Hana Family Fighting Foreclosure Eviction

Occupy Maui vigil in Hana, Maui. Courtesy photo, K. Chun.

By Wendy Osher,

Attorneys for Wells Fargo Bank have apparently agreed to stay an eviction until February 15, 2012 that involves a home in Hana, Maui–that according to email communication dated on Monday.

The complaint, served against members of the Phillips-Tehiva family involves a mortgage assignment relating to the foreclosure of the home at 5305 Hana Highway.

Members of the Occupy Wall Street, Maui movement, organized a silent vigil at the Phillips-Tehiva family home in Hana on Monday, January 2, in an attempt to block the foreclosure eviction.

Phillips-Tehiva vigil. Courtesy photo, K. Chun.

The family is claiming wrongful eviction from  the home where nine family members reside, saying it is void because of “an invalid assignment of the mortgage,” and an alleged violation of the terms of a securitization agreement.

Among those named in the suit are Hatota Tehiva, Jayden Phillips-Tehiva, and Joycelene Phillips.

Attorneys for Wells Fargo Bank say the bank is entitled to possession of the property by virtue of a non-judicial foreclosure sale held on March 3, 2011, according to court documents.  Attorneys for the bank further argue that the transaction was recorded on April 1, 2011 in a Quitclaim Deed with the Bureau of Conveyances in Hawaii.

The court documents further reveal that an initial notice for the defendants to vacate the property was issued on April 5, 2011.

In a motion for relief, the family’s attorney, Arnold T. Phillips II (no relation), said the bank did not lawfully possess the loan transaction which supported the mortgage on which the foreclosure was attempted.  His argument provided to the court claims there is no documentation to establish if, how or when the loan was sold to the trust.

According to court affidavits, family members claim the property has been in the family generations dating back to the Great Mahele, and contains family burials.

An amicus brief provided to the court by a mortgage fraud examiner criticizes the practice of creating retroactive assignments saying it eliminates transparency.

A reconsideration hearing is scheduled for February 7, 2012 in Second Circuit Court.