Foreclosures down 66% under new state law

A 6-month-old Hawaii law continued to constrain the flow of foreclosures statewide in October, as a relative trickle of cases were initiated mainly through Circuit Court instead of a nonjudicial process through which most cases had been pouring prior to the law’s enactment.

Real estate research firm RealtyTrac counted 427 Hawaii foreclosure filings last month, which was 66 percent fewer than 1,271 filings in October 2010.

Last month’s count was the highest since the new law took effect May 5, but not by much. There were 414 cases in September, 413 in August, 390 in July and 344 in June.

The law initially prohibited lenders from proceeding with nonjudicial foreclosure against owner-occupants until a mediation program was available to borrowers. That program launched Oct. 3, but lenders as of Wednesday had yet to use the new nonjudicial process administered by the state Department of Commerce and Consumer Affairs.

The new nonjudicial procedure forces lenders to participate in a mediation program with qualified borrowers if borrowers so choose. Qualified borrowers are mainly homeowners who have resided in their homes for a minimum 200 days. Excluded from mediation are foreclosures brought by homeowner associations or brought against investors.

Local attorneys representing lenders say the law is flawed and that the new nonjudicial process won’t be used because it provides for punitive penalties for even the most minor infractions.

The result has been more lenders — but not an overwhelming number — pursuing foreclosures in state court.

According to the state Judiciary, 338 new foreclosure cases were filed in court last month, about triple the 108 cases filed a year earlier. Judicial cases have roughly been between 200 and 300 per month since June, up from closer to 100 in the same months last year.

Historically, nonjudicial foreclosures represented an estimated 90 percent of foreclosures in Hawaii because they were faster and cheaper.

The Judiciary counts new cases filed. RealtyTrac counts new case filings as well as auction notices and lender repossessions. But because RealtyTrac collects its data from a variety of sources, it appears to undercount new judicial cases.

Under RealtyTrac’s methodology, 31 other states had higher, or worse, foreclosure rates than Hawaii, which had 1 filing for every 1,208 homes.

The national rate was one filing for every 563 homes. Nevada had the worst rate at 1 foreclosure filing per 180 homes. Vermont had the best rate based on 1 filing per 12,570 homes.

The year-over-year decline in foreclosure filings for Hawaii has conformed with a trend nationally that has existed for about a year after major national lenders were forced to review and revise the way they were processing cases and handling documents. James Saccacio, RealtyTrac’s chief executive officer, added that state law changes and court rulings also have upset the pace of foreclosures.

In Hawaii, there is a push for the Legislature to amend the law next year to make it more palatable to lenders while still protecting homeowners. A task force representing the mortgage industry and consumers is expected to release recommendations to the Legislature on ways to improve the foreclosure law by the end of the year.