2010-04-15_County_of_Hawaii_Motion_to_Dismiss_Counter_Claim_to_Expunge_Lis_Pendens

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Id, quoting, Southern Industries, Inc. v. Jeremias, 66 A.D.2d 178, 183, 411 N.Y.S.2d 945, 949 (1978). Therefore, Courts around the nation have found that in order to prove a cause of action for fraudulent conveyance, the party must demonstrate an injury in fact. This Court should not hesitate in ruling that such a basic requirement is applicable in the present case. It is beyond dispute that Defendants were not injured. The subject property was already subject to a significant mortgage for the $40 million the County made available for financing as well to secure other performance obligations.13 Defendants were well aware of the substantial financing provided by the County as well as the mortgage. Hence, Defendants are certainly aware they were not injured as a result of the transfer back to the County in 2009. Therefore, it is apparent Defendants asserted the fraudulent conveyance in the desperate hope that it will provide some basis for the lis pendens. See 12 of Fritz Dec, Exhibit"C". Defendants realize the filing of the lis pendens may jeopardize the affordable housing project which is important to the citizens of the Hawaii County. Consequently, Defendants seek to use the lis pendens procedure in a blatant attempt to force the County"to settle not due to the merits of the suit but to rid ...[it]self of the cloud upon the title." S. Utsunomiya Enterprises Inc. v. Moomuku County Club, 75 Haw. 480, 512, 866 P.2d 951, 967 (1994). 5. Defendants' Fraudulent Conveyance Claim is Prohibited by the Express Laneuaae of the Contract Defendants claim for$3.2 million apparently rests on the language of the DSA and ADSA. See pp. 3-5 of counterclaim, Exhibit "B". The DSA was assigned to WWH"and WWH assumed the County's obligations thereunder." See 117 of counterclaim, Exhibit"B". WWH The leasehold land was appraised at$9.5 million. See Exhibit"I". 12