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LegalKnowledge, Attorney
Category: Legal
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In hawaii, prior to a judicial foreclosure does the bank have

Customer Question

In hawaii, prior to a judicial foreclosure does the bank have to file a notice of default prior to the complaint? and does the debtor have the right to cure before the issuance of a summary judgement?
Submitted: 4 years ago.
Category: Legal
Expert:  LegalKnowledge replied 4 years ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

I certainly understand the situation and your concern. The notice of default which must be sent, is typically a condition precedent, to the lender starting the foreclosure action. If you re-read the terms and conditions of your mortgage, it will likely be stated within, that the lender must send you a 30 or 45 day notice, with a chance to cure, prior to filing the foreclosure action. Moreover, the borrower may cure any default up until three (3) days before the foreclosure sale by payment of all arrearages, costs and fees to include attorney’s fees. As such, if the borrower can cure the default, they should advise the lender of such and request a payoff amount, to reinstate the loan, which will be provided.

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Customer: replied 4 years ago.

What you have stated is true for a non-juducial forclosure, I have asked about the juducial process in Hawaii

Customer: replied 4 years ago.

What you have said is true with regards XXXXX XXXXX non-judicual foreclose process. I asked about the judicial process; Does the borrower have the right to reinstate prior to a summary judgement? In the judicial process, does the lender still have to file a notice of default giving the borrower a chance to reinstate.

Expert:  LegalKnowledge replied 4 years ago.

I am aware of what you were asking for. The lender still needs to go through the process of sending a notice of default and allowing you to cure. Their decision to go through the judicial foreclosure process allows them to pursue any deficiency judgment which they may seek pursuant to the statute which I have provided for you below. You are still awarded the same protections and rights and the lender still have to comply with the conditions precedent, so I stand behind the answer which I have provided. Haw. Rev. Stat. § 667-1 The circuit court may assess the amount due upon a mortgage, whether of real or personal property, without the intervention of a jury, and shall render judgment for the amount awarded, and the foreclosure of the mortgage. Execution may be issued on the judgment, as ordered by the court