2010-04-15_County_of_Hawaii_Motion_to_Dismiss_Counter_Claim_to_Expunge_Lis_Pendens

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fir'` *4gp4, 'never had title to the property which is now being `corralled' to satisfied a money judgment." Id. at 752, 857 P.2d at 21. The Court noted: While...[plaintiff] has presented relevant case law indicating that lis pendens may apply to actions designed to avoid conveyances or transfers in fraud to creditors, she has not adequately demonstrated actionable fraud in the instant case...(Plnintiffl h-as merely attempted to obtain what amounts to a preiudgment attachment on fdefendants'l property throuO the guise of an action implicating a provisional lis pendens remedy...[PlaintiffJ contends...that the [defendants'] real property is the only asset which would satisfy her claim. Even if we were to assume that [plaintiff s] fears are true, they would not support the relief she seeks by invoking the lis pendens statute. To repeat, lis pendens is not available to merely enforce a personal or money judgment. There must be some claim of entitlement to the real property affected by the lis pendens, a condition wholly absent in the case before us (emphasis added). Id. at 752, 857 P.2d at 21. Similarly, in the present case, Defendants have not demonstrated any actionable fraud in the conveyance. In addition, simply because WWH may not have sufficient assets to satisfy any potential judgment obtained by Defendants, this does not invoke the lis pendens statute.15 Defendants' claims simply do not allege an entitlement in real property as required for the filing of a lis pendens. 2. A Lis Pendens is Not Necessary or Appropriate on Public Land It is undisputed the property is currently owned by the County to be used for affordable housing. Therefore, Defendants have filed a lis pendens against property on public land which is held for the benefit of the citizens of Hawaii County. There is no legal authority to do so. There is simply no legitimate reason for filing a lis pendens against public land. Defendants seek money damages. The fraudulent conveyance cause of action and the lis pendens are merely a means to secure their alleged damages. Therefore, in the unlikely event 15 Defendants will likely attempt to rely upon Sports Shinko Co.,Lid. v. Q.K. Hotel,LLC,457 F.Supp.2d 1121 (D. Hawaii 2006) which indicates a cause of action for fraudulent conveyance is sufficient for a lis pendens. However,the federal district court did not certify a question to the Hawaii Supreme Court and this decision appears to be contrary to the decisions by the Hawaii appellate law,including Canales v.Artiga,which was decided in 2009,three years after Sports Shinko. It is well accepted that "state courts are the final arbiters of the state's own law...[and]are not bound by the federal court's interpretation of ...[Hawaii's]statutes." Rana v. Bishop Ins.of Hawaii, Inc.,6 Haw.App. 1, 10,713 P.2d 1363, 1369(1985). 17