In re Varquez

502 B.R. 186, 2013 WL 6578925, 2013 Bankr. LEXIS 5233
CourtUnited States Bankruptcy Court, D. New Jersey
DecidedDecember 13, 2013
DocketCase No. 13-30571/JHW
StatusPublished
Cited by12 cases

This text of 502 B.R. 186 (In re Varquez) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Varquez, 502 B.R. 186, 2013 WL 6578925, 2013 Bankr. LEXIS 5233 (N.J. 2013).

Opinion

OPINION

JUDITH H. WIZMUR, JUDGE, U.S. BANKRUPTCY COURT

In this matter, a tax sale certificate holder seeks relief from the automatic stay to continue with the sale of the debtors’ principal residence, acquired by the mov-ant through a foreclosure judgment. The debtors seek to cure the outstanding amount due for their real estate taxes through their proposed Chapter 13 plan, and the return of their home. The debtors [188]*188contend that the involuntary transfer of their property may be avoided pursuant to either 11 U.S.C. § 547 as a preferential transfer, or 11 U.S.C. § 548 as a fraudulent transfer. While it appears that the transfer of the debtors’ property cannot be avoided as a preferential transfer because the transfer occurred outside of the 90 day preference period, see 11 U.S.C. § 547(b)(4)(A), the debtors may be able to establish that the judgment of foreclosure is avoidable as a fraudulent transfer under 11 U.S.C. § 548(a)(1)(B). The creditor’s motion for relief is denied without prejudice.

FACTS

Guy P. and Kathleen M. Varquez filed a voluntary petition under Chapter 13 of the Bankruptcy Code on September 19, 2013. The debtors’ residence at 207 Summit Avenue in Mantua Township, New Jersey was listed with a value of $135,735.00 and no encumbrances. The debtors scheduled Mantua Township with a claim for real estate taxes in the amount of $35,999.76, noting in their Statement of Financial Affairs that a tax sale certificate holder had obtained a judgment of foreclosure against the debtors prior to the filing of their petition. The debtors’ Chapter 13 plan proposes to pay $1,200 a month for 60 months to satisfy all administrative and priority claims, including the delinquent real estate taxes, and to pay a 100% dividend to unsecured creditors.

On October 1, 2013, Sparrow Investments, LLC (hereinafter “Sparrow”) moved for relief from the automatic stay to proceed with the sale of the debtors residence. A tax sale had been conducted against the property on or about December 4, 2009, and the successful bidder assigned the tax sale certificates to Sparrow on May 29, 2013. Sparrow filed a complaint to foreclose the debtors’ right of redemption, and with the entry of a final judgment of foreclosure on the tax lien on June 20, 2013, Sparrow acquired fee simple title to the debtors’ residence. A writ of possession, also issued on June 20, 2013, was executed on September 18, 2013. Sparrow contends that the debtors no longer own or occupy the property and that it does not constitute property of the debtors’ bankruptcy estate.

The debtors oppose Sparrow’s motion, certifying in part that Guy Varquez had no notice of the delinquency on real property taxes due to Mantua Township, because his wife failed to inform him about it. As well, Mr. Varquez complains that he had no notice of the fact that a foreclosure had occurred until he came home to find the sheriff evicting him from the property. According to the debtors, at the time that the complaint and summons for the lawsuit filed against the debtors were served at the residence, the debtors were separated, and Guy Varquez was not living in the home. They also contend that Sparrow improperly changed the locks on the home and listed the property for sale following the filing of their bankruptcy petition on October 7, 2013, in violation of the automatic stay.

In response, Sparrow contends that Guy Varquez’s alleged lack of notice is without merit, and that the movant complied with all state law noticing requirements. Sparrow explains that the debtors were legally removed from the property prepetition pursuant to the judgment of foreclosure and writ of possession, but that the movant subsequently granted the debtors access to the property to retrieve their possessions. When the debtors failed to vacate the property, the movant changed the locks on October 7, 2013 to prevent further trespassing. Sparrow contends that the debtors have no standing to avoid an alleged preferential or fraudulent transfer. Final[189]*189ly, Sparrow asserts that a tax foreclosure is not an avoidable preference under 11 U.S.C. § 547, or an avoidable fraudulent conveyance under 11 U.S.C. § 548.

DISCUSSION

Several issues raised by the parties, both in support of and in opposition to the motion for relief from the automatic stay, can be readily disposed of. First, Sparrow is correct that as of the date of the filing of the petition, the automatic stay was not in effect as to the property in question, because the debtors’ interest in their former residence had been extinguished prior to the filing. Section 362(a)(3) proscribes any post-petition act “to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). Property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The nature and extent of the debtors’ interest in property are defined by state law. Butner v. U.S., 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Under the New Jersey Tax Sale Law, when a final judgment of foreclosure is entered, “an absolute and indefeasible estate of inheritance in fee simple” may be vested in the purchaser. N.J.S.A. § 54:5-87. In fact, the June 20, 2013 judgment did just that.1 The writ of possession issued against the property was executed the day before the bankruptcy filing. As a result, at the time of the filing, the debtors had lost their legal and equitable interest in the property. Sparrow’s motion for relief from the stay is actually a request for a comfort order that the automatic stay does not apply, and that Sparrow may proceed to protect its interests outside of the bankruptcy process. See 11 U.S.C. § 362(j). On this record, I conclude that no violation of the automatic stay occurred.

Second, the debtors’ challenge to the state court judgment on the ground that Guy Varquez had no notice of the debtors’ default on their real estate tax obligations, and was not properly served with the complaint, must fail. Under the Rooker-Feldman doctrine,2 this court cannot serve as an appellate forum to challenge decisions made in the state courts. See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284, 125 S.Ct.

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Bluebook (online)
502 B.R. 186, 2013 WL 6578925, 2013 Bankr. LEXIS 5233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-varquez-njb-2013.