How does the foreclosure process begin?
When a borrower is not able to keep up with mortgage payments, the lender may choose to foreclose on the property by using a judicial foreclosure process or a nonjudicial foreclosure process.
What is the difference been “judicial” and “nonjudicial” foreclosure?
Under the judicial foreclosure process, a lender will initiate a lawsuit by filing a “complaint” with the court, naming the borrower as the defendant. Based on the documents and other evidence submitted in the case, the court determines whether the lender may foreclose on the property.
In a nonjudicial foreclosure, the lender forecloses on the property without going through the court system. The lender may foreclose without a lawsuit because the mortgage document contains a “power of sale” clause that authorizes the lender to proceed with foreclosure after serving the borrower with a notice of default and intention to foreclose or notice of intent to foreclose.
Conversion is a new process created by Act 48, where the court, at the request of a borrower, orders a nonjudicial foreclosure to be converted to a judicial foreclosure if the borrower meets certain requirements.
Should I request a conversion of my nonjudicial foreclosure?
Whether you should convert your nonjudicial foreclosure to a judicial foreclosure depends on your particular situation. You should seek the advice of an attorney. For organizations that may be able to assist you, see the heading below with the title, “Where can I find an attorney or get legal advice?”
Can anyone facing foreclosure request a conversion?
No. Conversion is available only to certain “owner-occupants” of residential real estate. Please refer to the statute for the requirements.
My condominium association has liens against my apartment because of moneys I owe them and is foreclosing on my apartment. Can I convert?
No. The conversion law does not apply to foreclosures of association liens.
How do I start the conversion process?
To convert, you must file a conversion petition in the circuit court of the circuit in which the residential property subject to foreclosure is located.
Is there a fee to file a conversion petition?
Yes. There is a non-refundable filing fee of $250.
What if I can’t afford the filing fee?
You may submit a request to the court for a reduction or waiver of the fee. Please see this link for a sample Declaration in Support of Request to Proceed In Forma Pauperis for Mortgage Foreclosure Conversion Petition. A judge will review your request and approve or deny it.
Do I need an attorney to file a conversion petition?
No. You may file the petition yourself. However, because the decision to convert your nonjudicial foreclosure case is an important one, you may wish to first consult an attorney. You may also want to review the sample conversion petition form and Rules for Conversion of Non-judicial Foreclosure Proceeding , which are the court rules governing the conversion proceeding.
Where can I find an attorney or get legal advice?
Attorney referrals or legal assistance may be available from:
- The Lawyer Referral Information Service of the Hawaii State Bar Association; (808) 537-9140.
- The Legal Aid Society of Hawaii; (808) 536-4302 (Oahu) or 1-800-499-4302 (Neighbor Islands).
- Volunteer Legal Services Hawaii; (808) 528-7046 (Oahu) or 1-800-839-5200 (Neighbor Islands).
Where can I find the sample petition form and court rules regarding Conversion?
The form and rules may be accessed at: Rules for Conversion of Non-Judicial Foreclosure Proceedings.
Do I have to use the court’s sample petition form?
No, you may use any form that substantially conforms to Form A, the court’s sample petition form.
Besides the filing fee, do I have to submit anything else with my petition?
Yes. You must attach a copy of the foreclosure notice.
Do I have to serve the petition on anyone?
Yes. Before filing the petition, you must serve a copy of the petition on all the people or entities named as respondents in the petition. The lender or other foreclosing party is a respondent. Other respondents may include people with an interest in the property, such as owner-occupants/mortgagors other than the petitioner, and people obligated on the loan, such as co-signers and guarantors. You may serve the lender through the attorney who is handling the foreclosure on the lender’s behalf.
Any respondent who contests the allegations of the petition must file a response to the petition within 30 days after service. Additionally, the other owner-occupants or persons with an interest in the property, who were named as respondents, may sign and file a submission statement within 45 days after the filing of the petition. By signing and filing the statement, a person submits to the judicial process and the jurisdiction of the circuit court. For a sample submission statement, please see Form B in the Rules of Conversion of Non-Judicial Foreclosure Proceedings.
The court may dismiss the petition if all interested parties do not file a submission statement.
If the case is dismissed because submission statements for all interested parties have not been filed, will the filing fund be refunded to me?
No. The filing fee is non-refundable.
Can the lender proceed with the nonjudicial foreclosure after I file the conversion petition?
No. Filing the petition automatically “stays” or halts the nonjudicial foreclosure. If the court dismisses or denies the petition, however, the nonjudicial foreclosure may proceed.
What issues will the judge decide in the conversion petition proceeding?
The judge’s ruling will be limited to whether the nonjudicial foreclosure can be converted. The judge will not decide who wins or loses the foreclosure case, nor will the judge consider any other claims.
In the conversion petition proceeding, can the judge order the other party to pay my attorneys’ fees and/or costs?
No. The judge can only decide whether to allow the nonjudicial foreclosure to be converted to a judicial foreclosure.
Will there be a court hearing on my conversion petition?
The judge determines whether a hearing is necessary. The judge can issue a judgment granting or denying your petition based on a review of the documents, without a hearing.
Is there anything I can do to help with the processing of my case?
Yes. Providing the judge assigned to your case with a courtesy copy of all documents filed after the conversion petition will help the judge to make timely decisions on your case.
What are the possible outcomes of the conversion petition?
If the court determines that your petition satisfies the requirements for a conversion, it will issue an order (“judgment”) converting the nonjudicial foreclosure to a judicial foreclosure, and requiring the lender to file a judicial foreclosure action within 30 days after entry of the judgment. If the court determines that the conversion requirements have not been met and denies the petition, it will order that the nonjudicial foreclosure may proceed.
How long will it take for the court to make a decision on my conversion petition?
Once the petition has been filed, it may take approximately 70 days for the court to enter a judgment granting or denying your conversion petition. If your petition is granted, the lender has 30 days after entry of judgment to file a judicial foreclosure action against you. The judicial foreclosure action may take over a year to resolve.
If the petition is denied, can I appeal the denial?
Yes. See HRS § 641-1.
If I don’t want to convert my nonjudicial foreclosure to a judicial foreclosure, is there anything else I can do to resolve my foreclosure situation?
Yes. You may choose to participate in a dispute resolution program run by the Department of Commerce and Consumer Affairs (DCCA) called the Mortgage Foreclosure Dispute Resolution Program. You may obtain information about the dispute resolution program by calling DCCA at (808) 587-3222 for Oahu or 1-800 394-1902 (toll free) for Neighbor Islands or by visiting its website at http://hawaii.gov/dcca/oah/mfdr/mortgage-foreclosure-dispute-resolution-mfdr-program.
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