was the owner of the subject property on August 1, 2006. No recorded documents can be found which vest title either wholly or partially to Plaintiff. Defendant County of Hawaii ("County") asserts that Plaintiff has no standing to bring an action for damage to a parcel of property within which he can show no legal interest. Real Property Tax Records also show that Daniel A. Johnson never appears on the tax rolls as an owner of the subject property. (See Declaration of Michael J. Udovic). While each of the conveyances noted above are shown. All available data shows that Plaintiff has no legal interest in the subject property. Section 502-83, Hawaii Revised Statutes ("HRS")provides that a Bona Fide purchaser can protect against an unrecorded interest and provides that: § 502-83 Effect of not recording deed, leases, etc. All deeds, leases for a term of more than one year, mortgages of any interest in real estate, or other conveyances of real estate within the State, shall be recorded in the bureau of conveyances. Every such conveyance not so recorded is void as against any subsequent purchaser, lessee, or mortgagee, in good faith and for a valuable consideration, not having actual notice of the conveyance of the same real estate, or any portion thereof, or interest therein, whose conveyance is first duly recorded. Since no recorded document of title exists to show any ownership interest by Plaintiff, the available evidence shows that Laurie Ann Bass was the owner of the property at the time of the fire as well as at this time. 3 B. Plaintiff has no standing to o bring this suit. Standing is a judicially created theory wherein the plaintiff must show that he is the proper plaintiff to bring the lawsuit. The crucial inquiry with regard to standing is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his or her invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers on his or her behalf. Sierra Club v. Department of Transportation, 115 Hawaii 299, 167 P.3d 292 (2007). In this context, if a plaintiff has no standing he or she is not entitled to invoke the court's jurisdiction. County of Kauai ex. rel. Nakazawa v. Baptiste, 115 Hawaii 15, 165 P.3d 916 (2007). In other words, does the plaintiff have the right to bring the suit? Kaho'ohanohano v. State, 114 Hawaii 302, 162 P.3d 696 (2007). At the pleading stage, the plaintiff must show a distinct and palpable injury to himself as opposed to abstract, conjectural or hypothetical injury. Id. The question of standing, although raised by a defendant requires the plaintiff to exercise the burden of establishing standing. Hawai`i Medical Ass'n v. Hawai`i Medical Service Ass'n Inc., 113 Hawaii 77, 148 P.3d 1179 (2006). Whether a plaintiff has the requisite personal stake in the outcome of the litigation so as to have standing is measured by the "injury in fact"test, under which the plaintiff must allege that: 1) he or she has suffered an actual or threatened injury as a result of the defendant's wrongful conduct, 2) the injury is fairly traceable to the defendant's actions, and 3) a favorable decision would likely provide relief for the plaintiff's injury. Bremner v. City & County of Honolulu, 96 Hawaii 134, 28 P.3d 350 (2001). To establish standing each of the elements of the test must be established by plaintiff, because the three-prong test is stated in the conjunctive, a plaintiff must satisfy all three prongs to establish standing. Kaho'ohanohano, 114 Hawaii at 318. 4 Plaintiff has not shown any ownership interest in the subject property nor has he shown any injury which is sufficient to show that he has standing to bring this suit. Other than allegations of a general nature that he is the owner of the property, the evidence suggests otherwise, hence he cannot show that he has been directly and immediately affected. Mere statements that the plaintiff is adversely affected are not sufficient to show that he has a personal stake in the outcome of the suit. At a minimum, a plaintiff is required to assert that he has suffered a judicially-cognizable injury, that is a harm to some legally protected interest. Sierra Club, v. Department of Transportaion, 115 Hawaii 299, 167 P.3d 292 (2007). While a reading of the Complaint offers a general allegation of damage, without an ownership interest in the property, Plaintiff cannot show he has suffered a legally cognizable injury. As noted in the recent case of Sierra Club, it is critically important to look to the nature of the injury alleged in assessing whether the three prong test has been met. In other words, the theory of injury expressed by the plaintiff is relied upon to determine whether he has met his burden of establishing standing. In this case, the Plaintiff has not alleged any theory of injury which is cognizable by the courts of the State of Hawaii and as such Plaintiff's Complaint must be dismissed. C. The County Was Not Negligent. 1. Introduction. The only cause of action alleged against the County is founded on negligence. Elements of a cause of action founded on negligence are: (1) a duty or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks; (2) a failure on the defendant's part to conform to the standard required; a breach of the duty; (3) a reasonably close causal connection between the conduct 5 i and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Dairy Road Partners v. Island Ins. Co., Ltd., 92 Hawaii 398, 419, 992 P.2d 93, 114 (2000). 2. The County owed no duty to PIaintiff. A prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiff, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks. Lee v. Corregedore, 83 Hawaii 154, 158-159, 925 P.2d 324, 328-329 (1996). The existence of a duty is entirely a question of law. Ruf v. Honolulu Police Department, 89 Hawaii 315, 320, 972 P.2d 1081, 1086 (1999). The general rule is that a person does not have a duty to act affirmatively to protect another person from harm. Lee, 83 Hawaii at 159, 925 P.2d at 329. The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action. Id., citing Restatement (Second) of Torts §314A (1965). The exceptions to this general rule arise when a "special relationship" exists between the actor and the individual facing harm. Lee, 83 Hawaii at 159, 925 P.2d at 329. In determining whether such a relationship exists, Section 314(A)(4) of the Restatement (Second) of Torts (1965) provides that, "one who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a . . . duty [to take reasonable action to protect the other person from unreasonable risk of physical harm]." (Emphasis added.) Id. See also Seibel v. City and County of Honolulu, 61 Haw. 253, 257, 602 P.2d 532, 536 (1979); Ruf, 89 Hawaii at 323, 972 P.2d at 1089. In this case, there is nothing to suggest that the County had a special relationship with Plaintiff. He was not under the custody of the County, nor is there any evidence to show he was an owner of the property which he alleges the County was negligent in protecting. There is no 6 special relationship between the Plaintiff and the County which would impose a duty on the County for protection of the home of a third party. The failure of the police to provide protection is ordinarily not actionable. Freitas v. City and County of Honolulu, 58 Haw. 587, 590, 574 P.2d 529, 532 (1978) (citation omitted); see also Namauu v. City and County of Honolulu, 62 Haw. 358, 362, 614 P.2d 943, 946 (1980). The Hawaii Police Department and its officers have no generalized duty to protect members of the general public. Id. The police's official duty is to preserve the peace and enforce the laws. Id. An exception to this general rule is where police action has increased the risk of harm and there is negligence in providing protection against the enhanced danger. Id. In Freitas, the court recognized an exception to the foregoing rule where police action has increased the risk of harm and there is negligence in providing protection against the enhanced danger. Id; see also Ruf, 89 Hawaii at 322, 972 P.2d at 1088. Specifically, the evidence shows that the Police arrived at the home which was on fire prior to any firefighters' arrival. When they arrived, the Police asked Fire Dispatch what was the approximate time of the arrival of the Fire Department? Dispatch notified the Police that fire units were en route. The first unit to arrive was Engine 18 ("E 18") which arrived at 21:48:08 hours on August 1, 2006. (See Declaration of Ty A. Medeiros and Exhibit "E" attached hereto). This unit took efforts to extinguish the fire, assumed incident command as well as other actions. Additional engines and fire personnel arrived at 21:53:24 hours (Engine 05) ("E05"), 21:59:27 hours (Engine 10) ("E 10"), 21:59:28 hours (Medic 10) ("M 10"), with a tanker of water (Tanker 01) ('701") arriving from Hilo at 22:19:08 hours. Each of the engines assisted in the fire suppression as well as Salvage and overhaul. The Battalion Commander arrived at 21:57:19 hours and was also involved in incident command. (See Exhibit "F" attached hereto). The fire was controlled at approximately 2200 hours. 7 The evidence shows that the alarm was called in at 21:30:00 hours on August 1, 2006. The first unit was dispatched at 21:31:43 hours (E18). The first unit was en route at 21:33:45 hours (E05) and the last engine (E10) left after Salvage and overhaul at 00:19:34 hours on August 2, 2006. Aside from the engines and medical vehicles dispatched to the scene of the fire, a total of 13 fire personnel responded. (See Exhibit"F" attached hereto). There is no evidence that the response was other than direct or that no effort was made to suppress the fire and to protect people and property, including the fire personnel who responded. The Incident Report provides a narrative of the incident. 3. Assuming that there was a duty,the County did not breach that duty nor can Plaintiff show damage. The Hawaii Fire Department took control of the fire suppression upon their arrival. The members of the Hawaii Fire Department are the individuals best trained and qualified to assess the needs of this incident. They are in the position to make all efforts to suppress the fire and to attack the origin of the fire as expeditiously and safely as they are able. As additional fire units arrived, they assisted in the suppression of the fire and overhaul, to insure that the fire is extinguished after it is suppressed. If there were any duty which accrued to the County at this point, that duty was satisfied when the County immediately went to work to suppress the fire and protect the adjoining properties. There is no evidence that any of the County personnel were in any way responsible for the incident or the extent of the damage to the home which Plaintiff did not own. The Incident Report prepared by Captain John T. Kihara of the Hawaii Fire Department shows that the call for assistance was dispatched on or about 21:30 hours on August 1, 2006. (See Exhibit"F" attached hereto). Thereafter, the first unit of the Hawaii Fire Department arrived on the scene at 21:48 hours, the second unit arrived at 21:53 hours, a Battalion Chief 8 arrived at 21:57:19 hours, a third unit arrived at 21:59:27 hours, a medical unit arrived at 21:59:28 hours, a tanker arrived at 22:09 hours and an investigator arrived at 23:18 hours. The evidence further establishes that when the fire units arrived at 21:48 hours, the residence, including vehicles at the scene, were fully engulfed in flames. At 22:00:54 hours, the fire was under control and at 22:05:12 hours, the fire was extinguished. No evidence exists that any member of the Hawaii Fire Department did other than their duty. They responded to the call within reasonable times, assessed the fire scene to determine the proper course of action, stopped the fire from spreading to adjacent homes and property and extinguished the fire within 12 minutes of their arrival at the scene of the fire. They did all this with knowledge that the location was a potential hazardous waste site which placed the fire personnel in harms way. I11. CONCLUSION Not only is there no evidence to establish that the Hawaii Fire Department did not act reasonably with respect to the extinguishment of the fire, there is no evidence that Plaintiff suffered any damage since he has no ownership interest in the property. Damage is one of the elements for a cause of action in negligence and the absence of any damage defeats the cause of action against the County. As such the County's Motion for Summary Judgment must be granted. Dated: Hilo, Hawaii, March 17, 2008. Respec fully Subm' to MICHAEL J. UD VIC Deputy Corporation Counsel Attorney for Defendant County of Hawaii 9 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`1 DANIEL A. JOHNSON, CIVIL NO. 06-1-0303 Plaintiff, DECLARATION OF TY A. MEDEDIROS vs. STATE OF HAWAII; COUNTY OF HAWAI`1; PETER MACDONALD, KAREN MAYS; RUTH FORBES; ALVINA KAHOONEI; MARIA MILLER; AND JOHN DOES 1-50. Defendants. DECLARATION OF TY A. MEDEDIROS 1, TY A. MEDEIROS, do hereby declare that the following facts are within my personal knowledge. 1. I am employed as a Fire Equipment Operator for the Hawaii Fire Department and was so employed on August 1, 2006. On this date I was assigned to the Paradise Park Fire Station. 2. At or about 21:31 hours on August 1, 2006, 1 was dispatched to the report of a fire on Oahu Road,Nanawale Estates in Pahoa. I was en route at approximately 21:35 hours and arrived at the scene of the fire on Oahu Road at approximately 21:48 hours. 3. Fire Fighter Adam Ranne ("Ranne") was assigned as the fire fighter to Engine 18 of which I was the driver. 4. When we arrived, we were notified by police officers who were on the scene that the location of the fire had been raided within the past few days as a house where ICE was being made. Accordingly, we were warned of Hazardous Materials exposure. 5. The structure was fully engulfed in flames and I identified a row of palm trees on the left side of the structure that were in flames and the flames could have been as high as 25 to 30 feet. Fearing for the safety of the surrounding homes, we decided to control the perimeter of the fire so it would not spread. 6. I set the engine to pump water and Fire Fighter Ranne took a hose to the left side of the house and began to extinguish the flames which had ignited the palms. 7. Engine 05 arrived at approximately 21:53 hours. Engine 05 connected their tank through the tank in Engine 18 and the personnel dispatched to the fire began to assist in the containment of the fire in order to protect other nearby structures. Once the danger of the fire spreading was diminished, the fire personnel began to attack the fire in the structure. 8. Engine 10 arrived at 21:59 hours and assisted in the suppression of the fire which was controlled at 22:00 hours. 9. After the fire was extinguished, we began salvage and overhaul efforts at the location. Salvage and overhaul is the process whereby all roofing material is removed to insure that hidden hot spots or smoldering embers are identified and completely extinguished so re-ignition will not occur. 10. The 3,000 gallon tanker arrived at the scene and remained there until the supply of water was exhausted. The tanker left and returned, refilled with an additional 3,000 gallons of water which were used in the salvage and overhaul portion of our fire suppression efforts. 11. Engine 18 left the location at 00:14 hours on August 2, 2006. 12. 1 assumed incident command of the fire from my arrival until a senior officer arrived. This officer then assumed incident command. 2 I 1 � 13. A total of 13 fire personnel were dispatched and worked on the extinguishment, salvage and overhaul of the fire. I declare under penalty of law that the foregoing is true and accurate. Dated: Hilo, Hawaii, LIAR 17 2008 i TY A. MEDEIROS 3 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII DANIEL A. JOHNSON, CIVIL NO. 06-1-0303 Plaintiff, DECLARATION OF MICHAEL J. UDOVIC vs. STATE OF HAWAII; COUNTY OF HAWAII; PETER MACDONALD, KAREN MAYS; RUTH FORBES; ALVINA KAHOONEI; MARIA MILLER; AND JOHN DOES 1-50. Defendants. DECLARATION OF MICHAEL J. UDOVIC I, MICHAEL J. UDOVIC, do hereby declare the following: 1. I am an attorney licensed to practice law before all courts of the State of Hawaii and am the Deputy Corporation Counsel assigned to the within matter. 2. That I reviewed the Real Property Tax Data for the County of Hawaii to determine if Plaintiff Jack Thomas' ("Plaintiff') name appears as an owner of a parcel of property on Oahu Road in Nanawale. 3. That Plaintiff's name does not appear in any of the documents I was able to locate. The parcel of property located at 14-3405 Oahu Road, Nanawale Estates, did have a number of sales noted dating from September of 1990. 4. I then reviewed the Grantor and Grantee Indexes for the State of Hawaii Bureau of Conveyances to determine if Plaintiff's name appeared on any of the sales noted in the Real Property Tax Data Base. 5. I caused a search of the Grantor Index and the Grantee Index to occur and did not find any evidence that Plaintiff appears on title to the property. 6. I was able to determine that the current owner is a person named Laurie Ann Bass. That she obtained title to the property as a result of a deed from Donna May Tarape dated September 9, 2005 which was recorded in the Bureau of Conveyances on February 12, 2007. 7. That no transfer of ownership with the name of Daniel A. Johnson appears in either the Grantor or Grantee Index from the year 1976 to the present. 8. That the following are true and accurate certified copies received from the State of Hawaii Bureau of Conveyances: a. Exhibit "A" is the Warranty Deed with Assumption of Mortgage from Blake Townsend and Diane Townsend to Donna May Tarape recorded April 1, 1997. b. Exhibit"B" is the Quitclaim Deed by OCWEN LOAN SERVICING, LLC to Donna May Tarape recorded January 13, 2006. C. Exhibit "C" is the Mortgage from Laurie Ann Bass to Donna May Tarape recorded January 13, 2006. d. Exhibit "D" is the Quitclaim Deed from Donna May Tarape to Laurie Ann Bass recorded February 12, 2007. 9. That the following are true and accurate copies: a. Exhibit"E" is the Event Register and Event Chronology of August 1-2, 2006. b. Exhibit"F" is the Incident Report from the County of Hawaii Fire Department(2006-0011674-000). C. Exhibit "G" is the Hawaii County Police Department Incident Sheet for Report #C06023992. 2 10. That I have been unable to locate any evidence that Plaintiff has any recorded interest in the property he claims to own. Namely, that parcel of property which is the subject of the remaining cause of action against the County of Hawaii. I declare under penalty of law that the foregoing is true and accurate. Dated: Hilo, Hawaii, March 17, 2008. MIC AEL J. UDOVI 3 f hereby certify that this is a true copy from the records of the Bureau of Conveyances. � STATE OP hU1MA2I Registrar of Conveyances � BUREAU Or CONVEYANczs Assistant Registrar, Land Court RECORDED State of Hawaii APR 01, 1997 00: 01 AM Doc Pita(s) 97-040690 /s/CA=L T. WATANABt ACTT NG REGISTRAR Of CONVCYANCES CONVEYANCE TAX: $26.70 LAND COURT SYSTEM REGULAR SYSTEM Return by: MAIL ( X ) PICKUP b/J TO: S� SECURM TITLE CORPORATION ESCROW NO. : H-22439-PK HILO LAGOON CENTRE,STE.320 Patricia Kawachi 101 AUPVNI ST HILO,HAWAII %720 TITLE OF DOCUMENT: WARRANTY OTED WITH Ag9UMPTIOIY OF MORTGAGE PARTIES TO DOCUMENT: GRANTOR: BLAKE TOWNSEND lad DIANE TONMSEND,basband and wife, whose address is P.O. Box 1370,Patios.Hawaii 96778 GRANTEE: DONNA MAY TARAPE.single, whose address is SO B Haile Street,M16.Hilo. Hawaii %720 TAX MAP KEY(3)1-4-"7:032 PKK/STC97029.DED/3-24-97 Ii 1 i I JQ m: EXHIBIT "A" WARgANI-y Fp vI+-H Acct 1MPTION OF MORTSrAGE KNOW ALL MEN BY THESE PRESENTS: That BLAKE TO"SEND and DIANE TOWNSEND. husband and wife. whose address is P. O. Box 1370, Pabon, Hawaii %778, hereinafter called the "Grantor". for and in consideration of the sum of TEN AND N01 100 DOLLARS(S 10.00)and other good and valuable consideration to the Grantor paid by DONNA MAY TARAPE.single.whose address is 50 B Maik Street, 016,Hilo. Hawaii %720,hereinafter called the"Grantee". the receipt whereof is hereby acknowledged, do hereby grant, bargain. sell and convey unto the Grantee all of that certain res.l property designated on the tax maps of the Third Taxation Division. State of Hawaii. as Tax Map. Key 1-4.037.032.more particularly described in Exhibit A attached hereto and made a part hereof. subject to the encumbra-sces noted therein• TOGETHER WITH ALL and singular the buildings. improvements. rights. tenements. heteditament3.easements.privileges and appurtenances thereunto belonging or appertaining or held and enjoyed in connection there-Aith. TO HAVE AND TO HOLD the same unto the Grantee,as the Grantee's sole and separate property,and the said Grantee's heirs,personal representatives and assigns. in fee simple forever. ANO TFiF.SAID GRANTOR does hereby covenant with the Grantee that the Grantor is lawfully seised in fee simple of said granted premises and that the said premises are free and clear of all encumbrances except as aforesaid; SAVE AND EXCEPT that certain Mortgage. more particularly described in Exhibit A attached hereto,on which Mortgage there is a principal balance due or--SIX THOUSAND SIX - ?qZlnn ---�--� DOLLARS(S ).together with interest due thereon from the lst: day of A.,rit . 1997. which said Mortgage the Grantee does hereby assume to pay and agrees to hold the Grantor harmless therein.and except for assessments for r-al property taxes. And the said Grantor further covenants and agrees that the Grantor has good right to sell artd convey the said premises in the manner aforesaid:that the Grantor will WARRANT AND DEFEND the same 2 i i I I I # unto the Orantee against the lawful claims and demands of all persons, firms, corporations, and associations, except as aforesaid. The parties hereto agree that this instrument may be executed in counterparts,each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement,binding all of the parties hereto,notwithstanding all of the pieties are not signatory to the o^Bi+W or the same counterparts. For all purposes, including without limitation, recordation, filing and delivery of this instrument,duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the ....aining pages assembled as one document. IT IS MUTUALLY AGREED that the terms "Grantor"and "Grantee as and when used hereinabove or hereinbelow shall mean and include the masculine or feminine,the singular or plural number, individuals,associations, uUm es,corporations or partnerships, and their and ea::h of their respective successors in interest, heirs, executors, personal representatives, administrators and permitted assigns,according to the context thereof,and that if these presents shall be signed by two or more grantors. or by two or more grantees, all covenants of such parties shall be and for all purposes deemed to be their joint and several covenants. IN WITNESS WHEREOF, the parties have executed these presents on this day of L:J 12 C Lt 1997. BLAKE TOWNSEND DIANE TOWNSEND GRANTOR APPROVED AS TO FORM PETER K. KUBOTA ATTORNEY AT LAW DO A MAY PE pv GRANTEE 3 I j f i i I 1 \ n STATE OF IIA WAlI COUNTY OF HAWAII On this -+—day of c MLAKM rOWN . 1997, before me personal( a SI�YD• 1O rtte awn(or y appeared the Proved to me on the basis of satisfactory evidence) to be m described in and who executed the foregoing instrument, executed tN ne=3 6e u as his fM sct�d dad and acknowledged to me that A. .. `. ti aT NOTARr Notary public, State of . Hawaii � :u: H My commission expires: !F OF Mrrif STATE OF HAWAII COf1Mn.OF f IA WAIL ) ss. On this day of 'k- 1997, DIANE TOWHSEIVD, to me kno before me Personal) a known(or proved to me on the basis or satisfactory y Pared the 3O°described in and who executed the foregoing instrument, ry evidence)to be she executed the same as her free act and deed. and acknowledged to me that Notary Public. State of T My commission expires: ( � i i I STATE OF HAWAII ss. COUNTY OF HAWAII > On this ' day of �` ' `-I Z e L t 1997, before me personally appeared DONNA MAY TARAPE, to me known (or proved to me on the basis of satisfactory evidence) to be the person described in and who executed the foregoing instrument, and acknowledged to me that she executed the same as her free act and deed. Notary Public, State of Hawaii r_• ) My commission expires: 1 I i i i i EXHIBIT A All of that certain parcel of land situate in the District of Puna. Island and County of �iwraii.State of Hawaii,described as follows: Lot 1034, arts 8.04() square feet, as shown on the map entitled "NANAWALE ' ESTATES SUBDIVISION. UNIT 2", which said map was Fled in the Bureau of Conveyances of V; "-' dw 9901111 Of Hawaii as File Plan No. 790.H TOGETHER WIT a non-exclusive easement.for roadway purposes,over and across aU Meats and roadways delineated upon said File Plan No. 780 and u udo draotocs the right Pon File Plan 700; reserving j tiiht to convey said streets and roadways to the State or County of Hawaii for use as public thoroughfares, at which time said easements shall terminate. Being all of the land conveyed to the Grantors herein by Trustee's Deed dated February 26, 1991•and recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 91-031413. SUBJECT,HOWEVER. TO THE FOLLOWING: I. Reservation in favor of the State of Hawaii of all mineral and metallic mines. 2. Restrictions, covenants and conditions as contained in: DECLARATION OF PROTECTIVE RESTRICTIONS. CONDITIONS AND RESERVATIONS FOR NANAWALE ESTATES.CO. Dated: April 3. 1962 Book: 4260 Page: 416 to which reference is hereby made (also affects other property) 3• Reservations in favor of Nanawale Estates Co.. as reserved in: WARRANTY DEED Dated: May 18. 1964 Book: 4760 Page: 512 to which reference is hereby made (also affects other property) t i I I I I i r i I 4. Restrictions,covenants and conditions as contained in: DECLARATION OF PROTECTIVE RESTRICTIONS. CONDITIONS AND RESERVATIONS FOR UNIT NO.2 Dated: February 11, 1978 Book: 12774 page: 178 to which referee is hereby made reference (also affects other property) S. PURCHASE MONEY MORTGAGE Mortgagor: Blake Townsend and Diane Townsend,husband and wife Mortgagee: Florence Shore. Trustee under 1987,a Short Form of which s dated Trust Agreement dated May s of the State of July 8, 1987,recorded in the Bureau of Conveyance Hawaii in Book 2165d Page 424,and a Short Form of which is dated September 11, 1987,filed in the Orrice of the amen No.e406042 the Land Court of the State of Hawaii exchar eg •lease and otherwise with power to convey,sell,mortgage. encumber the property herein Dated: March 3, 1991 Recorded: March 12, 1991 Document No. 91-031414 To Secure: $8,800.00 yard any additional acvances and other amounts issory enotthereby'of said according to the tennm of that certain p mortgagor(s)therein referred to ND I I I Z I I � I i I ,D 1 hereby certify that this is a true copy from the records of the Bureau of Conveyances. R-345 STATE OF HAWAII BUREAU OF CONVEYANCES a lio RECORDED 8;01 AM JAN 13,2006 Registrar of Conveyances Doe N0(S)2006.00852T Assistant Registrar, land Court State of Hawaii is/CARL T.WATANABE REGISTRAR OF CONVEYANCES CT ax 10:=10.53 ( 1 20 112 Z8 LAND COURT REGULAR COURT RETURN BY MAIL ( ) PICKUP ( ✓ ) TO: Total Pages: + 0/ Robert E. Chapman/Mary Martin Clay Chapman Crumpton Iwamura & Pulice T&A 5&/.Z&0 G ZS 700 Bishop Street, Suite 2100 Honolulu, HI 96813 Telephone No. (808) 535-8400 198.404 TAX MAP KEY: (3) 1-4-57-32 14-3405 Oahu Road QUITCLAIM DEED THIS DEED, made on t-3D ZWS by OCWEN LOAN SERVICING, LLC,/successor to OCWEN FEDERAL BANK FSB, a federal savings bank, hereinafter called the "Grantor", in favor of DONNA MAY TARAPE, single, whose address is 14-3405 Oahu Road, Pahoa, j Hawaii, hereinafter call the "Grantee". I I PJo C13 �j4q EXHIBIT "B" W N E S S T ij 'or TEN DOLLARS ($10. 00) and other valuable consideration to Grantor paid by Grantee, the receipt whereof is hereby acknowledged, the Grantor does hereby remise, release, and quitclaim to Grantee all of Grantor' s right, / title and interest in the real estate described in Exhibit "A" attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, of the undersigned hereto have executed these presents on the day and year first above written. �u ctu , �U� Succ.�.ow en r� .� , a P. 7 0 V' a President By Its ,. GRANTOR. STATE OF FLORIDA ) ) ss. COUNTY OF PALM BEACH ) On this day o 2005, before me personally appeare and P/Q to me pe o 11yr known, who being by me duly sworn, did say that they are�r��73 ♦�/ andZ JER✓/C/ t--G respectively, of OCWEN , and that said instrument was signed in behalf of said savings bank, by authority of its Board of I Directors, and said officers severally acknowledged said instrument to be the free act and deed of i savings bank. i UTTR04� 9 0 + Frint Name: No.ov°:;s9� Notary Public, State of Flor'da Fat- �ti ww.� t ow.i o My commission expires: Let t� A 2— I I I [Signatures and Acknowledgments Continued] DONNA IMAt,,TAMV "GRANTEE" STATE OF HAWAII ) ) ss. COUNTY OF HAWAII ) r On this ae�*/ day of 2005, before me personally appeared DONNA MAY TA PE, to rte personally known to be the person described in and who executed the foregoing instrument and acknowledged that she executed the same as her free act and deed. Print Name: Gs AKI1Aae-4 Notary Public, State of Hawaii My commission expires: -7 I . I i j I I I TMK: 1-4-057-032 (3) EXHIBIT "A" All of that certain parcel of land situate in the District of Puna, Island, County and State of Hawaii, State of Hawaii, being LOT 1034 of the "NANAWALE .ESTATES SUBDIVISION, UNIT 20, as shown on File Plan l Number 780, filed in the Bureau of Conveyances of the State of Hawaii, and containing an area of 8, 04 0 square feet, more or less. BEING THE PREMISES ACQUIRED BY WARRANTY DEED WITH ASSUMPTION OF MORTGAGE GRANTOR BLAKE TOWNSEND and DIANE TOWNSEND, husband and wife GRANTEE DONNA MAY TARAPE, single DATED March 25, 1997 RECORDED Document No. 97-040890 i � I I hereby certify that this is a true copy from the records _ of the Bureau of Conveyances. R-W STATE OF HAWAII BUREAU OF CONVEYANCES Registrar of Conveyances JAN 18,2006CORDE 8.01 AM Assistant Registrar, Land Court Doc No(s)2006-008328 j State of Hawaii Is/CARL T.WATANABE REGISTRAR OF CONVEYANCES 20 212 28 LAND COURT SYSTEM REGULAR SYSTEM ReWra by: MAIL (X ) PKXUP( ) To,. LAURIE ANN BASS TaA 23&Ia&o G Rs 711 X31KUANAOA ST HW.M%720 7M DOCU1 EWr OONTAIM 115 PA()gs I TIT[,E OF DOCUMENT: I MORTGAGE PARTS TO DOC[1KW LENDER: LAURIE ANN BASS,ma1'rw,whose meilfng ism Keknanaos Wedt Silo,Hawaii KM BORROWER: DONNA MAY TARAP%single,whose mailing addrm is PO. Box 2234 Pahoa Hawaii 96778 i TAX MAP KBY(3)1-4-017:032 ' z�avlrrrc�+9-a.os ,, I . � � 3 I � I 1 I I EXHIBIT "C" j 1 c MORTGAGE WORDS USED OFTEN IN THIS DOCUMENT AND PART MS AND 7MU ADDRESSES (A) "Mortgage." T Ws doonrramt,which is dated September 09, .2003 will be called the"Mortgage." • (B) 'Bwower." DONNA MAY TAjiAM shogk, whose mailing addroas Is � PO. Box 2234 Pahoa Hawaii 96778 WM sometimes be called"Borrower"and sometimes simply'T or"me." (C) "Lander." LAURIE ANN BASS, married. whose mailing address is 711 Keimansoa Street,Shay Sswali 96M will sometimes be called"Leader"or somethnes simply "YOU"of " (D) "Nola." The Promissory Note,signed by Boavwer and dated September 09, .2005,will be called the"Notes" Under tlm Note,Lander agn=to loan i Borinwcrthe prixipal sum of TEN THOUSAND AND NO/100 DOLLARS($16,009.M toptha with waued interest and advances as provided in the Note. (E) "Ptopoaty." The property that is described below in the section titled"DeWdpdon of the Property,"will be called the?roperty." I mortgage,grant a security interest in and convey the Property to you subjea to the tarns r of this Mortgage. This means that,by signing this Mortgage.I am giving you those rights that ate stated in this Mortgage and also those rights dial the law gives to leaders who hold mortgages on reel property and security intenats in personal prapeaty. I am giving yell these rghta to por odect youftm possible losses that might result if I fail to: (A) Pay all the amts that I owe yen as stated in the Nola; (B) Pay,with interesst,any amounts that yno spend under this Mortgage,to FU=the value of the Ptupaty and your rights in the Property; (C) Beep all of my other promises and agreements under the Note or this Mortgage. i ! i i 2 i I- 1 DESCRIPTION OF THE PROPERTY I give Lender rights in the Property described in(A)through(n below; (A) The property is described in Exhibit A which is attached at the end of this Mortgage; z (B) All buildings and other improvements that are located on the property described in Paragraph(A)of this section; (C) All rights in other property that I have as owner of the property described in Paragraph (A) of this section. These rights are known as "easements, rights and appurtenances attached to the property;" (D) All rents or royalties from the property described in Paragraph(A)of this section; (E) All mineral,oil and gas rights and profits,water,water rights and water stock that are part of the property described in Paragraph(A)of this section; (F) All rights that I have in the land which lies in the streets or roads in front of,or next to,the property described in Paragraph(A)of this section; (G) All fixtures that are now or in the future will be on the property described in Paragraphs (A) and (B) of this section, and all replacements of and additions to those fixtures. Usually,fixtures are items that are physically attached to buildings,such as hot water heaters; (I0 All of the nights and property described in Paragraphs(B)through(I)of this section that I acquire in the future; (1) All replacements of or additions to the property described in Paragraphs(B)through (I)and Paragraph(F)of this section; (n Any voting rights I have as owner of the Property. la=OWER'S RIGHT TO MORTGAGB nIE PROPERTY AND BORROWER'S OBLIGATION TO DEFEPID OWNERSHIP OF THE PROPERTY I promise that (A)I lawfully own the Property,(B)I have the right to mortgage,grant and convey the Property to Lender;(C)there are no outstanding claims or charges against the except for the claims and charges against the Property listed in Exhibit A attached to the endthis Mortgage;and(D)any lease included in the Property is in good standing. I give a general warranty of title to Lender. This means that I will be fully responsible for any losses which you suffer because someone other than myself has some of the rights in the Property which I promise that I have. I promise that I will defend my ownership of the Property against any claims of those rights. i I I I 3 � i C C PROMISES I promise and I agree with you as follows: 2. BORROWER'S PROMISE TO PAY PRINCIPAL AND ZnUtMIMM THE NOTE AND TO F n err i.OD pAnUOBL TGATIONS. I will promptly pay you or anyone you name,principal,interest and any late charges as stated in the Note. 3. BORROWER'S OBLIGATION TO PAY CHARGES AND ASSESSMENTS AND TO SA=CLAIMS E PR nPMTY. Iwill pay when they are due all taxes,assessments,and any other charges and fines that may be imposed on the Property. I will also make payments due under my lease if I am a tenant on the Property and I will pay lease rents(if any) due on the Property. I will do this by making the payments directly to the persons entitled to them. (In this Mortgage, the word "person" means any person, organization, governmental authority, or other party.) If I make direct payments and the Lender requests,then promptly after making any of those payments I will give Lender a receipt which shows that I have done so. Any claim,demand or charge that is made against property because an obligation has not been fulfilled is known as a"lien." I will promptly pay or satisfy all liens against the Property. Condominium and PUD Assessments. If the Property includes an apartment unit in a Condominium Project or in a PUD,I will promptly pay,when they are due,all assessments imposed by the owners'association or other organization that governs the Condominium,Project or PUD. That association or organization will be called the"Owners'Association." 4. BORROWER'S OB IGA't'ION TO gTAIN AND TO UEp INSURANCE ON THE PROPERTY. (A) lIva . I will obtain insurance to cover all buildings and other improvements that now are or in the future will be located on the Property,if checked,as follows: o Fire and extended peril coverage(with inflation guard)in an amount at least equal to the full replacement costs of the insurable improvements on the Property. ® Comprehensive public liability insurance as customarily provided for similar property in Hawaii for homeowner's insurance; a Hurricane Property Insurance Policy; ® Flood insuran ce► if the Property is within the Flood zone eligible for federally subsidized flood insurance; I i I i I'D and other hazards for which Lender requires coverage, except as may be otherwise expressly provided in the lease if the property is a leasehold. I understand that Lender may not make the granting of the Note contingent on my obtaining any insurance required under the terms of this Mortgage from an insurance company designated by Lender. However, to the extent permitted by law,Lender reserves the right to refuse an insurer which I choose for cause or reasonable excuse. All of the insurance policies and renewals of those policies must include what is known as a"standard mortgagee clause"to protect Lender. The form of all policies and the form of all renewals must be acceptable to Lender. Lender will have the right to hold the policies and renewals. I will pay the premiums on the insurance policies by paying the insurance company directly when the premium payments are due. If Lender requires,I will promptly give Lender all receipts of paid premiums and all renewal notices that I receive If there is a loss or damage to the Property,I will promptly notify the insurance company and Lender. If I do not promptly prove to the insurance company that the loss or damage occurred, then Lender may do so. The amount paid by the insurance company is called"proceeds." If the Property is used as a"residence"(for example,it is my home),then I have the right to decide whether the proceeds will be used to repair,restore or rebuild a residence on the Property or whether the proceeds will be used to reduce the amount that I owe you under the Note. In all other cases,Lender will have the right to determine whether the proceeds are to be used to repair,restore or rebuild the Property or to reduce the amount I owe under the Note. If any of the proceeds remain after the amount that I owe to Lender has been paid in full, the remaining proceeds will be paid to me. If I abandon the Property,or if I do not answer,within 30 days,a notice from Lender stating that the insurance company has offered to settle a claim for insurance benefits,then Lender has the authority to collect the proceeds. Lender may then use the proceeds to repair or restore the Property or to reduce the amount that I owe to Lender under the Note and under this Mortgage. The 30-day period will begin on the date the notice is mailed or,if it is not.mailed, on the date the notice is delivered If any proceeds ate used to reduce the amount which I owe to Lender under the Note,that use will not delay the due date or change the amount of any of my monthly payments under the Note or this Mortgage. i If Lender acquires the Property pursuant to this Mortgage,all of my rights in the insurance Policies will belong to Lender. Also,all of my rights in any proceeds which are paid because of damage that Occurred before the Property is acquired by Lender or sold will belong to Lender: However,Lender's rights in those proceeds will not be greater than the amount that I owe to Lender I I I 1 under the Note and under this Mortgage immediately before the Property is acquired by Lender or sold. (B) Amwments that A2&to Condominiums and PUD's (i) If the Property includes an apartment unit in a Condominium Project,the Owners'Association may maintain a hazard insurance policy which covers the entire Condominium Project. That policy will be called the"master policy." H the master policy insures my apartment unit as well as the common elements of the Condominium Project, so long as the master policy remains in effect and meets the requirements stated in this Paragraph: (a)my obligation to obtain and to keep hazard insurance on the Property is satisfied; (b)I will not be required to include an amount for hazard insurance premiums in my monthly payment of Funds to Lender,and(e)if there is a conflict,concerning the use of proceeds,between(1)the terms of this Paragraph,and(2)the law or the terms of the declaration,bylaws,regulations or other documents creating or governing the Condominium Project, then that law or the terms of those documents will govern the use of proceeds. I will promptly give Lender notice if the master policy is interrupted or terminated. During any time that the master policy is not in effect the terms of (a), (b) and (c) of this subparagraph(Bxi)will not apply. (ii) If the Property includes a unit in a Condominium Project,it is possible that proceeds will be paid to me instead of being used to repair or to restore the Property. I give Lender my rights to those Proceeds. If the Property includes a unit in a PUD,it is possible that proceeds will be paid to me instead of being used to repair or to restore the common areas or facilities of the PUD. I give bender my rights to those proceeds. All of the proceeds described in this subparagraph(BXH) will be paid to Lender and will be used to reduce the amount that I owe to bender under the Note and under this Mortgage. If any of those proceeds remain after the amount that I owe to Lender has been paid in full,the remaining proceeds will be paid to me. 5. BORROWER'S OBLIGATION 10-- MAINTAIN THE PROPERTY AND TO F[II.Rii.l_ O$ .MA't'IONS IN EACR AND MORT- GAGES (A) AZM=Mts about HWntainJngftEWVCjI. I will keep the Property in good repair. I will not destroy,damage or change the Property,and I will not allow the Property to deteriorate. I will not make additions or major improvements to the Property without Lender's written consent. Lender also will have the right to inspect plans and specifications and may condition Lenders consent on my obtaining required building permit,consents of Condominium Owner's Association, lenders, or lessors,if any, plus evidence of my adequate financing and/or bonding to pay for the improvements. (B) Aereements About Keeping Promiw&in LAM and Mo-toAOh. I will fulfill my obligations under any lease which is part of the Property. I will not change or agree to any change i in any Lease which is a part of the Property. I will fulfill my obligations in any Mortgage on the Property listed on Exhibit A at the end of this Mort I will not char or I Ba$e• change agree to any change f in any such Mortgage. i i 1 I 1 (C) Agreements that Apply to Leases and Preventing Reiection or TerminatiSM of Leases in B nk MZU Cum If(i)the Property includes,or is under,covered.or affected by Any leases(the"Property Leaser"),(ri)I,or anyone else with rights to andfor obligations under any Property Leases. including, but not limited to, lessors, lessees, sublessors, and sublessees, become a debtor in a voluntary or involuntary bankruptcy case, and ('iii) an order for relief is issued pursuant to the bankruptcy laws, ft I will take the actions necessary to prevent the Property Leases(a)from being rejected by me, any bankruptcy trustee or any other person pursuant to the bankruptcy laws,or(b)from being terminated in any manner. I will take such actions within five(5)days from the date of filing of the order for relief. The bankruptcy laws include,but are not limited to,Section 365 of Title I 1 of the provisions of the United States Cods,which is often referred to as Bankruptcy Code Section 365,as it may be amended from time to time. I now appoint you as my attorney-in-fact to do whatever you, as Lender, believe is necessary to protect your interests in the Property and to prevent the rejection or termination of the Property Leases under the bankruptcy laws. This means that I now give you the right,in my place and name,or in your own name,to do whatever you believe is necessary to protect your interests in the Property. You have no obligation or responsibility to look out for or take care of my interests. You may,but you do not have to,take any actions to prevent the Pmpeaty Leases from being rejected or terminated pursuant to the bankruptcy laws. Those actions include,but are not limited to,the following: (1) The filing of any instruments,documents and pleadings with the court to assume and/or assign the Property Leases;and (ii) The filing of a notice of election to remain in possession of leased real property if my lessor becomes a debtor in a bankruptcy case and rejects my lease. Your having the right to take such actions will not prevent me,on my own,from taking any actions to protect my interests and the Property Leases. (D) dents that Anoly to Cmdomir„nms and PEWI If the Property is a unit in a Condominium Project or in a PUD,I will falfM all of my obligations under the declaration,bylaws, regulations and other documents that create or govern the Condominium Project or PUD. Also,I will not divide the Property into smaller parts that may be owned separately(known as"partition or subdivision'). I will not consent to certain actions unless I have first given Lender notice and obtained Lender's consent in writing. Those actions are. (1) The abandonment or termination of the Condominium Project or PUD,unless,in the case of a condominium,the abandonment or termination is requited by Iaw; (2) Any change to the declaration,bylaws or regulations of the Owners'Association, trust agreement,articles of incorporation,or other documents that create or govern the Condominium Project or PUD,including,for example,a change in the percentage of ownership rights,held by unit owners,in the Condominium Project or in the common areas or facilities of the PUD; y 1 (3) A decision by the Owners'Association to terminate professional management and to begin self-management of the Condominium Project or PUD;and (4) The transfer,release,creation of liens,partition or subdivision of all or part of the common area and facilities of the PUD. (However,this provision does not apply to the transfer by the Owners'Association of rights to use those common areas and facilities for utilities and other similar or related purposes) 6. LENDER'S RIGM TO TA_ ACTION TO PROTECT'THE PROPERTY. If. (a)I do not keep my promises and agreements made in this Mortgage,or(b)someom including me., begins a legal proceeding that may affect Lender's rights in the Property(such as, for example, a legal proceeding in bankruptcy,in probate,forcondenmadon,or to enforce laws orregulations),then Lender may do and pay for whatever Lender believes is necessary to protect the value of the Property and Lender's rights in the Property. Fender's actions under this Paragraph may include,for example, appearing in court,Paying reasonable attorneys'foes,and entering on the property to make repairs. Lender need not give me notice before taking any of these actions. I will pay to Lender any amounts which Lender spends under this Paragraph. This Mortgage will protect Lender in case I do not keep this promise to pay those amounts with interest. I will pay those amounts to Lender when Lender sends me a notice requesting that I do so. I will also pay interest on those amounts at the same rate stated in the Note. However,if payment of interest at that rate would violate the law,I will pay interest on the amounts spent by Lender under this Paragraph at the highest rate that the law allows. Interest on each amount will begin on the date that the amount is spent by Lender. However,Lender and I may agree in writing to terms of payment that are different from those in this paragraph. Although Lender may take action under this Paragraph,Lender does not have to do so. 7. I.ffi1DER'S RIGl3T TO ZRMrr THE P n M. Lender, and others authorized by Fender, may enter on and manner and at reasonable times. inspect the property. They must do so in a reasonable 8• ABOUTONDEMNAMNOFTEMPROIERTY. A taking of ProPolty by any governmental authority by eminent domain is]mown as"condemnation." I give to Lender my right: (a)to proceeds of all awards or claims for damages resulting from condemnation or other governmental taking of the Property;and(b)to proceeds from a sale of the Property that is made to avoid condemnation. All of those proceeds will be paid to Lender and will be used to reduce the amount that I owe to Lender under the Note and under this Mortgagm If any of the proceeds remain after the amount that I owe to Lender has been paid in frill,the remaining proceeds will be paid to me. J If I abandon the Property,Or if I do not answer,within 30 days,a notice from Lender stating that a governmental authority has offered to make a payment or to settle a claim for damages,then Lender has the authority to collect the proceeds. Lender may then use the proceeds to repair or i S '~l restore the Property or to red= the amount that I owe to Lender under the Note and under this Mortgage. The 30-day period will begin on the date the notice is mailed or,if it is not mailed,on the date the notice is delivered. If any proceeds are used to reduce the amount of principal which I owe to Lender under the Note,that use will not delay the due date or change the amount of any of my monthly payments under the Note and this Mortgage. However,Lender and I may agree in writing to those delays or changes. Condemnation of Common Arm of PUD. If the Property includes a unit in a PUD,the promises and agreements in this Paragraph will apply to a condemnation, or sale to avoid condemnation,of the PUD's common areas and facilities as well as of the Property. 9. CONTINUATION OF IENDERN RIGM. Even if Lender does not exercise or enforce any right of Lender under this Mortgage or under the law,Lender will still have all of those rights and may exercise and enforce them in the future. 10. T --ENMRCE MORE IRAN ONE OF LENDER'S RIGHTS. Each of Lenders rights under this Mortgage is sepanft. Lender may exercise and enforce one or more of those rights,as well as any of Lenders other rights under the law,one at a time or all at once. 11. OBLIGATIONS OF BOR_ROM . If more than one person signs this Mortgage as Borrower, each of us is fully obligated to keep all of Borrower's promises and obligations contained in this Mortgage. Lender may enforce Lender's rights under this Mortgage against each of us individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under the Note and under this Mortgage. However,if one of us does not sign the Note,then: (a)that person is signing this Mortgage only to give that person's rights in the Property to Lender under the terms of this Mortgage;and(b)that person is not personally obligated to make payments or to act under the Note. 12. CAPTIONS. The captions and tides of this Mortgage are for convenience only. They may not be used to interpret or to define the terms of this Mortgage. 13. AGREEMENTS ABO 1T GIVING NOIICES NOTICES REQUIRED UNDER THIS MORTGAGF. Unless the law requires otherwise,any notice that must be given to me under this Mortgage will be given by delivering it or by mailing it addressed to me at the address stated in Paragraph(B)of the section above titled"Words Used Often In This Document and Parties and their Addresses." A notice will be delivered or mailed to me at a different address if I give Lender a notice of my different address. Any notice that must be given to Lender under this Mortgage will be given by mailing it to Lenders address stated in Paragraph(C)of the section above titled"Words Used Often In This Document and Parties and Their Addresses." A notice will be mailed to Lender at a different address if Lender gives me a notice of the different address. A notice required by this Mort PP is given when it is mailed or when it is delivered according to the requirements of this Paragraph. i ! 9 14. LAW THAT GOVERNS THL MORMAGE The law of the State of Hawaii will govern this Mortgage. N any term of this Mortgage or of the Note conflicts with that law,all other terms of this Mortgage and of the Note will still remain in effect if they can be given effect without the conflicting teem. This means that any terms of this Mortgage and of the Note which conflict with the law can be separated from the remaining terms,and the remaining terms will still be enforced. 15. nEYANCS OR ASSIgba fi T. I will not convey,assignor transfer(whether by way of Deed, Mortgage,Assignment of Lease,Agreement of Sale or other conveyance)any of my interest in the Property. Any attempt to do so will not be effective unless Ifirst obtain the written consent of Lender. 16. DEFAULT. I will be in default under this Mortgage if: (1) I fail to make any monthly payment due under the Note or am otherwise in default under the Note. (2) 1 fail to keep any promise or agreement made in this Mortgage and do not correct the failure within thirty(30)days after Lender gives me notice requesting correction. (3) I convey,assign or transfer any of my interest in the Property without first obtaining Lender's written consent. 17. I. ER'S RIGfPI'S Ip BORROWER IS IN DEFAULT. (A) ". If there is a default under this Mortgage,then without prior notice to me you can demand that I pay immediately the entire amount then remaining unpaid under the Note and tinder this Mortgage. You may do this without making any further demand for payment. This demand will be called%nmediate payment in Pull". (B) M=losure and Sale". N I default under this Mortgage, you can also start a "Foreclosure and Sale"of the Property,without giving me prior mica A "Foreclosure and Sale"of the Property will take away,forever, all of my rights in the Property. You can do this without having to give a bond to a court. The Property can be sold in "whole" (as one property) or in "part" (as several pieces of property) at a private sale or public auction. The buyer,who may be you or another person,will acquire the property free and clear of any of my claims to the Property. The buyer would then own the property. If I have not moved out before then,the buyer can remove me(and other persons,including my family,allowed by me to be on the Property)from the Property. This is known as Ibreeclosure and Sale". If the Property is a leasehold,the buyer will then own the leasehold interest for the rest of j the lease tens,plus any extensions and renewals of the lease term. i j For your benefit in case I default under this Mortgage,I now"irrevocably"(permanently until you release this Mortgage or otherwise release me in writing)appoint you as my"attorney--ia- i � !O i fact" (authorized representative)to do all that is necessary to transfer my rights in the Property by a Foreclosure and Sale. This includes your being able to transfer the Property to a buyer at the sale, and, without giving notice to me, your being able to make any arrangements that you desire concerning this Mortgage and that buyer to protect you rights in this Mortgage and the Property. A law of the State of Hawaii, now known as "Section 667-5 of the Hawaii Revised Statutes,"provides for a Foreclosure and Sale of property under a"Power of Sale". This"Power of Sale" will let you foreclose the Mortgage and sell the Property without having to start a lawsuit,if I should default under the Mortgage. I give you that"Power of Sale"under Section 667-5 and under any successor statute,as such law may be amended. If you exercise your right to get a Foreclosure and Sale of the Property,you will follow the procedures that are required of you by the laws of the State of Hawaii. The proceeds from the sale of the Property by Foreclosure and Sale will be applied to pay for any liens on the Property which are superior to this Mortgage,all amounts I owe you under the Note and this Mortgage including Tuture Advances" as well as all Of'Your costs and expenses including "Commissioner's" (auctioneees)fees and attorneys'fees,in bringing a Foreclosure and Sale,plus interest,as allowed by this Mortgage and law. If the proceeds are not sufficient to pay an of the amounts that I owe you,then you will have the right to get a"personal judgment" (a court order)against me for the difference,or you can get any other remedy available to you under the law and this Mortgage. N then are any"surplus"(remaining)proceeds after you pay for all of the above, then those surplus proceeds will belong to me. In any lawsuit for foreclosure and sale, Lender will have the right to collect all costs allowed by law,including reasonable attorneys'fees. Lender shall also have an immediate right to a receivership without any requirement for prior notice to me or a hearing. The receiver shall serve without a bond. In addition to having a foreclosure and sale,Lender may take any other actions allowed by law. This includes,for example,setting off(deducting)amounts that I owe Lender from any funds that Lender may owe to me. For example,if I have money on deposit in an account with Lender, Lender may take the money in that account to pay what I owe under the Note and this Mortgage. (C) 'Deed in Lle u of Forecl=VZ:. I will execute a quitclaim deed to the Lender on the property secured by this Mortgage.to be held by the Lender as security for my payment obligations under the Note and Mortgage. If I fail to make any payment under the Note or Mortgage,and such default continues for more than ninety(90)days,as indicated on the Lender's records,Lender may send me a demand for payment in full of all amounts in default, which may include interest, late charges, costs of collection (including reasonable attorney's fees),and such other amounts as are allowed under this Mortgage. Any such demand by Lender shall be sent by cerdfie d mail,return receipt requested. I will make payment in hilt of the amounts in default within fifteen(1 S)days after the date Lender mails the demand. In the event that I do not make payment in full within the stated deadline,Lender shall be authorized to record the quitclaim deed in lieu of lenders forecIosun I rights discussed above in pmgraph(B). Upon such recordation,I agree that I will have no furdw interest in the property described in the quitclaim deed Leader shall sell the property and reimburse itself for all costs and damages incurred because of my default, and to the extent then an excess proceeds,they shall be paid to the Borrower. If I make all payments required under the Note and the Mortgage,Lender will return the quitclaim deed to me,together with a signed release of mortgage as provided below. 18. LENDER'S RIGHTS TO RENTAL PAYMENTS FROM THE PROPERTY AND TO TAKE POSSESSION OP THE PROPERTY. As additional protection for Lender,I give to Lender all of my rights to any rental payments from the Property. However, until I am in default,I have the right to collect and keep those rental payments as they become due. I have not given any of my rights to rental payments from the Property to anyone else,and I will not do so without Under's consent in writing. If I am in default,then Lender,persons authorized by Lender,or a receiver appointed by a court at Lender's request may: (A)collect the rental payments,including ovmhm rental payments, directly from the tenants;(B)enter on and take possession of the Property;(C)manage the Property; and(D)sign,cancel and change leases. I agree that if Lender notifies the tenants that Leader has the right to collect rental payments directly from them under this Paragraph,the tenants may make those rental payments to Lender without having to ask whether I have failed to keep my promises and agrzements under this Mortgage. If there is a judgment for Lender in a lawsuit for foreclosure and sale,I will pay to Lender reasonable rent from the date the judgment is entered for as long as I occupy the Property, However, this does not give me the right to occupy the Property. All rental payments collected by Lender or by a receiver,other than the rent paid by me under this Paragraph,will be used fast to pay the costs of collecting rental payments and managing the Property. H any part of the rental payments remains after those rusts have been paid in full,the remaining part will be used to reduce the amount that I owe to Lender under the Note and under this Mortgage. The costs of managing the Property may include the receiver's fees and reasonable attorneys'fees. Lender and the receiver will be obligated to account only for those rental payments that they actually receive. 19. LENDER'S OBLIGATION TO DISCHARGE THIS MORTGAGE WHEN TIi1? NOTE AND THIS MORTOAGE AM EM IN Raj,,, When I have paid all amounts due under � the Note and this Mortgage,Lender will send to me a fully executed release of mortgage and the ! pmsigned quitclaim deed within 30 days stating that this Mortgage has been satisfied I will pay all costs of recording the release of mortgage in the proper official records. i f 20. CHANGING THIS MORTt3AQp,. This Mortgage can be changed only if Lender and I sign a writing agreeing to the change. I 21. BORROWER'S FRE®OM TO QKKW INSURANCE COMPANY. I understand that I can get any insurance required by this Mortgage from any insurance company i /a I licensed to sell that insurance in Hawaii,subject to Lender's right to refuse an insurer for cause or reasonable excuse. 22. EDIANCING STATEM=. This Mortgage also serves as a financing statement to perfect the Lender's security interest in the Property. 23• AURELMaIM&USE DISCL -SUS If the property described in Exhibit A is situated within the Agricultural zone,the Mortgagor's use of the property described herein,including constriction of farm dwellings,shall be in compliance with State and County laws and ordinaries, and all rules and regulations promulgated thereunder,including without limitation,Hawaii Revised Statutes Chapter 205,and Hawaii County Code Chapter 25. Any subsequent deed,lease,agreement of sale, mortgage,or other instrument of conveyance of this property shall expressly contain the foregoing restriction on uses and this restriction shall run with the land until such time that the land is reclassified to a land use district other than the agricultural district. By signing this Mortgage I agree to all of the above. DONNA , I APPROVED AS TO FORM PtSTER K.KUBOTA ATTORNEY AT LAW I i 9-5.06 I I I I STATE OF HAWAII ) COUNTY OF HAWAII ) On this day of_c/� TE�•� 2005,before me personally apps DONNA MAY TARAFE,to me]mown(or proved to me on the basis of satisfactory evidence)to be the person described in and who executed the foregoing instrument,and acknowledged to me that she executed the same as her Ste act and deed �''tc.�.�MAT;Z'G TA R Y :"�pT Name: IFLVIN Y.MATSUNAGA f- * Notary Public,State of Hawaii c �* �,'•.,,'°U B L►G,•.•� My commission expires: ` � FNp. I � EXHIBIT"A" All of that certain parcel of land situate in the District of Puna, Island, County and State of Hawaii, State of Hawaii, being LOT 1034 of the "NANAWALE ESTATES SUBDIVISION, UNIT 2", as shown on File Plan Number 780, filed in the Bureau of Conveyances of the State of Hawaii, and containing an area of 8,040 square feet,more or less. I iBeing the premises acquired by Donna May Tarape, single,by Quitclaim Deed dated-- (acknowledged August 26, 2005, and September 30, 2005), and recorded in the said Bureau of Conveyances as Document No., Doc 2008-008527 JAN 13,2008 08;01 AM END OF EXHIBIT"A" i i i i I I i j i I I i I i hereby certify that this fs a true copy from the records , of the Bureau of Conveyances. -_ R-389 STATE OF HAWAII BUREAU RECORDED CONVEYANCES Registrar of Conveyances FE812,2007 08:01 AM Assistant Registrar, Land Court ooc No(s)Zoos-o�soss E State of Hawaii I !s/CARL T.WATANABE ? REGISTRAR OF CONVEYANCES IIII 1111 111 IUI CTax(15):$15.00 20 1 J1 Z9 LAND COURT SYSTEM REGULAR SYSTEM M Remo by: MAIL (X PICKIM LAURIB ANN BASS 15 We N -O 19 Mohouli Street H=HI 94720 TRIS UOi.'U11d8P1T CoNPAm 5 PAaw TT172 OF DOCDMCIT: t QUITCLAIM DIM PARTMS TO DOCUMI9,,Tr: t GRANTORS DONNA MAY TARAPE,doSie,whose ' PO.Box 2234 Pahoa,Hawaii 96778 ; GRANTS& LAURIE ANN BASS,=ree4 whose mailing addms is 711 Keknaoaoa SUM616 BIRD,RawsH%726 TAX MAP KEY(3)14-W= cb. EXHIBIT "D" QUrrCLAIM DES DONNA MAY TARAPE,tbi&whom nag address L PO. Box 2234 Pahoa;Hawaii 96778 baeee�ihhaltar eadledtbe•tlrartoor",moomldt 'iondtbea® of Ten Dollas($10.00)and other good sad vahuble conddustim to the Cirs ator paid by]EAU= ANN BASS,msrrled, whose mailing address is 711 Kdmmam areas,nfty Hawaii 9CM, h—Inafter calid the "CiranW, the reoeipt of whin is sclohowledged. Nita►, releases and quitclaims moto the Grantee,the property deamRW in attedhod lb@dbit"A",heawiatler called the '< AND do mvetsions,ramainden,rant,issues and proft and im of the state,agbt,title 4, and I MIM of the Grmhtor,both at law and in q*ty,in and to do property. TO HAVB AND TO HOLD the propartq,htc Wftg the jmpiq�ntg*am n,sod all ,. tights,easements,priv0egos sad appmtteniinva belong or to at bold and enjoyed with the property,anW the GraMee as the Orantee'i able and sepmtte.psaperty, sad the said Orm3tee't heirs,permw IMPIVOMPVto tivea and assigns„is flee simple ftvvw This is ht is bang given to the Grauft is lieu ofthe Graateee's=aid=of its dShd to fateeclose upon the Neft and Mortgage secured by the property described hereon(the`Note and Mortgage", and upon recordation of this dead and a release of mortgage,the Grantor abaTl be mleased &CM fWdW liab V or defide cy judgment under the Noce smd the M7[g �e, $is is expr+asly Intended that this conveyance to the ticaoft"not coasKtame a d title,sad t>ffi the Gmtee may nekase its 1►fort$age At a>star date,aver,any preecaooe perW in bonlmarpicy or is other app Hcable statzttmy period has mclxred This Instrunient and the covamb of the Grantor sheer be binding upon the Cheater and Inure to the benefit of da Gnmtem The terms Y3rnnme sad"Groatea•as and when owed Tier'aia,or any promouns used in place thmW, aball mean and InWude the at plural aombe, V.P"Merships, buttes and corpon ibm, and each of tbek mq cetft Theses,primal f MP=MtgdvM ewoca mrs and assigns. All covenants and obiigastioot undertaim by two or mote persons shall be deemod to be joint and several unless a codawy iubmtoa is Beady mqc msted herein. t. k i Z I I IN WITNESS WMWOF,the undersigned has executiod this insb=wA on SEP 0 9 .2005. DONNA MAY T GRANTOR APMVM AS TO DORM ATfORPW AT LAW I 9.8-0ts I 3 I I I STATE OF HAWAII ) COUNTY OF HAWAII ) On this T day of �E- �� �' . 2045, before me personally appeared DONNA MAY TARAPE,to me known(or proved to me on the basis of satisfacwy evidence)to be the person described in and who executed the foregoing instrument,and acknowledged to me that she executed the same as her free act and deed. MA J:•'' OUR y kM :'+y Name: MV M Y.MATSMAGA I/ Notary Public,State of Hawaii * ��'•r�UBLtG My commission expires: 3` OF i I i j I I i I I i 4 I I 1 I EXH- R 1T"A" Alt of that certain parcel of land situate in dw District of Puna,Island,County and State , of Hawaii, Stara of Hawaii, being LOT 1034 of the "NANAWAL,B ESTAIM SUBDIVISION, UMr 2n,as shown on Me Plan Number 780,(sled in the Bureau of Conveyances of the State of Hawaii,and containing an area of 8,040 square feet,more or less. Being the premisea acquired by Donna May Taupe,single,by Deed dated_ September 30, 2005 and recorded is the said Bunven of Conveyances as Document NM 2006-008527 �ID OF1T"A" I I i i i i i i i 5 i I � I i I cr c 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o o o o o m n c7 r m D o� c�oma\oa�oo�ow `o �o � � � � � `o `o �o � a`o `omc� < m 0 < m 0000000000000000000000 � � � A es ,� \�` N R3 f3 f3 N N N N 13 13 N NN N 13 N N N N N N N A Z O ppO O O O O ppO O O O O ppC O O O O O O O O(M o 0 w 0 0 m 0 0 0 O 0) c o) c (M (M 0 o) 0) c M � 1O 4 m � N N N N N N N N N N N N N N N N N N N N N N � + -n V w w w w w w w W w w w w w w w w w w w w w w ?1�► a ql ql cn w w w w w w w w N -+ s N Q J O O 0 W rr v v V V 0 0 0 W O N 0 o w = w m OD2m z � $ x .• = � zv o i:w c c: m < � v wC/) co 000 v o � m v C) OOOz ° p 0 m v t;. � � � � v ow (D V � n � y o) _ m cncr46 p c Q, A .. mmCZ i z -� D 00 � > � CA § 0 � 7Cm � � '' o :< a TDm > D n m — nib02 ai � mm = rn -• v0 m = � D = moCmm � 0 mnzDm � � > Z Dm �; = � � � r- Dm ?n c O � D � Z m D W m 0 rr D 0 Z 0 0 � m Cl)a cn cn °D c� crz' z m m co To CO � o v m � 0 > -I -4 m � -n = arm ? � � o� r - � p m m ,, r � O ~' � m0 :z z -� D � m = �' Z C T CA -� 3 z = � cmn0 3 o�i pcnzD m v -� o -12 W � � 00 — � .. rn = -ir D mr- M;K - � O � mz � p � m o Omm �^ z Mcnmo � > m = = o 00 � ? m2D m � „ O , m m � � Min, m wcc o 171 vM c00 O -�'i `D o0 a -n mC) 3 -0 rn ;o C/) 0 mnm = caa M o m ao co v � ;o CD 0c � � � _ Z m z 0 � m zZ ° „ m0 � Z Cl) 0 0 m ao = o Z 0 M °.: c N to PO PIP -+ (D v m y -� a _ m O -00 o 0 C D 4 c 0 N � O = O r � m = cn = „ m co b stn O �' x m m Co ;o = _� o zm Z v N ; D m N m 0 zz m m m N_ m m z < M D m o r R V i J � 11 EXHIBIT 66E" - 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 aD ao aD oD aD ao ao aD ao aD aD ao aD ao aD aD aD ao ao ao ao ao oD w aD ao ao ao aD aD � N N N N N N N ia N N f3p N N N 13 N N N f3 13 1pp3 13 fp3p 13 izs N N foo3 N O O O O O O O O O O O O O O O O O O O O O O O O O O O O O d 0 V O Ql O O O O 01 C) CD O) 47 O� 01 O Of Of 47 O 01 O O Q1 OD O� O 01 O O) O O O N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N V N N N N py N N -� r r �► .a r r .a ji fV N '� C C C CJt fJ1 C71 CJ1 C11 C71 ? 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County of I ii Fire Department 2006-0011674 -000 Fire Equipment Type NNN-None Structure Status 6- vacant and unsecured Floor of Origin 1 Stories Above Grade I Building Length 40 Building Width 20 Total Square Feet 800 Fire Spread 4-Confined to building of origin Stories with Extreme Damage I Item Contributing To Spread 12-Exterior wall covering or finish Type of Material Contributing To 64-plywood Detector Presence 3 AES Presence 3 Apparatus-EIS Apparatus ID E 18 Response Time 0:13:04 Apparatus Dispatch Date and Time 21:31:43 Tuesday,August 1,2006 En route to scene date and time 21:35:04 Tuesday,August 1,2006 Apparatus Arrival Date and Time 21:48:08 Tuesday,August 1,2006 Apparatus Clear Date and Time 00:14:26 Wednesday,August 2,2006 Apparatus priority response yes Number of People 2 Apparatus Use 2 Apparatus Action Taken 1 11 -Extinguish Apparatus Action Taken 2 86-Investigate Apparatus Action Taken 3 12-Salvage&overhaul Apparatus Action Taken 4 81 -Incident command Apparatus Type 11 -Engine Personnel 1 02084-MEDEIROS, TY,A Position:FEO Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 81 -Incident command Personnel Action Taken 3: 58-Operate apparatus or vehicle Personnel Action Taken 4: 12-Salvage&overhaul Personnel 2 02125-RANNE, ADAM K Position: FF Personnel Action Taken 1: 11 - Extinguish Personnel Action Taken 2: 12-Salvage&overhaul i Apparatus-E05 Apparatus ID E05 Response Time 0:19:39 Apparatus Dispatch Date and Time 21:31:42 Tuesday,August 1,2006 En route to scene date and time 21:33:45 Tuesday,August 1,2006 A- FP aratus Arrival Date and Time 2 i-53:24 Tuesday,August I,2006 I Page: 2 Print: !: 05/07/2 )7 07:24:29 County o�� . Incident Rope,.. .) ii Fire Department. 2006-0011674 -000 Apparatus-E05 Apparatus Clear Date and Time 23:45:57 Tuesday,August 1,2006 Apparatus priority response Yes Number of People 3 Apparatus Use 2 Apparatus Action Taken 1 11 -Extinguish Apparatus Action Taken 2 12-Salvage&overhaul Apparatus Type 11 -Engine Personnel 1 01982-HAUGE,THOMAS I Position:CAPT Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Personnel 2 02018-KANE,GREGORY K Position: FEO Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Personnel Action Taken 3: 58-Operate apparatus or vehicle Personnel 3 01911 -AUSTRIA,PAULINO B Position:FF Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Apparatus-BC1 Apparatus ID BC 1 Response Time 0:21:27 Apparatus Dispatch Date and Time 21:31:45 Tuesday,August 1,2006 En route to scene date and time 21:35:52 Tuesday,August 1,2006 Apparatus Arrival Date and Time 21:57:19 Tuesday,August 1,2006 Apparatus Clear Date and Time 22:32:46 Tuesday,August 1,2006 Apparatus priority response Yes Number of People 1 Apparatus Use 1 Apparatus Action Taken 1 81 -Incident command Apparatus Type 92-Chief officer car Personnel 1 02132-ROWE,RAYMOND K Position: BC Personnel Action Taken 1: 81 -Incident command Apparatus-E10 Apparatus ID E10 Response Time 0:25:30 Apparatus Dispatch Date and Time 21:33:51 Tuesday,August 1,2006 En route to scene date and time 21:33:57 Tuesday,August 1,2006 Apparatus Arrival Date and Time 21:59:27 Tuesday,August 1,2006 Apparatus Clear Date and Time 00:19:34 Wednesday,August 2,2006 Apparatus priority response Yes Number of People 3 Apparatus Use 2 ?1 - Apparatus Action Taken 1 Extinguish i Page: 3 Printed: 05/07/2007 07:24:29 Incident Repo County ofd\) ii Fire Department 2006-0011674 -000 Apparatus-E10 Apparatus Action Taken 2 12- Salvage&overhaul Apparatus Type 11 -Engine Personnel 1 01996-HOSE,HOWARD H Position: FF Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Personnel 2 02025-KIHARA,JOHN T Position:CAPT Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Personnel 3 01900-ALLEN,GEORGE W Position: FEO Personnel Action Taken 1: 58-Operate apparatus or vehicle Personnel Action Taken 2: 11 -Extinguish Personnel Action Taken 3: 12-Salvage&overhaul Apparatus-M10 Apparatus ID M10 Response Time 0:25:33 Apparatus Dispatch Date and Time 21:32:36 Tuesday,August 1,2006 En route to scene date and time 21:33:55 Tuesday,August 1,2006 Apparatus Arrival Date and Time 21:59:28 Tuesday,August 1,2006 Apparatus Clear Date and Time 00:19:40 Wednesday,August 2,2006 Apparatus priority response Yes Number of People 3 Apparatus Use 2 Apparatus Action Taken 1 11 -Extinguish Apparatus Action Taken 2 12-Salvage&overhaul Apparatus Type 76-ALS unit Personnel 1 02001 -IGNACIO,ALFRED D Position:EMT Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Personnel Action Taken 3: 58-Operate apparatus or vehicle Personnel 2 02172-UEDA,KENDALL K Position: MICT Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Personnel 3 04129-TAMURA, SEAN H Position: FF/R Personnel Action Taken 1: 11 -Extinguish Personnel Action Taken 2: 12-Salvage&overhaul Apparatus-T01 Apparatus ID TO1 Response Time 0:35:21 Apparatus Dispatch Date and Time 21:31:44 Tuesday,August 1,2006 En route to scene date ar:d time 21:33:58 Tuesday,August i,2006 Page: 4 Printed: 05/07/2007 07:24:29 County of ! ii Fire Department . Incident Report-' � 2006-0011674 -000 Apparatus-T01 Apparatus Arrival Date and Time 22:09:19 Tuesday,August 1,2006 Apparatus Clear Date and Time 00:19:44 Wednesday,August 2,2006 Apparatus priority response Yes Number of People I Apparatus Use 2 Apparatus Action Taken 1 76-Provide water Apparatus Type 24-Tanker or tender Personnel 1 03559-SMITH, IAN C Position: FF Personnel Action Taken 1:76-Provide water Personnel Action Taken 2: 58-Ope rate apparatus or vehicle Apparatus-PV1 Apparatus ID PV 1 Response Time 0:30:58 Apparatus Dispatch Date and Time 22:43:17 Tuesday,August 1,2006 En route to scene date and time 22:47:12 Tuesday,August 1,2006 Apparatus Arrival Date and Time 23:18:10 Tuesday,August 1,2006 Apparatus Clear Date and Time 00:29:41 Wednesday,August 2,2006 Apparatus priority response Yes Number of People I Apparatus Use I Apparatus Action Taken 1 86-Investigate Apparatus Type 92-Chief officer car Personnel 1 01683-PACLEB,JACK C Position:CAPT Personnel Action Taken 1: 86-Investigate Authority Reported By 02025-KIHARA,JOHN T 01:35:51 Wednesday,August 2,2006 Officer In Charge 02132-ROWE,RAYMOND K 01:35:48 Wednesday,August 2,2006 Reviewer 02132-ROWE,RAYMOND K 01:36:10 Wednesday,August 2,2006 Narratives Narrative Name CAD Narrative Narrative Type CAD Narrative Author - Narrative Text F200614013 E Type: FO STRUCTURE-RESIDENTIAL Sub Type: FIRE ALL FIRES Disp: ON ALIITHINGS ARE EXPLODING ALL OVER THE PLACEOFFICERS IN AREA FIRE NOT ON SCENE AS YETOFFICERS REQUESTING ETA FOR HFDTHE FIRE IS ONE BLOCK AWAY FROM THIS RP-S HOUSE,WANTS TO KNOW WHEN THEY ARERESPONDINGTHIS RP DOES NOT WANT TO GIVE HIS NAMEPER E10-ETA 5 MINSETA FOR HFD ABOUT 5 MINPER HPD THEY ARE ON SCENE, WANT HFD ETA'\FIRE IS NOW ONLY ABOUT 30 FEET FROM THE NEIGHBORS Page: 5 Printed: 05/07/2007 07:24:29 County of H Fire Department Incident Report C 2006-0011674 -000 Narratives HOUSE TO THE REARTHAT NEIGHBOR IS OUT WITH HIS GARDEN HOSECOMMENTS: DN NANAWALE RT KAPUNA LF OAHU I ST RT HSE ALE RT KAPUNA LF OAHNOT SURE IF ANYONE IS IN THE HOUSEPOLICE HAVE RAIDED THIS HOUSE BEFOREHOUSE IS FULLY INVOLVEDTO"143411 OAHU RD PN:NEXT DOOR TO THIS RESIDENCE,PAST THIS RESIDENCE"AT:08/01/06 21:31:47NOTSURE IF ANYONE LIVES IN THIS STRUCTURELOOKS LIKE WHOLE FRONT OF THE HOUSE ON FIREPOPPING SOUNDS IN THE HOUSEPAST TWO DAYS SAW FRONT GATE TO HOUSE OPENPAST THIS RESIDENCE"TO"143411 OAHU RD PN:NEXT TO THIS ADDRESS"AT: 08/0 1/0621:3 3:44FLAMES ARE TALLAS PALM TREEHAVE GOTTEN ALEAST 7-10 CALLS FOR THE FIREA NEIGHBOR ACROSS THE STREET SAID HPD WAS AT THE HOUSE 2 WEEKS AGO AND EVERYONEOUT OF HOUSEPER ENG 10 WET DOWN COMPLETEALL UNTS RETURNING TO QUARTERSPER BC 1-E18 AND E05 AVAIL AT SCENEPER BC 1,WILLB ERESONDIN TO KAU SHORTLY,TO IS NEEDED AT OAHU RD FOR OVERHAULPER BC I'-CAPT 10 INCHARGE OF SCENEPER BC 1,NEED INSPPER BC I-FIRE OUT, INSPECTORS NEEDED, WETTING DOWNNOTIFIED JACK,AT 2225,ETA 60 MINSPER E18-HPD CONFIRMED ICE HOUSEADVISED HELCO, LAURIEPER E 18-HAZMAT COMPANY WILL NOT BE NEEDED AT THIS TIMEPER HELCO, 30 MINS ETAPER E05-20X40,VEHILCES ON FIREPER BC 1-WILL BE NOTIFING IF INSPECTION INSEPETEDPER EIO-FIRE UNDER CONTROLEIO--FIRE OUTPER ENG 10 FIRE OUT AND WETTING DOWNRP CALLING FROM OAHU RDPER THE RP,FIRE IS BEHIND THE HOUSE IN THE BRUSH,FLAMES ARE 40 FEET HIGHPER THE RP, HOUSE IS NOT ON FIRE,IT LOOKS LIKE THE BRUSH IS ON FIRE85410 61-GRAHAMPER THE RP,IS WALKING AWAY,HEARD PEOPLE CAN BE HEARD TALKINGTHE RP,IS NOW Narrative Name Structure fire Narrative Type Incident Narrative Date 01:32:53 Wednesday,August 2,2006 Author 02025-KIHARA,JOHN T Author Rank CAPT Author Assignment I Narrative Text At 2130 hours on Tuesday August 1,2006 we were dispatched to a building fire. Eight units were assigned to this incident.Thirteen personnel responded. We arrived on scene at 2148 hours and cleared at 0029 hours.The incident occurred at 143411 OAHU Rd, PAHOA in District 1.The local station is 10.The general description of this property is 1 or 2 family dwelling.The primary task(s)performed at the scene by responding personnel was extinguishment.No mutual/automatic aid was given or received. The involved structure is described as an enclosed building.The building was vacant and unsecured.This building has one story above ground.The fire occurred on the first floor. The fire was confined to building of origin.The cause of ignition is undetermined after investigation. The material contributing most to flame spread was"plywood". The use,or purpose of the contributing material was"exterior wall covering or finish". Page: 6 Printed: 05/07/2007 07:24:29 Incident Report r__ County of tip` Fire Department 2006-0011674 -000 Narratives The estimated property loss on this incident was$80,000.The estimated property value was$80,000. Alarm number 0011674 has been assigned to this incident. Found single family,single story,vacant dwelling fully engulfed. Preconnect handlines and boosterlines utilized for suppression and extinguishment. End of Report Page: 7 Printed: 05/07/2007 07:24:29 C 0 HAWAII COUNTY POLICE DEPARTMENT Report # C06023992 Incident Sheet ORI Number: H10010000 page: 1 printed on: 08/07/200616:11 (Mon) Report# C06023992 Offense Code: FIRE(FIRE) Occurred Address: 143405 OAHU RD PAHOA,HI 96778 District PN Post: 836 Source: Case#: Disposition Clearance Date Reported: 08/01/2006 21:30 TlE UCR Clearance Date Occurred: 08/01/2006 21:30 TlE TO 0810112006 21:30 TUE Case Status: Investigation Continuing Vict/Susp Rel: Status Date: 08/01/2006 Shooting: Domestic Violence: Hate Crime: Follow-Up: Reclassify: Date Approved By Supervisor 08/07/200616:11 Supervising Officer. CHAVES,DEXTER$181220 Division: PATROL Reporting Offloer. LEE,JENNY S 184600 Date Assigned To Investigator.08/01/2006 22:32 Investigator Assigned: LEE,JENNY#184600 Synopsis: FIRE DISPATCH REPORTED A RESIDENCE ON OAHU RD ENGULFED IN FLAMES. LAST KNOWN OWNER OF RESIDENCE IS DONNA TARAPE WPC: 0844-06/1923 HOURS EXHIBIT "G" HAWAII COUNTY POLICE DEPARTMENT Report # C06o23992 Page: 2 Incident Sheet ORZ Number: H10010000 Printed on: 08/07/2006 16:11 (Mon) Associated Names VICTIM Vict/Susp Rel: Name: TARAPE,DONNA U DOB: 05/09/1952 Ag�me:54 Juv: N Sex F SSN: 575-60-6529 Race: RUpgrp Home Phone: (808)96&9624 Work Phone: O��pie. Arrest# HH-56539 FBI: SBI: State: UCR Date: Appr Status: Appr By; Charges: Circumstance: Visitor Military: Police Dept Associate: Justif. Homicide: Follow-Up: Weap: Injured: Reasons for Treatment: Hospital: Treated: Voluntary: Physician: Transported By: EjEZ ned: Refused Admission: Sent Home: Condition: tion: Injuries: Breath Test: Blood Test: Refused Test: Test Results: Drivers License State: Expiration: Number: NONE Primary Address:14-3305 OAHU STREET PAHOA,Hil 96779 Primary Mailing: PO BOX 2234 PAHOA,HI 96779 Second Address: Second Mailing: Employer Occupation Phone Number Employed From Employed To NONE NONE Work Address: Comment: HAWAII COUNTY POLICE DEPARTMENT Report # C06023992 Incident Sheet ORI Number: H10010000 Page: 3 Printed on: 08107/200616:11 (Mon) Offense Codes Code:FFE Rank:0 Attempt Dom Violence: Date Occurred(FROM): Date Occurred(TO): Date Reported: Bias; I Statute: Location:SNGLE FAMLY RESIDENCE Final Location: Rape Location: Entry Type: I Entry Area: Instrument Used:Other #Premises Entered: 0 Entry Method: Entry Point 1: Entry Point 2: Exit Point 1: Exit Point 2: 1 Method Of Exit Area Target Property Target 1: None Property Target 2: Property Target 3: Victim Target: Time Of Day: Circumstance: UNKNOWN Seckuity 1: Other Security 2: Weapon 1: Nate jAutomafic: I Weapon 2: Automatic: Weapon 3: Automatic: Criminal Ad 1: 1C riminal Ad 2: Criminal Ad 3: Suspected Use 1: Suspected Use 2: Suspected Use 3: Susp.Action to Prem. 1: Other Susp.Action to Prom.2: Susp.Action to Prom.3: Susp.Action on Vic. 1: None Susp.Action on Vict.2: Susp.Action on Vld.3: Susp.Other Action 1: Other Susp.Other Action 2: Susp.Other Action 3: Susp.SolicittOffered 1: Other Susp.Solicit/Offered 2: Susp.Solldt/Offered 3: Victim Use 1: Victim Use 2: Mclim Use 3. Victim Activity: Victim Condition: None Precp.Circumstance: Unknown Vehicle Locked: Keys in Ignition- #Louvers Removed: 0 Photographed: Dusting: Not Dusted Arson: Remarks: C 0 E Donna TARAPE 08-01-2006 006023992 14-3405 Oahu Road Ofcr. J. LEE PN Pahoa, Hawaii FIRE PAGE 1 OF 3 PAGES ASSIGNMENT/ARRIVAL 08-01-2006 : 2135 Mrs. : I was informed by Dispatch that fire personnel was responding to a fire at a residence at 14-3405 Oahu Road. I arrived at approximately 2143 hours. VICTIM'S STATEMENT The victim was identified as: Donna TARAPE, F-54 DOB: 05-09-1952 SSN: 575-60-6529 14-3405 Oahu Road Nanawale Estates Pahoa, Hawaii 96778 I was unable to obtain a victim's statement, being that the victim is currently in custody and this residence has been unoccupied for approximately one week. WITNESS INTERVIEW There are no witnesses to interview at this time. NEIGHBORHOOD CHECKS Neighborhood checks were conducted. I contacted a male party identified as: Tony K. BEAUDET, M-41 DOB: 03-11-1965 Lanai Street, first house on the left Ph. : 960-2609 This male party stated that he just moved in on approximately the 25th or 26th of July. He stated that he was aware of the drug activity at the neighbor' s house. He stated 16081/114 Donna TARAPE 08-01-2006 006023992 14-3405 Oahu Road Ofcr. J. LEE PN Pahoa, Hawaii FIRE PAGE 2 OF 3 PAGES that he has not heard anything for a week, but tonight at around 6 : 00 p.m. (1800 hours) , he heard a female voice coming from that residence. He was not sure exactly what was said, but he stated that he heard something about needing $5000 and that someone needed a place to stay. He stated that he heard the voices of possibly two other male parties along with the female party. After that, he did not pay attention until approximately 9:00 p.m. or so (2100 hours) when he noticed the house on fire. SCENE The scene is located at 14-3405 Oahu Street in Pahoa, Hawaii 96720. It is a wooden single-family residence in the District of Puna and County of Hawaii. PROPERTY DESCRIPTION/VALUE The property is a single-family residence, unknown value. HFD INTERVIEWED I contacted Captain John RIHARA of the Pahoa Fire Station. Captain KIHARA stated that the investigator had informed him that the start of the fire was undetermined at this time. PHOTOGRAPHS Refer to the Photographic Record submitted under this report number. INVESTIGATION The investigation reveals that on 08-01-2006, a single-family residence of the address 14-3405 Oahu Road was engulfed in flames. The fire was put out by the Hawaii Fire 16081/114 Donna TARAPE 08-01-2006 006023992 14-3405 Oahu Road Ofcr. J. LEE PN Pahoa, Hawaii FIRE PAGE 3 OF 3 PAGES Department. I was informed by Captain KIHARA that the start of the fire is undetermined. I made checks with a neighbor who stated that he heard a female and a couple of male voices coming from that residence, but did not see or hear anything unusual. DISPOSITION In view of the above events, I recommend that this investigation be suspended until there are further leads in identifying the start of the fire. INV. SUSPENDED Z APPROVED Je L E #388 PO 3W PN 08-04-2006 1923 HRS DATE: 08-17-2006 THU 0848 HRS 16081/114 1• , C POLICE DEPARTMENT- PHOTOGRAPHIC RECORD Report No. C06023992 DUST: IN Occurred On: 08/01/08 21:30 PAGE:1 of 1 Location: RECEIPT#1 (For Internal Use Action: RECOVERED Offense Cods I Literal aster Report 8 Status Clearenu isposltlon FIRE-FIRE ikon Cordin VICTIM Last Name,First Name,Middle Name address Res Phone/Bus Phone TARAPF-DONN&M 14-3305 OMW STREET PAHOA HI (808)965.9624 *covering Officer Recovery Location Recovery Date I Time LEE-184600 1143411 OAHU RDOOPAHOA, HI 96778 08/02/06 16:00 to 16:05 Photo T : POLAROID Photographer: OFCR JENNY LEE#3881184800 ITEM OTY Description Code 1 5 POLAROID PROT08 K 1-1 OVERALL VIEW OF BACK Of RENaINE OP RESIDENCE 1-2 OVERALL VIEW OF VESICLES TOWARDS FACE OF RESIDENCE 1-3 OVERALL VIEW 07 RRHAIRS or FRONT OP RESIDRNCN 1-4 OVERALL VIEW 07 REINS 07 FRONT 07 RESIDENCE 1-8 OVERALL VIEW 07 FRONT 07 RRSIDENCE CHAIN OF CUSTODY RELEASE AUTHORIZED BY: DATE: TIME: ITEM (to) (SIGNATURE) I EMPLOYEES RECEIVED BY(SIGNATURE) I EMPLOYEE 8 DATE TIME EMPLOYEES DATE TIME 1APPROVEDBY EMPLOYEE 8 DATE TIME 3IQ2rY L8E 184400 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII DANIEL A. JOHNSON, CIVIL NO. 06-1-0303 Plaintiff, NOTICE OF MOTION vs. STATE OF HAWAII; COUNTY OF HAWAII; PETER MACDONALD, KAREN MAYS; RUTH FORBES; ALVINA KAHOONEI; MARIA MILLER; AND JOHN DOES 1-50. Defendants. NOTICE OF MOTION TO: DANIEL A. JOHNSON NANCY ALBANO, ESQ. c/o Law Office of Chris P. Bertelmann Deputy Attorney General 166 Kamehameha Avenue, Suite 7 Department of the Attorney General Hilo, Hawaii 96720 State of Hawaii Plaintiff Pro Se 425 Queen Street Honolulu, Hawaii 96813 Attorney for Defendants STATE OF HAWAII, PETER MACDONALD, KAREN MAYS, RUTH FORBES, ALVINA KAHOONEI AND MARIA MILLER PLEASE TAKE NOTICE that the undersigned will bring the foregoing motion on for hearing before the Honorable Presiding Judge of the above-entitled court, in his courtroom, located at the State Building, Second Floor, 75 Aupuni Street, Hilo, Hawaii, on Wednesday, April 23, 2008, at 8:00 a.m., or as soon thereafter as counsel can be heard. Dated: Hilo, Hawaii, March 17, 2008. COUNTY F HAWAII De f dart By 4 U MI HAEL J. UD VIC Deputy Corporation Counsel Its Attorney I IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII DANIEL A. JOHNSON, CIVIL NO. 06-1-0303 Plaintiff, CERTIFICATE OF SERVICE vs. STATE OF HAWAI`l; COUNTY OF HAWAII; PETER MACDONALD, KAREN MAYS; RUTH FORBES; ALVINA KAHOONEI; MARIA MILLER; AND JOHN DOES 1-50. Defendants. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following by mailing the same, postage prepaid, on March 17, 2008: DANIEL A. JOHNSON c/o Law Office of Chris P. Bertelmann 166 Kamehameha Avenue, Suite 7 Hilo, Hawaii 96720 Plaintiff Pro Se NANCY ALBANO, ESQ. Deputy Attorney General Department of the Attorney General State of Hawaii 425 Queen Street Honolulu, Hawaii 96813 Attorney for Defendants STATE OF HAWAII, PETER MACDONALD, KAREN MAYS, RUTH FORBES, ALVINA KAHOONEI AND MARIA MILLER M CHAEL J. UDbVIC Deputy Corporation Counsel County of Hawai`i