Lima v. Deutsche Bank National Trust Co.
943 F. Supp. 2d 1093
D. Haw.2013Background
- Two related putative class actions arising from nonjudicial foreclosures: Lima and Kirby properties against Deutsche Bank and Rosen, and Gibo property against U.S. Bank and Rosen.
- Plaintiffs allege foreclosure notices advertised quitclaim deeds, resulting in depressed auction prices and UDAP violations.
- Kirby and Lima foreclosures involved notices of sale and postponed auctions, with claims that postponement notices were not properly published.
- Gibo alleges U.S. Bank knew there were no superior title claims and that quitclaim conveyances and postponed sale notices violated state law.
- Banks and Rosen moved to dismiss for lack of standing, insufficient pleading, and failure to plead UDAP; court grants motions, with potential for amendment contemplated.
- Court addresses whether Hawaii’s nonjudicial foreclosure statute requires quitclaims or publication of postponements and whether UDAP claims survive against Banks and Rosen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hawaii law requires quitclaim deeds or specific publication. | Lima/Gibo argue 667-5 requires quitclaim and published notices. | Banks/Robson contend statute allows quitclaims and only public announcements suffice. | No; quitclaims not mandated, and publication not required beyond public announcements. |
| Whether postponement notices violate 667-5 or UDAP. | Postponement without new publication breaches statute and UDAP. | Public announcement suffices under 667-5; no UDAP violation shown. | Postponement via public announcement satisfies 667-5; no UDAP violation shown. |
| Whether claims against Rosen (in his individual/professional capacity) survive. | Rosen caused or supported alleged postponement scheme. | Rosen owes no duty to plaintiffs; claims fail as to him. | Claims against Rosen dismissed with respect to postponement scheme. |
Key Cases Cited
- Ulrich v. Security Inv. Co., 35 Haw. 158 (Haw. 1939) (foreclosure duties to obtain best price; Ulrich cited as broadly relevant but not controlling for 667-5 in nonjudicial context)
- Twombly, Bell Atl. Corp. v., 550 U.S. 544 (S. Ct. 2007) (pleading standard: plausibility required, not mere allegations)
- Ashcroft v. Iqbal, 556 U.S. 662 (S. Ct. 2009) (pleading standard refined: show plausible entitlement to relief)