Hawaii Has Teeth

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Editor’s Comment: We are seeing more of these cases as the trial and appellate courts have finally come to earnestly question the validity of the foreclosures themselves. First they are starting with strict enforcement of required procedures.

In this case the 9th Circuit Court of Appeals reversed the BAP Panel and reinstated the finding that the pretender lender had violated Hawaii law. But they remanded as to the amount of attorneys fees and costs. That means they affirmed the violation of the pretender lender, they affirmed the consequences for such violation and affirmed the recovery of fees and costs. The Court specifically opened the door to monetary and punitive damages but refused to apply it as an automatic remedy, which in my opinion was a correct finding.

The proper course of action for this homeowner was to file a wrongful foreclosure claim (after rendition of this opinion), slander of title (perhaps) and other claims relating to monetary damages in which they prove and allege duty and damages proximately caused and measurable as a result of the violation of the pretender lender.

Just because you don’t read it or see it in mainstream media doesn’t mean it isn’t happening. Borrowers are starting to win with increasing frequency.

Hawaii 9th Circuit Case Margery Kanamu-Kalehuanani KEKAUOHA-ALISA v Ameriquest

“This case requires us to determine whether a mortgage company violated Hawaii state law when it did not publicly announce the postponement of a foreclosure sale of property owned by Appellant Margery Kanamu-Kalehuanani Kekauoha-Alisa, and if so, to ascertain the proper remedy for that violation. A federal bankruptcy court held that Appellees’ failure publicly to announce the foreclosure violated the requirements of Hawaii’s nonjudicial foreclosure procedure under Hawaii Revised Statute (HRS) § 667-5, as well as its consumer protection law, HRS § 480-2. The court voided the sale of the Appellant’s property and awarded her treble damages of $417,761.66 under HRS § 480-13 for violation of the consumer protection statute. The Bankruptcy Appellate Panel reversed, ruling that the mortgagee’s actions did not violate state law.

We hold that (1) the lack of public announcement did violate Hawaii’s nonjudicial foreclosure statute, and (2) this defect was a deceptive practice under state law. Accordingly, we affirm the bankruptcy court’s avoidance of the foreclosure sale. However, we remand to the bankruptcy court for a proper calculation of attorneys’ fees and damages under HRS § 480-13.”

 

 

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4 Responses

  1. it’s the fact that they sold the house when the sale was supposed to be postponed. that postponement should have been announce.

  2. So, how does one find out if the property was publicallyadvertised or not?Also, How does one find out if the home was really sold to the highest bidder, when in fact, the bank took the property back? Another question is,…Why is there no money changing hands when a bank can buy back the home with credit, when everyone else has to have the cash?

  3. What attorney did she use?

  4. So, this has to do with the publication of sale? Not much help here…but good information.

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