RULES
FOR CONVERSION
OF
NON-JUDICIAL FORECLOSURE PROCEEDINGS
(SCRU-11-0000415)
Adopted
and Promulgated by
the
Supreme Court
of
the State of Hawai‘i
Effective
June 28, 2012
With
Amendments as Noted
The
Judiciary
State
of Hawai‘i
RULES
FOR CONVERSION OF NON-JUDICIAL FORECLOSURE PROCEEDINGS
Table
of Contents
Rule 1. COMMENCEMENT OF ACTION
Rule 2. FEES
Rule 3. SERVICE
Rule 4. ANSWER
Rule 5. SUBMISSION
Rule 6. COMPUTATION OF TIME; NO
ENLARGEMENT
Rule 7. HEARING
Rule 8. LIMITED PURPOSE
Rule 9. JUDGMENT
Form A - Conversion Petition
Form B - Submission Statement
Form C - Judgments
Judgment Granting Conversion
Petition
Judgment Denying Conversion
Petition
Rule 1. COMMENCEMENT OF
ACTION.
An
action to convert a non-judicial foreclosure to a judicial foreclosure action
shall be initiated by filing, in the circuit court of the circuit in which the
property subject to foreclosure is located, a certified conversion petition.
The certified conversion petition shall be in a form that substantially
conforms to Form A appended to these temporary rules.
The
petition shall name as respondents the foreclosing party and any parties with
an interest in the subject property or obligations on the secured loans,
including co-signers and guarantors, who are not petitioners.
Upon
the filing of the certified conversion petition the clerk shall collect a
filing fee of $250. No other fee shall be assessed or collected.
(Amended June 28, 2012, effective June 28, 2012.)
Petitioner
shall, in addition to any notice and service requirements set out by statute,
serve the petition in accordance with the service requirements of Rule 5 of the
Hawai‘i Rules of Civil Procedure. Summons pursuant to Rule 4 of the Hawai‘i
Rules of Civil Procedure is not required. Petitioner shall file proof of
service in the record.
(Amended June 28, 2012, effective June 28, 2012.)
No
later than 30 days after service of the petition, any respondent who contests
allegations of the petition shall file a response specifically contesting or
admitting each allegation of the petition. Failure to file a timely response
shall be deemed an admission of each factual allegation in the petition.
Any
party with an interest in the subject property or obligations on the secured
loans, including co-signers and guarantors, who is not a petitioner may submit
a submission to the judicial process and jurisdiction of the circuit court. The
submission shall be filed no later than 45 days after the petition was filed on
a form that substantially complies with Form B appended to these temporary
rules.
Rule 6.COMPUTATION OF TIME; NO ENLARGEMENT.
Time shall
be computed in accordance with Rule 6 of the Hawai‘i Rules of Civil Procedure,
except that no enlargements of time are allowed.
Upon
receipt of responses to the petition or expiration of the time in which
responses could be filed, the circuit court shall determine whether a hearing
is to be had. If the circuit court concludes a hearing is to be had, the court
shall schedule the hearing to be held no later than 30 days after the response
was filed and shall so notify the parties.
These
temporary rules are intended to provide a speedy determination of the
conversion petition and are not intended to litigate any other claim for
relief. Except as specifically provided in these temporary rules, the Hawai‘i
Rules of Civil Procedure do not apply to the conversion proceeding.
No later
than 10 days after a hearing or the date a hearing could have been had, the
circuit court shall enter its judgment granting or denying the petition.
Judgment on the petition shall be on a form that substantially conforms to Form
C attached to these rules and may include only
(1) denial of the petition, a statement the non-judicial
foreclosure may proceed, and dismissal of any other claims; or
(2) grant of the petition, conversion of the non-judicial foreclosure
to a judicial foreclosure, instruction to the Respondent foreclosing party to
file an action for foreclosure within thirty days, and dismissal of any other
claims.
Filing Party Mailing Address
Filing Party Telephone Number
IN THE CIRCUIT COURT OF THE _______ CIRCUIT
Name(s) of Petitioner(s), Petitioner(s), v. Name(s) of Respondent(s), Respondent(s). |
) ) ) ) ) ) ) ) ) ) ) |
Special Proceeding No. ________ |
CERTIFIED CONVERSION PETITION
Petitioners
<name(s)> assert for their cause:
1. Petitioners
are the owners and occupants of a residential property located in the
<county of _______> at <street address>, identified as Tax Map Key
<number>, and <certificate of title number or transfer certificate of
title number>.
2. Respondent
<name of foreclosing respondent> has initiated a non-judicial foreclosure
on the property identified in paragraph 1.
3. The
notice of default and intent to foreclose was received by Petitioners on
<date>. A copy of the foreclosure notice that was served on Petitioners
is attached.
4. The
residential property identified in paragraph 1 is and has been Petitioners’
primary residence for at least 200 days prior to <the date in paragraph 3
when notice was received>.
5. Petitioners
elect to convert the non-judicial foreclosure to a judicial foreclosure.
6. The
following Respondents, also named in the caption above, are additional
owner-occupants and mortgagors of the property described in paragraph 1:
<insert names>.
7. The
following Respondents, also named in the caption above, signed the promissory
note or other instrument evidencing the debt purportedly secured by the mortgage
being foreclosed:
<insert names>.
8. The
Service Members Civil Relief Act, 50 U.S.C. App. § 501, may apply to the
following parties:
<List names. If
none, write “none.”>
9. By
signatures below, Petitioners certify, subject to penalties for perjury, they
(a) are owners-occupants of the property described in paragraph
1 above and seek to convert a non-judicial foreclosure to a judicial
foreclosure; and
(b) served a copy of this conversion petition upon
<name of attorney identified in the foreclosure notice> by <means and
place of service>.
Wherefore,
Petitioners pray for judgment requiring Respondent <name of foreclosing
party> to file a foreclosure action in the <Circuit Court of the _____
Circuit> <Land Court of the State of Hawai‘i>, no later than 30 days
after entry of the judgment in this conversion
action. Dated:
<City>, Hawai‘i, <date>.
Signatures
of Filing Parties
Typed
Names of Filing Parties
Filing Party Mailing Address
Filing Party Telephone Number
IN THE
CIRCUIT COURT OF THE _______ CIRCUIT
Name(s) of Petitioner(s), Petitioner(s), v. Name(s) of Respondent(s), Respondent(s). |
) ) ) ) ) ) ) ) ) ) ) |
Special Proceeding No. ________ |
SUBMISSION
STATEMENT
I,
the undersigned below and Respondent herein, am an
___ owner-occupant
and mortgagor of an interest in the residential property described in the petition
and my interest is pledged or otherwise encumbered by the mortgage being
foreclosed; or
___ a person who signed the promissory note or other instrument
evidencing the debt secured by the mortgage being foreclosed.
I
agree to submit myself to the judicial process and jurisdiction of the circuit
court in this conversion proceeding and any foreclosure proceeding that results
therefrom.
DATED:
<City>, Hawai‘i, <date>
Signature
Typed
Name of Signer
FORM C: Judgment Granting Conversion Petition:
JUDGMENT
This
action was heard by the Circuit Court of the _____ Circuit, the Honorable
<name of judge> presiding. In consideration of the petition, the
responses thereto, and the record,
IT
IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 58 of the Hawai‘i
Rules of Civil Procedure, that the petition is granted and Judgment is hereby
entered in favor of Petitioners <name(s)> as follows:
(1) The
non-judicial foreclosure previously initiated by Respondent <name> is
converted to a judicial foreclosure; and
(2) Respondent
shall file the judicial foreclosure action in the Circuit Court of the
_____Circuit> <Land Court of the State of Hawai‘i> within 30 days
after entry of this judgment.
(3) All
other claims in this action are dismissed.
DATED:
Honolulu, Hawai‘i, <date signed by judge and filed>.
JUDGE
OF THE ABOVE-ENTITLED COURT
FORM C: Judgment Denying Conversion Petition:
JUDGMENT
This
action was heard by the Circuit Court of the _____ Circuit, the Honorable
<name of judge> presiding. In consideration of the petition, the
responses thereto, and the record, it appears the Petitioner has failed to
prove the material allegations of the petition. Therefore,
IT
IS HEREBY ORDERED, ADJUDGED, AND DECREED, pursuant to Rule 58 of the Hawai‘i
Rules of Civil Procedure, that the petition is denied and Judgment is hereby
entered in favor of Respondent <name>, the non-judicial foreclosure may
proceed, and all other claims in this action are dismissed.
DATED:
Honolulu, Hawai‘i, <date signed by judge and filed>.
JUDGE
OF THE ABOVE-ENTITLED COURT