Kekauoha-Alisa v. Ameriquest Mortgage Co. (In Re Kekauoha-Alisa)
2012 U.S. App. LEXIS 6147
| 9th Cir. | 2012Background
- Debtor refinanced a 2002 mortgage for $127,500 on Hawaii Island; default occurred multiple times.
- Foreclosure was scheduled for May 13, 2005; stay due to Chapter 13 filing on May 10, 2005.
- Lenders postponed the sale three times under HRS § 667-5; on Sept. 23, 2005 a fourth postponement was mishandled.
- A secretary failed to publicly announce or post the Sept. 23 postponement; other bidders were not informed.
- Foreclosure sale occurred Dec. 2, 2005; deed recorded Dec. 27, 2005; ejectment action followed.
- Bankruptcy court voided the sale, awarding treble damages under HRS § 480-13 and attorneys’ fees; BAP reversed on liability but not damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a public announcement under HRS § 667-5 | Kekauoha-Alisa argues no public announcement occurred. | Lenders maintain the postponement satisfied 'public announcement' through communications. | Yes, lack of public announcement violated HRS § 667-5. |
| Whether the § 667-5 violation breached the mortgage contract | Postponement violated contract terms requiring compliance with state law. | No contract breach beyond statutory violation. | Breached; voided foreclosure sale as contract breach. |
| Whether the improper postponement was a deceptive practice under § 480-2 | Failure to announce deceives consumers and justifies treble damages. | BAP found no deception; contested damages. | Deceptive practice established; damages and remand for causation and fees. |
| Attribution and amount of damages and causation under § 480-13 | Damages include lost equity, rental value, and fees; causation tied to improper postponement. | Damages must be tied to the deceptive act; causation not clearly shown; fees miscalculated. | Remand to determine causation and damages; damages not limited as previously calculated. |
| AttORNEYS' FEES under § 607-14 and § 480-13 | Twenty-five percent cap should not bar contract-fee recovery in light of damages. | Cap applies; Food Pantry exception not available here since monetary damages exist. | Vacate and remand fees calculation consistent with remanded damages and causation. |
Key Cases Cited
- Silva v. Lopez, 5 Haw. 262 (Haw. 1884) (strict compliance voids sale where notice is insufficient)
- Lee v. HSBC Bank USA, 218 P.3d 775 (Haw. 2009) (foreclosure after cure of default invalid; strict compliance)
- In re Kirkland, 915 F.2d 1236 (9th Cir. 1990) (predict state law interpretation when no controlling decision)
- Courbat v. Dahana Ranch, Inc., 141 P.3d 435 (Haw. 2006) (deception standard for § 480-2; objective test)
- Anderson v. City of Bessemer City, 470 U.S. 564 (U.S. 1985) (reasonableness standard for appellate deference on factual issues)