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Articles & Resources

The information, articles, and resources contained on this website is for educational and informational purposes. It is neither comprehensive nor complete, and is not intended to be legal advice or a substitute for legal advice. Information on this website may be considered advertising under applicable state laws.


Sale of Real Property Pursuant to Section 363 of the Bankruptcy Code
The sale of real property pursuant to Section 363 of the Bankruptcy Code in the Bankruptcy Court for the District of Hawaii proceeds much as it does in other jurisdictions. The Court may approve a negotiated sale upon consent of the parties or sufficient evidence that the maximum likely value has been obtained for the benefit of the estate, or the Court may require an overbid procedure. The overbid procedure can range from a simple notice and opportunity to overbid at the hearing to a more substantial procedure, involving a stalking horse bidder, a first stage approval of a breakup fee, and the consideration of other subsequent offers made at a later date, in the case of more substantial assets.
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Creditor's Rights

Mechanic's and Materialmans' Liens
Persons or companies which furnish labor or materials for a construction project who have not been paid have remedies under Hawaii law. The most common remedy is a mechanic’s or materialman’s lien. The benefit of such a lien is that it is similar to a mortgage, and provides the holder of the lien with a security interest in the property which received the benefit of the labor or materials.
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Receiverships in Hawaii
In Hawaii, a court appointed “Receiver” typically has general authority to manage and preserve a lender's collateral, but does not have the authority to sell the collateral. The sale of collateral is usually conducted by a “Commissioner” upon entry of an order of foreclosure – but the order of foreclosure ordinarily (but not always) provides that the previously appointed Receiver shall serve as Commissioner. Both of these appointments are within a “judicial” foreclosure. (Any sale proposed by the Commissioner must be approved by the Court, typically after an auction process.) Hawaii law also permits a “non-judicial foreclosure” sale - but by that procedure the creditor does not have the intervening protection of a receiver.
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Recording Foreign Judgments
A foreign judgment must first be filed with the appropriate Hawaii court, pursuant to Hawaii Revised Statute, Chapter 636C, before it may be recorded. After the foreign judgment has been so filed, and before it is recorded against real property in Hawaii, it is critical to determine: (i) whether the property is recorded in the “regular system” or the “land court” system, and (ii) how title to the property is held.
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