Hawaii ICA: the wrongful-foreclosure clock runs from the recorded deed
Hawaii ICA: the wrongful-foreclosure clock runs from the recorded deed
2026-09-10 · Hawaii · Courts
An owner who lost his unit to an association’s nonjudicial foreclosure in 2010, learned from a lawyer’s solicitation letter in 2020 that it may have been unlawful, and sued in 2021, was too late by five years.1
Day v. Association of Apartment Owners of Kaiolu Sunrise, No. CAAP-23-0000692, summary disposition order filed March 19, 2026 — unpublished, and with no certiorari disposition on record as of this writing.
The dates
- The association recorded its Affidavit of Non-judicial Foreclosure Sale on July 20, 2010 and a quitclaim conveyance to itself on July 23, 2010.
- On June 25, 2020 the owner received a letter from a law office: “You may be the victim of wrongful foreclosure and entitled to compensation for the home you lost.”
- He sued on December 30, 2021.
What the court held
Six years applies under HRS § 657-1(4), and it began at the deed. “[W]e hold that the statute of limitations on Day’s wrongful nonjudicial foreclosure claim began to run on July 23, 2010, when the quitclaim deed was recorded… It expired on July 24, 2016.”
The discovery rule did not help, because what the owner lacked was legal knowledge, not facts: he “need only have factual knowledge of the elements necessary for an actionable claim; legal knowledge of [the AOAO’s wrongful conduct] is not required.” Quoting Hays v. City & County of Honolulu, applying the discovery rule here “would effectively allow [a] plaintiff[] to indefinitely preserve a claim and delay the start of the statutory limitations period until he or she seeks legal advice.”
Why this matters beyond one owner
Hawaii has a large population of pre-2019 association power-of-sale foreclosures, and a corresponding wave of solicitation-driven wrongful-foreclosure claims built on the line of authority holding that associations could not use the old HRS § 667-5 process. Day is the association-side answer to the timing question that runs through all of them.
Three points make it useful in a defence file.
The trigger is the recorded deed, not the discovery of illegality. That is a date the association already has, in a document it already holds.
Fraudulent concealment under HRS § 657-20 needs evidence, not allegation. The court distinguished Malabe as a motion-to-dismiss case: here, “Day did not offer evidence that the AOAO affirmatively prevented or hindered him from investigating, acquiring information, or retaining an attorney.” A tolling theory that survives a pleading challenge does not automatically survive a properly supported summary-judgment motion.
Equitable tolling failed on the simplest possible ground: “Day knew he was injured when he lost his apartment.”
The file to keep
For any association holding old nonjudicial-foreclosure files, the two documents that matter are the Affidavit of Non-judicial Foreclosure Sale and the recorded quitclaim conveyance, with their recordation dates. On this authority those dates do the work. Records retention is therefore a live defensive question: HRS § 514B-154(h) permits a managing agent to dispose of records more than five years old after notice, which is shorter than the window in which one of these claims can arrive.
What it does not decide
Nothing about whether the underlying 2010 foreclosure was lawful. Nothing about claims brought inside the six years. And nothing about the retroactivity fight over Act 282 (2019), which authorised association power-of-sale foreclosure “regardless of the presence or absence of power of sale language” in the governing documents and was made applicable to pre-July-9-2019 matters without final judgment — a question federal courts have addressed and Hawaii’s appellate courts have approached carefully.
The symmetric warning
A limitations defence is not a compliance strategy. It bars stale claims; it does nothing about a foreclosure conducted last year. Since 2019 the framework has been more prescriptive, not less: HRS § 514B-146.5 attaches supplemental notice and mediation rights to the process, § 667-92 sets out the notice contents and a sixty-day cure, an association “shall not reject a reasonable payment plan,” and a lien arising solely from fines, penalties, legal fees or late fees cannot be foreclosed nonjudicially at all.
What to watch
Certiorari, and whether any published Hawaii decision adopts the same accrual rule. An unpublished SDO is limited authority under HRAP Rule 35, and this holding is consequential enough that a published vehicle is likely to be sought by one side or the other.
Related Hawaii HOA Topics
Stay on top of Hawaii HOA law
Every week: new Hawaii legislation, court rulings, and regulatory developments affecting condos, planned communities, and property managers. Free.
No spam. Unsubscribe anytime.