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Posts Tagged ‘Hawaii Real Estate Litigation’
Friday, October 25th, 2013
In Hawaii, a Notice of Pendency of Action, or Lis Pendens, is a written notice, filed in the Bureau of Conveyances, stating that there is a pending lawsuit regarding the ownership of that specific real property. Although seemingly simple, a Notice of Pendency of Action is an enormous encumbrance on a piece of property, and should be used sparingly. In fact, once the lis pendens is filed, the property becomes nearly impossible to transfer because a buyer will not purchase property whose title is in question. HRS § 634–51, which authorizes a Notice of Pendency of Action provides as follows:
Recording notice of pendency of action. In any action concerning real property or affecting title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and any other party at the time of filing a pleading in which affirmative relief is claimed, or at any time afterwards, may record in the bureau of conveyances a notice of the pendency of the action, containing the names or designations of the parties, as set out in the summons or pleading, the object of the action or claim for affirmative relief, and a description of the property affected thereby. From and after the time of recording the notice, a person who becomes a purchaser or incumbrancer of the property affected shall be deemed to have constructive notice of the pendency of the action and be bound by any judgment entered therein if the person claims through a party to the action; provided that in the case of registered land, section 501–151 shall govern.
The Notice of Pendency of Action had such a potential for litigation abuse that in 1994, the Hawaii Supreme Court in S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw. 480, 866 P.2d 951 (Hawaii 1994), clarified the limited use of the NOPA. In Utsunomiya, the Hawaii Supreme Court wrote that “a lis pendens may only be filed in connection with an action (1) ‘concerning real property,’ (2) ‘affecting title’ to real property, or (3) ‘affecting … the right of possession of real property.’” (quoting Kaapu v. Aloha Tower Dev. Corp., 72 Haw. 267, 269–70, 814 P.2d 396, 397 (1991) (citing HRS § 634–51)). Furthermore, the Court stated that, “a]lthough the lis pendens doctrine may be applied to actions other than foreclosures, application of the doctrine must be restricted ‘in order to avoid its abuse.’” Utsunomiya, 75 Haw. at 513. Finally, the court held that “the lis pendens statute must be strictly construed and … the application of lis pendens should be limited to actions directly seeking to obtain title to or possession of real property.” Id. at 510.
Tags: Big Island Lawyer, H.R.S. 634-51, Hawaii, Hawaii Lawyer, Hawaii Real Estate Litigation, Hawaii Real Estate Litigator, Honolulu Lawyer, Kauai Lawyer, Lis Pendens, Maui Lawyer, Notice of Pendency of Action, real estate litigation, S. Utsunomiya Enterprises v. Moomuku Country Club
Posted in Civil Procedure and Trial Practice, Hawaii Real Estate Litigation | Comments Off
Friday, December 7th, 2012
Philip R. Brown was once again listed in Honolulu Magazine’s annual issue of The Best Lawyers in Hawaii.
Philip Brown is also listed in The Best Lawyers in America. Mr. Brown also has the highest ethical/legal rating (AV) from Martindale Hubbell. Mr. Brown is also listed by the National Trial Lawyers Association in the Top 100 Trial Lawyers. Mr. Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury. This is the third consecutive year that Mr. Brown has been recognized in Honolulu Magazine as one of the Best Lawyers in Hawaii.
This was also a banner year for firm attorney Effie Steiger. In 2012, the National Trial Lawyers recognized Effie Steiger as one of the “Top 40 Under 40” trial lawyers in Hawaii.
Tags: Best Attorney in Hawaii, Best Hawaii Attorneys, Best Hawaii Lawyers, Best Hawaii Trial Attorneys, Best Hawaii Trial Lawyers, Best Honolulu Attorneys, Best Honolulu Lawyers, Best Lawyers, Best Lawyers in America, Best lawyers in Hawaii, Big Island Lawyer, Commercial Litigation, Effie Steiger, Hawaii, Hawaii Attorney Phlip Brown, Hawaii commercial litigation, Hawaii Lawyer, Hawaii Personal injury attorney, Hawaii Real Estate Litigation, Honolulu Lawyer, Honolulu personal injury attorney, Kauai Lawyer, Maui Lawyer, Office News, Philip R. Brown, Top 100 Lawyers
Posted in Office News, The Legal Profession | Comments Off
Tuesday, November 1st, 2011
U.S. News Media Group and Best Lawyers have released their 2011 – 2012 “Best Law Firms” rankings. The Law Offices of Philip R. Brown was ranked among the best law firms in the state of Hawaii in the following practice areas:
Litigation – Eminent Domain and Condemnation
Litigation – Real Estate
For a discussion of the methodology of the U.S. News – Best Lawyers Law Firm Rankings click here .
Although attorney Philip R. Brown has received a number of individual honors [Click here], it is particularly gratifying for his law firm to be recognized among the best law firms in Hawaii. Founded in 1997 as a boutique litigation firm, the Law Offices of Philip R. Brown represents plaintiffs and defendants in commercial litigation, real estate litigation, and select personal injury matters.
Tags: Best Attorney in Hawaii, Best Hawaii Attorneys, Best Hawaii Lawyers, Best Hawaii Trial Attorneys, Best Hawaii Trial Lawyers, Best Honolulu Attorneys, Best Honolulu Lawyers, Best lawyers in Hawaii, Courtney Henderson, Effie Steiger Hawaii, Hawaii commercial litigation, Hawaii Lawyer, Hawaii Real Estate Litigation, Honolulu injury attorney, Honolulu Lawyer, Justin Chu, Kauai Lawyer, Litigation Counsel of America, Maui Lawyer, Maui personal injury lawyer, Philip R. Brown, Trial lawyer honorary society, Warren Fabro
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Saturday, September 10th, 2011
Philip R. Brown of the Law Offices of Philip R. Brown has been named a Fellow of the Litigation Counsel of America (LCA). Membership is limited to 3,500 lawyers nationally, and Mr. Brown is one of only 14 LCA Fellows from Hawaii. The composition of the LCA is aggressively diverse, with recognition of excellence among American litigation and trial counsel across all segments of the bar.
The LCA is an invitation-only trial lawyer honorary society composed of less than one-half of one percent of American lawyers. Fellowship in the LCA is highly selective and fellows are selected after being evaluated on effectiveness and accomplishment in litigation and trial work, both at the trial and appellate levels, and superior ethical reputation.
Read more about the Litigation Counsel of America at http://www.litcounsel.org/litcounsel/about_overview.htm
Philip Brown is also listed in The Best Lawyers in America under Commercial Litigation and Real Estate Litigation. Mr. Brown also has the highest ethical/legal rating (AV) from Martindale Hubbell. Mr. Brown is also listed by the National Trial Lawyers Association in the Top 100 Trial Lawyers. Mr. Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury. Mr. Brown has also been recognized in Honolulu Magazine as one of the Best Lawyers in Hawaii.
Tags: Best Attorney in Hawaii, Best Hawaii Attorneys, Best Hawaii Lawyers, Best Hawaii Trial Attorneys, Best Hawaii Trial Lawyers, Best Honolulu Attorneys, Best Honolulu Lawyers, Best lawyers in Hawaii, Hawaii commercial litigation, Hawaii Lawyer, Hawaii Real Estate Litigation, Honolulu injury attorney, Honolulu Lawyer, Kauai Lawyer, Litigation Counsel of America, Maui Lawyer, Maui personal injury lawyer, Philip R. Brown, Trial lawyer honorary society
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Tuesday, August 16th, 2011
A person may be held liable for the acts of another if an agency relationship is established. According to the Hawaii Supreme Court, “an agency relationship may be created through actual or apparent authority.” Cho Mark Oriental Food, Ltd. v. K & K Intern., 73 Haw. 509, 515-17 (1992) (Brackets and citations omitted.). There are two types of actual authority; express actual authority and implied actual authority. Id. Express actual authority is created by an express agreement. Id. In the alternative, implied actual authority “may arise either independent of any express grant of authority or it may arise as a necessary or reasonable implication required to effectuate some other authority expressly conferred by the principal.” Id. “The focus is on the agent’s understanding of his authority inasmuch as the relevant inquiry is whether the agent reasonably believes, because of the conduct of the principal (including acquiescence) communicated directly or indirectly to him, that the principal desired him so to act.” Id.
With regard to apparent authority, the Hawaii Supreme Court held in Cho also held as follows:
Apparent authority arises when “the principal does something or permits the agent to do something which reasonably leads another to believe that the agent has the authority he was purported to have.” The critical focus is not on the principal and the agent’s intention to enter into an agency relationship, but on whether a third party relies on the principal’s conduct based on a reasonable belief in the existence of such a relationship. Apparent authority can occur under the following circumstances:
(1)The principal has manifested his consent to the exercise of such authority or has knowingly permitted the agent to assume the exercise of such authority; (2). . . the third person knew of [the principal’s actions]. . .and, acting in good faith, had reason to believe, and did actually believe, that the agent possessed such authority; and (3) . . . the third person, relying on such appearance of authority, has changed his position and will be injured or suffer loss if the act done or transaction executed by the agent does not bind the principal.
Cho Mark Oriental Food, Ltd. v. K & K Intern., 73 Haw. at 516-17. (Brackets and citations omitted.)
When an agent acts with apparent authority, “the principal can be vicariously liable to wronged third parties even when the agent acts wholly out of personal motive or with the purpose of defrauding his principal and even when the principal is innocent and deprived of any benefit.” Premium Financing Specialists, Inc. v. Hullin, 90 S.W.3d 110, 113 (Mo.App.W.D. 2002). It is important to make sure that anyone purportedly acting as your agent is acting in your best interests since you may be liable for his or her actions.
Tags: Agency, agency relationship, Big Island Lawyer, Commercial Litigation, Hawaii Real Estate Litigation, Hawaii Supreme Court, Honolulu Lawyer, Kauai Lawyer, Maui Lawyer
Posted in Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation | Leave a Comment »
Tuesday, August 9th, 2011
If a person or entity has been deceived, Hawaii law provides for a means of redress. Under Hawaii’s doctrine of fraudulent inducement, if a person enters into a contract due to the misrepresentations of the other contracting party, the person lied to may ask the court to invalidate the terms of the contract. The Hawaii Supreme Court recognizes the elements of fraudulent inducement to be as follows:
To constitute fraudulent inducement sufficient to invalidate the terms of the contract, there must be (1) a representation of material fact, (2) made for the purpose of inducing the other party to act, (3) known to be false but reasonably believed true by the other party, and (4) upon which the other party relies and acts to [his or her] damage.
Matsuura v. E.I. du Pont de Nemours and Co., 102 Hawaii 149, 162-63, 73 P.3d 687, 700-01 (Hawaii 2003) (quoting Hawaii Community Federal Credit Union v. Keka, 94 Hawaii 213, 230, 11 P.3d 1, 18 (2000)).
However, not every representation will be actionable. The Intermediate Court of Appeals has held that only the following representations are actionable:
The false representation, to be actionable, must relate to a past or existing material fact, and not to the happening of future events[.] Generally, fraud cannot be predicated upon statements [that] are promissory in their nature at the time they are made and [that] relate to future actions or conduct. A promise relating to future action or conduct will be actionable, however, if the promise without the present intent to fulfill the promise[.]
Pancakes of Hawaii, Inc. v. Pomare Properties Co., 85 Hawaii 300, 312 944 P.2d 97, 109 (Haw.Ct.App. 1997) (quoting Honolulu Federal Savings and Loan Ass’oc v. Murphy, 7 Haw.App. 196, 200 753 P.2d 807, 811 (Haw.Ct.App. 1988)).
Additionally, the party seeking to have the contract invalidated must prove that his or her reliance on the false representation was a reasonable one. Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawai’i 277, 172 P.3d 1021 (2007). Finally, in addition to the above mentioned elements, the party seeking to invalidate the contract will have to prove that he or she suffered some sort of injury or damage as a result of the other party’s misrepresentations. Matsuura, 102 Hawaii at 163, 73 P.3d at 701.
Moreover, the Hawaii Unfair and Deceptive Trade Practices Act (H.R.S. § 480-2) provides a remedy to consumers and investors injured through marketing materials that had a “capacity to mislead.” A Plaintiff prevailing in a claim under H.R.S. § 480-2 may be awarded treble damages, attorneys fees and costs (H.R.S. § 480-13).
Tags: Big Island Lawyer, Civil Procedure and Trial Practice, fraud in Hawaii, Hawaii Real Estate Litigation, Honolulu Lawyer, Kauai Lawyer, Maui Lawyer, misrepresentation in Hawaii, misrepresentation of a person, misrepresentation of an entity
Posted in Civil Procedure and Trial Practice, Commercial Litigation, Hawaii Real Estate Litigation | Leave a Comment »
Tuesday, November 3rd, 2009
The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property.
Our clients’ property, on the island of Kauai, was severely damaged by the Ka Loko Dam flood. I represented one of the largest property owners damaged by the Ka Loko Dam flood. Admittedly, I was part of a team of plaintiffs attorneys. (A case this size had to be handled by a team of attorneys). The case allowed me to work with some of Hawaii’s best attorneys. It was also an honor to watch the manner in which this difficult case was handled by the Court. As an advocate, I was not always pleased with every ruling, however, the way the Court controlled the litigation was inspiring. I also participated in the mediation skillfully handled by Warren Price and Keith Hunter. It was conducted over several months and involved multiple parties and insurance carriers. This complex case involved every imaginable issue of law and procedure. The attorneys for the plaintiffs and the defendants handled this difficult case with the highest degree of courtesy and professionalism.
In my September 2007 Kaloko Dam blog, I wrote the following:
We are very proud to represent this family in their pursuit for justice. In a few years, we intend to write a follow up to this blog in which we will describe how we helped our clients restore their beautiful Kauai landscape.
This outcome will allow our clients to restore their home to the condition it was in before the flood. I also hope that this settlement allows the Kauai community to continue the process of healing from this tragedy.
Tags: Hawaii Real Estate Litigation, Kaloko Dam, Kaloko Dam Attorney, Kaloko Dam flood, Kaloko Dam Settlement, Kauai, Mediation and Arbitration, Personal Injury, Pflueger
Posted in Hawaii Real Estate Litigation, Mediation and Arbitration, Personal Injury | Leave a Comment »
Wednesday, June 3rd, 2009
The Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.A Section 26, et seq, was enacted by Congress to “effect certain changes in the settlement process for residential real estate that will result:”
(1) in more effective advance disclosures to home buyers and sellers of settlement costs;
(2) in the elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services;
(3) in a reduction in the amounts home buyers are required to place in escrow accounts established to insure the payment of real estate taxes and insurance; and
(4) in slight reform and modernization of local recordkeeping of land title information.
12 U.S.C.A. Section 2601(b).
A particular RESPA disclosure that must be made by a lender includes the following:
Each person who makes a federally related mortgage loan shall disclose to each person who applies for the loan, at the time of application for the loan, whether the servicing of the loan may be assigned, sold, or transferred to any other person at the time while the loan is outstanding.
12 U.S.C.A Section 2605(a)(emphasis added).
The failure of a lender to make the above disclosure establishes a private right of action for the borrower against the lender. Sanborn v American Lending Network, 506 F.Supp.2d 917, 923 (D.Utah, 2007).
Tags: 12 U.S.C.A. Section 2601 (b), 12 U.S.C.A. Section 2605 (a), failure of a lender to make disclosures, Hawaii Real Estate Litigation, private right of action, Real Estate Settlement Procedures Act, RESPA, U.S.C.A. Section 26
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Tuesday, February 17th, 2009
The Truth in Lending Act (TILA) found in 15 U.S.C.A. section 1601, et. seq. was enacted to “protect consumers and promote the ‘informed use of credit.’” Washington v Americquest Mortgage.Co., 2006 WL 1980201, *6 (N.D.Ill., 2006). As such, TILA requires creditors to conspiciously disclose certain terms and costs information prior to a credit transaction. Id. This information includes, but is not limited to, the annual percentage rate and “finance charge,” order of disclosures, and use of different terminology. 15 U.S.C.A. section 1632(a).
The Statute of Limitation on a TILA action is one year for closed ended credit cases pursuant to 15 U.S.C.A. section 1640. The exception to the one year statute of limitation is when the remedy sought is to enforce the right of rescission under 15 U.S.C.A. section 1635. 15 U.S.C section 1635 provides that in any consumer credit transaction in which a security interest is retained or acquired in any real property which is used as the residence of the person to whom credit is extended, the obligor has the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required by the Truth in Lending Act, whichever is later, by notifying the creditor of his intention to rescind. 15 U.S.C section 1635. 15 U.S.C section 1635 applies to loans on unimproved lots that are intended for recreational or residential use. Charnita, Inc. v. F. T. C., 479 F.2d 684, 686-87, (C.A.3, 1973).
For a link to commercial litigation areas regularly practiced by this office please click here.
Friday, January 9th, 2009
This blog will discuss (i) whether the seller of a home has a duty to disclose material facts regarding the property to a buyer and (ii) whether the realtor and/or seller of a home has a duty to disclose material facts regarding the property to a buyer. The short answer is that a seller has an absolute duty to disclose material facts to the buyer. Although this obligation is usually handled by the seller in the disclosure statement, the legal obligation arises from the common law and a variety of statutes.
For example, pursuant to HRS section 508, a seller (or an agent of a seller, ie. real estate agent) may be found liable for failure to disclose defects in property sold. HRS section 508D-1 requires “disclosure by seller (and extended to realtor) of “material facts” relating to property that are (1) within the knowledge or control of the seller, or (2) can be observed from a visible, accessible area, or are required under section 508D-15.” Material fact is defined as “any fact, defect, or condition, past or present, that would be expected to measurably affect the value to a reasonable person of the residential property being offered for sale.”
However, there are several defenses available to the seller. Accordingly, HRS section 508D-13 provides that:
Information in a disclosure statement that has not been disclosed or becomes inaccurate regarding a material fact as a result of an act, agreement, or occurrence (or otherwise becomes known to seller) after the statement is provided to the buyer does not violate this chapter.
Therefore, if the material defects arise after the buyer purchased the home, then there is no valid claim against the seller.
There must be evidence that the seller had prior knowledge of the defect. According to HRS section 508D-1, “the material fact that is required to be disclosed must be within the knowledge of the seller or visible to the seller.”
Tags: Big Island Lawyer, Disclosure defects, Hawaii disclosure defects, Hawaii Lawyer, Hawaii Real Estate, Hawaii Real Estate Litigation, Hawaii realtor disclosure, Kauai Lawyer, Maui Lawyer
Posted in Hawaii Real Estate Litigation | Leave a Comment »