2010-04-15_County_of_Hawaii_Motion_to_Dismiss_Counter_Claim_to_Expunge_Lis_Pendens

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Therefore, in order for Defendants' lis pendens to pass scrutiny under Hawaii law, it must relate directly to title or possession of the property in accordance with the strict requirements of HRS § 634-51. However, Defendants' claims do not relate directly to title or possession of the property. Rather, Defendants seek to be paid for services which they allegedly rendered under a contract. See Exhibit `B". In fact, the sole basis for asserting the lis pendens is the fraudulent conveyance claim. See 12 of Fritz Dec, Exhibit"C". As noted, the fraudulent conveyance claim is without merit. Therefore, since the fraudulent conveyance claim fails,the lis pendens is clearly not warranted. However, even if Defendants are able to prevail on their fraudulent conveyance claim, a lis pendens is still not appropriate. The fraudulent conveyance claim is pled merely to secure repayment of money damages. Although Defendants allege that they may be entitled to have the property transferred back to WWH/HIHT, it is clear that Defendants are not entitled to any right in the property. See Exhibit`B". In S. Utsunomiya, the Hawaii Supreme Court found that a complaint which was "predominately a fraud and breach of contract complaint...seeking damages—does not claim title or a right of possession of the property. Id. at 513, 866 P.2d at 967. Similarly, in the present case, Defendants counterclaim is predominately a breach of contract and fraud complaint which seeks damages. See Exhibit`B". The counterclaim never claims title or a right of possession to the underlying property. The Hawaii Supreme Court noted: ...Allegations of equitable remedies, even if colorable,will not support a lis pendens if, ultimately,those allegations act only as a collateral means to collect money damages. It must be borne in mind that the true purpose of the lis pendens statute is to provide notice of pending litigation and not to make plaintiffs secured creditors of defendants nor to provide plaintiffs with additional leverage for negotiating purposes. 15