§507-47 - Demand; enforcement; foreclosure; other attachment. - Hawaii Statutes

     §507-47  Demand; enforcement; foreclosure; other attachment.  After demand and refusal of the amount due or upon neglect to pay same upon demand, the lien may be enforced by action filed in the circuit court of the circuit in which the property is situated.  The demand may be included in the Application and Notice and when so included it shall not be necessary to make separate demand upon any other person.  The complaint, in addition to setting forth a claim in the nature of assumpsit, may pray for the foreclosure of the lien as to which notice has been filed and may pray for any incidental relief according to the usual practice of courts of equity and according to this section in enlargement thereof.  The owner or the owner's assigns on whose property the lien has attached may file a third-party action against a licensed contractor whom the owner has paid for improvements as provided for in section 444-28(g).  All proceedings concerning the same improvement shall, unless good reason otherwise appears, be consolidated for trial and the court may order publication of notice of the pendency of the action.  Any person having or claiming an interest in any such proceeding or in the property, including other claimants, lienors, encumbrancers, sureties, indemnitors and the contractors license board may be joined as parties, may be interpleaded or may be permitted to intervene, under such orders as the court may enter.  Interlocutory and final decrees for the foreclosure of the liens, for deficiency judgments, and relief against the parties liable therefor, and fixing the priority of liens between the mechanics and materialmen as a group and other parties having liens against or interests in the property shall be made and entered as near as may be in accordance with the practice on foreclosure of mortgages.  If the property or proceeds realized upon the foreclosure sale are insufficient to satisfy all mechanic's and materialmen's liens filed against the same, the property or proceeds shall, after satisfaction of liens for wages for labor entitled to priority under section 507-46, be divided pro rata among the liens according to the principal amounts of the liens, without regard to the order or priority in which the respective Applications and Notices have been filed or the respective actions or interventions commenced.

     The court having jurisdiction of the action to foreclose the lien shall have all of the powers pertaining to courts of equity, and in addition may direct the issuance of a writ of attachment or execution upon the motion of any party against the property of any other party, in the same manner as is provided in chapter 651 provided that the writ shall only issue where the claim upon which the motion therefor is based is upon a contract, express or implied, between the parties.  In addition to costs of the action the court may allow any fee or fees for legal services rendered by the attorneys for any of the parties, and apportion the same as costs for payment by and between the parties or any of them, all as to the court seems equitable in the light of the services performed and the benefits derived therefrom by the parties respectively. [L 1888, c 21, §5; RL 1925, §2895; am L 1933, c 143, §4; RL 1935, §4369; RL 1945, §8773; am L 1949, c 241, §6; RL 1955, §193-45; HRS §507-47; am L 1972, c 106, §1(i), (j); am L 1975, c 181, §7; gen ch 1985]

 

Rules of Court

 

  Claim for relief, see HRCP rule 8(a).

  Execution, see HRCP rule 69.

  Joinder of parties, interpleader, intervention, consolidation, etc., see HRCP rules 20, 22, 24, 42(a).

 

Case Notes

 

  Trial court did not abuse discretion in denying defendants' motion for attorneys' fees under §607-14 where lien application was brought pursuant to this section, the mechanic's lien statute, and, as such, was not a common law action, and the action was for the attachment of a mechanic's lien to the subject property, not for damages based upon the underlying contract; thus, the action was not in the nature of assumpsit.  111 H. 349, 141 P.3d 996.

 

Actions.

  On failure to serve party necessary to foreclosure, action will be viewed as one in assumpsit.  48 H. 306, 402 P.2d 440.

 

Attorney's fees.

  Attorney's fees.  48 H. 306, 402 P.2d 440.  Attorney's fee, scope of section in providing for.  49 H. 578, 426 P.2d 298.  Section does not authorize award of attorneys' fees generated in arbitration proceedings or in obtaining a judgment confirming arbitrator's award.  5 H. App. 315, 690 P.2d 1310.

 

Claims.

  Third party beneficiary claims not within scope of this section.  49 H. 578, 426 P.2d 298.

 

Defenses.

  Any matter that would constitute a good defense to an action of assumpsit on the account which is the basis of the lien.  25 H. 347.  If the account was not due when the foreclosure suit was commenced, there can be no recovery.  25 H. 347.  Voluntary conveyance of the lot by owner to wife through intermediary for purpose of defeating rights of materialmen is void and it is not necessary to secure the cancellation of such deed in equity in order to enforce the lien.  23 H. 21.  See 24 H. 74, 79.

 

Demand.

  A "demand" is a condition precedent to commencing of proceedings for enforcement of lien.  23 H. 744; 24 H. 39, 181, 191; 25 H. 214, 217; 32 H. 831, 913.  Such demand must be alleged and proved.  23 H. 744; 24 H. 39; 25 H. 214.  Failure to allege "demand" does not dispense with necessity of proving it and failure to do so may be taken advantage of by non-suit.  24 H. 39.  Premature demand.  25 H. 347.  Commencement of prior similar action, subsequently dismissed in which summons and a copy of the petition were served upon the owner, does not constitute a "demand".  32 H. 831.  Demand may be waived.  38 H. 372, 381.

 

Judgments.

  Power to vacate judgment.  32 H. 15.  Consolidation of proceedings--judge having discretion to consolidate, mandamus is not proper remedy even though there has been an erroneous exercise of discretion.  42 H. 141.  Judgment against surety on contractor's bond without foreclosure of lien, improper when.  49 H. 578, 426 P.2d 298.

 

Jurisdiction.

  District court.  24 H. 74.

 

Parties.

  Owner of property necessary party defendant and special execution may issue against the property even though judgment cannot be entered against the owner personally.  12 H. 352.  "Owner" includes equitable owner.  30 H. 882.  See also, 22 H. 765, "owner" discussed.