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FOR PUBLICATION

IN THE SUPERIOR COURTOF THE

COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

CHUO MITSUI TRUST & BANKING CO.,LTD., and THE RESOLUTION ANDCOLLECTION CORPORATION,

Plaintiffs, v.

ANTONIO S. GUERRERO, RITA C.GUERRERO, TAGA BEACH RESORT, LTD.,and TINIAN MARINE RESORT, LTD.,

Defendants._____________________________________

))))))))))))))

CIVIL ACTION NO. 00-0279D

ORDER FOLLOWING ORAL RULINGGRANTING MOTION TO STRIKE ANDFOR SANCTIONS, AND MOTION FORSUMMARY JUDGMENT

I. INTRODUCTION

THIS MATTER came before the Court on June 10, 2002, in Courtroom 205A at 10:00 a.m.

on Plaintiffs’ Motion to Strike Affidavit of Antonio S. Guerrero and Exhibits Thereto, and for Sanctions,

and for Motion for Summary Judgment. Bruce L. Mailman, Esq. appeared on behalf of Chuo Mitsui Trust

& Banking Co., Ltd., et al., (“Plaintiffs”). Perry B. Inos, Esq. appeared on behalf of Antonio S. Guerrero,

et al., (“Defendants”). The Court, having reviewed the documents on file, having heard the arguments of

counsels, and being fully advised, now renders its written decision following its oral ruling of June 10, 2002.

II. BACKGROUND

Plaintiffs, Chuo-Mitsui Trust & Banking Co., Ltd. (“Chuo-Mitsui”) and The Resolution and Collection

Corporation (“RCC”), allege that Antonio S. Guerrero (“A. S. Guerrero”) defaulted on each of two

promissory notes made by him in the principal amount of $53 million, plus interest at 8% per annum from

the date of execution: (a) a Promissory Note executed by him on or about December 7, 1990 (individually,

“the 1990 Note”), and (b) a subsequent “Replacement Promissory Note” dated June 16, 1994,

(individually, “the 1994 Note”) (collectively, “the Notes” or “the Loan”). The 1990 Note was due on or

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1 On or about June 16, 1994, concurrently with the 1994 Note, defendant A. S. Guerrero and Highness Kosanexecuted an Amendment to Loan Agreement, which was recorded first on June 17, 1994 as file no. 94-1646, and re-recorded on July 11, 1994 as file no. 94-1866. The Amendment to Loan Agreement specifies that the repayment datefor the Loan is extended to December 30, 1994, and requires A. S. Guerrero to execute the 1994 Note.

2 The 034 T 03 Lease was executed on or about February 17, 1989 and recorded as file 89-1138 at the office of theCommonwealth Recorder, Saipan; a First Amendment to Ground Lease Agreement was executed on or about May 22,1989 and recorded as file no. 89-1635. The 034 T 03 Lease was assigned (or assigned in part) to Tinian ResortDevelopment Corporation, one of the corporations referenced in the Loan Agreement, by A. S. Guerrero on

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about June 18, 1994; the 1994 Note purported to extend the due date of the 1990 Note to December 30,

1994 at 8% per annum interest from June 19, 1991, without otherwise changing the amount or terms of

the Loan. The 1990 Note was in favor of Highness Marianas, Ltd. (“Highness Marianas”), a CNMI

corporation wholly owned or controlled by a Japanese corporation, Highness Kosan Co., Inc. (“Highness

Kosan”). The 1990 Note was assigned to Highness Kosan on July 31, 1991, and the 1994 Note was

made in favor of Highness Kosan.

On or about December 7, 1990, concurrently with the 1990 Note, Highness Marianas (as lender) and

A. S. Guerrero (as borrower), and Tinian Marine Resort, Ltd. (“Tinian Marine”) and Taga Beach Resort,

Ltd. (“Taga Beach”) (as guarantors), executed a Loan Agreement (“the Loan Agreement”) setting out the

terms and conditions of the Loan. Most pertinent to Plaintiffs’ motion for summary judgment are the

following numbered sections: section 1 (loan amount of $53 million), section 2 (draw down date within two

months of execution), section 3 (interest at 8% per annum), section 5 (repayment date June 18, 1994),

section 7 (loan to be secured by mortgage on lease held by defendant A. S. Guerrero on Lot 034 T 03,

Tinian, “and such other security as the Lender may reasonably require”) and section 8 (guarantee of

payment of the loan by guarantors; guarantee secured by mortgage of 42 of the parcels of Tinian real

property listed herein, below).1

On or about July 18, 1991, several transactions were completed to secure the Loan, as required by

the Loan Agreement:

(a) On or about that date, A. S. Guerrero and Rita C. Guerrero (“R. C. Guerrero”) executed that

certain Leasehold Mortgage of Real Property (“the Guerrero Mortgage”), encumbering the Guerrero

Defendants’ leasehold interest in Lot 034 T 03, Tinian; they had acquired that interest pursuant to a Ground

Lease Agreement (“the 034 T 03 Lease”) between Herman M. Mangloña as lessor and A. S. Guerrero

as lessee.2 The Guerrero Mortgage was recorded as file no. 91-3410;

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December 7, 1990 for a stated price of $6 million; the assignment was recorded as file no. 91-685. That assignmentwas rescinded on or about June 19, 1991, and rescission was recorded as file no 91-2934. At the time of the GuerreroMortgage, the Guerrero Defendants were once again the sole lessees under the 034 T 03 Lease.

3 On or about December 7, 1990, concurrently with the 1990 Note and the Loan Agreement, A. S. Guerrero, as lessor,leased these 62 other Tinian properties, including those properties listed in the Loan Agreement, to Tinian ResortDevelopment Corporation. That lease was rescinded on or about June 19, 1991; the rescission was recorded as fileno 91-2933.

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(b) A. S. Guerrero and R. C. Guerrero executed the Guerrero Mortgage the same time A. S.

Guerrero leased 62 other Tinian properties3 to Tinian Marine (“the Tinian Marine Lease”), and Tinian

Marine executed a Leasehold Mortgage of Real Property (“the Tinian Marine Mortgage”) in favor of

Highness Marianas. The Tinian Marine Lease was recorded as file no. 91-3409, and the Tinian Marine

Mortgage was recorded as file no. 91-3411.

On or about July 31, 1991, Highness Marianas and Highness Kosan made several assignments of their

respective interests in the Loan Agreement, the Notes and the Mortgages:

(a) By unrecorded assignments, Highness Marianas assigned its interest on the Loan Agreement to

Highness Kosan, which in turn assigned that interest to the Mitsui Trust and Banking Co., Ltd. and the

Long-Term Credit Bank of Japan, Ltd. (now Shinsei Bank), Plaintiffs’ immediate predecessors in interest;

(b) At the same time, Highness Marianas assigned the Guerrero Mortgage to Highness Kosan; the

assignment was recorded as file no. 91-3636. By an Assignment of Mortgage the same date, Highness

Kosan in turn assigned the Guerrero Mortgage to The Mitsui Trust & Banking Co., Ltd. and The Long-

Term Credit Bank of Japan, Ltd. That Assignment of Mortgage was originally recorded on August 7, 1991

as file no 91-3637, and was then re-acknowledged and re-recorded on August 27, 1991 as file no. 91-

3888; and

(c) Also at the same time, Highness Marianas assigned the Tinian Marine Mortgage to Highness

Kosan; the assignment was originally recorded August 7, 1991 with the erroneous file no. 91-3636, and

was later re-recorded as file no. 91-4047. By an Assignment of Mortgage also dated July 31, 1991,

Highness Kosan in turn assigned the Tinian Marine Mortgage to The Mitsui Trust & Banking Co., Ltd. and

The Long-Term Credit Bank of Japan, Ltd. That Assignment of Mortgage was recorded as file no. 91-

4048.

On or about August 16, 1999, acting pursuant to provisions of Japanese law, The Long-Term Credit

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284 The assignments were additionally recorded by filing of a Form UCC-1 as file no. 99-732, book 1, page 32 of UCCfilings.

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Bank of Japan, Ltd. assigned its interest in the Loan Agreement, the Amendment to Loan Agreement, the

1990 Note, the 1994 Note, the Guerrero Mortgage and the Tinian Marine Mortgage to Plaintiff The

Resolution and Collection Corporation, a Japanese corporation similar in purpose and duties to the

Resolution Trust Corporation in the United States. Additionally, the parties to the assignment provided

notice of the assignment to Defendants in this action. The Assignment of Loan Agreement and Guaranty,

the Assignment of Mortgages of Real Property and the Notice of Assignment of Loan Agreement and

Guaranty and of Leasehold Mortgages of Real Property, were recorded August 24, 1999 as file nos. 99-

2017, 99-2018 and 99-2025, respectively.4

On or about April 1, 2000, The Mitsui Trust & Banking Co., Ltd. and another Japanese corporation,

Chuo Trust Bank, merged to form plaintiff Chuo-Mitsui.

Plaintiffs allege that A.S. Guerrero defaulted on the Notes, that Tinian Marine and Taga Beach

defaulted on their guarantees, and that none of the Defendants ever paid anything on the Notes. Plaintiffs

served notices of default on all Defendants, as required by 2 CMC § 4534, on or about May 31, 2000.

Plaintiffs filed their original complaint on June 16, 2000, and filed their First Amended Complaint on July

3, 2000. All Defendants were served with the First Amended Complaint and summons thereon on July

5, 2000. Defendants filed their answer on August 9, 2000.

On June 4, 2001, after protracted discussions failed to produce a settlement, Plaintiffs served on each

Defendant interrogatories pursuant to Com. R. Civ. P. 33, and requests for production of documents and

things pursuant to Com. R. Civ.P. 34. Defendants’ responses to Plaintiffs’ discovery requests were due

July 20, 2001, by stipulated extension of time. On July 17, 2001, Defendants substituted new counsel in

place of their original attorneys. On Defendants’ motion, the Court extended Defendants’ discovery

response due dates to August 7, 2001. Three Defendants met that deadline; defendant Taga Beach’s

discovery responses were not served until August 15, 2001. Plaintiffs moved for summary judgment on

March 13, 2002, and Defendants’ opposition memorandum was due by stipulated extension on April 5,

2002. Defendants’ opposition for summary judgment was supported by an affidavit of A.S. Guerrero, and

an exhibit. On April 15, 2002 Plaintiffs moved to strike both the affidavit and the exhibit, and to deny

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285 Each finding of fact equally applicable as a conclusion of law is hereby adopted as such, and the converse is alsoadopted as such.

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Defendants’ request for leave to conduct the deposition of potential witness Tadao Teramoto, a resident

of Japan. At a hearing on April 29, 2002, the Court found the A.S. Guerrero affidavit inadequate, both

as originally presented and also as in a modified form attached to Defendants’ opposition to Plaintiffs’

motion to strike, but granted Defendants leave to file an amended affidavit and required Defendants to

supplement the exhibit to the affidavit, and also allowed a period of time for the deposition of Mr.

Teramoto.

Defendants again attempted to cure the inadequate A. S. Guerrero affidavit, and to re-submit and re-

characterize their exhibits. Defendants neither noticed nor took the deposition of Mr. Teramoto. After

additional hearings on May 23 and June 10, 2002, the Court granted Plaintiffs’ motion to strike, and

granted Plaintiffs’ motion for summary judgment.

Although Defendants’ answer to Plaintiffs’ first amended complaint contains numerous denials

and affirmative defenses, in opposing summary judgment, Defendants did little more than assert that

a joint venture existed between Highness Marianas and A.S. Guerrero, and that therefore Plaintiffs were

not entitled to judgment. Defendants’ defenses will be dealt with in more detail below.

III. UNDISPUTED FACTS

The Court finds that there is no genuine issue as to the following facts:5

1. A. S. Guerrero executed the 1990 Note. The original repayment date of the 1990 Note was

June 18, 1994. See First Am. Compl. Ex. A; Aff. of Akihiko Yagyu Ex. A; Pls.’ First Am. Compl. ¶ 5;

Answer ¶ 1.

2. Highness Marianas as lender, defendant A. S. Guerrero as borrower, and defendants

Tinian Marine and Taga Beach as guarantors each executed the Loan Agreement. The repayment

date stated in the Loan Agreement was June 18, 1994. See First Am. Compl. Ex. C; Pls.’ Mot. for

Summ. J. Against All Defs.; Statement of Undisputed Facts; Mem. of P. & A.; and Ex. in Supp.

Thereof (“Pls.’ MSJ”) Ex. Q; Aff. of Akihiko Yagyu Ex. C.

3. A. S. Guerrero executed the 1994 Note and the Amendment to Loan Agreement, the only

purpose of which was to extend the repayment date of the 1990 Note to December 30, 1994. See First

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Am. Compl. Ex. B; Pls.’ MSJ Ex. Q; Aff. of Akihiko Yagyu Ex. B; Pls.’ MSJ Ex. H; Answer ¶6.

4. A. S. Guerrero and R. C. Guerrero executed the Guerrero Mortgage. The Guerrero

Mortgage mortgaged the Guerrero defendants’ leasehold interest in Lot No. 034 T 03, Tinian, to secure

repayment of the 1990 Note. See First Am. Compl. Ex. D; Pls.’ MSJ Ex. Q; Aff. of Akihiko Yagyu Ex.

D.

5. Defendant Tinian Marine executed the Tinian Marine Mortgage. The Tinian Marine

Mortgage mortgaged defendant Tinian Marine’s leasehold interest in Lot Nos. 032 T 01; 031 T 06; 033

T 13, 033 T14 and 033 T 15 (originally part of Lot No. 033 T 02); 033 T 03 (originally A.H. 252); 033

T 01; 007 T 01 (also known as 331 T 01-3 R); 033 T 07; 041 T 01; 033 T 06; 036 T 05 (originally A.H.

184); 036 T 01 (originally H. 200); 034 T 08, 034 T 09, 034 T 10, 034 T 11, 034 T 12, 034 T 13, 034

T 14, 034 T 15, 034 T 18, 034 T 19, 034 T 34, 034 T 35, 034 T 36, 034 T 37, 034 T 40, 034 T 41, 034

T 42, 034 T 43, 034 T 45, 034 T 46, 034 T 47, 034 T 48, and 034 T 49 (parts of original Lot No. 034

T 01); 036 T 03 (originally A.H. 159); 032 T 04; 036 T 02; 036 T 16, 036 T 17, 036 T 18, 036 T 19,

036 T 20, 036 T 21, 036 T 22, 036 T 23, 036 T 24, 036 T 25, 036 T 26, 036 T 27, 036 T 28, 036 T

29, 036 T 30, 036 T 31, 036 T 32, 036 T 33, 036 T 34, and 036 T 35 (originally part of Lot No. 033 T

02); 036 T 04 (originally A.H. 147); 033 T 04 and 033 T 05; and 031 T 07, all as more particularly

described on Exhibit “A” to the Tinian Marine Mortgage. The purpose of the Tinian Marine Mortgage was

to secure repayment of the 1990 Note. See First Am. Compl. Ex. G; Pls.’ MSJ Ex. Q; Aff. of Akihiko

Yagyu Ex. G.

6. On or about July 31, 1991, Highness Marianas assigned its interest in the 1990 Note, the

Guerrero Mortgage and the Tinian Marine Mortgage to Highness Kosan. On or about the same date,

Highness Kosan assigned its interest in the 1990 Note, the Guerrero Mortgage and the Tinian Marine

Mortgage, to The Mitsui Trust & Banking Co., Ltd. (“MTB”) and The Long-Term Credit Bank of Japan,

Ltd. (“LTCB”). See Pls.’ MSJ Ex. I, J, K.

7. On or about August 16, 1999, LTCB assigned its interest in the Loan Agreement, the

Amendment to Loan Agreement, the Notes, the Guerrero Mortgage and the Tinian Marine Mortgage

to plaintiff The Resolution and Collection Corporation. See Pls.’ MSJ Ex. L.

8. On or about April 1, 2000, MTB and another Japanese corporation, Chuo Trust Bank,

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6 Taga Beach was administratively dissolved by the Registrar of Corporations on February 24, 1997, for failing totimely file annual corporation reports. Administrative dissolution did not relieve the corporation of its liabilities andresponsibilities, or render it immune from suit. 4 CMC § 4605.

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merged to form plaintiff Chuo Mitsui. See Pls.’ MSJ Ex. Q, Aff. of Akihiko Yagyu.

9. Tinian Marine and Taga Beach are both Commonwealth of the Northern Mariana

Islands domestic corporations.6 See Pls.’ MSJ Ex. Q, Aff. of Solidad B. Sasamoto.

10. The original amount of the Loan was $53 million. Interest has accrued on the Loan at the

rate of eight percent (8.0%) per year since December 7, 1990. See First Am. Compl. Ex. A, B.

11. None of Defendants, nor any other person, has paid anything toward satisfaction of the

Notes. Defendant A. S. Guerrero is in default on the Notes, and defendants Tinian Marine and Taga

Beach are in default on their respective guarantees, also described above. Plaintiffs have demonstrated that

the collateral mortgaged pursuant to each of the Guerrero Mortgage and Tinian Marine Mortgage is as

stated in the Complaint and the First Amended Complaint.

12. On or about May 31, 2000, Plaintiffs served notices of default on all Defendants as required

by 2 CMC § 4534. See First Am. Compl. Ex. E, F and H.

13. Both the Guerrero Mortgage and the Tinian Marine Mortgage provide for foreclosure of the

mortgaged collateral upon default. See First Am. Compl. Ex. D and G.

14. Each of the 1990 Note, the 1994 Note, the Guerrero Mortgage and the Tinian Marine

Mortgage provides for an award of attorney fees and costs as sought by Plaintiffs. See First Am. Compl.

Ex. A, B, D, and G.

15. Plaintiffs claim the following amounts due on the Notes, with interest calculated through June

9, 2002, the day before the final hearing on Plaintiffs’ motion for summary judgments:

(a) Amount due for principal US$ 53,000,000.00

(b) Amount due for interest as of June 9, 2002 US$ 48,823,891.08

Total due as of June 9, 2002: US$101,823,891.08

Daily accruing interest was calculated by the formula (US$53,000,000 x 8%)/365, rounded to the nearest

cent, or $11,616.44.

The Court finds that these amounts are correct, and that the total due and owing to Plaintiffs as

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of June 9, 2002 is US$101,823,891.08.

16. On July 25, 2002, Plaintiffs filed their overall bill of costs, claiming $66,256.83 for attorney

fees and $778.76 for costs of suit, on the same day. Plaintiffs have also submitted their bill of costs for

sanctions awarded with regard to bringing and prosecuting their motion to strike, in the amounts of

$11,287.59 for attorneys fees, with no separate itemization for chargeable costs. Although Plaintiffs’

attorneys fees and costs for the motion to strike are included in their overall bill of costs, Plaintiffs are

separately entitled to collect their sanction award, to the extent that such award is not satisfied as part of

Plaintiffs’ overall bill of costs. The Court approves Plaintiffs’ overall bill of costs, and Plaintiffs’ bill of costs

with regard to their motion to strike.

IV. QUESTIONS OF LAW PRESENTED

1. Motion to Strike, and for Sanctions. Whether the various affidavits and exhibits presented by

A. S. Guerrero meet the standards set by Com. R. Civ. P. 56(e); and whether the affidavits and exhibits

were presented in bad faith or solely for the purpose of delay, and are therefore sanctionable pursuant to

Com. R. Civ. P. 56(g).

2. Motion for Summary Judgment. Whether Defendants’ affirmative defenses render the Notes and

the Guerrero Mortgage and the Tinian Marine Mortgage void, voidable or unenforceable. More

specifically, the Court must determine whether Plaintiffs’ immediate predecessors in interest were holders

in due course of the Notes and the Mortgages, and whether Defendants may present parol evidence to

contradict the plain meaning of the Loan Agreement, the Amended Loan Agreement, Notes and the

Mortgages.

V. ANALYSIS

A. PLAINTIFFS’ MOTION TO STRIKE, AND FOR SANCTIONS.

Plaintiffs’ motion to strike, and for sanctions, was brought on the grounds (1) that the affidavit(s) of A.

S. Guerrero did not comply with the personal knowledge, admissibility or competency requirements of Rule

56(e); (2) that the exhibit(s) presented by defendants were not authenticated as required by Rule 56(e);

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and (3) that the exhibit(s) (in all three forms) flatly contradicted Defendants’ sworn discovery responses

made nearly eight months before. Plaintiffs asked for sanctions against Defendants pursuant to Rule 56(g),

for presenting their affidavits and exhibits in bad faith and solely for purposes of delay.

(1) The Three A. S. Guerrero Affidavits.

Com. R. Civ. P. 56(e) provides, in pertinent part: “[s]upporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters stated therein.”

Defendants presented the original affidavit of A. S. Guerrero as Exhibit A to their opposition to

summary judgment. In Defendants’ original Exhibit A, A. S. Guerrero states that he has “personal

knowledge of the statements herein, and if called to testified [sic], will truthfully state the same.” Leaving

aside whether “personal knowledge of the statements” is the same “personal knowledge” required by Rule

56(e), Defendant fails to completely and unequivocally state that he has personal knowledge of all matters

asserted by his declaration. Rather, what he declares under penalty of perjury is that “the foregoing

statements are true and correct to the best of my knowledge and belief . . . .” (Emphasis added).

The unanimous rule throughout the United States is that affidavits made on “belief” or “information

and belief” or, as in this case, “knowledge and belief,” do not comply with Rule 56(e). Automatic Radio

Mfg. Co., Inc. v. Hazeltine Research, Inc., 339 U.S. 827, 831; 70 S. Ct. 894, 896; 94 L. Ed. 1312,

1317 (1950); see also, e.g., Carey v. Beans, 500 F. Supp. 580, 583 (E.D. Pa.1980) (statements based

on information and belief are proper subjects of a motion to strike); Cermetek, Inc. v. Butler Avpak, Inc.,

573 F.2d 1370, 1376-77 (9th Cir. 1978); Wallace v. Chappell, 661 F.2d 729, 737 (9th Cir. 1981);

Devlin v. Sch. Comm. of the City of Chelsea, No. 88-6634-D, 90-7273-D, 1993 Mass. Super. LEXIS

144, at *2-4 (Mass. Super. July 2, 1993) (motion to strike is the proper device to raise insufficiency of

an affidavit submitted in opposition to summary judgment; portions of affidavits not made on personal

knowledge must be stricken); Ex parte Head, 572 So. 2d 1276, 1279 (Ala. 1990). The original A. S.

Guerrero affidavit also violates 7 CMC § 3305, which specifies the form for a declaration under penalty

of perjury:

§ 3305. Declaration Under Penalty of Perjury.

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7 The relevant portions of 28 U.S.C. § 1746 (2002) are substantially the same as 7 CMC § 3305:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

. . . . (2) If executed within the United States, its territories, possessions, or

commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).

(Emphasis added.)

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Whenever, under any law of the Commonwealth, any matter is required orpermitted to be supported or proved by the sworn statement, declaration,verification, certification, oath, or affidavit in writing of the person making the same(other than a deposition, or an oath of office, or an oath required to be takenbefore a specified official other than a notary public), such matter may, with likeforce and effect be supported or proved by the unsworn declaration in writing ofthe person stating the date and place of execution within the Commonwealth andwhich is subscribed by the person and declared by the person to be true “underpenalty of perjury,” which declaration may be in substantially the following form:

I declare under penalty of perjury that the foregoing is true andcorrect and that this declaration was executed on _______________ at________________, Commonwealth of the Northern Mariana Islands.

(Signature)_______________________________ (Type/print name)

(Emphasis added). The court in Denmon v. Runyon, No. 92-2144-EEO, 1993 U.S. Dist. LEXIS 15425

(D. Kan. Oct. 25, 1993) addressed the same violation of the equivalent federal statute, 28 U.S.C. § 1746,

7 in the context of Rule 56(e). Section 1746(2), like 7 CMC § 3305, requires an unequivocal declaration,

using any of the terms “declare,” “certify,” “verify” or “state” made under penalty of perjury. The offending

Denmon affidavit contained instead the certifying statement “I declare under penalty of perjury that the

foregoing is true and correct to the best of my knowledge.” Denmon at *4-5. The Denmon court

specified that a declaration based on “knowledge” is not acceptable:

Mr. Abbott’s declaration, in using the qualifying language “to the best of myknowledge” substantially deviates from the specific language required by 28 U.S.C.§ 1746(2). Allowing a declarant to deviate from the form specified in 28U.S.C. § 1746(2) undermines Rule 56(e). The implication from the qualifyinglanguage used by Mr. Abbott is that the matters he declares may not be trueor may not be within his personal knowledge.

Id. at *5 (emphasis added). The Denmon court continued, “[s]tatements not based on personal

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288 For purposes of their motion for summary judgment, Plaintiffs already had conceded the existence of the claimedjoint venture.

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knowledge must be disregarded by the court.” Id. (emphasis added).

At the April 29, 2002 hearing on Plaintiffs’ motion to strike, the Court rejected Defendants’

arguments that A. S. Guerrero was in “substantial compliance” with the form prescribed by 7 CMC §

3305 because (a) he prefaced Defendants’ original Exhibit A with the phrase “I declare under penalty of

perjury as follows,” and (b) numbered paragraph 1 of the affidavit states that “I am of sound mind and that

I have personal knowledge of the statements herein . . . .”

The Court also rejected conclusory statements made in the original A. S. Guerrero affidavit and

in a second “Exhibit A,” submitted in opposition to Plaintiffs’ motion to strike. Defendants’ first Exhibit

A included statements that documents substantiating the existence of a joint venture between A. S.

Guerrero and Highness Marianas8 were in the possession of Highness Kosan, and that these supposed

documents would completely exonerate Defendants. In Defendants’ second Exhibit A, A. S. Guerrero

made the following statements:

4. The statements [made by defendant A. S. Guerrero in Defendants’ Exhibit A]were true and are true and correct.

5. The statements [made by defendant A. S. Guerrero in Defendants’ Exhibit A]were not made for the purpose of delaying the proceedings in this case.

6. The [sic] found the Exhibit B attached to the Defendants’ Opposition to Plaintiffs’Motion for Summary Judgment only on April 2, 2002, and I immediately providedthem to my attorney.

7. It was surprise to me to have this document in one of my very old files becauseI know that no copies of those Exhibits were made and none was provided to anyof the defendants.

See Defs.’ Opp’n to Pls.’ Mot. to Strike, Ex. A.

The Court agrees with Plaintiffs that Defendants could only speculate what records Highness

Kosan does or does not possess, that the statements in both Defendants first and second Exhibit A were

conclusory and self-contradictory. The Court found both the first and second affidavits of A. S. Guerrero

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9 See, e.g., numbered paragraphs 11 (“I do not owe Plaintiffs’ predecessors on the Notes that they are trying toenforce,” a conclusion of ultimate fact); and 12 (“We never intended to convert the 53 Million Dollars of investmentinto a notes(s),” another conclusion of ultimate fact.

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inadequate, but allowed Defendants the opportunity to provide a corrected affidavit, to cure the defects

in the first two versions Defendants’ Exhibit A.

The first two Guerrero affidavits also failed to identify the document fragments described below,

which were twice presented as Defendants’ Exhibit B. In a supplemental pleading, Defendants presented

a third affidavit of A. S. Guerrero, which attempted to identify the same documents earlier presented as

“Exhibit B,” but which also contained numerous inadmissible conclusory statements.9 After considering

the parties’ written and oral argument, the Court strikes all three affidavits of A. S. Guerrero.

(2) The Three Versions of Defendants’ Exhibit B.

Defendants presented the original affidavit of defendant A. S. Guerrero as Exhibit A to their

opposition to summary judgment in conjunction with an Exhibit B consisting of (1) a two-page document

entitled “Addendum No. 4 to Memorandum of Agreement,” dated October 5, 1989 and purportedly

signed by A. S. Guerrero and Highness Marianas president Tominaga Tamotsu; (2)

what appears to be the first page of a document on the “pleading paper” of Defendants’ former attorneys,

entitled “Addendum to Memorandum of Agreement”; (3) what appears to be the last two pages of a

document dated October 21, 1988 and executed by R.C. Guerrero and Tamotsu, which from its date may

be a portion of the joint venture memorandum or agreement referred to by A. S. Guerrero at numbered

paragraph 4 of Defendants’ Exhibit A, a document described in the declaration as not being in Defendants’

possession.

The same Defendants’ Exhibit B was attached to the second affidavit of A. S. Guerrero.

Defendants again presented the same five pages as “Attachment A” and “Attachment B” to the third A. S.

Guerrero affidavit; this time combining last three pages described immediately above as if they comprised

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10 The Court notes six points of discrepancy raised by Plaintiffs in written and oral argument that makes thisidentification dubious: (1) The first page of “Attachment A” is on the “pleading paper” of Defendants’ formerattorneys, but not the second and third pages; (2) the first page is initialed, apparently by one of the signatories, butnot the second and third pages; (3) the first page contains an apparently complete numbered section 2, identifyingproperties to be added to an original agreement, while the second page appears to repeat a portion of numberedsection 2 of the document, but lists different real properties to be the subject of the agreement; (4) there is a separatenumbered section 3 on each of the first and second pages, with identical language; (5) the first page is entitled“Addendum to Memorandum of Agreement,” although the third page bears the date of the alleged original jointventure agreement, October 21, 1988; and (6) the portion of the first page headed “Preamble” refers to a joint ventureagreement dated October 21, 1988, to which the document from which the first page is taken is an addendum.

11 The final version of Exhibit B raises questions of Defendants’ credibility, but the Court notes that even if the Courthad accepted Defendants’ Exhibit B, the document fragments presented would do little to assist Defendants. Neitherthe third affidavit nor the documents it purports to authenticate fully set forth the terms and conditions of theclaimed joint venture agreement, but the terms that are presented do not support Defendants’ contentions thatdefendant A. S. Guerrero was not expected to repay the Loan, and that the Loan Agreement, the Amended Loan

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a single joint venture document.10 For ease of reference, the Court will refer to all three versions of

Defendants’ exhibits collectively as “Defendants’ Exhibit B.”

The first two versions of Defendants’ Exhibit B were attached to the first two A. S. Guerrero

affidavits, respectively, but were not authenticated in any way. Com. R. Civ. P. 56(e) requires that

“[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto

or served therewith.” Exhibits attached to memoranda in opposition to summary judgment must be

properly authenticated. If a document is neither self-authenticating nor a proper subject for judicial notice,

it must be authenticated by sworn affidavit. Temengil v. Trust Territory of the Pacific Islands, 1 CR

417, 519-20 n.11 (Dist. Ct. N.M.I. 1983). The requirement of authentication is very clear: “[d]ocuments

must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) . . . . [T]he

affiant must be a person through whom the exhibit could be admitted into evidence.” Government of the

Northern Mariana Islands v. Micronesian Ins. Underwriters, Inc., 2 CR 1164, 1172 (Dist. Ct. App.

Div. 1987) (citing 10 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2722, at 58-

59 (2d ed.)).

The third version of Defendant’s Exhibit B was identified in the third A. S. Guerrero affidavit, even

if the identification itself is suspect (see n.10, above). In its final form, the affidavit says little more than that

A. S. Guerrero has attached documents which he claims to be in the possession of another person and, as

noted above, the affidavit fails to meet the requirements of Rule 56(e). The Court strikes Defendants’

exhibits in their entirety, in each of the three versions presented.11

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Agreement, the Notes and the Mortgages were nothing more than window dressing.

12 Plaintiffs specified in both written and oral argument that they do not impute Defendants’ bad faith to Defendants’attorney, and did not ask for sanctions against Defendants’ attorney. The Court agrees; all sanctions leviedpursuant to this order are against Defendants only.

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(3) Sanctions.

Commonwealth Rules of Civil Procedure 56(g) provides:

(g) AFFIDAVITS MADE IN BAD FAITH. Should it appear to the satisfaction ofthe court at any time that any of the affidavits presented pursuant to[t]his rule arepresented in bad faith or solely for the purpose of delay, the court shall forthwithorder the party employing them to pay to the other party the amount of thereasonable expenses which the filing of the affidavits caused the other party to incur,including reasonable attorneys’ fees, and any offending party or attorney12 may beadjudged guilty of contempt.

(Emphasis added). Once a court makes a finding that an affidavit has been presented in bad faith or solely

for purposes of delay, monetary sanctions are mandatory. In re Gioioso, 979 F.2d 956, 961 (3rd Cir.

1992). The sanction is imposed for abuse of the court’s processes. Dreiling v. Peugeot Motors of Am.,

Inc., 768 F.2d 1159, 1165 (10th Cir. 1985). Although “bad faith” is not defined in Rule 56(g), it is usually

applied where the party’s “conduct has been egregious,” “where affidavits contain perjurious or blatantly

false” statements, or omissions of facts bearing on central issues, and where the affidavit at issue has

affected the disposition of the summary judgment motion. Jaisan, Inc. v. Sullivan, 178 F.R.D. 412, 415-

17 (S.D.N.Y. 1997). The last factor is not essential to determination of bad faith, however. See, e.g., In

re Gioioso, 979 F.2d at 961 (holding that Rule 56(g) directs a court to order, in connection with a

summary judgment proceeding, payment of expenses and attorney fees incurred as a result of a party's

affidavit filed in bad faith or filed solely for the purpose of delay). The Gioioso court continued:

Given the wrongful character of the debtors' affidavits in opposition to summaryjudgment -- affidavits that flatly contradicted earlier sworn depositions and thatfailed to raise material issues of fact -- Rule 56(g) required the bankruptcy courtto order the debtors to pay "the amount of reasonable expenses which the filing ofthe affidavits caused the other party [comment omitted] to incur, includingreasonable attorney's fees . . . ." n6.

Because the bankruptcy court opinion amounts to a finding of bad faith, we do not

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2813 See discussion of the Court’s grant of summary judgment, below.

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view our holding -- that Rule 56(g) requires imposition of costs and fees associatedwith bad faith affidavits -- as inconsistent with the observation in one distinguishedtreatise that the award of expenses is within the discretion of the court. WRIGHT,MILLER & KANE, FEDERAL PRACTICE & PROCEDURE: CIVIL § 2742, at 563 (2ded. 1983). That observation is premised in large part on the practical significanceof a court's discretion to determine an absence of bad faith altogether. Once acourt has found affidavits to have been presented in "bad faith" or "solely for thepurpose of delay" (as the bankruptcy court in essence found here), the plainmeaning of the Rule requires the assessment of costs and fees.

Id. at 962 & 962 n.6 (some citations and citation comments omitted).

Here, Defendants’ affidavits and exhibits flatly contradicted Defendants’ sworn discovery responses

to interrogatories and requests for production specifically designed to reveal the sort of material later

presented by Defendants in opposition to summary judgment. Moreover, Defendants’

affidavits and exhibits, even if accepted, would have failed to raise a material issue of fact.13 The nature

and late production of Defendants’ affidavits and exhibits, compared with Defendants’ discovery responses,

raises a strong inference that Defendants either knowingly concealed discovery responses, or at the very

least, blatantly disregarded their duty to amend their prior incorrect and incomplete discovery responses,

until forced to amend those responses under the threat of summary judgment. The original A. S. Guerrero

affidavit asserted the “fact”—which no defendant could know for certain—that more complete discovery

materials, supposedly “conclusive” in Defendants’ favor, are lodged with foreign non-parties, and sought

permission for additional discovery proceedings involving those non-parties. Although this Court granted

Defendants additional time to notice and take the deposition of Mr. Teramoto before deciding Plaintiffs’

motions to strike and for summary judgment, Defendants did not do so, despite specific prior assurances

to the Court that Mr. Teramoto was willing to be deposed at Saipan. The net effect of Defendants’

proffered affidavits and exhibits has been to create further delay, and to cause Plaintiffs unnecessary added

expense in prosecuting both their motion to strike and their case against Defendants.

Rule 56(g) sanctions are appropriate in these circumstances. The Court awards Plaintiffs their

attorney fees and costs incurred in bringing and arguing this motion to strike, and directs Plaintiffs to submit

their bill of attorney fees and costs in connection with the prosecution of their motion to strike. The Court

realizes that collection of the sanctions imposed by this order may be subsumed in the collection of the

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overall award of attorney fees and costs made in connection with the grant of Plaintiffs’ motion for

summary judgment, but intends that if, for any reason, Plaintiffs are denied collection of their overall award

of fees and costs, the sanctions imposed herein shall survive separate and apart from the general award.

B. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT.

(1) Summary Judgment Standard.

Commonwealth Rules of Civil Procedure 56(c) provides, in pertinent part, that:

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions 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.

(Emphasis added). Commonwealth Rules of Civil Procedure 56(e) provides, in pertinent part:

When a motion for summary judgment is made and supported as provided in thisrule, an adverse party may not rest upon the mere allegations or denials of theadverse party's pleading, but the adverse party's response, by affidavits or asotherwise provided in this rule, must set forth specific facts showing that there is agenuine issue for trial. If the adverse party does not so respond, summaryjudgment, if appropriate, shall be entered against the adverse party.

(Emphasis added).

If a party moving for summary judgment meets its initial burden of identifying those portions of the

materials on file that it believes demonstrate the absence of any genuine issue of material fact, then the

nonmoving party may not rely on mere allegations in the pleadings in order to preclude summary judgment.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265, 274 (1986);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202,

211 (1986); Nilsson, Robbin, Dalgorn, Burliner, Carson & Wurst v. Louisiana Hydrolec., 854 F.2d

1538, 1544 (9th Cir. 1988); Bank of Saipan v. Superior Court (Carlsmith), 2001 MP 7 ¶ 26; Cabrera

v. Heirs of De Castro, 1 N.M.I. 172, 176 (1990); Rios v. Marianas Pub. Land Corp., 3 N.M.I. 512,

518 (1993). Rather, the burden shifts to the party opposing summary judgment to set forth specific facts

to establish a genuine issue for trial. Nilsson, 854 F.2d at 1544; see also Matsushita Elec. Indus. Co.,

v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 552 (1986);

Government of the Northern Mariana Islands v. Micronesian Ins. Underwriters, Inc., 2 CR 760, 768

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(Trial Ct. 1986); Concepcion v. Am. Int’l Knitters Corp., 2 CR 939 (Dist. Ct. 1986); Cabrera, 1

N.M.I. at 176. While this evidence need not be in a form that would be admissible at trial, the nonmoving

party “must do more than simply show that there is some metaphysical doubt as to the material facts.”

Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553, 91 L. Ed. 2d at 274; Matsushita Elec. Indus. Co.,

475 U.S. at 586, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552. Rule 56 requires the nonmoving party to

affirmatively allege specific facts to demonstrate a genuine dispute. Id.; Castro v. Hotel Nikko Saipan,

Inc., 4 N.M.I. 268, 272 (1995). See also Commuter Transp. Sys., Inc. v. Hillsborough County

Aviation Auth., 801 F.2d 1286, 1291 (11th Cir.1986).

The party opposing summary judgment before trial must show the existence of a genuine dispute

of material fact in the context of any substantive evidentiary burdens of proof that would apply at a trial on

the merits. Anderson, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 215; see also Romano v.

Merrill Lynch, Pierce, Fenner & Smith, 834 F.2d 523, 527 (5th Cir.1987); Idaho v. Hodel, 814 F.2d

1288, 1292-93 (9th Cir.1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Management

Pension Fund, 800 F.2d 742, 746 (8th Cir.1986). “Thus, in ruling on a motion for summary judgment,

the judge must view the evidence presented through the prism of the substantive evidentiary burden.”

Anderson, 477 U.S. at 254, 106 S. Ct. at 2513, 91 L. Ed. 2d at 215.

Defendants cannot oppose summary judgment merely by making conclusory statements or stating

legal conclusions that Plaintiffs have failed to state a claim upon which relief can be granted. Micronesian

Ins. Underwriters, Inc., 2 CR at 770, (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1195-96 (5th

Cir. 1986)). Defendants must substantiate the broad allegations of their answer with a "competent,

meaningful, or factual response which would necessitate a trial [on the issues presented,] with the attendant

time and expense." Id. at 771.

(2) Defendants’ Denials.

Defendants directly deny that defendant Taga Beach is a corporation organized and existing under

and pursuant to the laws of the Commonwealth of the Northern Mariana Islands; that defendants Tinian

Marine and Taga Beach executed the Loan Agreement; that in the Loan Agreement, Taga Beach and

Tinian Marine each jointly and severally guaranteed the full and prompt payment of A. S. Guerrero’s

indebtedness under the Notes; that A. S. Guerrero is in default upon the Notes; that pursuant to the terms

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of the Notes and the Loan Agreement, Defendants owe the principal sum of $53 million, together with

interest thereon at the rate of 8% per annum from December 7, 1990, plus reasonable attorney fees; that

despite demand Defendants have failed to pay the sums due, or any part of those sums; that the Notes were

secured by the Guerrero Mortgage; that the Notes were secured by the Tinian Marine Mortgage; or that

Taga Beach was served with the notices of default. (Answer, responding to numbered paragraphs 4, 8,

9, 15, 16, 17, 18 and 24 of the Complaint).

Defendants deny on the basis that Defendants “lack sufficient information to form a belief as to

the truth of the allegations” that Plaintiffs are Japanese corporations; that Highness Marianas assigned the

Notes to Highness Kosan; that Highness Kosan assigned the Notes to Plaintiffs’ predecessors in interest

MTB and LTCB; that MTB is now known as The Chuo Mitsui Trust & Banking Co., Ltd.; that LTCB

assigned its interest in and to the Notes to Plaintiff The Resolution and Collection Corporation; that

Highness Marianas assigned its interest in both the Guerrero Mortgage and the Tinian Marine Mortgage

to Highness Kosan; that Highness Kosan assigned its interest in both the Guerrero Mortgage and the Tinian

Marine Mortgage to MTB and LTCB; that LTCB assigned its interest in both the Guerrero Mortgage and

the Tinian Marine Mortgage to plaintiff The Resolution and Collection Corporation; and that by virtue of

the assignments, Plaintiffs are now holders of the Notes and both the Guerrero Mortgage and the Tinian

Marine Mortgage. (Answer at numbered paragraph 2, responding to numbered paragraphs 2, 10, 11, 12,

13, 14, 19, 20, 21, 22, 25, 26, 27, 28 and 30 of the Complaint.)

Plaintiffs provided the Court with ample documentation in the form of authenticated exhibits supporting

each point denied by Defendants in their answer. Defendants produced no evidence to rebut Plaintiffs’

documentary evidence, or to support the denials set forth in Defendants’ Answer. Defendants’ denials are

conclusory, raise no material issue of fact for trial and, standing alone and unsupported, are insufficient to

avoid summary judgment. Defendants did not base their opposition to summary judgment on any of their

denials or otherwise rebut the documents presented as Plaintiffs’ exhibits, and Defendants’ denials are

therefore abandoned.

(3) Defendants’ Affirmative Defenses.

As noted above, while an opposing party’s evidence need not be in a form that would be

admissible at trial, the nonmoving party “must do more than simply show that there is some

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14 Defendants perhaps also obliquely attack the status of Plaintiffs’ predecessors in interest, The Long Term CreditBank of Japan and The Mitsui Trust Bank, as holders in due course, by stating “plaintiffs’ predecessor purports toturn into a loan an investment that it voluntarily risked in a joint venture agreement.” (Opposition Memo at 1.) Butthe phrase “plaintiffs’ predecessor” can only mean Highness Marianas, Ltd. or Highness Kosan Co., Inc., and noteither bank. If Defendants’ statement is intended as an attack on the protection afforded Plaintiffs by the holder indue course doctrine, it must fail. Defendants nowhere address Plaintiffs’ legal arguments on this point. As notedbelow, Plaintiffs’ bank predecessors cannot be held liable for negative facts they could not have known, whichsupposed negative facts were contradicted by the public record available to the banks—a public record Defendantsthemselves helped to construct.

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metaphysical doubt as to the material facts.” Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2553, 91 L.

Ed. 2d at 274; Matsushita Elec. Indus. Co., 475 U.S. at 578, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552.

Rule 56 requires the nonmoving party to affirmatively allege specific facts to demonstrate a genuine dispute.

Id.; Hotel Nikko Saipan, Inc., 4 N.M.I. at 272; see also Commuter Transp. Sys., Inc., 801 F.2d at

1291.

Defendants assert numerous affirmative defenses which can be summarized as discharge,

substituted performance, accord and satisfaction, failure to state a claim upon which relief can be granted,

joint venture, fraudulent and material misrepresentation, duress, undue influence, estoppel, reliance, statute

of limitations, waiver and “the right to assert additional affirmative and other defenses as the applicability

of the same becomes apparent during the litigation of this case.” See Answer at 2-3. In their motion for

summary judgment, Plaintiffs presented detailed evidentiary support to rebut each of these affirmative

defenses. The burden of proof then shifted to Defendants to demonstrate a genuine issue of fact for trial.

Micronesian Ins., 2 CR at 768; Concepcion, 2 CR at 939; Cabrera, 1 N.M.I. at 176. In their opposition

memorandum, however, Defendants address only the questions of joint venture and material

misrepresentation.14 Defendants chose to “rest upon the mere allegations or denials” of their pleadings with

regard to all but these two issues, and summary judgment is appropriate with regard to Defendants’

abandoned defenses.

(4) Plaintiffs’ Interests are Protected by the Holder in Due Course Statute with Regard to

Most or All of Defendants’ Affirmative Defenses.

With the possible exception of Defendants’ claim that a representative of Highness Marianas

improperly induced execution of the loan documents (discussed in full below), Defendants’ defenses are

barred by the fact that Plaintiffs’ predecessors in interest, MTB and LTCB were holders in due course.

(a) MTB and LTCB were holders in due course.

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15 Plaintiffs presented “Exhibit S” as one of 18 loan agreements for loans from MTB and LTCB to Highness Kosan,each of which was secured by assignment of the Loan Agreement, the Notes and the Mortgages. Exhibit Sdemonstrates that the loans from Plaintiffs’ bank predecessors in interest to Highness Kosan were completelyunconnected to the transactions between Highness Marianas and Defendants.

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“A holder in due course is one who takes the instrument (a) for value, (b) in good faith, and (c)

without notice that it is overdue, has been dishonored, or of any defense against or claim to it on the part

of any person.” Oh v. Angel Ent., Inc., App. No. 98-036 (N.M.I. Sup. Ct. March 31, 2000) (Opinion

at 4); see also 5 CMC § 3302(1). “The proper inquiry in determining whether the holder took for value

is not whether the debtor received value, but whether the holder gave value.” Id. at 5. The negotiable

instrument is legally presumed to have been given for value received; once produced by a plaintiff, the

burden shifts to the defendant to rebut the plaintiff’s prima facie case. Id.

To establish good faith, it is enough that the holder “honestly believed there was nothing wrong

with the transaction.” Id. at 6-7. Although good faith is ordinarily a question for the jury, Id. at 6, here,

the record before the Court constitutes all of the available evidence, and is indisputable.

With regard to notice, “[t]he test involves an objective inquiry into what a reasonable person in the

holder’s position would know. Where an instrument is regular on its face, there is no duty to inquire as to

a possible defense, unless the circumstances suggest a deliberate desire to evade knowledge out of fear

that investigation would disclose the existence of a defense.” Id. at 7-8. There are no such circumstances

in this case. MTB and LTCB acquired their respective interests in the Loan Agreement, the Notes and the

Mortgages in 1991, prior to the due date for payment of the 1990 Note.15 Under the assignments of the

Notes, the Loan Agreement and both Mortgages, both MTB and LTCB qualified as holders in due course.

Both MTB and LTCB took their assignments for value and in good faith, and at the time of the assignments,

the 1990 Note was not in default. After the assignments, the term of the 1990 Note was extended by the

1994 Note, in which extension the assignees apparently acquiesced, and therefore the Notes were not in

default or otherwise dishonored. There is no evidence that either was aware of any claim or defense that

existed to either of the Notes or the Mortgages.

By failing to complain of any irregularity in the execution of the debt and security instruments

between December 1990 and July 1991, and also by execution of the Amendment to Loan Agreement and

Replacement Promissory Note without objection in 1994, Defendants ratified those transactions.

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Ratification requires intent to ratify plus knowledge of all material facts. Ratificationmay be express or implied, and intent may be inferred from the failure to repudiatean unauthorized act, from inaction, or from conduct on the part of the principal whichis inconsistent with any position other than an intent to adopt the act.

Oh, App. No. 98-036 (N.M.I. Sup. Ct. March 31, 2000) (Opinion at 8-9) (failure to report checks as

stolen ratified them). Although ratification is a question of fact, Id. at 9, here all facts material to that

determination are both undisputed and indisputable, and constitute conduct by Defendants inconsistent with

any position other than an intent to enter into the Loan Agreement, the Notes and the Mortgages. No

reasonable person could find otherwise.

With regard to the rights of a holder in due course, 5 CMC § 3305 provides, in full:

To the extent that a holder is a holder in due course he takes the instrument freefrom: (1) All claims to it on the part of any person; and

(2) All defenses of any party to the instrument with whom the holder has notdealt except:

(a) Infancy, to the extent that it is a defense to a simple contract; and(b) Such other incapacity, or duress, or illegality of the transaction, as

renders the obligation of the party a nullity; and(c) Such misrepresentation as has induced the party to sign the

instrument with neither knowledge nor reasonable opportunity to obtainknowledge of its character or its essential terms; and

(d) Discharge in insolvency proceedings; and(e) Any other discharge of which the holder has notice when he takes

the instrument.

MTB and LTCB therefore took their interests in the Notes, the Mortgages and the other Security

Documents free from Defendants’ affirmative defenses of discharge, substituted performance, accord and

satisfaction, joint venture, estoppel, reliance, statute of limitations or waiver. Both were holders in due

course, and Plaintiffs are entitled to the remedies that would have been available to their

predecessors in interest, regardless whether Plaintiffs themselves would independently qualify as holders

in due course .

(b) Alleged Misrepresentations by Mr. Teramoto: the Plain Language and Parol

Evidence Rules .

(i) Plain Language Rule. Defendants have attempted to introduce parol evidence to show that

they were induced to execute the various debt and security instruments at issue here as a result of

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misrepresentations by Tadao Teramoto, a representative of either Highness Marianas or Highness Kosan.16

In this regard, 5 CMC § 3305(2)(c) provides that a holder in due course takes the instrument free of

defenses except, inter alia, “(2) All defenses of any party to the instrument with whom the holder has not

dealt except: . . . (c) Such misrepresentation as has induced the party to sign the instrument with neither

knowledge nor reasonable opportunity to obtain knowledge of its

character or its essential terms.” (Emphasis added).

The issue of Mr. Teramoto’s alleged misrepresentations is discussed more fully below. With

regard to whether the alleged misrepresentations induced Defendants to execute the various documents

without allowing them the opportunity to discern the documents’ essential terms, Defendants’ proffered

interpretation of the instruments at issue ignores the plain language rule, which provides that “[w]here the

language of a writing is plain and precise, a court can, as a matter of law, establish the intentions of the

parties as declared in the writing.” Rosario v. Camacho, 2001 MP 3 ¶ 66. Instruments whose language

is plain, certain and unambiguous should be given their plain construction. Where conveyance of an interest

in property is unambiguous, as it is in each Mortgage, the instrument must be construed according to its

terms. Id. The Loan Agreement, the 1990 Note, both Mortgages, the Amendment to Loan Agreement

and the 1994 Note are all simply and clearly stated, particularly with respect to Defendants’ obligations.

Although Defendants claim that there was pressure to sign the documents without an opportunity for legal

guidance (see discussion of duress, below), as a matter of law, Mr. Teramoto’s alleged misrepresentations

could not have deprived Defendants of the knowledge, or the reasonable opportunity to obtain knowledge,

of the documents’ essential terms.

(ii) Parol Evidence Rule. Defendants’ proffered interpretation also runs afoul of the parol

evidence rule. The parol evidence rule states:

(1) A binding integrated agreement discharges prior agreements to theextent that it is inconsistent with them.

(2) A binding completely integrated agreement discharges prior agreementsto the extent that they are within its scope.

(3) An integrated agreement that is not binding or that is voidable oravoided does not discharge a prior agreement. But an integrated agreement, eventhough not binding, may be effective to render inoperative a term which would havebeen part of the agreement if it had not been integrated.

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17 The various instruments are each integrated, whether or not they contain integration or merger clauses. “ [A]completely integrated contract is one which the parties have adopted as a complete and exclusive statement of theterms of the contract. An agreement is integrated unless other evidence establishes the writing did not constitute afinal expression .” Rosario v. Camacho, 2001 MP 3 ¶ 72 (citing Mi Sook Seol v. Saipan Honeymmon Corp., 1999 MP9 ¶11, 5 N.M.I. 238, 240) (emphasis added). The burden of proof was on Defendants to show that the instruments inquestion are not integrated. Rosario, 2001 MP 3 ¶ 73. Defendants made no such showing.

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Rosario v. Camacho, 2001 MP 3 ¶ 67 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 213 (1981)).

“The parol evidence rule is a rule of substantive law which excludes evidence of prior or contemporaneous

agreements or negotiations to change or modify the terms of a binding integrated

agreement.”17 Id. at ¶ 68 (citing RESTATEMENT (SECOND) OF CONTRACTS § 213 cmt. a, b, 215 (1981));

see also Mi Sook Seol v. Saipan Honeymoon Corp., 1999 MP 9 ¶ 12, 5 N.M.I. 238, 240.

Parol evidence is admissible to show, inter alia, invalidating causes, such as fraud. Rosario, 2001

MP 3 ¶ 68 (citing RESTATEMENT (SECOND) OF CONTRACTS § 214 (1981)). But the credibility of the

evidence is key to determining whether the parol evidence is admissible, and there must be more than one

reasonable interpretation of the evidence:

Where reasonable people could differ as to the credibility of the evidence offeredand the evidence if believed could lead a reasonable person to interpret the writingas claimed by the proponent of the evidence, the question of credibility and thechoice among reasonable inference should be treated as questions of fact. But theasserted meaning must be one to which the language of the writing, read incontext, is reasonably susceptible. If no other meaning is reasonable, the courtshould rule as a matter of law that the meaning is established. See § 212(2).

RESTATEMENT (SECOND) OF CONTRACTS § 215 cmt. b (1981) (emphasis added). Section 212(2)

provides, in full:

(2) A question of interpretation of an integrated agreement is to bedetermined by the trier of fact if it depends on the credibility of extrinsic evidenceor on a choice among reasonable inferences to be drawn from extrinsicevidence. Otherwise a question of interpretation of an integrated agreementis to be determined as a question of law.

RESTATEMENT (SECOND) OF CONTRACTS § 212(2) (1981) (emphasis added). “[A] question of

interpretation is not left to the trier of fact where the evidence is so clear that no reasonable person would

determine the issue in any way but one.” Id. at cmt. e.

No reasonable person would accept, on the evidence presented by Defendants, that A. S.

Guerrero would take the $53 million principal of the Loan, that defendants Tinian Marine and Taga Beach

would guarantee the Loan, or that Defendants would sign their respective Mortgages, with a sincere and

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18 The only reasonably possible exception would be if Defendants were engaged with Highness Marianas orHighness Kosan in an elaborate fraud, creating false security documents used to deceive Plaintiffs’ predecessors ininterest MTB and LTCB, or others, in which case Defendants’ affirmative defense would be invalidated by theirunclean hands. See, e.g., Prosports Mgmt. of the South, Inc. v. Jabobs, 243 B.R. 836, 847 n.5 (Bankr. M.D. Fla. 2000)(affirmative defenses invalidated for, inter alia, failure to act in good faith); Bhatla v. Rodriquez, 990 F.2d 780, 788(3rd Cir. 1993) (lender that requires security for loan not responsible for unknown fraudulent acts of its borrowers).

19 Defendants use the phrases “without allowing them to seek legal advise [sic]” and “without allowing them to seekany legal advise [sic].” But this Court will not, and cannot, assume that Defendants mean by this wording that theywere physically prevented from seeking legal advice, or coerced to forego legal advice by threats, particularly as thedocuments show that Defendants were represented by attorney Rexford C. Kosack—who at first representedDefendants in this action—in many of the related transactions. If such physical prevention or threat existed, thenDefendants should have stated the appropriate facts in detail. They have not done so.

It is worth noting that Mr. Kosack himself notarized A. S. Guerrero’s execution of the December 7, 1990 Lease andAgreement (Supplement to Lease) between A. S. Guerrero and Tinian Resort Development Corporation; see nn.3-4,above. Mr. Kosack’s representation of A. S. Guerrero on the same date as the 1990 Note, the Loan Agreement andboth Mortgages strongly undermines Defendants’ claims that they did not have advice of counsel, or theopportunity to seek such advice. Regardless, Defendants certainly had time to seek advice of counsel afterDecember 7, 1990 and before June 1994, when A. S. Guerrero executed the 1994 Note and the Amendment to LoanAgreement.

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reasonable belief in Mr. Teramoto’s alleged statements that they would not eventually be called to

account.18 “The court considers parol evidence, not to determine that a party meant something other than

what he said, but only to show what he meant by what he said.” Rosario, 2001 MP 3 ¶ 68; see also

Sablan v. Cabrera, 4 N.M.I. 133, 140 n.40 (1994). And even if there were an available and reasonable

interpretation of the facts favoring Defendants with regard to the Loan Agreement and the 1990 Note,

Defendants have alleged no misrepresentation with regard to the 1994 Note and the Amendment to Loan

Agreement, and must be considered to have ratified the earlier documents thereby.

(c) Favorable Inferences: Material Misrepresentation.

Nonetheless, in determining, on a motion for summary judgment, whether a reasonable finder of

fact could find for the nonmoving party, all evidence and inferences to be drawn therefrom must be

construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987); see also Rios. v. Marianas Pub. Land Corp.,

3 N.M.I. 512, 518 (1993); Bank of Saipan, 2001 MP 7 ¶ 27. The Court therefore assumes, as did

Plaintiffs for purposes of their motion for summary judgment, that Mr. Teramoto did tell Defendants that

Highness Marianas did not intend to enforce the 1990 Note and the Mortgages and, further, that Mr.

Teramoto presented the 1990 Note and Mortgages for immediate signature, before Defendants could seek

legal advice.19

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Defendants do not allege that they dealt with Plaintiffs’ predecessors in interest MTB or LTCB

before those entities became holders in due course. As noted above, 5 CMC § 3305(2) provides that

those entities, as holders in due course, took the 1990 Note and the Mortgages free of:

All defenses of any party to the instrument with whom the holder has not dealt except:

. . . .(b) Such other incapacity, or duress, or illegality of the transaction,

as renders the obligation of the party a nullity; and(c) Such misrepresentation as has induced the party to sign the

instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.

5 CMC § 3305(2).

Even accepting Defendants’ allegations that Mr. Teramoto made the representations attributed to

him, Defendants’ showing is still insufficient to withstand summary judgment. The court in Cal.

Architectural Bldg. Prods., Inc. v. Franciscan Ceramics., Inc., 818 F.2d 1466(9th Cir.1987) succinctly

summarized the Ninth Circuit rule:

First, the [United States Supreme] Court has made clear that if the non-movingparty will bear the burden of proof at trial as to an element essential to its case, andthat party fails to make a showing sufficient to establish a genuine dispute of factwith respect to the existence of that element, then summary judgment isappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548,2552-53, 91 L. Ed. 2d 265 (1986). Second, to withstand a motion for summaryjudgment, the non-moving party must show that there are "genuine factual issuesthat properly can be resolved only by the finder of fact because they mayreasonably be resolved in favor of either party." Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (emphasisadded). Finally, if the factual context makes the non-moving party's claimimplausible, that party must come forward with more persuasive evidence thanwould otherwise be necessary to show that there is a genuine issue for trial.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct.1348, 89 L. Ed. 2d 538 (1986). No longer can it be argued that any disagreementabout a material issue of fact precludes the use of summary judgment.

Id. at 1468.

To avoid summary judgment by relying on the affirmative defense of fraudulent misrepresentation,

defendants were required to show genuine factual issues, material with regard to the elements of fraudulent

misrepresentation, that could be reasonably resolved in favor of either plaintiffs or defendants. Id. To

establish that Mr. Teramoto committed a fraudulent misrepresentation, defendants had the burden to

produce plausible facts to prove:

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(1) a representation, (2) its falsity, (3) its materiality, (4) [Mr. Teramoto’s]knowledge of or recklessness as to its falsity, (5) [Mr. Teramoto’s] intentthat [defendants] act on it in the matter reasonably contemplated, (6)[defendants’] ignorance of its falsity, (7) their reliance on its truth, [8] theirright to rely on it, and (9) their resulting damage.

Rosario v. Camacho, 2001 MP 3 ¶ 79.

What Defendants produced, even if their exhibits were not stricken, amounts to nothing more than

A. S. Guerrero’s unsupported and conclusory statement that there was misrepresentation, and that

Defendants were given no time to obtain legal advice before being required to sign the documents at issue

in Plaintiffs’ suit. It is neither reasonable nor plausible that Defendants could believe and reasonably rely

on the statements purportedly made by Mr. Teramoto, or that they reasonably did not expect that they

would be required to account in some fashion for the proceeds of the Loan. This is especially so in light

of the protracted lengths of time over which the various documents at issue here were executed, which also

makes the claim that Defendants had no time to seek legal advice totally implausible. Even if it were true

that A. S. Guerrero, Tinian Marine and Taga Beach signed the 1990 Note and the Loan Agreement in

haste, under pressure and without legal advice, an additional seven months passed before Defendants

executed the Guerrero Mortgage and the Tinian Marine Mortgage. It was only after Plaintiffs filed suit that

Defendants made any attempt to repudiate the Notes, the Mortgages, the Loan Agreement or the Amended

Loan Agreement.

A genuine factual issue is one that may reasonably be resolved in favor of either party. Cal.

Architectural Bldg. Prods., Inc., 818 F.2d at 1468. In this case, where the factual context makes the

Defendants’ claims implausible, Defendants must come forward with more persuasive evidence than would

otherwise be necessary to show that there is a genuine issue for trial. Id., (citing Matsushita Elec. Indus.

Co., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538. Not every disagreement about a material issue

of fact precludes the use of summary judgment. Id. Even if the Court accepts the dubious proposition that

Mr. Teramoto’s purported statements satisfy the first five elements stated by the Rosario court, Defendants

have not provided the Court any credible factual basis to show that they were unaware that Mr.

Teramoto’s representations were false, that they relied on those false statements, that they were justified

in so relying, and that they suffered damage as a result of their reliance.

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(d) Favorable Inferences: Duress or Undue Influence.

Although Defendants have alleged the affirmative defense of duress, they offer no support for their

allegation, other than the unsupported allegation that they were not given the opportunity to seek legal

advice at the time the 1990 documents were executed. Defendants have not alleged that they were without

capacity to execute the Loan Agreement, the 1990 Note or the Mortgages, or that the transaction was

illegal, or that the documents were signed under threat of physical compulsion or other unlawful threat.

They do not claim that the Loan was not made.

The most applicable definition of “duress” for present purposes states, in pertinent part: “[a]

condition where one is induced by wrongful act or threat of another to make a contract . . . under

circumstances which deprive him of exercise of his free will. Includes any conduct which overpowers will

and coerces or constrains performance of an act which otherwise would not have been performed.”

BLACK’S LAW DICTIONARY 504 (6th ed. 1990). “Undue influence” means “[p]ersuasion, pressure, or

influence short of actual force but stronger than mere advice, that so overpowers the dominated party’s free

will or judgment that he or she cannot act intelligently and voluntarily . . . .” Id. at 1528. “Undue influence”

carries the additional characteristic that the unduly influenced person is psychologically dominated by the

influencer rather than coerced; otherwise, the two claims are the same.

The only reasonable inference that can be made from Defendants’ allegations is that they were

presented with a “take it or leave it” demand to execute the documents. That alone does not amount to

duress or undue influence. It is not credible that Defendants would suffer duress at the time the 1990

instruments were executed, and then not seek relief between December 1990 and June 1994, when the

1990 Note became due. It is not credible that Defendants did not have time to seek legal advice between

December 7, 1990, the date of the 1990 Note and the Loan Agreement, and July 18, 1991, when

Defendants executed their respective Mortgages.

There is no allegation that the 1994 Note (or the Amended Loan Agreement that accompanied it)

were executed by A. S. Guerrero as a result of duress. Nor is there any allegation that in July 1991, when

A. S. Guerrero, R. C. Guerrero and Tinian Marine executed the Guerrero and Tinian Marine Mortgages,

that the Mortgages were executed as a result of any misrepresentation or duress, or that Defendants were

presented with the Mortgages without any opportunity to seek the advice of counsel. Plaintiffs presented

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20 See, Pls.’ MSJ Ex. P. e.g. Lindablue F. Romero, Ex-Tourism Official Sued for $53 Million, SAIPAN TRIBUNE, June 19,2000, Vol. 10 No. 119, available at http://www.tribune.co.mp/archive.cfm?Display=yes&IND=7839; and printouts ofadvertisements for “Tinian Marine Resort” from internet websites for BTN & Associates, and Nelson & Haworth,collectively attached as Exhibit P to Plaintiffs’ motion.

21 Nor would the documentary fragments improperly offered by Defendants and now stricken substantiateDefendants’ claim that they would not be held liable. Rather, they tend to show that the parties agreed to form a jointventure corporation that was never actually brought into existence. What appears to have been contemplated (basedon Defendants’ Exhibit B) is that Highness Marianas would furnish the money to purchase the leaseholds that arenow subject to the Mortgages, and place title to the leaseholds in the joint venture corporation. But the joint venturecorporation was never formed, and the leaseholds subject to the Mortgages remain in Defendants’ names. That is,Defendants’ Exhibit B tends to show, if anything, that Defendants indeed got the benefit of the Loan.

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undisputed facts that show, on the contrary, that from before the inception of the Loan, it has been A. S.

Guerrero’s dream and goal to establish a resort and casino on the Island of Tinian, and that he still

continues his efforts to achieve that goal.20 The factual context shows Defendants’ claims to be implausible

at best. Mere disagreement about a material issue of fact will not shield Defendants; Defendants must

provide more persuasive evidence to avoid summary judgment. Cal. Architectural Bldg. Prods., Inc.,

818 F.2d at 1468.

(e) Joint Venture.

Defendants’ opposition memorandum focuses only on (1) Defendants’ claim that there was a joint

venture between A. S. Guerrero and Highness Marianas, and that this fact, if true, somehow absolves

Defendants of liability; and (2) Defendants’ claim that Mr. Teramoto of Highness Marianas falsely

represented to Defendants that they would not be held liable for the Promissory Notes issued by A. S.

Guerrero. Defendants have made no citation to legal authority to support their position that Defendants

should escape summary judgment even if the Court accepts that a joint venture existed.

Assuming for purposes of Plaintiffs’ summary judgment motion that a joint venture existed,

Defendants have made no attempt to demonstrate why or how the existence of such a joint venture would

invalidate the transaction by which Plaintiffs’ immediate predecessors in interest, The Long Term Credit

Bank of Japan and The Mitsui Trust Bank, acquired their interest in the Notes and the Mortgages, or even

that these entities were aware of any joint venture. Even if the Court were to consider the matters discussed

in Defendants’ stricken exhibits, Defendants still have not presented an effective defense to summary

judgment.21

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(f) Abandoned Affirmative Defenses.

In their Answer, Defendants stated numerous affirmative defenses in addition to those discussed

above. Those additional affirmative defenses can be summarized as discharge, substituted performance,

accord and satisfaction, failure to state a claim upon which relief can be granted, estoppel, reliance, statute

of limitations, waiver and “the right to assert additional affirmative and other defenses as the applicability

of the same becomes apparent during the litigation of this case.” Answer at 2-3. In their opposition

memorandum, however, Defendants addressed only the questions of joint venture and material

misrepresentation. Plaintiffs met their initial burden of proof for summary judgment, and the burden of proof

then shifted to Defendants to demonstrate facts sufficient to demonstrate a genuine issue of fact for trial.

Micronesian Ins. Underwriters, Inc., 2 CR at 768; Concepcion, 2 CR at 939; Cabrera, 1 N.M.I. at

176. Defendants chose instead to “rest upon the mere allegations or denials” of their pleadings with regard

to all but these two issues, and summary judgment is appropriate with regard to Defendants’ neglected

defenses.

VI. CONCLUSION

Based on the foregoing, it is hereby ORDERED as follows:

1. That Plaintiffs’ motion to strike, and for sanctions, is GRANTED, in its entirety. All three affidavits

of A. S. Guerrero, and all three versions of Defendants’ Exhibit B, presented in opposition to Plaintiffs’

motions for summary judgment and to strike are hereby stricken.

2. With regard to bringing and prosecuting their motion to strike, Plaintiffs are awarded sanctions in

the amounts of $11,287.59 for attorney fees. To the extent that such award is not satisfied as part of

Plaintiffs’ overall bill of costs, Plaintiffs are separately entitled to collect their sanction award.

3. That Plaintiffs’ motion for summary judgment is GRANTED, in its entirety, and judgment is

ENTERED for Plaintiffs and against Defendants, jointly and severally, as follows:

(a) Against A. S. Guerrero for the 1990 and 1994 Notes, and against Tinian Marine and Taga

Beach for their Guarantees: A total of $101,823,891.08, including $53,000,000.00 due for principal and

$48,823,891.08 due for interest from December 7, 1990 through June 9, 2002, the date immediately prior

to the date summary judgment was granted.

(b) Against all Defendants, Plaintiffs are awarded reasonable attorney fees in the amount of

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$66,256.83, and costs in the amount of $778.76.

(c) The total of all amounts in the judgment shall bear interest at the rate of nine percent (9%) per

annum from June 10, 2002.

(d) Against A. S. Guerrero and R. C. Guerrero for the Guerrero Mortgage, and against Tinian

Marine for the Tinian Marine Mortgage, for foreclosure of the respective Mortgages, as allowed by law.

(e) Pursuant to the provisions of 2 CMC § 4537(d), Defendants are hereby ordered to pay the

aforesaid sums to the Court (or to Plaintiffs’ attorney) within a period of three (3) months from and after

June 10, 2002.

(f) If the said sums shall not be paid within the specified period, the respective Defendants’

interests in the following properties may be sold by Plaintiffs in accordance with law, and the proceeds of

said sale, after deducting expenses thereof, shall be applied to payment of the balance due upon the

judgment:

(1) That property subject to that certain Leasehold Mortgage of Real Property identified

herein as the Guerrero Mortgage, encumbering the Guerrero Defendants’ leasehold interest in Lot No. 034

T 03, Tinian and recorded as file no. 91-3410 at the office of the Commonwealth Recorder; and

(2) Those properties subject to that certain Leasehold Mortgage of Real Property identified

herein as the Tinian Marine Mortgage, encumbering the Defendant Tinian Marine’s leasehold interest in Lot

Nos. 032 T 01; 031 T 06; 033 T 13, 033 T14 and 033 T 15 (originally part of Lot No. 033 T 02); 033

T 03 (originally A.H. 252); 033 T 01; 007 T 01 (also known as 331 T 01-3 R); 033 T 07; 041 T 01; 033

T 06; 036 T 05 (originally A.H. 184); 036 T 01 (originally H. 200); 034 T 08, 034 T 09, 034 T 10, 034

T 11, 034 T 12, 034 T 13, 034 T 14, 034 T 15, 034 T 18, 034 T 19, 034 T 34, 034 T 35, 034 T 36, 034

T 37, 034 T 40, 034 T 41, 034 T 42, 034 T 43, 034 T 45, 034 T 46, 034 T 47, 034 T 48, and 034 T 49

(parts of original Lot No. 034 T 01); 036 T 03 (originally A.H. 159); 032 T 04; 036 T 02; 036 T 16, 036

T 17, 036 T 18, 036 T 19, 036 T 20, 036 T 21, 036 T 22, 036 T 23, 036 T 24, 036 T 25, 036 T 26, 036

T 27, 036 T 28, 036 T 29, 036 T 30, 036 T 31, 036 T 32, 036 T 33, 036 T 34, and 036 T 35 (originally

part of Lot No. 033 T 02); 036 T 04 (originally A.H. 147); 033 T 04 and 033 T 05; and 031 T 07, Tinian

and recorded as file no. 91-3411 at the office of the Commonwealth Recorder.

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(g) This Court entered its minute order granting summary judgment at the hearing on this matter

on June 10, 2002. The effective date of this Order therefore shall be June 10, 2002, nunc pro tunc.

SO ORDERED this 25th Day of October 2002.

/s/ Virginia S. Sablan-Onerheim___________________ VIRGINIA S. SABLAN-ONERHEIM, Associate Judge