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No. SCWC-17-0000806, Tuesday, June 25, 2024, 2 p.m.

No. SCWC-17-0000806, Tuesday, June 25, 2024, 2 p.m.

PETER J. WINN and WESTMINSTER REALTY, INC., Respondents/Plaintiffs-Appellants, vs. WADE BRADY and KATHERINE T. BRADY, individually and as trustees of the WADE K. BRADY FAMILY TRUST; CONTEMPORARY KAMAʻAINA, LLC; WESTMINSTER REALTY, INC. as trustee of the 2806 KOLEPA PLACE TRUST DATED DECEMBER 14, 2010; ERIC L. KEILLOR; and ERIC S. HART, Respondents/Defendants-Appellees, and JAMES E. SPENCE and BEVERLY C. SPENCE, Petitioners/Intervenors-Appellees, and STEPHEN R. SPENCE and VALORIE A. SPENCE, Respondents/Intervenors-Appellees.

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The above-captioned case has been set for oral argument on the merits.      

The oral argument will be held remotely and also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television.

Attorneys for Petitioners/Intervenors-Appellees JAMES E. SPENCE and BEVERLY C. SPENCE:

     Joseph A. Stewart, Aaron R. Mun, and Reece Y. Tanaka of Kobayashi Sugita & Goda, LLP

Attorney for Respondents/Plaintiffs-Appellants PETER J. WINN and WESTMINSTER REALTY, INC.:

     Lance D. Collins of the Law Office of Lance D. Collins

Self-Represented Respondents/Intervenors-Appellees STEPHEN R. SPENCE and VALORIE A. SPENCE

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 03/20/24.

NOTE:     Order assigning Circuit Judge Peter K. Kubota, in place of Ginoza, J., recused, filed 04/16/24.

NOTE:     Order accepting Application for Writ of Certiorari, filed 04/30/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, and Devens, JJ., and Circuit Judge Kubota, in place of Ginoza, J., recused.

Brief Description:

This case raises a question as to whether a recorded judgment lien creates a protected property interest pursuant to Hawaiʻi Revised Statutes (HRS) § 636-3, and, if so, what are the due process notice requirements owed to other judgment lienholders prior to an execution sale. 

James Spence and Beverly Spence (the Spences) obtained a judgment against Wade and Katherine Brady (the Bradys), which they recorded with the Bureau of Conveyances.  Approximately two years later, Peter J. Winn and Westminster Realty, Inc. (Winn) also recorded a judgment they obtained against the Bradys with the Bureau of Conveyances. 

To satisfy the outstanding judgment balance, the Spences obtained a Writ of Execution pursuant to HRS Chapter 651 on a piece of property partly owned by Wade Brady.  Prior to the execution sale, the civil process server in charge of the auction posted written notice of the sale in at least three different places pursuant to HRS § 651-43.  Winn, the junior lienholder, did not receive notice of the execution sale prior to the public auction and asserted that notice by publication did not satisfy constitutional due process.

The ICA held that Winn’s recorded judgment lien on the Brady property was a property interest entitling Winn to personal notice of the execution sale.

This appeal raises three questions: (1) did the notice by publication satisfy Winn’s due process rights; (2) if notice by publication did not satisfy due process and personal notice was required, should this holding apply retroactively; and (3) is an execution sale a state action that must satisfy due process standards for junior lienholders?