Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Porter McGuire Kiakona & Chow, LLP

United States District Court, D. Hawaii

January 17, 2019

BENITA J. BROWN, ET AL., Plaintiffs,
v.
PORTER MCGUIRE KIAKONA & CHOW, LLP, a Hawaii limited liability partnership, as an individual entity; THE ASSOCIATION OF APARTMENT OWNERS OF TERRAZZA/ CORTBELLA/LAS/BRIAS/ TIBURON, as an individual entity and on behalf of all others similarly situated; DOE DEFENDANTS 1-100, Defendants.

          ORDER GRANTING MOTION TO DENY CLASS CERTIFICATION AND JOINDER THEREIN AND DENYING MOTION FOR CLASS CERTIFICATION

          Leslie E. Kobayashi United States District Judge

         Before the Court are: 1) Defendant the Association of Apartment Owners of Terrazza/Cortebella/Las Brisas/Tiburon's (“Terrazza AOAO”) Motion to Deny Class Certification (“Terrazza Motion”); [filed 1/22/18 (dkt. no. 33);] 2) Defendant Porter McGuire Kiakona & Chow, LLP's (“PMKC”) joinder of simple agreement with the Terrazza Motion (“PMKC Joinder”); [filed 5/14/18 (dkt. no. 55);] and 3) Plaintiff Benita J. Brown's (“Brown”) Motion for Class Certification (“Brown Motion”), [filed 8/14/18 (dkt. nos. 89 to 92)]. The Brown Motion came on for hearing on June 18, 2018, and the Court finds the Terrazza Motion and the PMKC Joinder suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). On September 21, 2018, this Court issued an entering order ruling on the motions and joinder, [dkt. no. 118, ] which is superseded by the instant Order. For the reasons set forth below, the Terrazza Motion and the PMKC Joinder are granted and the Brown Motion is denied.

         BACKGROUND

         The operative pleading at this time is the May 18, 2018 Third Amended Class Action Complaint (“Third Amended Complaint”).[1] [Dkt. no. 61.] Brown states she is a resident of North Carolina. In or around August 2004, Brown purchased Apartment No. 176 in the condominium project known as Las Brisas, Phase 15 in Ewa Beach (“the Unit” and “Las Brisas”). Las Brisas was managed by the Terrazza AOAO. Brown purchased the Unit for approximately $270, 000, and obtained a $262, 000 loan - secured by a mortgage on the Unit - to do so. [Third Amended Complaint at ¶ 8.] Between January 30, 2007 and February 8, 2007, the Terrazza AOAO recorded a lien against the Unit for $1, 487.64 in unpaid assessments. In order to collect its debt, the Terrazza AOAO, through PMKC, initiated a nonjudicial foreclosure pursuant to the former Haw. Rev. Stat. §§ 667-5 to 667-10 (“Chapter 667, Part I”) and conducted a public sale on May 20, 2011.[2] The Terrazza AOAO submitted the winning bid for the Unit and executed a Quitclaim Deed in favor itself on June 9, 2011. The Quitclaim Deed was recorded on the same day. The Terrazza AOAO therefore obtained possession and control of the Unit, including all of the benefits from it, while Brown remains liable for the amounts secured by the mortgage. [Id.]

         The Third Amended Complaint asserts the following claims: a claim against all defendants (PMKC, the Terrazza AOAO, and the proposed defendant class) for a declaratory judgment that, during the relevant period, a homeowner association without a mortgage containing a power of sale could not use Chapter 667, Part I (“Count I”); a wrongful foreclosure claim against the Terrazza AOAO and the proposed defendant class, based on the improper use of Chapter 667, Part I (“Count II”); a Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692(f), et seq., claim against all defendants (“Count III”); a Haw. Rev. Stat. Chapter 480 unfair or deceptive acts or practices (“UDAP”) claim against the Terrazza AOAO and the proposed defendant class (“Count IV”); and an improper foreclosure claim against the Terrazza AOAO and the proposed defendant class, based on the failure to obtain adequate prices for the properties in foreclosure (“Count V”). PMKC filed its answer to the Third Amended Complaint on June 4, 2018, and the Terrazza AOAO filed its answer on December 13, 2018. [Dkt. nos. 72, 121.]

         The Brown Motion proposes the following class of plaintiffs (“Plaintiff Class”):

All persons and legal entities who from August 10, 2010 to the present, owned real property in the State of Hawaii that was sold at public auction through a nonjudicial foreclosure pursuant to Hawaii Revised Statute § 667-5 . . . by one of the members of the AOAO Class that had employed the law firm Porter McGuire to complete the nonjudicial foreclosure . . . .

         [Brown Motion at 1.] The proposed class of defendants (“AOAO Class”) consists of:

Association of Apartment Owners of Terrazza/Cortbella/Las Brisas/Tiburon, Association of Apartment Owners of Colony Marina, Association of Apartment Owners of the Esplanade, Association of Apartment Owners of Fairway Terrace, Association of Apartment Owners of Hale Moi, Association of Apartment Owners of Harbor Square, Association of Apartment Owners of Hawaiian Monarch, Association of Apartment Owners of Hillside Villa, Association of Apartment Owners of Ilikai Apartment Building, Association of Apartment Owners of Kahana Outrigger, Association of Apartment Owners of Kahului Ikena, Association of Apartment Owners of Kaiolu Sunrise, Association of Apartment Owners of Kalamaku`u, Association of Apartment Owners of Kauhale Makai, Association of Apartment Owners of Kihei Villages, Association of Apartment Owners of Makaha Surfside, Association of Apartments Owners of Makaha Valley Plantation, Association of Apartment Owners of Makakilo Cliffs, Association of Apartment Owners of Makakilo Gardens, Association of Apartment Owners of Nihilani at Princeville Resort, Association of Apartment Owners of Ocean Ridge at Makakilo, Association of Apartment Owners of One Waterfront Towers, Association of Apartment Owners of Pacific Islander, Association of Apartment Owners of Palm Court, Association of Apartment Owners of Pearl Ridge Gardens and Pearl Ridge Tower, Puamana Community Association, Puu Heleakala Community Association, Association of Apartment Owners of Ridgecrest-Melemanu Woodlands, Association of Apartment Owners of Royal Palm at Waipio, Association of Apartment Owners of Spruce Ridge Villas, Association of Suncrest/The Shores/Lombard Way/Avalon, Association of Apartment Owners of Sun Rise, Inc., Association of Apartment Owners of Terrazza, Association of Apartment Owners of the Villas of Kahana Ridge, Association of Apartment Owners of Vista Waikoloa, Association of Apartment Owners of Wailea Beach Villas, Association of Owners of the Wailana at Waikiki, and Association of Apartment Owners of Kona Sea Villa . . . .

[Id. at 1-2.] Brown asserts both of the proposed classes satisfy the requirements of Fed.R.Civ.P. 23(a) and (b)(3). In the alternative, she argues the proposed AOAO Class satisfies Rule 23(b)(1). Brown asks this Court to certify her as the representative of the Plaintiff Class, and the Terrazza AOAO as the representative of the AOAO Class. Brown also moves to have the following appointed as counsel for the Plaintiff Class: Steven Chung, Esq., of Imanaka Asato, LLLC; Timothy Blood, Esq., of Blood Hurst & O'Reardon, LLP; and Timothy Cohelan, Esq., of Cohelan Khoury & Singer. Further, Brown seeks the appointment of the Terrazza AOAO's counsel as counsel for the AOAO Class.

         In contrast, the Terrazza Motion argues this action should remain limited to the existing parties. Brown does not have a claim against 37 of the 38 members of the proposed AOAO Class, and 101 members of the proposed Plaintiff Class do not have claims against the Terrazza AOAO. The Terrazza AOAO acknowledges it foreclosed upon the condominium units of sixteen members of the proposed Plaintiff Class, but it argues that is insufficient to support a class action. The Terrazza AOAO urges this Court to deny certification of both the proposed Plaintiff Class and the proposed AOAO Class.

         STANDARD

         Fed. R. Civ. P. 23 states, in pertinent part:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
. . . .
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.

         The Rule 23(a) requirement are known as: “(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.” Parsons v. Ryan, 754 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.