Hawaii Foreclosure Defenses — Legal Options to Fight Back

Homeowners facing foreclosure in Hawaii may have legal defenses that can delay, modify, or defeat the foreclosure §667:1. Identifying the right defense depends on the facts of your case.

Improper notice

The lender must provide 60 days — the notice of default and intention to foreclose must set a cure deadline at least sixty days after the date of the notice, in the chapter 667, part II power of sale process; no statutory pre-suit notice period applies to a judicial foreclosure complaint days' pre-foreclosure notice §667:22 served by the foreclosing mortgagee must have the notice of default and intention to foreclose served on the mortgagor and borrower, any prior or junior creditors with a recorded lien on the property, the state director of taxation, the county director of finance, the department of commerce and consumer affairs, and any other person entitled to notice under part II. If the notice was defective — wrong amount, wrong deadline, improper service — this may halt the foreclosure.

Lack of standing

The party foreclosing must prove it owns or holds the note and mortgage. If the loan was sold or securitized, the chain of title may be broken. The lender must produce the original note or prove authority to foreclose.

Statute of limitations

The lender must commence foreclosure within the applicable statute of limitations. If too much time has passed since the default, the action may be barred.

Predatory lending / TILA violations

If the original loan involved predatory terms, failure to disclose required information under the Truth in Lending Act §15 U.S.C. 1601, or violations of the Real Estate Settlement Procedures Act §12 U.S.C. 2601, the borrower may have affirmative defenses or counterclaims.

Servicer misconduct

Failure to properly apply payments, assess fees, maintain escrow accounts, or provide required loss mitigation review can support defenses or counterclaims.

Failure to mediate

If Hawaii requires foreclosure mediation and the lender failed to participate in good faith, this may delay or dismiss the action §667:71.

• File an answer (you have a right to respond to the lawsuit)
• Request mediation (Hawaii Foreclosure Dispute Resolution (FDR) Program — dispute resolution for nonjudicial foreclosures conducted by power of sale under Part II of owner-occupied residential property; does not apply to power-of-sale foreclosures converted to judicial actions (Part V, HRS Ch. 667)) §667:71
• File for bankruptcy — an automatic stay temporarily halts foreclosure
• Apply for loan modification — federal protections may pause the foreclosure while your application is reviewed