§667-3  Proceeds, how applied.  Mortgage and other creditors shall be entitled to payment according to the priority of their liens, and not pro rata; and judgments of foreclosure that are conducted in compliance with this part shall operate to extinguish the liens of subsequent mortgages and liens of the same property, without forcing prior mortgagees or lienors to their right of recovery.  The surplus after payment of the mortgage foreclosed, shall be applied pro tanto to the next junior mortgage or lien, and so on to the payment, wholly or in part, of mortgages and liens junior to the one assessed. [CC 1859, §1233; RL 1925, §2889; RL 1935, §4722; RL 1945, §12422; RL 1955, §336-3; HRS §667-3; am L 1972, c 90, §9(c); am L 2011, c 48, §16; am L 2012, c 182, §12]

Rules of Court

  See HRCP rule 13.

Case Notes

  Mortgagee of recorded chattel mortgage taking possession of unharvested rice crop has prior right over subsequent creditors.  9 H. 616 (1895).

  Tender must include attorney's fee in order to ward off foreclosure when mortgage provides for attorney's fee.  21 H. 470 (1913); 29 H. 20 (1926).

  Under HRCP rule 54(b), court has discretion to leave adjudication of junior lien status for later determination.  56 H. 587, 545 P.2d 1173 (1976).

  First mortgage lien should not have been terminated by confirmation of sale unless first mortgagee's priority as to proceeds was preserved.  67 H. 322, 687 P.2d 1333 (1984).

  See 33 H. 1 (1934); 35 H. 482 (1940).