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Filer’s Name, Address, Phone, Fax, Email:

RUSH MOORE LLP
A Limited Liability Law Partnership

SUSAN TIUS 2873
NATHANIEL A. HIGA 9064
737 Bishop Street, Ste. 2400
Honolulu, Hawaii 96813-3862
Tel. No. 521-0406; Fax No. 521-0497; Email: [email protected]

Attorney for TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE
PAUAHI BISHOP, also known as KAMEHAMEHA SCHOOLS





UNITED STATES BANKRUPTCY COURT




1132 Bishop Street, Suite 250

Honolulu, Hawaii 96813

DISTRICT OF HAWAII



Debtor:

Joint Debtor:
(if any)

KERENAKUPU ESERA-VEGAS aka KERENA VEGAS





COVER SHEET - MOTION FOR RELIEF FROM STAY

hib_4001-1cs (12/09)

Case No.:

Chapter:

12-02080
13

Movant:

Owner

?

?

Date of loan:

Original amt: $

Monthly pmt: $

Debtor’s principal residence

Hearing Date:
Time:

Role (mortgagee, lessor, agent, plaintiff, etc.):

53-065 Kamehameha Hwy, Hauula, HI 96717

A. Relief sought under 11 U.S.C. § 462(d) – Automatic Stay 11 U.S.C. § 1301(c) – Chapter 13 Codebtor Stay

Instructions: Complete A. for all motions. Complete B. if seeking to enforce security interest. Complete C. if
motion concerns a lease. Complete D. for other types of relief. Complete E. if seeking extraordinary relief.

Subject Matter (real/personal property, litigation, etc.):
(use address/TMK/vehicle ID, etc.)
If pending litigation, last major prepetition event:
(decree of foreclosure, writ of possession, etc.)
B. Security Interest (mortgage, lien, etc.) Movant’s lien position (1st, 2nd, etc.):







TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE PAUAHI BISHOP, also known as KAMEHAMEHA SCHOOLS ("KS")

































Payment: $ per
*

Add all liens ……………………………………………………………………………..……………………

Movant’s valuation (if different): $

Debtor’s valuation in schedules: $

Prepetition arrears: $
D. Other Describe relief sought, title of action and court of any litigation, and any applicable insurance:



E. Extraordinary relief requested: Retroactive relief “in rem” relief No stay of order

Postpetition arrears: $
y
y pp

g ,

?

g

,

Interest, late fees, etc.: $

Postpetition arrears: $

Sr. lien:

2nd lien:

C. Lease

Date of lease:

List all encumbrances:

Principal bal: $

Prepetition arrears: $

Total other liens:

Maturity date:

$

$

$

$

The above information summarizes allegations in attached motion. /s/ ________________________________

Susan Tius
For Movant



U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 1 of 90












2873
9064

RUSH MOORE LLP
A LIMITED LIABILITY LAW PARTNERSHIP

SUSAN TIUS

NATHANIEL A. HIGA
737 Bishop Street, 24th Floor
Honolulu, Hawaii 96813
Telephone: (808) 521-0406
Facsimile: (808) 521-0497
E-mail: [email protected]

Attorneys for TRUSTEES UNDER THE WILL
AND OF THE ESTATE OF BERNICE PAUAHI
BISHOP, also known as KAMEHAMEHA SCHOOLS



UNITED STATES BANKRUPTCY COURT



DISTRICT OF HAWAII


In re

KERENAKUPU ESERA-VEGAS aka
KERENA VEGAS,







Debtor.

Case No. 12-02080
(Chapter 13)

PRECAUTIONARY MOTION FOR
RELIEF FROM AUTOMATIC AND
CODEBTOR STAYS; MEMORANDUM
IN SUPPORT OF MOTION;
DECLARATION OF DIANE M.
KAWAHAKUI; EXHIBITS “1” - “2”;
DECLARATION OF SUSAN TIUS;
EXHIBITS “3” - “8”

Date: +, 2013
Time: 1:30 p.m.
Judge: Honorable Robert J. Faris




U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 2 of 90

PRECAUTIONARY MOTION

FOR RELIEF FROM AUTOMATIC AND CODEBTOR STAYS






TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE

PAUAHI BISHOP, also known as KAMEHAMEHA SCHOOLS (“KS”), move

this Court, on a precautionary basis, for relief from the automatic stay to permit KS

to exercise its rights and remedies as owner of the real property commonly known

as 53-065 Kamehameha Highway, Hauula, HI 96717, designated as TMK No. (1)

5-3-001-029 (“Property”), against KERENAKUPU ESERA-VEGAS (“Debtor”),

the Debtor herein, and JEFFREY VEGAS (“Codebtor”), Debtor’s spouse who is

not in bankruptcy. KS seeks relief from the automatic stay and codebtor stay, to

the extent applicable, for the purpose of proceeding with actions against Debtor

and Codebtor to redress and prevent Debtor and Codebtor’s past, continuing and

potential activities at the Property which are inconsistent with and in violation of

KS’ rights as the owner of the Property. Debtor and Codebtor’s actions are in

contempt of an order, judgment and writ entered by the State Court in the case

entitled Trustees Under the Will and of the Estate of Bernice Pauahi Bishop, also

known as Kamehameha Schools v. Jeffrey Vegas, et al., Civ. No. 09-1-1074-05, in

the Circuit Court of the First Circuit, State of Hawaii, (“State Court Action”) which

finally and fully determined that the former interests of Debtor and Codebtor in the

Property were terminated. Debtor and Codebtor are ignoring the State Court’s

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 3 of 90



 

Orders in contravention of KS’ rights as owner of the Property seemingly in

reliance on this Court’s Order Confirming Chapter 13 Plan entered herein on

February 28, 2013. Relief from this Court is sought to make clear for the State

Court that nothing that has occurred in the Debtor’s Chapter 13 case changes the

outcome and effect of the order, writ and judgment entered in the State Court

Action.



KS further requests that the 14 day stay imposed by Fed. R. Bankr. P.

4001(a)(3) not apply and that the Order Granting this Motion be enforceable

immediately upon its entry. This request is due to the fact that Debtor and

Codebtor have repeatedly unlawfully entered and caused damage to the Property

and KS has reason to be concerned about potential actions of Debtor and Codebtor,

who are ignoring the final decisions of the State Court. KS, in order to preserve

and protect its ownership rights against Debtor and Codebtor’s actions, will seek

appropriate relief in the State Court to enforce that Court’s Orders returning the

Property to KS and terminating Debtor and Codebtor’s interests therein.



This Motion is made pursuant to 28 U.S.C. §§ 157(a) and 1334, Rule

4001(a) of the Federal Rules of Bankruptcy Procedure, 11 U.S.C. §§ 541,

362(d)(1) and 1301, LBR 4001, the Memorandum in Support of Motion,

Declaration of Diane M. Kawahakui; Exhibits “1” - “2”; and Declaration of Susan

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 4 of 90



 

Tius; Exhibits “3” - “8”, the records and files in the case, and such other and

further matters as may be presented herein.














 











DATED: Honolulu, Hawaii, March 12, 2013.

































/s/Susan Tius








SUSAN TIUS
NATHANIEL A. HIGA
Attorneys for TRUSTEES UNDER THE
WILL AND OF THE ESTATE OF
BERNICE PAUAHI BISHOP, also known
as KAMEHAMEHA SCHOOLS

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 5 of 90



UNITED STATES BANKRUPTCY COURT



DISTRICT OF HAWAII


In re

KERENAKUPU ESERA-VEGAS aka
KERENA VEGAS,

Case No. 12-02080
(Chapter 13)













Debtor.

MEMORANDUM IN SUPPORT OF MOTION






TRUSTEES UNDER THE WILL AND OF THE ESTATE OF BERNICE

PAUAHI BISHOP, also known as KAMEHAMEHA SCHOOLS (“KS”), in

support of this Motion for Relief from Automatic Stay, file this Memorandum.

I.



BACKGROUND.

KS owns certain real property located at 53-065 Kamehameha Hwy, Hauula,

Hawaii 96717 (“Property”). Declaration of Diane M. Kawahakui, dated March

11, 2013, (“Kawahakui Decl.”) ¶ 2. KERENAKUPU ESERA-VEGAS (“Debtor”),

the debtor herein, and JEFFREY VEGAS (“Codebtor”) were the lessees under

Ground Lease No. 10,936, dated November 1, 1956, under which KS was the

Lessor. Ex. “3” at 3. KS instituted an action to terminate the Ground Lease in the

case entitled Trustees Under the Will and of the Estate of Bernice Pauahi Bishop,

also known as Kamehameha Schools v. Jeffrey Vegas, et al., Civ. No. 09-1-1074-

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 6 of 90

05, in the Circuit Court of the First Circuit, State of Hawaii (“State Court Action”)

and was awarded summary judgment on June 20, 2012. Id. at 1. The Circuit Court

entered (1) Findings of Fact; Conclusions of Law; Order Granting Plaintiffs’

Motion for Summary Judgment as Against All Defendants filed on November 8,

2011 (Ex. “3”), (2) Judgment (Ex. “4”), and (3) Writ of Possession (Ex. “5”)

(collectively, “June 20, 2012 Orders”). The June 20, 2012 Orders terminate and

cancel the Ground Lease and return all right, title and interest in the Property to

KS. Ex. “3” at 8. The June 20, 2012 Orders also enter judgment against Debtor

and Codebtor in the amount of $163,116.24. Ex. “4” at 2. The Writ of Possession

was served and possession of the Property was surrendered to KS on August 13,

2012. Ex. “5”. The Debtor and Codebtor signed a release and abandonment of all

personal property left on the Property on August 7, 2012. Ex. “1”. There was no

appeal of the June 20, 2012 Orders by the Debtor or Codebtor. Declaration of

Susan Tius, dated March 11, 2013, (“Tius Decl.”) ¶ 3. Ex. “8”. The June 20, 2012

Orders are final. Tius Decl. ¶ 4.

On October 22, 2012, Debtor commenced this Chapter 13 case. See Docket.

On October 11, 2011, an earlier Chapter 13 case filed by Debtor and Codebtor,

designated as No.10-00906, was involuntarily dismissed. Id.



HOWARD M.S. HU (“Trustee”) is the duly appointed Trustee in the

Debtor’s case.

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 7 of 90





On February 28, 2013, this Court entered an Order Confirming Chapter 13

Plan in Debtor’s case. Ex. “6”. The Plan, in Section 4.08 concerning “unexpired

leases,” reflects “Ksbe”. Ex. “6”. On January 25, 2013, KS filed an Objection to

the Plan raising this and other fundamental errors in the Plan. Ex. “7”. On

February 21, 2013, at the confirmation hearing, the Trustee and Debtor’s counsel

in arguments to the Court, represented that, regardless of the matters in KS’

Objection, the only significant point was that the Plan was fully paid and any

recovery in the State Court litigation would be paid to the Trustee for

administration through the Plan. Tius Decl. ¶ 5. KS is filing a motion for

reconsideration and/or clarification of the Order Confirming Chapter 13 Plan. Tius

Decl. ¶ 5.



On March 1, 2013, KS was informed that the locks it had used to secure the

Property had been cut and another lock put on the gate to the Property. Kawahakui

Decl. ¶ 3. On March 3, 2013, KS was informed that its replacement lock for the

Property had been cut again. Kawahakui Decl. ¶ 4. On March 5, 2013, KS was

informed that the third lock was found cut. Kawahakui Decl. ¶ 5. On March 5,

2013, Debtor and Codebtor came on to the Property, without invitation, and spoke

with KS’ representatives, Todd Gray (“Gray”) and Diane Kawahakui

(“Kawahakui”), who were working at the Property. Kawahakui Decl. ¶ 6; 8. The

police were called to the Property. Kawahakui Decl. ¶ 7. Debtor and Codebtor

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 8 of 90



tried to have the KS representatives arrested. Kawahakui Decl. ¶ 13. Debtor and

Codebtor admitted that they cut the locks placed by KS on the Property.

Kawahakui Decl. ¶ 15. Debtor and Codebtor also admitted that they had placed a

notice on the Property in or around October of 2012. Kawahakui Decl. ¶ 16. Ex.

“2”. Debtor and Codebtor contended that the federal court ruled that the Property

was given back to the Vegases. Kawahakui Decl. ¶ 11. This apparently is a

reference to this Court’s Order Confirming Chapter 13 Plan entered February 28,

2013.1



On March 5, 2013, KS’ counsel contacted Debtor’s counsel regarding

Debtor’s unlawful actions at the Property. Tius Decl. ¶ 6. Debtor’s counsel

informs KS’ counsel that he had not told the Debtor that she had any rights in the

Property, but only that: (1) there is an automatic stay; and (2) state law controls.

Tius Decl. ¶ 7. Debtor’s counsel knew, or should have known, from a review of

the June 20, 2012 Orders, that the lease was terminated. Debtor’s counsel’s

gamesmanship in playing off Bankruptcy Court proceedings against State Court

Orders has added to the damages being caused to KS by Debtor and Codebtor’s

activities. In re Lady Liberty Tavern Corp., 94 B.R. 812, 814 (Bankr. S.D.N.Y.

                                                            
1 KS is filing a Motion for Reconsideration and/or Clarification of the Order
Confirming Chapter 13 Plan on the grounds that the Plan and related petition and
schedules contain numerous misstatements of fact and law.

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 9 of 90



1988) (“Bankruptcy proceedings may not be used to re-litigate issues already

resolved in a court of competent jurisdiction.”).

II. LEGAL STANDARD.

Upon the filing of a bankruptcy case, a bankruptcy estate is created

comprised of all of debtor’s property, including “all legal or equitable interests of

the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a).

The automatic stay generally prohibits actions to recover a claim against a debtor

or property of the debtor’s estate during the bankruptcy case. 11 U.S.C. § 362(a).

However, on request of a party in interest, a stay may be lifted “for cause,”

including “bad faith” or “misconduct.” Bailey & Assocs. APC v. Brown &

Charbonneu, LLP (In re Bailey & Assocs., APC), 2011 U.S. Dist. LEXIS 101364,

*9 (Bankr. C.D. Cal. Sept. 6, 2011) (bad faith as “cause”); In re Madison Hotel

Corp., 175 B.R. 94, 97 (Bankr. N.D. Ala. 1994) (misconduct as “cause”).

Finally, the Court can grant relief from an automatic stay “with or without a

hearing . . . as is necessary to prevent irreparable damage to the interest of an entity

in property, if such interest will suffer such damage before there is an opportunity

for notice and a hearing.” 11 U.S.C. § 362(f).2

                                                            
2 KS has sought an expedited hearing of this Motion because the Debtor and
Codebtor admitted to repeatedly breaking into the Property. Debtor and Codebtor
assert that the Property belongs to them. On March 5, 2013, Debtor and Codebtor
tried to have an officer from the Police Department arrest KS staff for being
present at the Property. KS is entitled to unfettered access to its Property. KS’s

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 10 of 90



III. ARGUMENT.

A.

The Automatic Stay Does Not Apply to the Property.

Debtor and Codebtor did not have an interest in the Property at the time Debtor

filed her bankruptcy petition. The automatic stay only applies to actions against

property that is part of the bankruptcy estate. 11 U.S.C. § 362(a). Pursuant to

Section 541 of the Bankruptcy Code, the debtor’s estate is comprised of property

in which the debtor had an interest at the time the bankruptcy petition was filed.

Here, Debtor’s petition was originally filed on October 22, 2012. However, prior

to the filing of Debtor’s bankruptcy, the Hawaii State Circuit Court entered the

June 20, 2012 Orders terminating and canceling the Ground Lease between KS and

Debtor and Codebtor, and returning all right, title and interest in the Property to

KS. Debtor and Codebtor acknowledged the June 20, 2012 Orders by abandoning

their personal property left at the Property on August 7, 2012. Moreover, Debtor

and Codebtor were served with the Writ of Possession and possession of the

Property was surrendered to KS on August 13, 2012. Therefore, Debtor and

Codebtor had no interest in the Property on October 22, 2012 when Debtor’s

bankruptcy petition was filed, the Property is not part of the bankruptcy estate, and

it is not be subject to the automatic stay. In re Brettschneider, 322 B.R. 606, 610

(Bankr. D.S.C. 2005) (finding that “the Agreement was terminated by the creditor
                                                                                                                                                                                                
ownership rights have been impaired by the Debtor and Codebtor’s wrongful
conduct, which has damaged the Property.

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prior to the debtor’s filing of his Petition for Relief in bankruptcy . . ., and that the

subject property was therefore not property of the estate”);3 In re Studebaker’s of

Ft. Lauderdale, Ltd., 73 B.R. 217, 220, (Bankr. N.D. Fla. 1987) (“Where the

debtor has lost all interest in the property prior to the filing of a petition under the

Code, we conclude that we should not rely on equitable considerations to revive

the debtor's interest and to make the automatic stay provisions applicable.”) (citing

In re Fidelity American Mortgage Co., 19 B.R. 568, 573 (Bankr. Pa. 1982)).

KS is entitled to an order clarifying that the Property is not part of the

bankruptcy estate and not subject to the automatic stay so that KS can pursue

contempt sanctions against Debtor and Codebtor for refusal to obey the June 20,

2012 Orders and/or civil damages for trespass on the Property. Relief from this

Court is necessary to make clear for the State Court that nothing that has occurred

in the Debtor’s Chapter 13 case changes the outcome and effect of June 20, 2012

Orders entered in the State Court Action.

B.

The Actions To Be Taken By KS Are Not Violations of any Stay.

In the alternative to the above argument, the actions KS seeks to take are not

violations of the automatic stay. The Bankruptcy Code automatic stay prohibits

actions to recover a claim against the debtor or property of the estate. 11 U.S.C. § 

362(a). KS seeks to enforce its own property rights. Therefore, KS’s action to

                                                            
3 In Brettscneider, the Court lifted the stay for “cause.” 322 B.R. at 610.

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 12 of 90



enforce the June 20, 2012 Orders regarding KS’s rights to the Property are not

violations of the automatic stay as they are not actions to recover a claim against

the Debtor or property of the estate. The June 20, 2012 Orders, in addition to

returning the Property to KS and expunging all rights on the Debtor and Codebtor

in the Property, gave KS a money judgment against Debtor and Codebtor in the

amount of $163,116.24. KS does not seek to enforce this monetary damages

claim. Rather, KS seeks to enforce its own property rights against the Debtor and

Codebtor’s wrongful conduct. The automatic stay does not give the Debtor or

Codebtor license to commit torts or ignore State Court orders. In re Keaty, 350

B.R. 723, 726 (Bankr. W.D. La. 2006) (“[A] debtor’s post-petition conduct is not

protected by the automatic stay.”)

Because Debtor and Codebtor’s past and continuing activities at the KS

Property occurred after the filing of Debtor’s petition on October 22, 2012, and are

inconsistent with and in violation of KS’ rights as the owner of the Property, they

are not subject to the automatic stay. KS is entitled to an order clarifying that its

pursuit of contempt sanctions against Debtor and Codebtor for refusal to obey the

June 20, 2012 Orders and/or civil damages are not violations of the automatic stay

as they are based on Debtor and Codebtor’s post-petition conduct. Relief from this

Court is necessary to make clear for the State Court that nothing that has occurred

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in the Debtor’s Chapter 13 case changes the outcome and effect of the June 20,

2012 Orders entered in the State Court Action.

IV. CONCLUSION.

Based on the foregoing, KS respectfully request that this Court either

confirm that there is no stay related to the Property or that any stay is lifted for

purposes of allowing KS to enforce its property rights against Debtor and

Codebtor. Relief from this Court is necessary to make clear for the State Court

that nothing that has occurred in the Debtor’s Chapter 13 case changes the outcome

and effect of the June 20, 2012 Orders entered in the State Court Action.













DATED: Honolulu, Hawaii, March 12, 2013.







































/s/Susan Tius








SUSAN TIUS
NATHANIEL A. HIGA
Attorneys for TRUSTEES UNDER THE
WILL AND OF THE ESTATE OF
BERNICE PAUAHI BISHOP, also known
as KAMEHAMEHA SCHOOLS

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 14 of 90




In re











UNITED STATES BANKRUPTCY COURT

DISTRICT OF HAWAII

KERENAKUPU ESERA-VEGAS aka
KERENA VEGAS,





Debtor.

Case No. 12-02080
(Chapter 13)



DECLARATION OF DIANE M. KAWAHAKUI; EXHIBITS “1” AND “2”

I, DIANE M. KAWAHAKUI, do hereby declare under penalty of law that

the following is true and correct:

1.

I am employed by the TRUSTEES UNDER THE WILL AND OF

THE ESTATE OF BERNICE PAUAHI BISHOP, also known as

KAMEHAMEHA SCHOOLS (“KS”) as a Property Operations Manager. I submit

this Declaration in support of the Precautionary Motion for Relief from Automatic

and Codebtor Stays (the “Motion”). Unless otherwise stated, the statements in this

declaration are based upon my personal knowledge.

2. My responsibilities as Property Operations Manager include, among

other matters, property management oversight of various residential properties

owned by KS including residential properties owned by KS located in Punaluu,

Hauula, Hawaii. Among the properties that I oversee is that certain property

identified by Tax Map Key No. (1) 5-3-001-029, and also identified by the street

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 15 of 90

address of 53-065 Kamehameha Highway, Hauula, Hawaii 96717 (the

“Property”).

3.

On Friday, March 1, 2013, at approximately 5:00 p.m., I was

contacted by Sifa Tiueti, who KS hired to provide yard maintenance work at the

Property. Mr. Tiueti informed me that the lock and chain securing the driveway

gate at the entrance of the Property (the “Entrance Gate”) had been cut and

replaced by an old rusty chain and lock. Mr. Tiueti further reported to me that

pieces of drywall were in the yard near the Entrance Gate. These pieces of drywall

were previously left inside the house located on the Property, thus indicating to me

that someone had entered the house, removed the pieces of drywall from the house,

and placed them near the Entrance Gate. At my request Mr. Tiueti cut the old

rusty chain with lock that had been placed on the Entrance Gate and replaced it

with another chain and lock (the “First Replacement Lock”).

4.

On Sunday, March 3, 2013 at approximately 9:00 a.m. I received

another call from Mr. Tiueti. During this call, Mr. Tiueti informed me that on

Saturday, March 2, 2013, at about 6:30 p.m., he saw that the First Replacement

Lock was cut and a new lock and chain were put on the Entrance Gate. In

response to the call that I received from Mr. Tiueti, I requested that Mr. Tiueti cut

the most recently installed lock and replace it with another lock (the “Second

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 16 of 90

2

 

Replacement Lock”). Mr. Tiueti did this and installed the Second Replacement

Lock on Sunday, March 3, 2013.

5.

On Tuesday, March 5, 2013 at approximately 8:00 a.m., I received

another call from Mr. Tiueti. During the call, Mr. Tiueti, who lives two houses

away from the Property, informed me that on Monday, March 4, 2013, his dog was

barking very late at night (approximately 11:00 p.m.). Mr. Tiueti stated that he

suspected the barking was caused by activity going on at the Property but, because

of the late hour, he did not immediately check the Property when he heard the

barking. Mr. Tiueti further informed me that he returned to check the Property

during the morning on Tuesday, March 5, 2013. During this check he saw that the

Second Replacement Lock was cut and replaced by another lock. Mr. Tiueti

further informed me that it appeared to him that certain wooden boards that were

placed on the residential structure by KS to secure the structure were taken down.

I asked Mr. Tiueti to cut the lock and not leave the Property and I informed him

that I would be coming out to the Property that day.

6.

On Tuesday, March 5, 2013, I went to the Property. I was

accompanied by Todd Gray, who is a Senior Land Operations Manager for KS.

The purpose of our visit was to (i) change the lock on the Entrance Gate and install

a thicker chain, (ii) file a police report with respect to the apparent trespasses on

the Property, and (iii) assess the structure on the Property.

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 17 of 90

3

 

7.

I arrived at the Property on March 5, 2013, at approximately 11:00

a.m., and called 911 to place a non-emergency call to HPD to file a police report

for trespassing. When I arrived at the Property, I observed the house and, based on

my observation, it did not appear that any windows were broken. Thus, it appeared

that the pieces of wood placed over the windows were removed and the pieces of

drywall that were previously inside the house were removed from the house by

someone who was able to enter the house by opening one of the locked doors with

a key. This caught my attention because there are three doors through which the

house can be entered. All three doors have locks. It is my understanding that the

Servicing Officer who filed the return on the Writ of Possession entered in this

action (the “Writ of Possession”) changed the locks on one of the three doors in

the course of executing the Writ of Possession. It is my further understanding that

the Sheriff did not change the locks to the other two doors, and that KS has not

changed the locks on those two doors since possession of the Property was

returned to KS.

8.

At approximately 11:30 a.m. on March 5, 2013, Jeffrey Vegas (“Mr.

Vegas”) and Kerena Esera-Vegas (“Mrs. Vegas”) (collectively the “Vegases”)

arrived at the Property while Mr. Gray and I were still there. I am familiar with the

Vegases so I recognized them when they arrived.

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 18 of 90

4

 

9. When she arrived at the Property, Mrs. Vegas said hi to me and asked

what I was doing at the Property. I responded by asking Mrs. Vegas the same

question. Approximately ten minutes after the Vegases arrived at the Property, a

police officer arrived.

10. There was a lengthy discussion between and among the Vegases,

Todd Gray, and myself in the presence of the police officer who arrived at the

Property. Some, but not all, of the items discussed in the presence of the police

officer are described in the balance of this declaration.

11. During our discussion, Mrs. Vegas stated that the federal court ruled

that the Property was given back to the Vegases. I stated to Mrs. Vegas that, to the

best of my knowledge, that was not the case and that, as far as I was aware, KS still

had the legal right to possession of the Property.

12. Mrs. Vegas stated that I should be aware about it because KS’

attorney was at court when the ruling was made. According to Mrs. Vegas “he [the

KS attorney] objected and the court denied.” I asked the Vegases to describe the

KS attorney. They said he was a light skinned attorney. I clarified if they meant

fair skinned. They said yes, and that he was not too tall. Mr. Vegas stated that he

had a Chinese last name. This prompted me to ask if the attorney’s name was

Dennis Chong Kee. Mr. Vegas said yes.

U.S. Bankruptcy Court - Hawaii #12-02080 Dkt # 67 Filed 03/12/13 Page 19 of 90

5

 

13. Mrs. Vegas stated to the police officer that she wanted to press

charges against KS for trespassing on the Property and stealing items that were left

in the house on the Property.

14.

I stated to the police officer that when the sheriff executed the writ of

possession covering the Property, the Vegases were given sufficient time to

remove the items from the Property that they wanted. The Vegases were informed

that everything they left on the Property would be considered junk and may be

disposed of. Attached to this Declaration as Exhibit “1” is a true and correct copy

of materials provided to the attorneys for KS by the Serving Officer, which

materials contain a document signed by the Vegases relating to belongings left on

the Property after August 9, 2012.

15. The Vegases informed the police officer that they cut the locks placed

by KS on the Entrance Gate. They said that they cut the locks to enter the Property

to clean it up because it was given back to them.

16.

In the presence of the police officer, Mrs. Vegas also complained that

KS removed a notice that she placed on the residence on the Property. I recall that

a notice was placed on the residential structure on the property sometime in or

about October 2012. A copy of the notice found and removed by KS is attached

hereto as Exhibit “2.” This occurred before KS installed the Entrance Gate to

secure the Property in or about November 2012. It is my understanding that the

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UNITED STATES BANKRUPTCY COURT



DISTRICT OF HAWAII


In re

KERENAKUPU ESERA-VEGAS aka
KERENA VEGAS,

Case No. 12-02080
(Chapter 13)













Debtor.

DECLARATION OF SUSAN TIUS; EXHIBITS “3” – “8”




I, SUSAN TIUS, do hereby declare under penalty of law that the following

is true and correct:



1.

I am one of the attorneys for TRUSTEES UNDER THE WILL AND

OF THE ESTATE OF BERNICE PAUAHI BISHOP, DECEASED, also known as

KAMEHAMEHA SCHOOLS (“KS”), have personal knowledge of facts stated in

this Declaration and if called as a witness in this action, I could and would testify

to all matters set forth herein of my own knowledge.



2.

In the case entitled Trustees Under the Will and of the Estate of

Bernice Pauahi Bishop, also known as Kamehameha Schools v. Jeffrey Vegas, et

al., Civ. No. 09-1-1074-05, in the Circuit Court of the First Circuit, State of Hawaii

(“State Court Action”), KS was awarded summary judgment on June 20, 2012

against KERENAKUPU ESERA-VEGAS (“Debtor”), the Debtor herein, and

JEFFREY VEGAS (“Codebtor”), Debtor’s spouse who is not in bankruptcy. The

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Circuit Court entered (1) Findings of Fact; Conclusions of Law; Order Granting

Plaintiffs’ Motion for Summary Judgment as Against All Defendants filed on

November 8, 2010, (2) Judgment, and (30) Writ of Possession (collectively, “June

20, 2012 Orders”).

3.

There was no appeal of the June 20, 2012 Orders by the Debtor or

Codebtor.

4.

The June 20, 2012 Orders are final.

5. On February 28, 2013, this Court entered an Order Confirming

Chapter 13 Plan in Debtor’s case. On February 21, 2013, at the confirmation

hearing, the Trustee and Debtor’s counsel in arguments to the Court, represented

that, regardless of the matters in KS’ Objection, the only significant point was that

the Plan was fully paid and any recovery in the State Court litigation would be paid

to the Trustee for administration through the Plan.

6. On March 5, 2013, KS’ counsel contacted Debtor’s counsel regarding

Debtor’s unlawful actions at the Property.

7. Debtor’s counsel informs KS’ counsel that he had not told the Debtor

that she had any rights in the Property, but only that: (1) there is an automatic stay;

and (2) state law controls.

8. Attached hereto as Exhibit “3” is a true and correct copy of Findings

of Fact; Conclusions of Law; Order Granting Plaintiffs’ Motion for Summary

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Judgment Against All Defendants Filed on November 8, 2011; Exhibit “A”, filed

June 20, 2012, in the State Court Action.

9.

Attached hereto as Exhibit “4” is a true and correct copy of the

Judgment filed on June 20, 2012 in the State Court Action.

10. Attached hereto as Exhibit “5” is a true and correct copy of the Writ

of Possession; Return of Writ of Possession reflecting that possession of the

Property was surrendered to KS executed on August 13, 2012 in the State Court

Action.

11. Attached hereto as Exhibit “6” is a true and correct copy of the Order

Confirming Chapter 13 Plan entered herein on February 28, 2013.

12. Attached hereto as Exhibit “7” is a true and correct copy of KS’

Objection to Chapter 13 Plan or Plan Motion filed herein on January 25, 2013.

13. Attached hereto as Exhibit “8” is a true and correct copy of the

Docket for the State Court Action.



I declare under penalty of perjury under the laws of the State of Hawaii and

the United States that the foregoing is true and correct. Executed this 12th day of

March 2013, at Honolulu, Hawaii.


















/s/Susan Tius


SUSAN TIUS]







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