Canney v. Merchants Bank (In re Canney)

284 F.3d 362, 2002 WL 362658
CourtCourt of Appeals for the Second Circuit
DecidedMarch 7, 2002
DocketDocket No. 00-5071
StatusPublished
Cited by10 cases

This text of 284 F.3d 362 (Canney v. Merchants Bank (In re Canney)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Canney v. Merchants Bank (In re Canney), 284 F.3d 362, 2002 WL 362658 (2d Cir. 2002).

Opinion

F.I. PARKER, Circuit Judge.

Appellant, John R. Canney, III, Chapter 7 Trustee for the Estate of Maxwell Frazer (“Trustee”), appeals from an opinion and order of the United States District Court for the District of Vermont (William K. Sessions, Judge), dated August 8, 2000. The district court reversed the decision of the United States Bankruptcy Court for the District of Vermont (Robert L. Kre-chevsky, Bankruptcy Judge),1 dated August 30, 1999, which denied Appellee Merchants Bank’s request for relief from an automatic stay.

This appeal concerns the intersection of federal bankruptcy law with Vermont strict foreclosure law. After obtaining several loans from Merchants Bank and securing the loans by mortgages on his property and assignment and pledge of the stock in his restaurant, Maxwell Frazer d/b/a Max’s Country Village Store and Mr. G’s Restaurant (“Frazer”) defaulted on the loans. Merchants Bank obtained a foreclosure judgment from state court that specified the amounts due and a deadline for Frazer to redeem, ie., cure his default. Days prior to the deadline, Frazer filed for bankruptcy protection.

The issues raised by this appeal are: (1) whether the automatic stay provisions of 11 U.S.C. § 362(a)2 or the time limitations of 11 U.S.C. § 108(b)3 apply when a mortgagor files for bankruptcy during the equity of redemption period following entry of judgment in a Vermont strict foreclosure action; and (2) if the automatic stay provisions do not toll the equity of redemption [367]*367period, whether those provisions toll either the recording of the certificate of non-redemption or the issuance of the writ of possession. We follow our sister Circuits and hold that § 108(b), not § 362(a), governs the tolling of a period of equitable redemption. Because the redemption period lapsed without redemption, we find that neither Frazer nor the Trustee has a legally cognizable right or interest in the property that justifies encumbrance by the federal bankruptcy laws. Finally, we hold that neither the recording of the certificate of non-redemption nor the issuance of the writ of possession is stayed by § 362(a). Accordingly, we affirm the judgment of the district court.

I. BACKGROUND

The facts in this case are undisputed. Between May 1992 and March 1996, Merchants Bank provided several loans to Frazer.4 Merchants Bank secured the loans by either mortgages on Frazer’s real property located in the Town of Weathers-field, Vermont (the “Property”), or assignment and pledge of the stock in his restaurant. Frazer defaulted on the loans, and in January 1998, Merchants Bank sought foreclosure.

In June 1998, Frazer entered into a Stipulation and Judgment and Shortened Redemption Period, which was so ordered by the state court on July 14, 1998. The parties agreed that the equity of redemption period would expire on September 15, 1998.

On September 11, 1998, a Consolidated Judgment Order and Decree of Foreclosure (“Foreclosure Judgment”) was issued by the Windsor Superior Court. See Merchants Bank v. Frazer, Windsor Super. Ct.

Docket No. 24-l-98Wrcv (Sept. 11, 1998). The Foreclosure Judgment forever barred Frazer from equity redemption unless Merchants Bank was paid the full amount due on the mortgage on or before September 18,1998.

On September 14, 1998, Frazer filed a Chapter 13 bankruptcy petition. That petition was dismissed, however, for lack of jurisdiction on December 15, 1998. The next day, Frazer filed a Chapter 11 bankruptcy petition.

On June 23, 1999, Merchants Bank moved for relief from the automatic stay, arguing that the equity of redemption period is not stayed by 11 U.S.C. § 362, on the ground that the timing provisions of 11 U.S.C. § 108(b) take precedence over § 362 tolling. Merchants Bank relied on decisions from the United States Courts of Appeals for the Sixth, Seventh, and Eighth Circuits.

The bankruptcy court denied Merchants Bank’s motion on August 30, 1999. See In re Frazer, 238 B.R. 262 (Bankr.D.Vt.1999). The bankruptcy court considered it significant that all but one of the Circuit court cases relied on by Merchants Bank involved the statutory right of redemption following a foreclosure by sale. See id. at 264. The bankruptcy court found disposi-tive the “distinction between a mortgagor’s equity of redemption, which is a property interest that exists prior to the passing of title, and a right, available only in those states where statutes so provide, to repurchase the already foreclosed property from a buyer following a foreclosure sale.” Id. (emphasis added). Relying on the prior decisions of bankruptcy courts in Vermont and Connecticut,5 the two states in which [368]*368strict foreclosure (rather than foreclosure by sale) is the usual method of foreclosure, rather than the decisions of the Sixth, Seventh, and Eighth Circuits, the bankruptcy court held that the equity of redemption period is stayed by 11 U.S.C. § 362 and denied Merchants Bank’s motion. Id. at 264-65. Merchants Bank appealed.

On May 17, 2000, Frazer’s Chapter 11 ease was converted to a Chapter 7 case, and John R. Canney, III, Esq. was appointed trustee of the estate.

On August 8, 2000, the district court issued its opinion and order reversing the bankruptcy court. See Merchants Bank, 253 B.R. 513. The district court found persuasive the case law in other circuits analyzing the issue of how § 108(b) and § 362(a) interrelate and concluding that the timing provisions of § 108(b) take precedence over § 362(a) tolling where no affirmative act triggering the indefinite stay provision of § 362 may be found. See id. at 516-17. The district court noted that the Vermont cases that take a contrary approach rely primarily on the legislative history of § 362(a) without reference to 12 Vt. Stat. Ann. §§ 4529-4530 and determined that the issue could be “resolved by the procedural requirements of Vermont law.” Id. at 517. The district court recognized that although “the passage of full title, both legal and equitable, to the mortgagee, not under a decree of Judicial sale, passes after the recording of the decree in foreclosure in the appropriate city or town clerk’s office and the expiration of the redemption date(s) specified in the decree of foreclosure,” id. at 517-18 (quoting L.H. & A., 57 B.R. at 267), “this affirmative act is only required on the part of the foreclosing mortgag[ee] prior to obtaining title when there are ‘subsequent purchasers, mortgagees] or attaching creditors.’ ” Id. at 518 (quoting 12 Vt. Stat. Ann. § 4530). The court therefore concluded that, with respect to the mortgagor, title passes without reference to 12 Vt. Stat. Ann. § 4529, and thus “no additional act is required in the state of Vermont which would trigger the indefinite stay of 362(a).” Id. at 518.

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