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Community groups ask Hawaii Supreme Court to rollback ruling on foreclosures

A coalition of community groups led by Maui attorney Lance D. Collins and joined by state Rep. Tina Nakada Grandinetti is asking the Hawaii Supreme Court to reconsider its recent decision in the Bank of New York Melon v. White.

The coalition filed a brief regarding the case Monday. Collins said the court has several weeks to respond.

According to Collins, the decision changed the statute of limitations for mortgage foreclosures from six years to 20 years, in many cases long after the underlying loan was no longer enforceable. But even if the loans were no longer valid, the bank could come after someone for financial damages that may not be valid.

“Giving lenders 20 years to act invites delay and uncertainty,” Collins said. “Families shouldn’t live under a cloud for two decades. Hawaii’s Legislature made mortgage security for a debt in 1939. If the debt can’t be enforced after six years, the foreclosure shouldn’t be able to go forward.”

Collins said the amicus brief explains the legislative history behind Hawaii’s rule that a mortgage is a security interest, not a transfer of ownership, and most states like Hawaii do not allow foreclosure when the underlying debt is no longer enforceable. The brief also offers evidence of how a 20-year window could burden homeowners, condo associations and neighborhoods.

The group fears the court’s decision could revive old foreclosures, raise costs for condo owners statewide and disproportionately impact Native Hawaiian, Filipino and Pacific Islander communities.

According to Collins, areas hit hard by the recession in 2008 and subprime lending could face new waves of instability. Collins said the coalition is asking the court to reconsider the decision or, alternatively, to depublish it so it does not set a broad precedent.

He said if the court sets oral arguments, the coalition would request an opportunity to participate to share community impacts and statewide data.

“We’re asking the court to hear full arguments and consider the real-world impact on Hawaii families,” said Bianca Isaki, co-counsel for the groups hoping to reverse the court’s decision.

Collins said the court’s ruling can bring old mortgages back to life for everyday people as loans that went into default years ago could see renewed foreclosure attempts.

Collins also said condo owners could be at risk. He said when an owner walks away and a lender waits to foreclose or otherwise act, other owners must cover the building’s expenses and cannot foreclose while a mortgage is outstanding.

Nearly 300,000 Hawaii residents live in condominium units statewide, so the exposure is broad, according to Collins.

The coalition includes Lahaina Community Land Trust; Nā Aikane o Maui; Molokai Community Service Council; De-Occupy Hawaiʻi; Honolulu Tenants Union; Hawaiʻi Filipinos for Truth, Justice and Democracy; Kōkua Council for Senior Citizens of Hawaiʻi; Maui Housing Hui; Maui Medic Healers Hui; Hawaiʻi Alliance for Progressive Action; Share Your Mana; Mutual Aid Lāhui; Maui Tomorrow Foundation; Food Not Bombs Hawaiʻi; Hoʻopae Pono Peace Project and the West Maui Preservation Association.

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