[PART II.] ALTERNATE POWER OF SALE FORECLOSURE PROCESS
Law Journals and Reviews
Hawai‘i 2000 Report Regarding Lawyers' Opinion Letters in Mortgage Loan Transactions. 22 UH L. Rev. 347.
§667-21 Alternate power of sale process; definitions. (a) The process in this part is an alternative power of sale process to the foreclosure by action and the foreclosure by power of sale in part I.
(b) As used in this part:
"Approved budget and credit counselor" means a budget and credit counseling agency that has received approval from a United States trustee or bankruptcy administrator to provide instructional courses concerning personal financial management pursuant to Title 11 United States Code, section 111.
"Approved housing counselor" means a housing counseling agency that has received approval from the United States Department of Housing and Urban Development to provide housing counseling services pursuant to section 106(a)(2) of the Housing and Urban Development Act of 1968, Title 12 United States Code, section 1701x.
"Association" has the same meaning as the term is defined in section 514B-3.
"Borrower" means the borrower, maker, cosigner, or guarantor under a mortgage agreement.
"Foreclosing mortgagee" means the mortgagee that intends to conduct a power of sale foreclosure; provided that the mortgagee is a federally insured bank, a federally insured savings and loan association, a federally insured savings bank, a depository financial services loan company, a nondepository financial services loan company, a credit union insured by the National Credit Union Administration, a bank holding company, a foreign lender as defined in section 207-11, or an institutional investor as defined in section 454-1.
Unless the context clearly indicates otherwise, as used in this part, a "foreclosing mortgagee" shall encompass all of the following entities:
(1) The foreclosing mortgagee;
(2) Any person that has an ownership interest in the promissory note on the mortgage agreement or a security interest represented by the mortgage for the subject property;
(3) Any mortgage servicer, who services the mortgage loan of the mortgagor; and
(4) The agents, employees, trustees, and representatives of a lender, the foreclosing mortgagee, a mortgagee, and a mortgage servicer.
"Mailed" means to be sent by regular mail, postage prepaid, and by certified, registered, or express mail, postage prepaid and return receipt requested.
"Mortgage" means a mortgage, security agreement, or other document under which property is mortgaged, encumbered, pledged, or otherwise rendered subject to a lien for the purpose of securing the payment of money or the performance of an obligation.
"Mortgage agreement" includes the mortgage, the note or debt document, or any document amending any of the foregoing.
"Mortgaged property" means the property that is subject to the lien of the mortgage.
"Mortgagee" means the current holder of record of the mortgagee's or the lender's interest under the mortgage, or the current mortgagee's or lender's duly authorized agent.
"Mortgagor" means the mortgagor or borrower named in the mortgage and, unless the context otherwise indicates, includes the current owner of record of the mortgaged property whose interest is subject to the mortgage.
"Nonjudicial foreclosure" means foreclosure under power of sale.
"Open house" means a public showing of the mortgaged property during a scheduled time period.
"Owner-occupant" means a person, at the time that a notice of default and intention to foreclose is served on the mortgagor under the power of sale:
(1) Who owns an interest in the residential property, and the interest is encumbered by the mortgage being foreclosed; and
(2) For whom the residential property is and has been the person's primary residence for a continuous period of not less than two hundred days immediately preceding the date on which the notice is served.
"Power of sale" or "power of sale foreclosure" means a nonjudicial foreclosure under this part when the mortgage contains, authorizes, permits, or provides for a power of sale, a power of sale foreclosure, a power of sale remedy, or a nonjudicial foreclosure.
"Property" means property (real, personal, or mixed), an interest in property (including fee simple, leasehold, life estate, reversionary interest, and any other estate under applicable law), or other interests that can be subject to the lien of a mortgage.
"Record" or "recorded" means a document is recorded or filed with the office of the assistant registrar of the land court under chapter 501 or recorded with the registrar of conveyances under chapter 502, or both, as applicable.
"Residential property" means real property that is improved and used for residential purposes.
"Served" means to have service of the notice of default and intention to foreclose made in accordance with the service of process or the service of summons under the Hawaii rules of civil procedure, and under sections 634-35 and 634-36. [L 1998, c 122, pt of §1; am L 2011, c 48, §20]
Note
Section 454-1 referred to in definition of "foreclosing mortgagee" is repealed.
Rules of Court
Service, see HRCP rules 4, 5.