Ryker v. Current (In Re Ryker)

272 B.R. 602, 2002 WL 238478
CourtUnited States Bankruptcy Court, D. New Jersey
DecidedFebruary 8, 2002
Docket19-12142
StatusPublished
Cited by4 cases

This text of 272 B.R. 602 (Ryker v. Current (In Re Ryker)) 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
Ryker v. Current (In Re Ryker), 272 B.R. 602, 2002 WL 238478 (N.J. 2002).

Opinion

OPINION

NOVALYN L. WINFIELD, Bankruptcy Judge.

INTRODUCTION

This issue presently before the Court is whether a pre-petition sheriffs sale may be avoided as a fraudulent conveyance pursuant to 11 U.S.C. § 548(a)(1)(B) because the Notice of Sale was inaccurate. The Debtor contends that the allegedly defective notice amounted to such an irregularity that the price received on the day of the sale was not reasonably equivalent to the property’s actual value. After consideration of the undisputed facts and the pertinent statutory and case authority, this Court finds in favor of the Debtor for the reasons set forth at greater length below.

This Court has jurisdiction in this matter under 28 U.S.C. § 1334, and the Standing Order of Reference issued by the United States District Court for the District of New Jersey on July 23, 1984. This proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(H), and arises in and relates to the bankruptcy case of the Debt- or also pending before this Court. The following constitutes the Court’s findings of fact and conclusions of law as required by Federal Rules of Bankruptcy Procedure 7052. The Court relies not only on the certifications in the adversary case file, but also on pleadings from the main case file as well.

*604 STATEMENT OF FACTS

Edward J. Ryker (“Ryker” or “Debtor”) filed his Chapter 13 petition on November 3, 1999. Shortly thereafter the David and Denise Current (“the Currents”) filed a motion for entry of an order (i) deeming the real property to be non-estate property and (ii) granting present and prospective relief from the automatic stay. Ryker opposed the relief on the grounds that the sheriffs sale could be set aside pursuant to 11 U.S.C. § 548 due to inadequacy of price. Because Ryker made a credible showing that § 548 was applicable, the Court denied the motion and directed Ryker to file the instant adversary proceeding.

The instant bankruptcy case was preceded by a failed business venture. The property, 1040 Route 521, West Shore Trail, Stillwater, NJ (“Stillwater Property”), was purchased for the purpose of operating a restaurant and tavern. Ryker and Beverly Ackerson (“Ackerson”) also entered into a partnership with the Currents. The Currents provided $200,000 for purchase of the Stillwater Property. After disputes arose among the parties, it appears that the Currents transferred their one-half interest in the Stillwater Property to Ryker and Ackerson in exchange for a note in the amount of $204,000 which was secured by a mortgage on the Stillwater Property. After Ryker and Ackerson defaulted, the Currents commenced foreclosure proceedings and they received a final judgment in foreclosure on January 11, 1999, in the amount of $216,295.25, together with counsel fees of $2,312.95, interest, and costs of suit.

A Sheriffs sale was in initially scheduled for March 15, 1999. A Notice of Sheriffs sale was published in the New Jersey Herald on February 17 and 24, and March 3 and 10,1999. The sale was also advertised in the New Jersey Sunday Herald on February 14, 21, and 28, and March 7, 1999. The Notice of Sale described the amount necessary to satisfy the foreclosure judgment as follows:

The approximate amount of $219,084.26, in addition to interest, Sheriffs fees and advertising costs.

After Ryker and Ackerson utilized their statutory adjournments to postpone the sale until April 12, 1999, the Currents and Ryker and Ackerson engaged in negotiations which resulted in a Forbearance Agreement dated May 24, 1999. Under the Forbearance Agreement the Currents received the sum of $150,000, payment of attorney fees amounting to $7,575.06 and establishment of an escrow amounting to $7,500 for payment of the Sheriffs Cen-tage Fee and anticipated property taxes. Additionally, Ryker and Ackerson were obligated to make monthly payments of $1,654.34 based on a five year amortization with a one year balloon. In return, the Currents agreed to adjourn the sale on a monthly basis up to a final date of May 29, 2000. If a default occurred, the Forbearance terms were deemed to automatically terminate.

Monthly payments were made until October, 1999. The October 1, 1999 payment was not made and the Sheriffs sale was held on October 25, 1999. On the sale date counsel for the Currents advised the Sheriff that a credit of $169,605.40 should be given against the amount due of $219,084.26 listed in the Notice of Sale. The Currents were the successful bidders at the Sheriffs sale, bidding $100.00 over their lien. The record does not reveal that any other bidders were present or that any other bid was made for the Stillwater Property.

A few months after the bankruptcy case was filed, the Stillwater Property was sold to a third party purchaser pursuant to 11 U.S.C. § 363. The Stillwater Property and a Class C Liquor License were sold *605 for a total of $240,000. The liquor license was valued at $25,000, and the real property was valued at $215,000.

After the adversary complaint was filed and served, the Currents moved to dismiss the complaint or in the alternative for the Court to abstain pursuant to 28 U.S.C. § 1334(c). This motion was denied by the Court. In response to the Currents’ motion to dismiss, Ryker cross-moved for summary judgment. In the adversary proceeding complaint Ryker maintains that the Sheriffs sale is voidable because (i) the Currents did not give notice of the October 25th sale date to him and Acker-son at the correct address, (ii) the sale was not advertised in two separate newspapers as required by New Jersey Court Rules, and (iii) the final sale date should not have been held without first re-advertising the sale to reflect that payments of $169,605.40 had been made on the foreclosure judgment, and that only the approximate amount of $49,478.86 remained to be satisfied from the sale of the property. In his cross-motion Ryker limits his request for judgment to the contention that the Sheriffs sale is voidable because the sale was not re-advertised.

DISCUSSION

A. Summary Judgment Standards

In determining whether to set aside a foreclosure sale under 11 U.S.C. § 548(a)(1)(B), the Court must consider whether the transfer was indeed a fraudulent conveyance as defined by the Bankruptcy Code. The purpose of this section is to “recover for the estate assets that could be distributed to unsecured creditors, equity secured creditors, or to the debtor as exempt property” and to “rectify prepetition depletion of the debtor’s estate.”

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Related

In Re: Edward Ryker
Third Circuit, 2007
Ryker v. Current
338 B.R. 642 (D. New Jersey, 2006)
Ryker v. Current (In Re Ryker)
315 B.R. 664 (D. New Jersey, 2004)
GE CAPITAL MORTG. SERV., INC. v. Marilao
800 A.2d 150 (New Jersey Superior Court App Division, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
272 B.R. 602, 2002 WL 238478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ryker-v-current-in-re-ryker-njb-2002.