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● 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".
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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:
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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.
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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.
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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.
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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.
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Foreclosure Process
Hawaii Foreclosure
Laws
