United States District Court, D. Hawaii
ATOOI ALOHA, LLC, by Millicent Andrade and Craig B. Stanley, its Managing Members, et al., Plaintiffs,
ABNER GAURINO, et al., Defendants.
ORDER GRANTING DEFENDANT/THIRD-PARTY PLAINTIFF
APT-320 LLC'S MOTION FOR CONFIRMATION OF SALE,
DISTRIBUTION OF PROCEEDS, AND DEFICIENCY JUDGMENT; EXHIBIT
OTAKE, UNITED STATES DISTRICT JUDGE.
Plaintiff APT-320 LLC (“APT-320”) requests
confirmation of the sale of the real property being
foreclosed upon in this action, located at 3721 Kanaina
Street, Honolulu, Hawaii TMK (1)-3-1-025-008 CPR 0088
(“Property”). APT-320 further requests that the
Court: 1) determine reasonable expenses and attorneys'
fees for the Commissioner; 2) determine other amounts due and
owing for its other claims; 3) determine the priorities and
claims of all other parties to this action; 4) enter a
deficiency judgment in its favor if the sale proceeds are
insufficient to pay its claims; 5) issue a judgment for
possession and a writ of possession giving the purchaser
possession of the Property; 6) deem abandoned any personal
property found in the Property and authorize the purchaser to
dispose of said personal property; 7) discharge the
Commissioner following the conveyance and distributions and
filing of the distribution statement; and 8) enter judgment
pursuant to Federal Rule of Civil Procedure
reasons articulated below, the Court GRANTS the Motion.
Court and the parties are familiar with the history of this
case, the Court includes only those facts relevant to the
disposition of the instant Motion.
February 13, 2014, Plaintiff Atooi Aloha, LLC (“Atooi
Aloha”) entered into an agreement to purchase 333
shares of Better Living Global Marketing (“BLGM”)
in exchange for the conveyance of the Property to Defendant
Abigail Gaurino (“Abigail”). Following the
conveyance of the Property, Abigail obtained a $200, 000.00
mortgage on the property from Investors Funding Corporation
(“IFC”), which IFC then assigned to APT-320.
January 31, 2018, Chief U.S. District Judge J. Michael
Seabright issued an Order Re: Motions for Summary Judgment
and Motion for Interlocutory Decree of Foreclosure
(“SJ/Foreclosure Order”), Doc. No. 238, wherein
he granted summary judgment in APT-320's favor and
concluded that APT-320 established a prima facie case that it
is entitled to foreclose on the mortgage.
March 1, 2018, Chief Judge Seabright issued a Foreclosure
Decree. Doc. No. 262. In it, he ordered that the mortgage be
foreclosed upon, that Thomas J. Wong be appointed as
Commissioner, and that the Property be sold in a manner
allowed by law.
September 20, 2018, the Commissioner filed his Report. Doc.
No. 318. According to the Report, the Commissioner published
a notice in the Honolulu Star-Advertiser, which contained a
description of the Property, and location of the public
auction. The auction took place on May 22, 2018, at noon, in
front of the Judiciary Building, Honolulu, Hawaii. APT-320
presented the winning bid in the amount of $399, 000.00. The
Commissioner recommends that this bid be confirmed and seeks
compensation totaling $5, 414.53, which is comprised of $4,
425.00 in fees and $989.53 in expenses.
September 30, 2018, APT-320 filed the Motion for Confirmation
of Sale, Distribution of Proceeds, and Deficiency Judgment
(“the Motion”). Doc. No. 329.
October 10, 2018, APT-320 filed a Motion for Attorney's
Fees and Costs, requesting $84, 219.86 in fees and $701.47 in
costs. Doc. No. 340.
Hawai‘i law, a “court's authority to confirm
a judicial sale is a matter of equitable discretion.”
Sugarman v. Kapu, 104 Haw. 119, 124, 85 P.3d 644,
649 (Haw. 2004) (quoting Brent v. Staveris, 7
Haw.App. 40, 45, 741 P.2d 722, 726 (Haw. Ct. App. 1987)
(citation omitted)). In the absence of arbitrary action,
courts enjoy broad discretion with respect to the
confirmation of judicial sales. Id. (citation
omitted). “In exercising its discretion, the
‘court should act in the interest of fairness and
prudence, and with a just regard to the rights of all
concerned and the stability of judicial sales.'”
Brent, 7 Haw.App. at 45, 741 P.2d at 726 (quoting
Hoge v. Kane II, 4 Haw.App. 533, 540, 670 P.2d 36,
40 (Haw. Ct. App. 1983)). Courts may deny the confirmation of
a sale when the ...