2010-04-15_County_of_Hawaii_Motion_to_Dismiss_Counter_Claim_to_Expunge_Lis_Pendens

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Id. at 511-512, 866 P.2d at 966-967 see also, Lathrop v. Sakatani, 111 Hawaii 307, 310, 141 P.3d 480, 483 (2006)(noting trial court expunged lis pendens filed related to claims of fraudulent transfers and conveyances). It is beyond dispute that Defendants' claim of fraudulent conveyance is merely to secure their money damage claim. lrt fact, Defendants allege that the transfer wac to hinder Defendants' efforts to collect the $3.2 million owed to them. See 144 of Exhibit`B". However, Hawaii has rejected this as a basis for a lis pendens. In 2009, the Hawaii Intermediate Court of Appeals again confirmed Hawai`i's lis pendens statute did not apply in such instances. The Court stated: Plaintiffs seek a constructive trust over Defendants' real property as a collateral means of securing the repayment of money that Plaintiffs claim was fraudulently obtained and used by Defendants...Plaintiffs' request for the equitable remedy of a constructive trust over Defendants' real property is insufficient to convert Plaintiffs' complaint into an action `directly seekine to obtain title to or possession of real ro er ." Canales v. Artiga,14 121 Hawaii 177, 214 P.3d 1167, 2009 WL 2371909, *5 (Haw. App. 2009). Therefore, the Hawaii Appellate Courts have consistently emphasized that constructive trusts or similar equitable remedies are insufficient to provide a basis for a lis pendens. In the present case, Defendants seek damages and want the property to serve as collateral for their alleged damages. By definition,Defendants do not have a right or interest in the subject property and the lis pendens must be expunged. In Levinson v. Eighth Judicial District Court, 109 Nev. 747, 857 P.2d 18 (1993), the complaint alleged alter ego, fraudulent conveyances and constructive trust. Id. at 750, 857 P.2d at 20. The plaintiff also filed a lis pendens and the Defendants moved to expunge. The trial court denied the motion to expunge and the Supreme Court of Neveda found the district court had erred and the lis pendens should have been expunged. Similar to the present case,Levinson 14 Although unpublished, Rule 35 of Hawaii Rules of Appellate Procedure permits citation to unpublished decisions after July 1, 2008. 16