Emigrant Savings Bank v. Rappaport

Appellate Division of the Supreme Court of New York

Emigrant Savings Bank v. Rappaport

20 A.D.3d 502, 799 N.Y.S.2d 533, 2005 N.Y. App. Div. LEXIS 7849

Appellate Division of the Supreme Court of the State of New York·Decided July 18, 2005·Published·Cited by 7 cases

Opinion

In an action to foreclose a mortgage, the appeal is from an order of the Supreme Court, Nassau County (Lally, J.), dated August 23, 2004, which granted the motion of S & K Properties, LLC, and Millennium Home & Land, Ltd., the successful bidders at the foreclosure sale, to confirm the foreclosure sale nunc [503]*503pro tunc and to direct the referee to issue to them a referee’s deed.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The successful bidders at a foreclosure sale held on September 29, 2003, were S & K Properties, LLC, and Millennium Home & Land, Ltd. (hereinafter the successful bidders). Subsequently, the successful bidders discovered that on September 26, 2003, the mortgagors, the defendants Laurence J. Rappaport and Susan B. Rappaport, filed a Chapter 7 petition in bankruptcy, thereby invoking an automatic stay of all nonbankruptcy actions and proceedings (see 11 USC § 362 [a]). Thereafter, the successful bidders moved, inter alia, to confirm the foreclosure sale nunc pro tunc, and the Supreme Court granted the motion.

“Once triggered by a debtor’s bankruptcy petition, the automatic stay suspends any non-bankruptcy court’s authority to continue judicial proceedings then pending against the debt- or” (Maritime Elec. Co., Inc. v United Jersey Bank, 959 F2d 1194, 1206 [1991]; see Carr v McGriff, 8 AD3d 420, 422 [2004]). The automatic stay is mandatory and “applicable to all entities, including state and federal courts” (Maritime Elec. Co., Inc. v United Jersey Bank, supra at 1206, quoting 11 USC § 362 [a]). Any nonministerial or “judicial actions taken against a debtor are void ab initio, absent relief from the automatic stay” (Matter of Dominguez, 312 BR 499, 508 [2004]), and “only a bankruptcy court has jurisdiction to terminate, annul, or modify the automatic stay” (Carr v McGriff, supra at 422; see Eastern Refractories Co. v Forty Eight Insulations, 157 F3d 169, 172 [1998]). Accordingly, the Supreme Court should not have granted the motion (see Homeside Lending, Inc. v Watts, 16 AD3d 551 [2005]).

In view of the foregoing, we do not reach the parties’ remaining contentions. Cozier, J.P., S. Miller, Rivera and Fisher, JJ., concur.

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In an action to foreclose a mortgage, the appeal is from an order of the Supreme Court, Nassau County (Lally, J.), dated August 23, 2004, which granted the motion of S & K Properties, LLC, and Millennium Home & Land, Ltd., the successful bidders at the foreclosure sale, to confirm the foreclosure sale nunc [503]*503pro tunc and to direct the referee to issue to them a referee’s deed.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The successful bidders at a foreclosure sale held on September 29, 2003, were S & K Properties, LLC, and Millennium Home & Land, Ltd. (hereinafter the successful bidders). Subsequently, the successful bidders discovered that on September 26, 2003, the mortgagors, the defendants Laurence J. Rappaport and Susan B. Rappaport, filed a Chapter 7 petition in bankruptcy, thereby invoking an automatic stay of all nonbankruptcy actions and proceedings (see 11 USC § 362 [a]). Thereafter, the successful bidders moved, inter alia, to confirm the foreclosure sale nunc pro tunc, and the Supreme Court granted the motion.

“Once triggered by a debtor’s bankruptcy petition, the automatic stay suspends any non-bankruptcy court’s authority to continue judicial proceedings then pending against the debt- or” (Maritime Elec. Co., Inc. v United Jersey Bank, 959 F2d 1194, 1206 [1991]; see Carr v McGriff, 8 AD3d 420, 422 [2004]). The automatic stay is mandatory and “applicable to all entities, including state and federal courts” (Maritime Elec. Co., Inc. v United Jersey Bank, supra at 1206, quoting 11 USC § 362 [a]). Any nonministerial or “judicial actions taken against a debtor are void ab initio, absent relief from the automatic stay” (Matter of Dominguez, 312 BR 499, 508 [2004]), and “only a bankruptcy court has jurisdiction to terminate, annul, or modify the automatic stay” (Carr v McGriff, supra at 422; see Eastern Refractories Co. v Forty Eight Insulations, 157 F3d 169, 172 [1998]). Accordingly, the Supreme Court should not have granted the motion (see Homeside Lending, Inc. v Watts, 16 AD3d 551 [2005]).

In view of the foregoing, we do not reach the parties’ remaining contentions. Cozier, J.P., S. Miller, Rivera and Fisher, JJ., concur.

Emigrant Savings Bank v. Rappaport, 20 A.D.3d 502, 799 N.Y.S.2d 533, 2005 N.Y. App. Div. LEXIS 7849 (N.Y. Ct. App. 2005).

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