Au v. The Association of Apartment Owners of the Royal Iolani et al
Filing
26
ORDER DENYING MOTION TO EXPUNGE; ORDER DENYING MOTION TO SET ASIDE NONJUDICIAL POWER OF SALE AND MOTION FOR TEMPORARY RESTAINING ORDER re 10 , 12 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/12/2014. "Because Au fails to establish a basis for expunging the Notices, and fails to demonstrate a likelihood of success on the merits of any claim, the court denies Au's motion to expunge and Au's motion for a temporary restraining order. The denial of Au 39;s motion for a temporary restraining order is without prejudice. All requests for sanctions are denied. The court denies without prejudice all requests for attorneys' fees and costs relating to these motions. Among other things, those requ ests fail to comply with Local Rule 54.3." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Ronald Au served by first class mail at the address of record on August 12, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONALD GIT SUM AU,
)
)
Plaintiff,
)
)
vs.
)
)
THE ASSOCIATION OF APARTMENT )
OWNERS OF THE ROYAL IOLANI,
)
et al.
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 14-00271 SOM/BMK
ORDER DENYING MOTION TO
EXPUNGE; ORDER DENYING MOTION
TO SET ASIDE NONJUDICIAL
POWER OF SALE AND MOTION FOR
TEMPORARY RESTRAINING ORDER
ORDER DENYING MOTION TO EXPUNGE;
ORDER DENYING MOTION TO SET ASIDE NONJUDICIAL
POWER OF SALE AND MOTION FOR TEMPORARY RESTRAINING ORDER
I.
INTRODUCTION.
Plaintiff Ronald Git Sum Au moves to expunge Notices of
Default and Intention to Foreclose filed with the Office of the
Assistant Registrar of the Land Court for the State of Hawaii, to
set aside nonjudicial power of sale, and for a temporary
restraining order enjoining the nonjudicial foreclosure of his
property.
II.
His motions are denied.
FACTUAL BACKGROUND.
Au is a fee owner of two units (“Unit A” and “Unit B”)
in the Royal Iolani Condominium (“Royal Iolani”).
PageID # 4.
ECF No. 1-1,
This court is familiar with him from his appearances
before the court when he was practicing law, although obviously
he appears in the present case not as an attorney but rather as a
plaintiff representing himself.
On January 16, 2014, and January 21, 2014, Defendant
Association of Apartment Owners of the Royal Iolani (the “AOAO”),
through its attorney, Defendant R. Laree McGuire, filed Notices
of Default and Intention to Foreclose (the “Notices”) with the
Land Court for Au’s two units in the Royal Iolani in connection
with unpaid assessments owed to the AOAO.
15.
ECF No. 1-1, PageID #
The Notice filed on January 16, 2014, with respect to Unit A
stated that the default for that unit had to be cured by March
17, 2014.
ECF No. 10-5, PageID # 168.
The Notice filed on
January 21, 2014, with respect to Unit B stated that the default
for that unit had to be cured by March 22, 2014.
ECF No. 10-4,
PageID # 162.
On February 25, 2014, Au submitted a payment plan to
McGuire and the AOAO’s president.
ECF No. 12-9.
The February 25
payment plan proposed payment of all amounts owed to the AOAO for
Unit A and Unit B except attorneys’ fees, which Au sought to
mediate.
Id.
On March 21, 2014, Au sent a letter to the new
president of the AOAO, again enclosing his February 25 proposal.
ECF No. 12-10.
On March 24, 2014, McGuire, on behalf of the AOAO,
declined Au’s February 25 proposal because it failed to include
payment of attorneys’ fees and costs.
ECF No. 17-3.
On April 25, 2014, Au filed a Complaint in state court
against the AOAO, Hawaiiana Management Company, Ltd.
(“Hawaiiana”), which was the AOAO’s management agent, and McGuire
2
(collectively, “Defendants”), asserting claims for: (1)
intentional or negligent conduct; (2) intentional or negligent
misrepresentation; (3) fraud and concealment; (4) violation of
chapter 480D of Hawaii Revised Statutes and 15 U.S.C. § 1692; and
(5) violation of chapter 480 of Hawaii Revised Statutes.
1-1.
ECF No.
The action was removed to federal court pursuant to 28
U.S.C. § 1441 on June 10, 2014.
ECF No. 1.
Before the case was removed, Au had filed a motion to
expunge notice of default and intention to foreclose, arguing
that the Notices gave him shorter periods to cure the defaults
than he was entitled to have.
ECF No. 10-1, PageID # 42.
This
court now addresses Au’s motion.
In the motion to expunge, Au contends that he was not
served with the Notices until March 7, 2014, and that section
667-92(a)(6) of Hawaii Revised Statutes required the AOAO to give
him sixty days from the date of service to cure the default.
ECF
No. 10-1, PageID # 142.
In response to Au’s motion to expunge, Defendants argue
that the AOAO complied with section 667-92 of Hawaii Revised
Statutes, and that the Notices should not be expunged because
section 667-92(f) permits an association to foreclose even when a
notice of default and intention to foreclose cannot be served at
all.
ECF No. 15, PageID # 298-301; ECF No. 16, PageID # 528-30,
532-33.
Defendants also contend that Au violated section 514A-90
3
of Hawaii Revised Statutes by filing suit before paying the AOAO
all amounts due and owing.
ECF No. 15, PageID # 301-03; ECF No.
16, PageID # 533-35.
On June 9, 2014, Au submitted another payment plan to
the AOAO purporting to account for all amounts owed for Unit B.
ECF No. 12-11.
On July 14, 2014, Au filed a motion to set aside
nonjudicial power of sale or, in the alternative, for a temporary
restraining order.
ECF No. 12-1.
Because nothing in the record
suggests that any sale has occurred to date, the court, having
before it nothing to set aside, considers Au’s arguments in the
context of his request for a temporary restraining order, even if
presented in the motion as supporting his request to set aside a
foreclosure.
Au seeks to enjoin the public auction of Unit B
scheduled for August 15, 2014, based on: (1) the AOAO’s alleged
violation of sections 667-92 and 667-94 of Hawaii Revised
Statutes; (2) the AOAO’s rejection of Au’s payment plans; (3) the
lack of itemization and explanation of the AOAO’s attorneys’
fees; and (4) alleged violations of Au’s constitutional rights.
Id.
In support of his request for a temporary restraining order,
Ao states that he will suffer irreparable injury if the sale is
permitted to proceed on August 15, 2014 .
4
Id., PageID # 204.
III.
ANALYSIS.
A.
Motion to Expunge.
Au argues that the Notices must be expunged because the
AOAO has violated section 667-92(a) of Hawaii Revised Statutes.
ECF No. 10, PageID # 142.
Au, however, fails to demonstrate that
the Notices must be expunged on that basis.
Section 667-92(a) of Hawaii Revised Statutes requires
an association to prepare a notice of default and intention to
foreclose when a unit owner fails to pay an assessment and the
association intends to conduct a power of sale foreclosure.
The
notice of default and intention to foreclose must state “[t]he
date by which the default must be cured, which shall be within
sixty days after service of the notice of default and intention
to foreclose[.]”
Haw. Rev. Stat. § 667-92(a)(6).
Although Au contends that section 667-92(a)(6)
requires a sixty-day period to cure measured from the date of
service, the text of the statute does not actually require that.
Section 667-92(a)(6) states that the cure date must be “within
sixty days after service of the notice of default and intention
to foreclose,” suggesting that any period short of sixty days
would suffice.
(Emphasis added).
It does appear, however, that the legislature probably
misstated its intention in section 667-92(a)(6).
Section 667-
92(c) states: “A unit owner may also cure the default within
5
sixty days after service of a notice of default and intention to
foreclose on the unit owner by paying the association the full
amount of the default . . . . [A]ny nonjudicial foreclosure of
the lien shall be stayed during the sixty-day period to cure the
default[.]”
This language contemplates a sixty-day cure period,
rather than a cure period that is sufficient if it ends any time
within sixty days after service.
If the cure period is sixty days, the Notices did
misstate the dates by which Au needed to cure his default.
However, even assuming such an error, the court declines to
expunge the Notices.
First, Au was actually provided with the sixty days he
claims he was owed.
ECF No. 15, PageID # 299.
Au was served
with the Notices on March 7, 2014, and the AOAO gave him until
May 7, 2014 to cure his default, although it does not appear that
Au made any effort to cure during that period.
Id.
Thus, Au’s
motion fails to the extent it is based on the amount of time he
was actually provided to cure.
Second, if Au is objecting to the recordation of
Notices with incorrect cure dates in Land Court, Au fails to
provide any reason for the court to expunge the Notices on that
basis.
Au cites In re Bishop Trust Co., 35 Haw. 816 (1941), for
the proposition that a certificate of title is “conclusive and
unimpeachable,” but the qualities of a certificate of title are
6
irrelevant in determining whether notices of default and
intention to foreclose should be expunged.
Au also likens his motion to expunge the Notices to
motions to expunge a lis pendens, apparently on the theory that
because a court may expunge a lis pendens, a court may also
expunge a notice of default and intention to foreclose that bears
an incorrect cure date.
support that proposition.
The case law Au cites, however, does not
A lis pendens is expunged when the
underlying action does not seek to obtain title to or possession
of real property.
Valvanis v. Milgroom, Civ. No. 06-00144
JMS-KSC, 2007 WL 3353567, at *2 (D. Haw. Oct. 5, 2007).
Here,
the AOAO is seeking to obtain title to or possession of Au’s real
property.
The AOAO intends to conduct a power of sale
foreclosure as a result of unpaid assessments, and conformed to
section 667-93 of Hawaii Revised Statutes in recording the
Notices.
See Haw. Rev. Stat. § 667-93 (“Before the deadline date
in the notice of default and intention to foreclose, the notice
may be recorded in a recordable form in a manner similar to
recordation of notices of pendency of action under section
501-151 or section 634-51, or both, as applicable.”).
While the existence of recorded Notices may burden Au’s
property, this burden is a permissible result of the AOAO’s
intention to foreclose.
the AOAO’s claim.
Recordation gives notice to the world of
The incorrect cure dates have no impact on
7
whether the Notices were improperly recorded and should be
expunged.
Au filed a reply memorandum in support of his motion on
July 31, 2014.
Under Local Rule 7.4, Au’s reply is untimely
because it was filed less than fourteen days before the date of
the hearing on the motion.
Au’s reply.
As a result, the court may disregard
The reply may also be disregarded pursuant to the
same local rule to the extent it raises arguments for the first
time that should have been raised in the original motion.
However, even if the court considers Au’s reply in its entirety,
Au fails to demonstrate that the Notices must be expunged.
The court recognizes that, in his reply memorandum, Au
is objecting to a communication from the AOAO dated July 24,
2014, which is after he filed his motion to expunge and so could
not have been addressed in that motion.
That communication
informed him that he had to pay $17,451.71 to cure his default on
Unit B.
ECF No. 22, PageID # 1081.
Au complains that this was a
new amount that had not previously been “claimed or stated in the
Notice of Default and Intention to Foreclose.”
Id.
Au does not
explain, however, why the Notices must be expunged on this basis.
Not only does Au’s contention relate only to Unit B, when he is
seeking to expunge the Notices for both units, Au fails to
acknowledge that the new figure reflects increased default
amounts accruing since the dates of the Notices.
8
These increases
do not demonstrate that the Notices should be expunged.
In his reply, Au also contends for the first time that:
(1) “delinquencies must be stricken as illegal and unenforceable”
because section 667-92 of Hawaii Revised Statutes was “expressly
not made retroactive”; (2) the AOAO’s accounting cannot be
reconciled; and (3) being required to pay the entire default in
order to avoid foreclosure is a deprivation of due process.
No. 22.
ECF
The court addresses the merits of these arguments in
connection with Au’s motion for a temporary restraining order.
These arguments go to whether or what the AOAO may actually
recover, not to whether the Notices should be expunged.
Au fails to establish a basis for expunging the
Notices, and his motion to expunge is denied.1
B.
Temporary Restraining Order.
The standard for issuing a temporary restraining order
is identical to the standard for issuing a preliminary
injunction.
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr.,
1
In opposition to Au’s motion to expunge, Defendants argue
that Au violated section 514A-90 of Hawaii Revised Statutes by
filing suit before paying the AOAO all amounts due and owing.
ECF No. 15, PageID # 301-03; ECF No. 16, PageID # 533-35. The
AOAO and Hawaiiana state that Au’s suit is therefore “improper
and should be dismissed.” ECF No. 15, PageID # 303.
A violation of section 514A-90 bears little, if any,
relevance to whether the Notices should be expunged based on a
violation of section 667-92(a). Further, any dismissal of Au’s
suit should be sought through a motion to dismiss, not through an
opposition to a motion.
9
Civ. No. 12-00064 LEK-KSC, 2012 WL 381209, *6 (D. Haw. Feb. 3,
2012).
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.”
Winter v. Natural Res.
Def. Council, Inc., 55 U.S. 7, 20 (2008); accord Sierra Forest
Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (“Under
Winter, plaintiffs seeking a preliminary injunction must
establish that (1) they are likely to succeed on the merits; (2)
they are likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in their
favor; and (4) a preliminary injunction is in the public
interest.”).
The Supreme Court has cautioned that a “preliminary
injunction is an extraordinary and drastic remedy never awarded
as of right.”
Winter, 55 U.S. at 24 (citing Munaf v. Geren, 128
S. Ct. 2207, 2219 (2008)).
Courts balance the competing claims
of injury and consider the effect on each party of granting or
denying the injunction.
1.
Section 667-92(a)(6).
Au argues that he is entitled to injunctive relief
because the AOAO violated section 667-92(a)(6) of Hawaii Revised
Statutes by misstating the cure date in the Notice for Unit B.
10
ECF No. 12-1, PageID # 193.
For the same reasons noted in
section III.A of this order, Au’s argument with respect to
section 667-92(a)(6) cannot be the basis for a claim on which he
is likely to succeed on the merits.
2.
Section 667-60(a)(1).
In his reply, Au appears to argue for the first time
that the AOAO violated section 667-60(a)(1) of Hawaii Revised
Statutes because the Notice “completely disregards personal
service in the deadline to cure.”
ECF No. 23, PageID # 1119.
This argument is not responsive to any opposition argument.
Local Rule 7.4 states that arguments raised for the first time in
a reply shall be disregarded.
fails.
Even if considered, this argument
Section 667-60(a)(1) states that a foreclosing mortgagee
“[f]ailing to provide a borrower or mortgagor with, or failing to
serve as required, the information required by section 667-22 or
667-55” is an unfair or deceptive act or practice.
Because the
AOAO is not a “foreclosing mortgagee” for purposes of section
667-60(a)(1), that statute is inapplicable here.
Nor is either section 667-22 or section 667-55,
referred to in section 667-60(a)(1), implicated in this case.
Sections 667-22 and 667-55 apply to foreclosing mortgagees, which
are lenders listed in section 667-21.
3.
“Reasonable Payment Plan.”
Au contends that the AOAO violated section 667-92(c) of
11
Hawaii Revised Statutes by failing to accept his reasonable
payment plans.
Id., PageID # 195-96.
Pursuant to section 667-92(c), “[a] unit owner may
submit a payment plan within thirty days after service of a
notice of default and intention to foreclose on the unit owner.”
An association is not permitted to reject a reasonable payment
plan.
Haw. Rev. Stat. § 667-92(c).
A “reasonable payment plan”
is defined as a plan that provides for:
(1) Timely payment of all assessments that
become due after the date that the payment
plan is proposed; and (2) Additional monthly
payments of an amount sufficient to cure the
default, within a reasonable period under the
circumstances as determined by the board of
directors in its discretion; provided that a
period of up to twelve months shall be deemed
reasonable; and provided further that the
board of directors shall have the discretion
to agree to a payment plan in excess of
twelve months.
Id.
The three payment plans Au cites do not constitute
“reasonable payment plans” under section 667-92(c).
The first,
submitted to the AOAO on February 25, 2014, did not include
attorneys’ fees.
See ECF No. 12-9.
Section 667-92(c) specifies
that a “reasonable payment plan” must provide for “payments of an
amount sufficient to cure the default.”
(Emphasis added).
The
word “default” includes attorneys’ fees and costs, as evidenced
by language in the same section stating: “A unit owner may also
cure the default within sixty days after service of a notice of
12
default and intention to foreclose on the unit owner by paying
the association the full amount of the default, including the
foreclosing association’s attorneys’ fees and costs[.]”
Id.
(emphasis added); see also In re Collins, No. 13-01783, 2014 WL
2575898, *3 (Bankr. D. Haw. June 9, 2014) (“[A] plan that
requires an association to take less than the full amount owed is
not a ‘reasonable payment plan’ within the meaning of the
statute.”).
Thus, Au’s February 25 payment plan was not a
“reasonable payment plan,” and the AOAO did not have to accept
it.
This conclusion also applies to the payment plan Au
submitted on March 21, 2014.
The letter Au sent to the AOAO on
that date appears to have simply attached Au’s February 25
proposal.
See ECF No. 12-10. Au’s March 21 proposal therefore
fails just as his February 25 proposal did.
Nor was the AOAO required to accept Au’s third payment
plan proposal.
Au submitted his third proposal to the AOAO on
June 9, 2014, far past the thirty-day period within which a unit
owner may submit a payment plan under section 667-92(c).
Au had
until April 6, 2014, to submit a payment plan to the AOAO
pursuant to that section.
Any proposal after that date, even if
“reasonable,” did not have to be accepted.
In his reply memorandum in support of his motion for a
temporary restraining order, Au complains that the AOAO, citing
13
Au’s failure to account for the entire default, has rejected his
third proposal.
ECF No. 23, PageID # 1124.
Au contends that he
is “ready, willing and able” to pay the full $11,888.60
deficiency stated in the Notice of January 21, 2014, but that the
AOAO now says that $11,888.60 is insufficient to cure the
default.
Id.
As previously noted, Au missed the period within
which to cure the default amount listed in the Notice and is now
subject to a higher default given the accumulation of further
amounts over time.
Au does not point to any requirement that he
be permitted to cure his default by paying the amount stated in
the Notice far past the Notice’s cure period.
Because no violation of section 667-92(c) could have
resulted from the AOAO’s rejection of Au’s three payment plans,
Au fails to demonstrate a likelihood of success on the merits of
such a claim.2
4.
Section 667-94.
Au appears to argue that he is entitled to injunctive
relief because the AOAO violated section 667-94(a) of Hawaii
2
While asking this court to issue a temporary restraining
order, Au argues that this court lacks subject matter
jurisdiction because of Defendants’ alleged noncompliance with
section 667-92 of Hawaii Revised Statues. ECF No. 12-1, PageID #
196-97. Au misapprehends how subject matter jurisdiction is
determined. A violation of section 667-92 does not strip a court
of subject matter jurisdiction. Because Au has asserted a claim
arising under a federal statute, this court has jurisdiction
pursuant to 28 U.S.C. § 1331. Au’s arguments regarding the
AOAO’s noncompliance with section 667-92 have no bearing on the
exercise of jurisdiction.
14
Revised Statutes by failing to cancel the nonjudicial foreclosure
despite having “no standing to proceed.”
196.
ECF No. 12-1, PageID #
Section 667-94(a) states:
If the default is cured as required by the
notice of default and intention to foreclose,
or if the parties have agreed on a payment
plan, the association shall rescind the
notice of default and intention to foreclose.
Within fourteen days of the date of the cure
or an agreement on a payment plan, the
association shall so notify any person who
was served with the notice of default and
intention to foreclose. If the notice of
default and intention to foreclose was
recorded, a release of the notice of default
and intention to foreclose shall be recorded.
Because Au failed to cure the default and the parties
did not agree on a payment plan, the AOAO was not obligated to
rescind the Notice under section 667-94(a), or to cancel the
sale.
Instead, the AOAO was permitted to proceed under section
667-94(b), which allows an association to foreclose on its lien
at a public sale if the default is not cured or a payment plan is
not agreed on.
Contrary to Au’s assertions, the AOAO may
foreclose on its lien and did not commit a violation of chapter
667 that deprives it of a right to foreclose.
5.
Constitutionality of Sections 667-92 and 66717.
Au appears to challenge the constitutionality of
sections 667-92 and 667-17 of Hawaii Revised Statutes.
However,
beyond making a passing reference to constitutional objections,
Au only asserts that the “Court should require [Defendants] to
15
establish to the Court’s satisfaction that the Statute HRS 667-17
is constitutional.”
ECF No. 12-1, PageID # 204.
As the movant, Au bears the burden of demonstrating
that a statute is unconstitutional.
Am. Promotional Events,
Inc.–Nw. v. City & Cnty. of Honolulu, 796 F. Supp. 2d 1261, 1283
(D. Haw. 2011) (“[L]egislative enactments are presumptively
constitutional, and the party challenging a statute has the
burden of showing the alleged unconstitutionality beyond a
reasonable doubt.” (internal quotation marks omitted)).
In his motion for a temporary restraining order, Au
fails to demonstrate that he is likely to meet his burden.
Au
fails to present any support for his constitutional arguments.
He does not even clearly suggest which constitutional provision
is implicated.
When Au’s motion for a temporary restraining order is
examined in the context of his Complaint, it appears that Au may
be asserting that the application of section 667-92 of Hawaii
Revised Statutes violates his due process and equal protection
rights, and that his property has been taken by Defendants
without just compensation.
ECF No. 1-1, PageID # 6.
However,
even assuming that this provides the context for Au’s assertions
in his motion for a temporary restraining order, Au fails to
demonstrate a likelihood of success on the merits.
Au’s motion
for a temporary restraining order is lacking in any analysis
16
supporting his claims under the constitutional provisions cited
in his Complaint.
At most, in his reply, Au complains that he is required
to pay 100% of the default to the AOAO before receiving a “due
process” hearing, but he offers no explanation as to what hearing
he is referring to, or how such a situation violates his due
process rights.
ECF No. 23, PageID # 1124.
Au also fails to
explain how the various constitutional provisions he cites would
be implicated by the nonjudicial foreclosure of his property.
See, e.g., Apao v. Bank of New York, 324 F.3d 1091, 1095 (9th
Cir. 2003) (“While the bar for state action is low . . .
non-judicial foreclosure procedures like Hawaii’s nevertheless
slip under it for want of direct state involvement.”).
With such
significant issues left unaddressed, Au has failed to demonstrate
a likelihood of success on the merits of his constitutional
claims.
See Williamson v. Basco, Civ. No. 06-00012 JMS/LEK, 2007
WL 4570496, *2 (D. Haw. Dec. 31, 2007) (“A party challenging the
constitutionality of a statute bears a heavy burden of proof.”);
see also In re Collins, No. 13-01783, 2014 WL 2575898, at *4
(Bankr. D. Haw. June 9, 2014) (“The Hawaii nonjudicial
foreclosure statute is constitutional.”).
Tellingly, he has not complied with Rule 5.1 of the
Federal Rules of Civil Procedure, which requires a party “drawing
into question the constitutionality of a . . . state statute” to
17
serve the paper raising the question on the state attorney
general.
Au either was unaware of the rule or did not view
himself as actually raising a constitutional challenge.
6.
Attorneys’ Fees.
In support of his request for injunctive relief, Au
complains that: (1) the AOAO’s attorneys’ fees have not been
explained or itemized beyond a mere statement of the amount of
fees incurred; (2) McGuire has not established her hourly rate
and demonstrated that it aligns with prevailing community rates;
and (3) the AOAO has not demonstrated that the fees were
reasonably necessary.
ECF No. 12-1, PageID # 194-95, 201-02.
Au
fails, however, to cite any authority requiring the AOAO or
McGuire to take the above actions.
The case law Au cites relates
to an award of attorneys’ fees by the court, not an AOAO’s
attorneys’ fees in the context of a nonjudicial foreclosure.
Nor
does Au offer anything suggesting an unreasonable hourly rate or
an unwarranted expenditure of time.
He does not, for example,
suggest what a reasonable amount would be.
It is Au’s burden,
both as Plaintiff and as the moving party, to support his claims
and arguments.
He fails to demonstrate a likelihood of success
on the merits of a claim based on the unreasonableness of the
AOAO’s attorneys’ fees.
18
7.
Retroactivity of Section 667-92.
In his reply, Au argues for the first time that
Defendants have assessed attorneys’ fees for Unit B incurred
before section 667-92 of Hawaii Revised Statutes took effect,
even though section 667-92 was “not made retroactive.”
23, PageID # 1123.
ECF No.
Pursuant to Local Rule 7.4, any arguments in
a reply that were not previously raised may be disregarded.
Even
if considered, this argument is without merit.
Inclusion of attorneys’ fees incurred before section
667-92 was enacted is not a ground upon which to enjoin the
public auction of Unit B.
The AOAO initiated the nonjudicial
foreclosure process against Au after section 667-92 took effect.
Nothing in that section suggests that attorneys’ fees incurred by
an association prior to the section’s enactment cannot be
recovered if recovery of fees was provided for even before
section 667-92 took effect.
Just as delinquent monthly
assessments incurred before section 667-92 were still owed after
the statute took effect, so were attorneys’ fees.
did not wipe out pre-existing debts.
Section 667-92
Instead, it added a
nonjudicial foreclosure process to the already existing judicial
foreclosure process as a means of collecting debts.
Use of the
nonjudicial process to collect a pre-existing debt does not
implicate any prohibition on retroactive application of law.
19
8.
Statute of Limitations and Waiver.
In yet another argument raised for the first time in
his reply, Au states: “There is also a material issue of fact
whether there is a statute of limitations and or waiver as an
issue where the delinquency commences from July 31, 2009.”
No. 23, PageID # 1123.
ECF
Au does not show that he is likely to
succeed on the merits of such a claim.
Au does not provide any explanation for his statute of
limitations and waiver arguments other than the statement quoted
above.
The court does not perceive any reason to conclude that
there is a statute of limitations or waiver problem just because
the default begins from July 31, 2009, and Au fails to cite any
authority supporting his position.
9.
Accounting.
Referencing the Notices for Units A and B and the
Declaration of Ralph Ahles, Au argues in his reply that the
public action of Unit B must be enjoined because Hawaiiana’s
accounting “cannot be reconciled.”
ECF No. 23, PageID # 1121-22.
The accounting for Unit A is irrelevant to Au’s motion
seeking to enjoin the public auction of Unit B.
Moreover, it is
unclear exactly what Au finds objectionable about the accounting.
Au’s sole explanation may be found in a heading stating: “The
summary provided by Mr. Ahles totally contradicts the notice of
default and intention to foreclose filed by Defendant McGuire.”
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Id., PageID # 1121.
If this is Au’s objection to the accounting,
Au again fails to recognize that the default amount changes over
time, and that the Notice does not lock in a cure amount beyond
the Notice’s cure period.
IV.
CONCLUSION.
Because Au fails to establish a basis for expunging the
Notices, and fails to demonstrate a likelihood of success on the
merits of any claim, the court denies Au’s motion to expunge and
Au’s motion for a temporary restraining order.
The denial of
Au’s motion for a temporary restraining order is without
prejudice.
All requests for sanctions are denied.
The court
denies without prejudice all requests for attorneys’ fees and
costs relating to these motions.
Among other things, those
requests fail to comply with Local Rule 54.3.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 12, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Au v. The Association of Apartment Owners of the Royal Iolani, et al., Civ.
No. 14-00271 SOM/BMK; ORDER DENYING MOTION TO EXPUNGE; ORDER DENYING MOTION
FOR TEMPORARY RESTRAINING ORDER
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