§667-5  Foreclosure under power of sale;
notice; affidavit after sale.  (a)  When a power of sale is contained in a
mortgage, and where the mortgagee, the mortgagee's successor in interest, or
any person authorized by the power to act in the premises, desires to foreclose
under power of sale upon breach of a condition of the mortgage, the mortgagee,
successor, or person shall be represented by an attorney who is licensed to
practice law in the State and is physically located in the State.  The attorney
shall:



(1)  Give notice of the mortgagee's, successor's, or
person's intention to foreclose the mortgage and of the sale of the mortgaged
property, by publication of the notice once in each of three successive weeks
(three publications), the last publication to be not less than fourteen days
before the day of sale, in a newspaper having a general circulation in the
county in which the mortgaged property lies; and



(2)  Give any notices and do all acts as are
authorized or required by the power contained in the mortgage.



(b)  Copies of the notice required under
subsection (a) shall be:



(1)  Filed with the state director of taxation; and



(2)  Posted on the premises not less than twenty-one
days before the day of sale.



(c)  Upon the request of any person entitled to
notice pursuant to this section and sections 667-5.5 and 667-6, the attorney,
the mortgagee, successor, or person represented by the attorney shall disclose
to the requestor the following information:



(1)  The amount to cure the default, together with the
estimated amount of the foreclosing mortgagee's attorneys' fees and costs, and
all other fees and costs estimated to be incurred by the foreclosing mortgagee
related to the default prior to the auction within five business days of the
request; and



(2)  The sale price of the mortgaged property once
auctioned.



(d)  Any sale, of which notice has been given
as aforesaid, may be postponed from time to time by public announcement made by
the mortgagee or by some person acting on the mortgagee's behalf.  Upon request
made by any person who is entitled to notice pursuant to section 667-5.5 or
667-6, or this section, the mortgagee or person acting on the mortgagee's
behalf shall provide the date and time of a postponed auction, or if the
auction is canceled, information that the auction was canceled.  The mortgagee
within thirty days after selling the property in pursuance of the power, shall
file a copy of the notice of sale and the mortgagee's affidavit, setting forth
the mortgagee's acts in the premises fully and particularly, in the bureau of
conveyances.



(e)  The affidavit and copy of the notice shall
be recorded and indexed by the registrar, in the manner provided in chapter 501
or 502, as the case may be.



(f)  This section is inapplicable if the
mortgagee is foreclosing as to personal property only. [L 1874, c 33, §1; am L
1907, c 59, §1; am L 1911, c 108, §1; am L 1915, c 121, §1; RL 1925, §2879; RL
1935, §4724; am L 1937, c 138, §1; RL 1945, §12424; RL 1955, §336-5; am L 1967,
c 256, §1; HRS §667-5; am L 1972, c 90, §9(e); gen ch 1985; am L 1989, c 20, §5;
am L 2008, c 138, §1]



 



Cross References



 



  Publication, how made, see §601-13.



  Further provisions as to notice, affidavit, see §667-7.



 



Law Journals and Reviews



 



  Hawai‘i 2000 Report Regarding Lawyers' Opinion Letters in
Mortgage Loan Transactions.  22 UH L. Rev. 347.



  Mortgagor Protection Laws:  A Proposal for Mortgage
Foreclosure Reform in Hawai‘i.  24 UH L. Rev. 245.



 



Case Notes



 



  Mortgagee in exercising power must not oppress debtor or
sacrifice the estate.  5 H. 262.  As to duty to sell in parcels, see 17 H. 49. 
Foreclosure not barred because statute of limitations has run against note but
no deficiency judgment can be entered.  17 H. 49; 20 H. 620.  Foreclosure
barred, by analogy, by statute applicable to real actions.  15 H. 507. 
Ejectment and not bill in equity proper remedy for purchaser at sale under
power, to obtain possession.  14 H. 515.  Mere filing of bankruptcy petition
between date of publication and date of sale does not invalidate sale but
bankruptcy court may enjoin sale.  7 F.2d 576.



  Plaintiff-appellant challenged this statute as violating the
due process clause of the Fourteenth Amendment; district court's dismissal of
the case for failure to state a claim because the sale was a purely private
remedy and involved no state action, affirmed.  324 F.3d 1091.



  Acts to be done by mortgagee not required to be done
personally.  8 H. 108.



  Publication in Hawaiian no longer required.  22 H. 183.



Constitutionality.  17 H. 49; 17 H. 528, 534.  Validity of
sale; provisions of power of sale must be followed.  5 H. 262; 17 H. 49. 
Redemption; no statute authorizes redemption after sale, and hence no right of
redemption exists.  15 H. 271.



  Chattel mortgages, duty to obtain best price.  35 H. 158.