- Who sends it
- The lender's Hawaii attorney files it in circuit court, and it is served on you
- What it starts
- A foreclosure lawsuit; 20 days after service to file a written answer
- Do this first
- Write down the date you were served and call Legal Aid Society of Hawaii at 808-536-4302 (Neighbor Islands 1-800-499-4302)
What this document is in Hawaii
Hawaii allows foreclosure by a lawsuit, called foreclosure by action, under HRS chapter 667 part IA, and power of sale foreclosure without a court under part II. The state file says lenders mostly use the court process, with roughly 1,000 judicial foreclosure filings a year counted by the Judiciary.
The public information notice in HRS § 667-41 explains it this way: in a judicial foreclosure, the lender files a lawsuit to get a court judgment that you owe the balance and an order to sell the property, and "the initial legal document you will receive in the lawsuit is called the complaint." The sale happens under court supervision and must be approved by the court before it is complete.
For residential property, the attorney who files must sign and file, at the start of the case, an affirmation under penalty of perjury that the attorney checked with the lender and that the summons, complaint and other papers contain no false statements and the lender has standing to bring the case (HRS § 667-17). Look for a page titled AFFIRMATION in your papers.
What it does and does not mean
- It does not mean you must move out. A judge decides the case, a court-appointed commissioner holds any auction, and the judge must approve the sale.
- It does give you the chance to raise defenses in front of a judge, but only if you answer on time.
- In a court foreclosure the lender can ask for a deficiency judgment if the sale does not cover the debt (state file; HRS § 667-41). See the Hawaii deficiency page.
- The public information notice says that even after a foreclosure has started, you may be able to reinstate by paying the delinquent amount and the lender's foreclosure expenses, and to contact the lender as soon as possible to find out.
The deadline and how to count it
- Answer: 20 days after you are served, under Hawaii Rule of Civil Procedure 12(a) as stated in the state file. Count calendar days from the day the papers were served on you, and check the summons for the exact wording.
- No answer: missing the deadline can let the lender win without your side being heard.
- Advertising before any court sale: once a weekly notice for three weeks in a row, with the auction no sooner than 14 days after the third ad (HRS § 667-20). See the Hawaii public notice of sale.
- Hawaii Island: owner-occupants served with a foreclosure can ask for mediation with the lender before a judge hears the case by filing a Foreclosure Mediation Request. The Judiciary lists (808) 961-7440 for information.
What to do this week
- Mark the 20-day answer deadline on your calendar.
- Call Legal Aid Society of Hawaii at 808-536-4302, or 1-800-499-4302 from the Neighbor Islands. The Judiciary also lists Volunteer Legal Services Hawaii at (808) 528-7046 or 1-800-839-5200, and the Hawaii State Bar Association Lawyer Referral and Information Service at (808) 537-9140.
- Check whether the attorney affirmation was filed and served with the complaint.
- If you live on Hawaii Island, call (808) 961-7440 about the Foreclosure Mediation Request.
- Keep sending your servicer a complete loss mitigation application, and keep written records. A Hawaii lender is bound by the agreements and representations its servicer makes on its behalf (HRS § 667-59, per the state file).
- Read how to stop foreclosure in Hawaii.
Help and scam warnings
The Judiciary's courthouse Self-Help Centers and Access to Justice Rooms offer limited help from volunteer attorneys if you must file on your own.
- Under Hawaii's Mortgage Rescue Fraud Prevention Act, a distressed property consultant cannot take any payment until every promised service is finished, and its fee is capped (HRS chapter 480E, per the state file).
- Report rescue offers that ask for money up front to the Office of Consumer Protection in the Department of Commerce and Consumer Affairs.
- More is on the Hawaii foreclosure help page.
The rest of the Hawaii process
See how foreclosure works in Hawaii, the timeline, ways to stop it and free help in Hawaii, or read the national guide to this letter.
Common questions
How long do I have to answer a Hawaii foreclosure complaint?
Twenty days after you are served, under Hawaii Rule of Civil Procedure 12(a). Count from the date of service. If you need help, call Legal Aid Society of Hawaii right away, because preparing an answer takes time.
What is the attorney affirmation in a Hawaii foreclosure?
For residential property, the lender's attorney must file, when the case starts, a sworn affirmation that the attorney spoke with the lender's representatives, made reasonable inquiry, and believes the papers contain no false statements and that the lender has standing (HRS § 667-17).
Can I get foreclosure mediation in a Hawaii court case?
Only the Third Circuit (Hawaii Island) pilot project is listed by the Judiciary. Owner-occupants who have been served can file a Foreclosure Mediation Request; call (808) 961-7440. The state's MFDR program covers power of sale foreclosures, not lawsuits.
Is there a right to buy the home back after a Hawaii court sale?
The state file found no redemption period after a court-confirmed sale in HRS chapter 667. Treat the auction and the court's approval as final, and act before them.
Other Hawaii letters
- Notice of Default and Intention to ForecloseIf your Hawaii lender wants to foreclose without a lawsuit, it must serve you a Notice of Default and Intention to Foreclose. It must give you at least 60 days to cure. If you are an owner-occupant, it also starts two separate 30-day windows: one to elect the state's dispute resolution program and one to convert the case to a court foreclosure. You can use only one.
- Department notification of Mortgage Foreclosure Dispute Resolution program, with election formWhen a lender files a power of sale foreclosure notice for an owner-occupied home, Hawaii's Department of Commerce and Consumer Affairs mails you a notice about its Mortgage Foreclosure Dispute Resolution program with a form to elect or waive it. The department must receive your completed form, proof you are an owner-occupant and a $300 fee within 30 days after it mails the notice. If you join, the foreclosure is put on hold while you meet with the lender and a neutral.
- Public Notice of Public SaleIn Hawaii, the auction of a foreclosed home is announced by a public notice of the public sale. In a court foreclosure a court-appointed commissioner publishes it. In a power of sale foreclosure the lender does, and the notice must say you can cure until three business days before the sale. Either way it is published for three weeks, and the sale cannot be sooner than 14 days after the third ad.