United States District Court, D. Hawaii
ORDER DENYING DEFENDANTS RONALD AND BRENDA
STATONS' EMERGENCY MOTION TO VACATE ORDER AND WRIT OF
ASSISTANCE ENTERED ON MAY 9TH 2018
C. Kay Sr. United States District Judge.
10, 2018, the Statons filed an Emergency Motion to Vacate
Order and Writ of Assistance Entered on May 9th 2018
(“Motion”). The Motion asserts that the
Court's May 9, 2018 Order and Writ of Assistance should
be vacated because “the Notice of Foreclosure Sale
published in the newspaper . . . directed the purchaser not
the Commissioner to take responsibility to secure
possession” of the Residence. Motion at 1. The Motion
further contends that “[t]he Court has overseen the
sale of the property and should not be involved in assisting
the purchaser to obtain possession.” Id. at 2.
Under Local Rule 7.2(e), the Court finds it appropriate to
decide the Statons' Motion without a hearing.
reasons discussed below, the Court denies the Statons'
Court denies the Statons' Motion because the issuance of
a writ of assistance, effective May 11, 2018, was appropriate
and necessary under these circumstances.
August 31, 2015, the Court issued an Order of Foreclosure and
Judicial Sale (“2015 Foreclosure Order”),
ordering the sale of the real property located at 233 Kalalau
Street, Honolulu, Hawaii 96825, identified by Tax Map Key No.
(1)3-9-023-039 (“Residence”), free and clear of
all liens. ECF No. 158. The 2015 Foreclosure Order directed
All persons occupying the Residence shall leave and vacate
permanently within twenty (20) days after the confirmation of
the sale, each taking with them his or her personal property
. . . when leaving and vacating. If any person fails or
refuses to leave and vacate the Residence by the time
specified in this Order, the United States Marshal's
Office is authorized to take whatever action it deems
appropriate to remove such person or persons from the
premises. If any person fails or refuses to remove his or her
personal property from the Residence by the time specified
herein, the personal property remaining at the subject
property thereafter is deemed forfeited and abandoned, and
[Court-appointed Commissioner Lyle S.] Hosoda and/or his
representative is authorized and directed to remove and
dispose of it in any manner they see fit, including sale . .
Id. at 9-10 ¶ 14.
2015 Foreclosure Order also stated:
[I]f, after the sale of the Residence is confirmed by this
Court, the property remains occupied, a writ of assistance
may, without further notice, be issued by the Clerk of Court
pursuant to Rule 70 of the Federal Rules of Civil Procedure
to compel delivery of possession of the real property at
issue to the purchasers thereof.
Id. at 10 ¶ 15.
April 10, 2018, the Court issued an Order Confirming Sale,
Approving Commissioner's Report, and Determining Priority
of Future Disbursements (“April 10, 2018 Order”),
in which the Court confirmed the sale of the Residence to
Purchaser Jacob Wurthner (“Purchaser”), among
other things. ECF No. 330 at 21-22 ¶ 6, 23 ¶ 2. The
April 10, 2018 Order stated: “If any person fails or
refuses to leave and vacate the Residence by the [escrow
closing on May 11, 2018, the Commissioner is authorized to take
all actions that are reasonably necessary to bring about the
ejectment of those persons, including obtaining a writ of
possession.” ECF No. 330 at 25 ¶ 9. Additionally,
the April 10, 2018 Order provided: “[I]f, after the
sale closing . . . the Residence remains occupied, a writ of
assistance may, without further notice, be issued by the
Clerk of Court pursuant to Rule 70 of the Federal Rules of
Civil Procedure to compel delivery of possession of the real
property” to the Purchaser. Id. at ¶ 10.
The April 10, 2018 Order further provided that:
If any person fails or refuses to remove his or her personal
property from the premises by the [escrow closing on May 11,
2018], any personal property remaining on the Residence
thereafter is deemed forfeited and abandoned, and the
Commissioner is authorized to remove it and ...