Hawaii Foreclosure Law Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust, Mortgage
- Timeline: Typically 60 days
- Right of Redemption: None
- Deficiency Judgments Allowed: Yes |
In Hawaii, lenders may foreclose on deeds
of trusts or mortgages in default using either a judicial or non-judicial
foreclosure process.
Judicial Foreclosure
The judicial process of foreclosure, which involves filing a lawsuit
to obtain a court order to foreclose, is used when no power of sale
is present in the mortgage or deed of trust. Generally, after the court
declares a foreclosure, the property will be auctioned off to the highest
bidder.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when a power of sale
clause exists in a mortgage or deed of trust. A "power of sale" clause
is the clause in a deed of trust or mortgage, in which the borrower
pre-authorizes the sale of property to pay off the balance on a loan
in the event of the their default. In deeds of trust or mortgages where
a power of sale exists, the power given to the lender to sell the property
may be executed by the lender or their representative, typically referred
to as the trustee. Regulations for this type of foreclosure process
are outlined below in the "Power of Sale Foreclosure Guidelines".
- Power of Sale Foreclosure Guidelines
- If the deed of trust or mortgage contains a
power of sale clause and specifies the time, place and terms of sale,
then the specified procedure must be followed. Otherwise, the non-judicial
power of sale foreclosure is carried out as follows:
- The notice of intent to foreclose must be
published once a week for three (3) successive weeks, the last publication
to be not less than fourteen (14) days before the day of sale, in
a newspaper having a general circulation in the county in which
the mortgaged property is located.
Copies of the notice must be mailed or delivered to the mortgagor,
the borrower, any prior or junior creditors, the state director
of taxation and any other person entitled to receive notice. Additionally,
the notice must be posted on the premises not less than twenty-one
(21) days before the day of sale.
Said notice must state: 1) The date, time, and place of the public
sale; 2) The dates and times of the two (2) open houses of the mortgaged
property, or if there will not to be any open houses, the public
notice shall so state; 3) The unpaid balance of the moneys owed
to the mortgagee under the mortgage agreement; 4) A description
of the mortgaged property, including the address or description
of the location of the mortgaged property, and the tax map key number
of the mortgaged property; 5) The name of the mortgagor and the
borrower; 6) the name of the lender; 7) The name of any prior or
junior creditors having a recorded lien on the mortgaged property
before the recordation of the notice of default; 8) The name, the
address in the State, and the telephone number in the State of the
person in the State conducting the public sale; and 9) The terms
and conditions of the public sale.
Additional wording, as required by the State of Hawaii, may be found here.
- Up until three (3) days before the sale,
the borrower may cure the default and stop the sale by paying the
lien debt, costs and reasonable attorney's fees, unless otherwise
agreed to between the lender and the borrower.
- The sale, which may be held no earlier than
fourteen (14) days after the last ad is published, is to be made
at auction to the highest bidder.
- Any sale, in which notice
has been given, may be postponed from time to time by public announcement
made by the lender or their representative.
There are no rights of redemption in
Hawaii.
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