David C. Farmer vs. Harmon - Witness SUSAN TIUS

Susan Tius was the attorney for Kamehameha Schools in Defendant’s Ch. 7 Bankruptcy Case No. 99-04339. Susan Tius is the wife of Guido Giacometti, former principal executive of Kamehameha Schools/Bishop Estate and co-witness with Defendant in EQ2048.

Susan Tius is also the attorney for Trustee James B. Nicholson in Robin Harry & Yvonne Tavares, Case No. 04-03035, ADV: 1006090036, James B. Nicholson vs Arthur Charles McGuire, which creates a direct conflict of interest in the instant case.

NEW DISCOVERY (11-24-08): New Exhibit: “EQ 2048 - Deposition of Lokelani Lindsey taken on November 4 & 9, 1999". This document provides clear evidence that J. Douglas Ing had multiple conflicts-of-interest in this case and, since he was not a named Defendant in my RICO lawsuit against the former Trustees, he was not a legitimate signatory to the Settlement Agreement: Furthermore, since the Settlement Agreement was NOT SIGNED by any of the five Trustees actually named as Defendants, the Settlement Agreement was not legal or valid. (See Exhibit A)

NEW DISCOVERY (07-18-08): Undisclosed professional conflicts of interests with Defendant’s attorney, Bradley Tamm, and attorneys representing parties involved in Harmon’s RICO lawsuit and EQ2048; breach of attorney-client privilege confidentiality rules:

Current members of the Bankruptcy Mediation Panel are listed below. Applications for appointment to the panel will be accepted on a continuing basis.
Ryther L. Barbin, Esq. Louis L. C. Chang, Esq. Robert E. Chapman, Esq. Chuck C. Choi, Esq. Harrison P. Chung, Esq. Charles W. Crumpton, Esq. Nicholas C. Dreher, Esq. James N. Duca, Esq. Don Jeffrey Gelber, Esq. Steven Guttman, Esq. Owen H. Hellekson, Jr., Esq.	Simon Klevansky, Esq. Ronald K. Kotoshirodo, Esq. Colin K. Kurata, Esq. Remy Luria, Esq. Alan J. Ma, Esq. Michael F. Nauyokas, Esq. William J. Plum, Esq. Bradley Tamm, Esq. Susan Tius, Esq. James A. Wagner, Esq. Thomas J. Wong, Esq.
LBR 9019-2. ALTERNATIVE DISPUTE RESOLUTION (a) Purpose and Scope. To facilitate the voluntary resolution of adversary proceedings and contested matters, the Bankruptcy Court is authorized to establish guidelines for court-sponsored Bankruptcy Alternative Dispute Resolution (“BDR”) procedures. This rule does not preclude parties from participating in the alternative dispute resolution (“ADR”) procedures implemented under LR 16.11 or in any other ADR process. (b) Program Administration. (1) Bankruptcy Mediation Committee. The court may establish a Bankruptcy Mediation Committee to formulate guidelines for BDR procedures and the selection, training and evaluation of individuals to serve on a Mediator Panel. (2) BDR Administrator. The court may appoint a BDR Administrator to administer the BDR program and to serve as liaison between the court and the Bankruptcy Mediation Committee. (3) Bankruptcy Mediator Panel. The BDR Administrator shall publish and maintain a list of qualified individuals approved by the court to serve as members of a Bankruptcy Mediator Panel. Individuals selected to serve on the panel may be required to provide a minimum amount of service without compensation. (c) Confidentiality. (1) Except as otherwise provided by this rule or applicable law, any and all communications made in connection with any mediation under this rule shall be subject to Rule 408 of the Federal Rules of Evidence. (2) Mediators and parties shall not communicate with the court about the substance of any position, offer or other matter in the mediation without the consent of all parties, unless such disclosure is required to enforce a settlement agreement or to provide evidence in an attorney disciplinary proceeding, but only to the extent required to accomplish that purpose. (d) Immunity of Mediators. All persons serving as mediators under this rule shall be deemed to be performing quasi-judicial functions and shall be entitled to all of the privileges, immunities and protections that the applicable law accords to persons serving in such capacity.
12/19/2002

03/30/02

Letter from Harmon to Bradley Tamm re Ch 7 Case 99-04339

www.kycbs.net/Claim-Tamm-3-30-2.htm

www.kycbs.net/Claims-Branch-Dunn-Tamm.htm

04/06/02

Fax from Harmon’s attorney, Bradley Tamm, to Steven Guttman, Matt Tsukazaki, and Susan Tius requesting that these parties “SHOULD ALL COOPERATE IN EXCHANGING SUCH INFORMATION FOR OUR MUTUAL BENEFIT AND THE PRESERVATION OF OUR CARRIER’S INTERESTS.” This is indisputable evidence of violation of attorney-client privilege and conspiracy to commit fraud.

www.kycbs.net/Claim-Tamm-4-6-2.pdf

NEW DISCOVERY (02-09-08): Kamehameha Schools made a “confidential” settlement agreement with the plaintiff in the John Doe vs. Kamehameha Schools case, which my former attorney, John Goemans, Esq., says, according to what he has learned from the IRS, violates the rules for a non-profit charitable trust:

An attorney involved in a challenge to Kamehameha Schools' Hawaiians-only policy reveals the amount of a settlement

Kamehameha Schools made the first move to settle a legal challenge to their admissions policy giving preference to native Hawaiians and later agreed to pay $7 million, a lawyer involved in the case said yesterday.

John Goemans, an attorney for an unnamed non-native Hawaiian student who filed a lawsuit contesting the policy, said the charitable trust offered for the first time to talk about an out-of-court settlement last May, just days before the U.S. Supreme Court was to decide whether to hear the case.

Goemans, a former Big Island attorney recuperating in Florida from heart surgery, and Sacramento, Calif., lawyer Eric Grant, the lead attorney, represented the unnamed student and his mother.

"They (the schools) approached Eric and said we wanted to settle and we have to settle by Friday morning," when it was believed the high court was to make a decision about accepting the case, Goemans said.

He said it appeared the high court would accept their appeal of an 8-7 decision by the 9th U.S. Circuit Court of Appeals that upheld the policy.

"They (the schools) were worried about losing in the Supreme Court," Goemans said.

Goemans said he did not know how Grant and the Kamehameha Schools arrived at the $7 million figure.

The hotly disputed federal civil rights lawsuit caused a firestorm of controversy among Kamehameha Schools supporters who believed the challenge struck at the more than century-old admissions policy and the heart of the charitable trust's mission to educate children of Hawaiian ancestry.

The confidential settlement was announced on May 14. Those connected with the case repeatedly refused to disclose the terms.

Goemans said he was disclosing the amount because he said he recently learned from Internal Revenue Service officials that Kamehameha Schools, a tax-exempt charitable trust, cannot keep the figure confidential.

"Because exempt organizations operate in the public good, you got to report all your expenses with particularity, and you cannot keep information relative to those expenses confidential," he said. "It's in the public interest to have full disclosure."

Ann Botticelli, Kamehameha Schools spokeswoman, said yesterday the settlement contained a confidentiality clause.

"We intend to honor the terms, and we will not be discussing the settlement or John Goemans' assertions," she said.

Kamehameha Schools, a multibillion-dollar charitable trust and the state's largest private landowner, was established under the 1883 will of Princess Bernice Pauahi Bishop. It educates more than 6,700 students at its flagship campus at Kapalama Heights, two other campuses on Maui and the Big Island, and 31 preschools throughout the state.

Senior U.S. District Judge Alan Kay upheld the school's Hawaiians-first policy, but a panel of the appeals court in San Francisco ruled 2-1 that the practice violated federal civil rights laws. That decision triggered statewide protests and marches by school supporters.

It was an appeal by Grant of that 8-7 ruling that was on the doorsteps of the U.S. Supreme Court when the settlement was announced.

At the time, school officials indicated that the settlement calling for the dismissal of the lawsuit leaves intact the appeals court's 8-7 decision upholding the admissions policy.

But the dismissal does not guarantee that another lawsuit might surface and make its way to the high court, although it would first have to go through the federal trial and appeals courts, where the 8-7 ruling would be considered to be binding on the issue. But even if those who file the new lawsuit lose on those two levels, they could still ask the high court to review the case.

Honolulu attorney David Rosen said he has plaintiffs for a lawsuit to challenge the admissions policy. He said the settlement does not affect his case. Rosen said he expects the suit will be filed this year.

Goemans said Grant received 40 percent, or $2.8 million of the $7 million. Goemans said he is preparing to file his own lawsuit seeking to recover a "reasonable percentage" of the $7 million for his work in the case.

Goemans said he found the unnamed student and arranged for Grant to be the attorney for the student and his mother.

"I put the whole thing together," Goemans said. "But for me there would not have been a $7 million payment."

The student never was admitted to Kamehameha Schools because his case was pending. He has since graduated from high school and had been attending college, Grant said last year.

Supporters and critics expressed surprise yesterday at the $7 million Kamehameha Schools paid a student to settle a lawsuit disputing its Hawaiians-first admission policy.

One Kamehameha Schools alumnus says disclosure of the settlement with the anonymous, non-Hawaiian student will prompt questions among Hawaiians.

"I'm not happy with $7 million," said Kamehameha Schools alumnus Jan E. Hanohano Dill. "Unfortunately, that's a lot of money, and it's going to create a lot of questions in the Hawaiian community whether it was right or wrong and to continue."

Dill, also a board member of Na Pua a Ke Ali'i Pauahi, a nonprofit group whose members include students, parents, and alumni of Kamehameha Schools, said he continues to support the school's decision.

"I don't know the details, and I think that's something that has to be cleared," he said. "You settle because you want to avoid costs that would be incurred as you go forward."

He added, "I have to believe that they understood that this was something good for the Hawaiian people. ... It will be clear as things unfold whether that was true."

Dill, who is also president of the nonprofit Partners in Development Foundation, said the admissions policy must eventually be addressed and that the settlement avoids this case but does not stop other cases.

Marion Joy, former vice president of Na Pua, called the settlement a "misuse of trust funds."

"The trust is continually going to be challenged," she said. "This is not going to be the last. ... As far as settling for the particular lawsuit, it's not in the best interests of the beneficiaries (of the 1883 will of Princess Bernice Pauahi Bishop)."

Honolulu attorney David Rosen, who has sought potential clients to sue Kamehameha over its admissions policy after the settlement, sent out a statement yesterday that said the $7 million settlement was used to "buy off this case."

He added that the trustees should open a campus on the Leeward Coast of Oahu and possibly Molokai where increased educational opportunities are needed.

H. William Burgess, a retired attorney and founder of Aloha for All, a group opposed to Hawaiian sovereignty, said the settlement raises questions about the proper use of the trust funds.

"Normally, trustees, if they're doubtful about doing something, they ask the court to give them instructions," he said. "Yet in this case, the biggest charitable trust, probably in the nation, instead of welcoming the opportunity to get the highest court in the land to settle it, they pay $7 million to leave it open. And it is very much open."

The Wise Old Owl asks: How much of the settlement amount came from Kamehameha’s insurance companies, and how much came from the trust funds? How much did Kamehameha Schools (and/or their insurance company) spend for defense costs in this case before they decided to settle? Who is their insurance company? Their insurance broker? Who actually signed the Settlement Agreement?

WASHINGTON, D.C.--The United States Trustee Program has launched an initiative to more aggressively use existing civil enforcement methods to curb abuse of the bankruptcy system, Martha Davis, Acting Director of the Executive Office for United States Trustees, announced today.

"Effective case administration is vital to ensure the American public that the bankruptcy system provides relief for honest but unfortunate debtors overcome by serious financial difficulties," Davis stated. "The Civil Enforcement Initiative emanates from the U.S. Trustee Program's long-standing commitment to enforce the Nation's bankruptcy laws and explore other meaningful strategies to bolster public confidence in the integrity and effectiveness of the bankruptcy system."

"The priorities of the initiative will require a concerted effort nationwide to use existing tools in a way that best accomplishes tangible results and improvements for case administration," Davis continued. "Many of our offices use such strategies today and we hope to build upon their experience. By focusing our resources on these priorities, we also seek to address some of the concerns that have been at the forefront of debate in recent years both before Congress and in other public venues. In the end, this is very much a community effort that will require communication and cooperation with private bankruptcy trustees and with the bankruptcy bench and bar."

Ensuring that Chapter 7 is not abused and that Chapter 7 debtors are held accountable.

Chapter 7 debtors who do not comply with the law will have their cases converted or dismissed, or their bankruptcy discharges denied or revoked. Enforcement measures include motions to dismiss Chapter 7 cases under 11 U.S.C. §§ 707(a) and 707(b), and complaints to bar or defer discharge under 11 U.S.C. § 727.

Protecting consumer debtors, creditors, and others who are victimized by those who mislead or misinform debtors, make false representations in connection with a bankruptcy case, or otherwise abuse the bankruptcy process.

Attorneys and bankruptcy petition preparers (non-attorneys who prepare bankruptcy documents for a fee) must engage in full disclosure, be free of conflicts of interest, and engage in ethical practices. Enforcement measures include motions for sanctions, contempt of court, and disgorgement under 11 U.S.C. § 329 for misconduct by attorneys, and complaints and motions under 11 U.S.C. § 110 for misconduct by bankruptcy petition preparers....

Fighting fraud and abuse by making criminal referrals and assisting United States Attorneys in criminal prosecutions.

The U.S. Trustee Program is a component of the Justice Department that oversees the administration of bankruptcy cases and intervenes in court to enforce the bankruptcy laws. There are 21 regions in the Program, each headed by a U.S. Trustee appointed by the Attorney General.

The Civil Enforcement Initiative took effect Oct. 1, 2001, with the start of the federal government's 2002 fiscal year. Previous U.S. Trustee Program initiatives have focused on issues such as enhancing the supervision of private trustees who administer Chapter 7 bankruptcy cases, increasing the efficiency and speed of Chapter 7 case administration....

The parade of lawyers attending the bankruptcy court auction was a sure sign that the proposed sale of the 413-room Embassy Suites Resort would be anything but routine.

During the past six months, the Maui luxury hotel has been the scene of a legal battle royale, pitting its local partner against its Japan-based lender and partners. The fracas has also included allegations of fraud and mismanagement.

At one point, a federal bankruptcy judge authorized the sale of the hotel only to withdraw the order last month. The hotel has remained open throughout the legal battle.

"There are big stakes at issue here," said Curtis Ching, a courtroom observer and attorney with the Office of the U.S. Trustee, the federal agency that oversees bankruptcy cases.

In many ways, the Embassy Suites saga reads like a postscript to the boom-and-bust cycle of Japanese investment in Hawaii over the past decade.

Financed by Japanese banks, the 12-story Kaanapali oceanfront resort was built in 1988 for $90 million. It sold seven months later year to Japan-based Abe International Ventures Hawaii Corp. for $151.2 million.

The current owners, Resort Suites of Maui Inc., took over the property in 1992 from Abe for $92 million. Resort Suites, a partnership of eight companies, filed for Chapter 11 reorganization bankruptcy May 2 with debts of $151 million and assets of $80 million, amid mounting litigation.

Most of the hotel owner's debts are owed to lender Mitsui Trust & Banking Co., whose affiliate Mitsui Leasing holds a 9 percent stake in Resort Suites.

Much of the dispute centers on the partners' complicated and conflicting attempts to buy and sell the hotel.

The general partner, isle developer Mike McCormack's MTM Resort Suites Ltd., said it offered to buy the hotel with Chicago-based Trinity Investment Trust L.L.C. in February for $76 million but the proposal was rejected by Resort Suites' Japan-based partners.

The following month, the Japanese partners agreed to sell the hotel for $72 million to a company known as Eskimau Inc. Eskimau is controlled by trading giant Itochu Corp. which also controls J.C. Kaanapali, one of the hotel's limited partners, according to MTM.

Eskimau, in turn, tried to sell the hotel for an undisclosed price to another company, West Maui Partners L.P., which is headed by former Haseko Hawaii Inc. executive Sam Kaneko.

The deal prompted the McCormack group in April to sue Itochu and hotel limited partner J.L. Wilmington Corp. in Maui Circuit Court, alleging the two companies interfered with MTM's right to buy the hotel.

The suit, which has been moved to federal court in Honolulu, also charged that a representative of J.L. Wilmington fraudulently assured the McCormack group that they would be given a fair chance to bid on the hotel.

J.L. Wilmington denied any wrongdoing, saying in bankruptcy court documents that MTM is motivated by "simple greed." The company and lender Mitsui Trust & Banking Co. also alleged in bankruptcy court that MTM mismanaged the hotel's assets through unauthorized payments to itself prior to the bankruptcy filing.

Complicating matters, West Maui Partners sued MTM and McCormack for allegedly interfering with its attempt to buy the hotel.

The charges and counter charges came as the federal Bankruptcy Court held an auction on the hotel May 21. Outbidding three competitors, Mitsui offered $78 million but later said that it agreed to resell the hotel to Eskimau for an undisclosed amount. In a rare move for bankruptcy court, Judge Lloyd King last month withdrew the sale order.

MTM attorney Ronald Orr said he now believes that any sale of the hotel won't be completed until early next year to make way for the litigation.

Although the hotel is paying its employees for their wages and benefits, it is not paying its debts to small creditors such as caterers and service vendors due to a ruling by the bankruptcy court, said Susan Tius, the attorney for the unsecured creditors.

"It's unfair that they should be singled out for nonpayment," said Tius. "There is money."

Owner: Resort Suites of Maui
Built: 1988
Cost: $90 million
Rooms: 413
Employees: 400
General partner:
MTM Resort Suites Ltd., 10 percent interest.
Limited partners:
KJ Capital Management Inc., 18 percent interest.
ILC (Hawaii) Corp., 18 percent.
JL Wilmington Corp., 18 percent.
Mitsui Leasing (U.S.A.) Inc., 9 percent.
NED Second Investment Inc., 9 percent.
SL Development Inc., 9 percent.
J.C. Kaanapali Inc., 9 percent.