Twenty-eight years after Bank of America pledged $150 million in loans to Native Hawaiians in remediation for discriminatory lending practices and wrongful foreclosures, four years after the Maui County Council passed a resolution urging BOA to make good on its unmet promise, and two years after the Council retained special counsel to move ahead with legal action against the second-largest bank in the country, a lawsuit to finally resolve the matter was filed Tuesday in Hawaii District Court — not by Maui County but by the small nonprofit group the county has already spent more than $100,000 in special counsel costs — arguably in vain — to support.

“We took the fight on,” said Brandon Makaawaawa, president of Na Poe Kokua. “We’re in it to the end.”

Testifying at a council Government Relations, Ethics and Transparency hearing, Makaawaawa said his group, and the affiliated Hawaii Fair Lending Coalition, worked with pro bono attorneys Frederick Arensmeyer and Bruce Jacobs to prepare and file the civil RICO lawsuit after attempts to work with the county Department of the Corporation Counsel and special counsel Bronster, Fujichaki, Robbins failed.

Jacobs said Tuesday’s filing was the first of three suits the group intends to pursue.

In 1994, while seeking approval from the Federal Reserve to acquire Liberty Bank in Hawaii, BOA pledged to provide $150 million in mortgage loans to Native Hawaiians and $100,000 in affordable housing grants to Filipinos in Hawaii for previous discrimination against Native Hawaiian and Filipino loan applicants, as alleged in a Na Poe Kokua complaint.

Na Poe Kokua and the Hawaii Fair Lending Coalition contend that BOA never fulfilled its pledge to Native Hawaiians. BOA, however, claims that the debt was fully resolved via an agreement with the state Department of Hawaiian Home Lands, as affirmed by a 2007 letter from then-DHHL deputy director Ben Henderson. The informal agreement allowed BOA to count grants, construction loans and other funding mechanism toward its obligation.

In 2018, Gov. David Ige called on BOA to work with Na Poe Kokua on a settlement. The Maui County Council followed up with a resolution echoing the governor’s request.

In 2020, the county retained Bronster, Fujichaku, Robbins to explore actionable wrongful foreclosures and other misdeeds by BOA and was informed by the firm that there likely was basis for a suit. Later that year, the council passed a resolution to pursue legal claims against the bank. BOA attempted to preemptively block the suit, but its case was thrown out.

While Ige has since said he no longer supports a suit against BOA, the Maui County Council appropriated $200,000 to retain Bronster, Fujichaku, Robbins to work on a potential suit and directed the firm and county corporate counsel Moana Lutey to collaborate with Na Poe Kokua.

According to Makaawaawa, repeated attempts to work with the county’s legal representatives, particularly lead attorney Margery Bronster, were largely disregarded.

“There has no communication, nothing that I haven’t initiated myself,” he said. “They’re just too busy or they don’t care and I think both those things are wrong.”

Both Bronster and Lutey said they regularly responded to Makaawaawa’s emails and messages but acknowledged that little information was shared between them.

“It’s a two-way street,” said Bronster, who noted that Na Poe Kokua and its attorneys did not provide information she had requested. “I have been busy, but we have tried to be accommodating on the levels we could. There are attorney-client issues.”

Jacobs said he was not willing to share information with Bronster because there was no indication that she intended to work with them on the suit.

“There was never a moment with corporate counsel or Ms. Bronster when we felt they had any real intention to sit down with us,” he said. “We did not believe that she was on our team.”

Makaawaawa said he would like the council to terminate its contract with the special council and instead provide financial assistance to Na Poe Kokua's legal team.

Asked by councilmember Tamara Paltin whether the county would be filing its own suit, Bronster responded, “My current recommendation is not to do so at this time.” She said she could not explain her reasoning unless the council entered executive session.

Councilmember Keani Rawlins-Fernandez said that recommendation contradicted Bronster’s earlier position when the council agreed to pursue legal action.

Bronster said “additional research” led her to change her mind but emphasized that the recommendation is not final and further information could arise that would allay her concerns about the cost of a suit, potential recovery and other issues she declined to address outside of executive session.

After a protracted debate about whether to enter executive session, and under what conditions, the committee agreed to consult with Lutey, Bronster and their teams in private.

The committee ultimately decided to defer further action, but not before committee chair Mike Molina expressed his disappointment at the state of the affairs.

“I’m really disturbed by these communication issues,” he said. “Imagine how many people could have been in homes if we had resolved this sooner. It boggles the mind as to why we’ve come to this point.

“To be honest, I’m quite embarrassed that the other folks (Na Poe Kokua) have taken the initiative to push forward,” he said. “I think we as government have to do our part.”

Michael Tsai covers local and state politics for Spectrum News Hawaii.