by Andrew Walden

Right Star defendant, and former Governor, John Waihee III says Honolulu attorney Gary V Dubin, “…has created Access to Justice for thousands of Hawaii homeowners….”

Dubin says, “(My) law firm … pioneered foreclosure defense in Hawaii….”

Those quotes come from Dubin’s “Motion for Reconsideration of Order of Disbarment” filed with the help of Waihee, September 21, 2020, before the Hawaii State Supreme Court.  The Supreme Court has ordered Dubin disbarred effective October 9, 2020.

Disbarment orders are often handed down to marginal lawyers with little courtroom presence.  But the Dubin Law Firm is very active in Hawaii foreclosure litigation. 

After Dubin’s ‘pioneering’ 2018 Appellate win in Sakal v Hawaiian Monarch AOAO, legislators passed SB551 of 2019 preserving the right of homeowner associations to use non-judicial foreclosures to deal with owners who don’t pay their association dues.  After Ige put SB551 on his “intent to veto” list, we asked, “Will Ige Veto Sustain Dubin Litigation? Condo Owners Could Face Millions Of Dollars In Potential Liability.”  Ige eventually allowed the bill to become Act 282 of 2019 without his signature. 

Dubin’s ‘thousands of Hawaii homeowners’ represent a substantial percentage of Hawaii foreclosure cases. 

According to ATTOM Data, before COVID hit, 100 to 150 foreclosures were being filed per month in Hawaii.

NOLO explains: “Foreclosures in Hawaii are typically judicial, which means the foreclosing party (the “bank”) files a lawsuit in court to start the process….  In the past, most foreclosures in Hawaii were nonjudicial. But most banks have switched to judicial foreclosures to bypass Hawaii’s Mortgage Foreclosure Dispute Resolution (MFDR) program.”

When MFDR became law with Act 48 of 2011, Dubin told reporters, “I would say every foreclosure defense attorney and every foreclosure attorney in the state knew that the lenders would most likely switch to judicial.”

• “It takes longer to process foreclosures in Hawaii — more than three years — than in any other state except for New Jersey.” – Pacific Business News, 2016
• “The states with the longest average foreclosure timelines for homes foreclosed in the third quarter of 2019 were Indiana (1,633 days); Hawaii (1,626 days)” – Attomdata, 2019
• “As of the second quarter of 2020, Hawaii had the most extended foreclosure timeline, coming in at 1,558 days (over four years).” – Nolo, 2020

Why does judicial foreclosure take so long?  And how has the Judiciary been affected?  Quoted from his Motion for Reconsideration, Dubin explains:

This has created occasional grief not only for Respondent's law firm which pioneered foreclosure defense in Hawaii, but for our Circuit Courts also, as evidenced by Judge Blondin in Honolulu at the end of her term as foreclosure judge having had to require an armed deputy in her courtroom, and Judge Cardoza on Maui before retiring occasionally requiring two armed deputies in attendance, and Judge Castagnetti last year having to stop proceedings in one case to summons armed deputies to eject a yelling homeowner from her courtroom.

Are foreclosed homeowners ‘victims’?  What does their lawyer say?

Dubin, the ‘Respondent’, describes his firm’s four years spent representing client ‘A’:

Clients are often confused by the inner-workings of the legal system, or conclude that their judges are biased in favor of lenders, and some foreclosure defense clients are simply dishonest, believing that by complaining against their defense attorneys they will get their monies or their homes back….

Mr. and Ms. A became Respondent's clients on or about February 17, 2012, signing a retainer agreement for $16,500. They had not paid their mortgage for several years and were in the process of being sued for foreclosure and eviction. Their first retainer check was dishonored by their local bank….

Almost four years later, Respondent's law firm, while managing to keep the As in their home at great savings for them otherwise in rental payments estimated to be a savings of more than $120,000, and without their paying their mortgage or property taxes or hazard insurance estimated to be a savings of $240,000, and without paying Respondent's law firm further for almost four years saving more than $60,000, the Bank of America offered to settle for a dismissal alone of the A Counterclaim against it, while the foreclosure case was to continue with however a likely very attractive loan modification offer….

That's $420,000. 

(A Dubin Law Firm attorney) advised Respondent that Mr. A was anxious to hide the funds from his former wife and the State of Hawaii, wanting to keep the funds from appearing in his name if possible, since he was behind in child support payments. Of course, Respondent's law firm could not agree to facilitate a fraud against the State and refused, which greatly upset Mr. A, and appears to be the reason for his anger….

Mr. A met Respondent at Respondent's Office clean shaven and dressed in a business suit, explaining at the beginning of their meeting that he, Mr. A, was a successful businessman with his own photography company. At the later hearing before the Hearing Officer, however, he appeared unshaven with ragged clothing and a staged homeless look….

UPDATE #1: The Hawaii Supreme Court, September 28, 2020, declined to reconsider Dubin's disbarment but did give him an extension to November 9, 2020 to wrap up his business.  Dubin says he will appeal to the US Supreme Court.

UPDATE #2: Attorney Dubin appeals for an “emergency stay” on disbarment.

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