No. SCWC-17-0000145, Thursday, September 19, 2019, 8:45 a.m.

GILBERT V. MALABE and DAISY D. MALABE, Respondents/Plaintiffs-Appellants, vs. ASSOCIATION OF APARTMENT OWNERS OF EXECUTIVE CENTRE, by and through its Board of Directors, Petitioner/Defendant-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for petitioner:

David R. Major, Jai W. Keep-Barnes, and James G. Diehl of Bays Lung Rose & Holma

Attorneys for respondent:

Steven K. S. Chung, Michael L. Iosua, Timothy E. Ho and Li Li of Imanaka Asato, LLLC

NOTE: Order accepting Application for Writ of Certiorari, filed 05/23/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

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Brief Description:

On December 13, 2016, Respondents/Plaintiffs-Appellants Gilbert V. Malabe and Daisy D. Malabe (collectively, “Malabes”) filed a Complaint in the Circuit Court of the First Circuit (“circuit court”) against Petitioner/Defendant-Appellee Association of Apartment Owners of Executive Centre, by and through Its Board of Directors (“AOAO”). The Complaint asserted claims for wrongful foreclosure and unfair or deceptive acts or practices (“UDAP”) based on the AOAO’s nonjudicial foreclosure and December 17, 2010 public sale of the Malabes’ apartment due to unpaid assessment fees, which were purportedly conducted pursuant to Hawai i Revised Statutes (“HRS”) § 514B-146 (Supp. 2010) and HRS § 667-5 (Supp. 2010). On February 17, 2017, the circuit court filed an order granting the AOAO’s motion to dismiss the Complaint and entered final judgment.

The Malabes timely appealed to the ICA. In relevant part, the ICA concluded that for reasons explained in Sakal v. Association of Apartment Owners of Hawaiian Monarch, 143 Hawai i 219, 426 P.3d 443 (App. 2018), cert denied, SCWC-15-529, 2018 WL 6818901 (Dec. 28, 2018), the circuit court erred in granting the AOAO’s motion to dismiss Count I, the wrongful foreclosure claim, as the AOAO lacked a power of sale and none was granted by statute. See Malabe v. Ass’n of Apartment Owners of Executive Ctr., CAAP-17-145, at 7 (App. Nov. 29, 2018) (SDO).

On appeal, the AOAO asserts the ICA erred in vacating the circuit court’s judgment with respect to Count I, the wrongful foreclosure claim, primarily arguing that the ICA erred in its statutory analysis and its application of the law to the AOAO, which is a nonprofit. Moreover, the AOAO suggests that SB551, CD1 of 2019, A Bill for an Act Relating to Condominiums, should be considered in any statutory analysis.

As to the sixth question presented regarding SB551, CD1 of 2019, A Bill for an Act Relating to Condominiums, which became law on July 12, 2019, the parties were ordered on July 16, 2019 to file supplemental briefs addressing the following issue:

What effect, if any, does SB551, CD1 of 2019 have on this case?