Almost two years after Maui County hired an outside attorney for $200,000 to pursue a lawsuit against Bank of America for allegedly failing to uphold a decades-old promise to provide $150 million in home loans to Native Hawaiians, it’s still unclear when — or if — the county plans to take action against the banking giant.

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Council members on Tuesday grilled a county attorney and the private lawyer, former Hawaii Attorney General Margery Bronster, who was hired to represent Maui in whatever case it might take up against Bank of America.

Throughout the course of an almost three-hour long discussion, a handful of members of the public raised concerns about why there hadn’t been more progress over the last two years, and why county attorneys hadn’t done more to work with the group of Native Hawaiians who’ve been leading the fight to hold the bank accountable for the last three decades.

Council members raised similar questions: At this point, did county attorneys recommend filing a lawsuit against Bank of America? If not, when did they make that decision, and why weren’t council members told? But after being urged by attorneys to discuss any information about potential lawsuits behind closed doors, members of the council’s Government Relations, Ethics, and Transparency Committee then spent an hour talking in private, only to resume the public meeting and push the rest of the discussion to a later date.

“We shouldn’t let go of it,” said Council member Mike Molina, committee chair. “This council has shown some political will, and I hope the state shows the same political will.”

Molina said he hoped to reschedule the discussion for sometime in the near future to provide more answers for his colleagues and members of the public, although it’s unclear exactly when that might be.

Bank of America pledged in 1994 to make $150 million available to Native Hawaiian borrowers within the next four years. Mike Mozart/Flickr.com

Last month marked the 28th anniversary of Bank of America’s pledge to provide federally backed home loans so Native Hawaiians could buy and build homes on land set aside after the overthrow of the monarchy. In the early 1990s, the bank had a presence in Hawaii, but when it looked to expand by purchasing another bank, it was met with opposition by Na Po‘e Kokua, a Maui-based Native Hawaiian housing watchdog group, and its related organization, the Hawaii Fair Lending Coalition. The two groups accused the bank of discriminatory lending practices that blocked Native Hawaiians from securing mortgages on Department of Hawaiian Home Lands land.

So to win over the federal government’s approval needed to expand, Bank of America pledged in 1994 to make $150 million available to Native Hawaiian borrowers within the next four years. But the bank ended up leaving the state three years later, after lending only $3 million to Hawaiian homesteaders.

In a statement Tuesday, a Bank of America spokesman said that while “we respect the issues faced by the Native Hawaiian community, the bank fulfilled its pledge made in 1994 and this was confirmed by the state in 2007.”

In the decades since then, almost all levels of Hawaii’s government — from county officials to members of the congressional delegation — have called on Bank of America to follow up on its original promise. But figuring out how to force the corporation to do that has been tricky: Gov. David Ige, for example, said because the state doesn’t have an enforcement contract with the bank, it doesn’t have standing to file a lawsuit.

In 2020, Maui County decided to put money toward figuring out if there was anything it could do and approved paying Bronster’s firm up to $200,000 after a preliminary investigation showed the county might have grounds for a lawsuit. But almost two years have passed since then, and after many discussions behind closed doors with attorneys, there’s still little public information about the prospect of any legal actions.

Shay Chan Hodges raised concerns about Bronster’s efforts so far. 

Shay Chan Hodges, a member of the Hawaii Fair Lending Coalition, told council members Tuesday that she has concerns about $98,000 in invoices that Bronster has billed to the county so far.

“We’re concerned not only by the overall issue of a lack of performance by special counsel, but by the specifics of what was actually invoiced to the county of Maui,” Chan Hodges said.

A chunk of the money was used to defend the county when Bank of America sued after it decided to hire Bronster — a lawsuit that was later thrown out. Chan Hodges said Bronster also appears to have billed for her time before the council asking for additional funds.

When fielding questions from council members Tuesday, Bronster said that her team had been reaching out to state officials to explore other potential legal avenues, in addition to tracking down families who’d been affected by discriminatory lending practices in more recent years — not just decades ago.

Asked by a council member whether Bronster would recommend the county file a lawsuit against Bank of America, she responded that her guidance is “not to do so at this time.” She declined to expand on why, saying that she’d been instructed by county attorneys not to discuss the case in public.

Maui County attorney Moana Lutey echoed her concerns, warning council members of the potential ramifications if the discussions unfolded in public.

“You have seen how aggressive Bank of America has been,” Lutey told council members. “So if you’re going to be having a discussion as an open session, really what you’re doing is providing them an opportunity to see what it is that the strategy may be here … which could give them a leg up.”

Brandon Makaawaawa.
Brandon Maka‘awa‘awa leads Na Po‘e Kokua, the organization that for years has fought against Bank of America. Cory Lum/Civil Beat/2021

But for some of the community members who’ve been following this fight for decades, the lack of transparency was yet another disappointment.

Na Po‘e Kokua President Brandon Maka‘awa‘awa told council members that since the county earmarked $200,000 to fight Bank of America, his organization found an attorney who agreed to represent the nonprofit for free. On Tuesday, the group filed its own lawsuit against the corporation, in an attempt to force it to live up to the promise it says it has evaded for decades.

“My board is average age 60,” Maka‘awa‘awa told council members. “I want to see something happen while they’re still alive. They were young and spry when they all started this, and unfortunately, we live in worse conditions today because of this failed commitment.”

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation and the Fred Baldwin Memorial Foundation.

Read Na Po‘e Kokua’s lawsuit below.

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