§467-18 - Statute of limitation; recovery from fund.
§467-18 Statute of limitation; recovery from fund. (a) No action for a judgment that subsequently results in an order for collection from the real estate recovery fund shall be started later than two years from the accrual of the cause of action thereon. When any aggrieved person commences action for a judgment that may result in collection from the real estate recovery fund, the aggrieved person shall notify the commission in writing to this effect at the time of the commencement of the action and shall submit prescribed documents. The commission may intervene in and defend any such action.
(b) When any aggrieved person recovers a valid judgment in any circuit or district court where the violation occurred against any real estate broker, or real estate salesperson, upon the grounds of fraud, misrepresentation, or deceit, which occurred on or after January 1, 1968, the aggrieved person may, upon the termination of all proceedings, including reviews and appeals in connection with the judgment, file a verified claim in the court in which the judgment was entered and, upon ten days written notice to the commission, may apply to the court for an order directing payment out of the real estate recovery fund, of the amount unpaid upon the judgment, subject to the limitations stated in this section. For any cause of action occurring prior to January 1, 1968, the aggrieved person must proceed against the existing bond covering the license which was in force prior to the establishment of the real estate recovery fund.
(c) The court shall proceed upon the application in a summary manner and, upon the hearing thereof, the aggrieved person shall be required to show:
(1) The person is not a spouse of debtor, or the personal representative of such spouse;
(2) The person has complied with all the requirements of this section;
(3) The person has obtained a judgment as set out in subsection (b) of this section, stating the amount thereof and the amount owing thereon at the date of the application;
(4) The person has made all reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets, liable to be sold or applied in satisfaction of the judgment;
(5) That by such search the person has discovered no personal or real property or other assets liable to be sold or applied, or that the person has discovered certain of them, describing them, owned by the judgment debtor and liable to be so applied, and that the person has taken all necessary action and proceedings for the realization thereof, and that the amount thereby realized was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due on the judgment after application of the amount realized; and
(6) That where the real estate broker or real estate salesperson is a debtor in a bankruptcy proceeding, the aggrieved person has obtained an order from the bankruptcy court declaring the judgment against the real estate broker or real estate salesperson to be non-dischargeable.
(d) The court shall make an order directed to the commission requiring payment from the real estate recovery fund of whatever sum it finds to be payable upon the claim, pursuant to and in accordance with the limitations contained in this section, if the court is satisfied, upon the hearing, of the truth of all matters required to be shown by the aggrieved person by subsection (c) of this section and that the aggrieved person has fully pursued and exhausted all remedies available to the person for recovering the amount awarded by the judgment of the court.
(e) Should the commission pay from the real estate recovery fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensed real estate broker or real estate salesperson, the license of the real estate broker or real estate salesperson shall be automatically terminated upon the issuance of a court order authorizing payment from the real estate recovery fund. No real estate broker or real estate salesperson shall be eligible to receive a new license until the expiration of at least five years from the effective date of the termination of the license and until the terminated real estate broker or real estate salesperson has repaid in full, plus interest at the rate provided for in section 478-3, the amount paid from the real estate recovery fund on the terminated real estate broker's or real estate salesperson's account.
(f) If, at any time, the money deposited in the real estate recovery fund is insufficient to satisfy any duly authorized claim or portion thereof, the commission, shall, when sufficient money has been deposited in the real estate recovery fund, satisfy such unpaid claims or portions thereof, in the order that such claims or portions thereof were originally filed, plus accumulated interest at the rate of six per cent a year. [L 1967, c 187, pt of §1; HRS §467-18; am L 1972, c 51, §1b; am L 1984, c 68, §1; gen ch 1985; am L 1987, c 283, §37; am L 1989, c 203, §3 and c 217, §2; am L 1994, c 100, §11; am L 1999, c 240, §8]
Case Notes
Where pending claims exceed available funds, funds may be distributed pro rata to claimants. 68 H. 550, 722 P.2d 460.
Aggrieved party must notify the commission at the time the action is commenced. 70 H. 536, 777 P.2d 709.
Second complaint was timely; where appellants failed to notify real estate commission of dismissal of first complaint and of filing of second complaint, any technical non-compliance by appellants with the statutory requirements of subsection (a) constituted harmless error. 76 H. 39, 868 P.2d 457.
Appeal of denial of post-judgment motion for order directing payment of judgment out of fund dismissed for lack of appellate jurisdiction as circuit court's jurisdiction in case had not ceased; amended default judgment was not final judgment where claims were still pending or unresolved against some defendants. 80 H. 270 (App.), 909 P.2d 598.