Steep drop in isle foreclosure cases linked in part to revised law

Foreclosure cases initiated against Hawaii homeowners have been down dramatically for two straight months, though it appears the drop-off is the result of a slow reaction by some foreclosure attorneys to a change in state law.

The state Judiciary reported 122 new foreclosure cases filed statewide in June, down from 219 in the same month last year. And in May there were 80 new cases compared with 346 a year earlier.

Local foreclosure attorneys, however, said there has been no major reduction in the number of Hawaii residents facing the prospect of losing their homes in the past few months, and that a recent tweak to state foreclosure law is the cause of dramatically fewer new cases.

The law was changed this year to specify at what point in the foreclosure process the lenders’ attorneys must submit written affirmations stating that the lawsuits contain no false statements.

The affirmation requirement was introduced in 2012 as part of an overhaul lawmakers made to state foreclosure law, but it didn’t specify when affirmations had to be submitted.

As a result, judges were requiring affirmations near the end of the foreclosure process, according to Steven Guttman, chairman of the Hawaii State Bar Association’s Collection Law Section.

Lawmakers introduced House Bill 2513 to require that affirmations be submitted with the initial complaint in a foreclosure lawsuit. Gov. Neil Abercrombie signed the bill into law as Act 37 on April 23, and apparently that has created difficulty for some lenders and law firms.

Foreclosure case volume had been running around 200 per month since mid-2013 after coming down from nearly 400 a month. Then volume plunged in May.

"Foreclosure filings are down, but the plunge in May had more to do with the Act 37 legal requirement," Guttman said in an email.

Guttman said his understanding is that a majority of Hawaii foreclosure attorneys were not filing the affirmation with the foreclosure complaint.

Marvin Dang, a local foreclosure attorney who had been filing affirmations with initial complaints, agreed that the drop-off in new case volume in May and June is likely due to Act 37. "We think that is the reason," he said.

Dang expects a rebound in new cases once more attorneys coordinate with lenders and adjust to the new timetable.

The affirmation requires that attorneys state that they communicated with a representative of the lender and confirmed the accuracy of allegations, any supporting affidavits and notarizations in the foreclosure complaint. The affirmation requires attorneys to name lender representatives with whom they communicated and on what date.

Gary Dubin, a Hono­lulu attorney representing borrowers against foreclosure, calls the attorney affirmation a well-meaning but useless requirement.

"It is having no relevance based on my experience anywhere at any time in any of our courts," he said in an email.

Dubin said lender attorneys are essentially attesting that their clients told them that all the information in a lawsuit is accurate, and that the attorneys have no personal knowledge as to the accuracy of mortgage notes, assignments and other documents.

Dubin also said some judges have deemed any violation of the attorney affirmation as an ethical matter for review by the Office of Disciplinary Counsel that has no bearing on the outcome of a foreclosure case.

"Now requiring that the attorney affirmation be filed with the filing of a judicial foreclosure complaint will accordingly change nothing at all," he said.

The stated purpose of HB 2513 was to prevent "unwarranted" foreclosure actions, according to reports from the House Judiciary Committee and House Committee on Commerce and Consumer Protection.

The state Office of Consumer Protection said in testimony on the bill that requiring the attorney affirmations with the initial foreclosure lawsuit filing would be appropriate given the prior lack of specificity on timing.

No one testified against the bill, though the Hawaii Bankers Association suggested that the bill may not be necessary because the association believed filing affirmations at the beginning of foreclosure cases was already a standard practice.

Dang, as a representative of the Hawaii Financial Services Association, which includes mortgage lenders among its members, testified in support of the bill and said it generally would not be a problem for attorneys to file the attorney affirmation at the same time they file a foreclosure complaint.

Hawaii island attorney Edmund Hai­tsuka, however, said in written testimony that there appeared to be a problem with what he called a handful of law firms representing major lenders in foreclosure cases across the state not being able to obtain the information necessary to submit affirmations.

Haitsuka is an attorney with Carlsmith Ball LLP who primarily represents lenders and condominium associations in foreclosure cases but from time to time also represents borrowers and has been appointed by judges as a foreclosure commissioner to sell foreclosed properties.

Haitsuka supported the bill and said in his testimony, "I have discussed this problem with attorneys, judges and members of the bench-bar committees of the West Hawaii Bar Association, the Hawaii County Bar Association and the Hawaii Bar Association and there appears to be a consensus that (state foreclosure law) needs to be amended to require the affirmation to be submitted when the foreclosure action is commenced."