In re Butchman

60 Citing cases

  1. In re Rodgers

    333 F.3d 64 (2d Cir. 2003)   Cited 53 times
    Holding that the delivery of the deed following a foreclosure sale was a ministerial act that was not prohibited by the automatic stay

    "); In re Ghosh, 38 B.R. 600, 602 (Bankr.E.D.N.Y. 1984) ("[U]nder New York law a debtor loses all equitable and legal interest in property validly sold at foreclosure whether or not the deed to that property has been delivered to the purchaser."); In re Butchman, 4 B.R. 379, 380 (Bankr.S.D.N.Y. 1980) ("[T]he foreclosure sale effectively cut off the debtors' legal title or equity of redemption in the mortgaged premises."); cf. In re Canney, 284 F.3d 362, 375 (2d Cir. 2002) (applying Vermont's strict foreclosure law in holding that "once the redemption period has lapsed, the debtor's equity of redemption extinguishes and the debtor has no legally cognizable right or interest in the property.").

  2. Darnley v. Ameriquest Mortgage Co.

    06-CV-4265 (DLI) (E.D.N.Y. Jan. 8, 2010)   Cited 6 times

    The court finds that the June 5, 2002 foreclosure sale did not violate the automatic stay provisions of the bankruptcy code. "When a debtor's legal and equitable interests in property are terminated prior to the filing of the petition with the Bankruptcy Court that was intended to preserve the debtor's interest in such property, the Bankruptcy Court cannot then cultivate rights where none can grow." In re Island Helicopters, Inc., 211 B.R. 453, 464 (E.D.N.Y. 1997) (quoting In re Butchman, 4 B.R. 379, 381 (S.D.N.Y. 1980)). Indeed, "[i]t is settled law in New York that a valid judgment and sale in a mortgage foreclosure action entitle the purchaser at the sale to receive a deed to the premises upon compliance with the terms of the sale and that the mortgagor has no right to redeem the premises after the sale but before the purchaser has received a deed."

  3. In re Schleier

    290 B.R. 45 (Bankr. S.D.N.Y. 2003)   Cited 7 times
    Holding that "the date and time-stamp on a bankruptcy petition creates a rebuttable presumption as to when it was filed"

    It argues that Schleier was divested of her property interest before the automatic stay provision of the Bankruptcy Code became effective. BONY cites to In re Butchman, 4 B.R. 379 (Bankr. S.D.N.Y. 1980) and In re McMeans, 209 B.R. 253 (Bankr. N.D. Al. 1997) to support its contention. Schleier's Argument

  4. In re Sandralee Rodgers

    Case No. 01-24220 (Bankr. W.D.N.Y. Jan. 10, 2002)

    In a December 12, 2001 Affidavit, the Debtor asserted that: (1) neither she nor her former spouse had ever received notice of the intention of the County to auction the Webster Property; and (2) although it was currently being utilized as rental property, the Debtor intended to reside at the Webster Property during her retirement. In a December 12, 2001 Memorandum (the "Debtor Memorandum"), the Debtor asserted that: (1) the decisions in In re Butchman, 4 B.R. 379 (Bankr.S.D.N.Y. 1980), In re Smith, 7 B.R. 106 (Bankr.W.D.N.Y. 1980), In re Cretella, 42 B.R. 526 (Bankr. E.D.N.Y. 1984), and In re Upham, 48 B.R. 495 (Bankr.W.D.N Y 1985), which had held that, in a mortgage foreclosure proceeding, once an auction sale had taken place and the debtor's time to redeem had expired pre-petition, the Debtor had no legal or equitable interest in the foreclosed property for purposes of Sections 362 and 541, were incorrect; (2) the proper interpretation of New York Law is that it is only after a deed is delivered that all of the interests of an owner of property sold as part of a mortgage or real estate tax foreclosure proceeding are terminated; (3) at the time of a mortgage foreclosure sale, there is only an agreement between the referee and the purchaser to buy and sell the foreclosed property, there is not a transfer of ownership; (4) until a deed is delivered as a part of an In Rem Mortgage or Tax Foreclosure Proceeding, the owner has the exclusive right t

  5. In re Liggett

    118 B.R. 213 (Bankr. S.D.N.Y. 1990)   Cited 13 times
    Applying New York state law to determine debtor's interest in real property

    The Debtor is also precluded from claiming any right of redemption to the Riverview Property. It is well settled that the purchase of property at a court ordered real estate foreclosure sale in New York, conducted before the filing of the petition in bankruptcy, divests the debtor of any interest she or he may have had in the property. In re Nimai Kumar Ghosh, 38 B.R. 600 (Bankr.E.D.N.Y. 1984); In re Smith, 7 B.R. 106 (Bankr.W.D.N.Y. 1980); In re Butchman, 4 B.R. 379 (Bankr.S.D.N.Y. 1980). The foreclosure sale was conducted at a time when no bankruptcy petition was pending as to this Debtor. It is further clear that as regards the right to redemption, the owner of an equity of redemption only has a right to redeem before an actual sale under a judgment of foreclosure.

  6. In re Davidson Rehab Associates

    103 B.R. 440 (Bankr. S.D.N.Y. 1989)   Cited 8 times
    Holding that a would-be bona fide purchaser could not simply ignore the recorded notices of an impending non-judicial foreclosure sale and fail to make inquiry as to whether the announced sale had occurred

    Under New York law, a debtor's equitable and legal interest in property is effectively terminated upon the sale, not upon a subsequent act of perfection such as delivery or recordation of the deed. In re Ellis, 40 B.R. 760, 762 (Bankr.E.D.N.Y. 1984); In re Ghosh, 38 B.R. 600, 602-03 (Bankr.E.D.N.Y. 1984); In re Smith, 7 B.R. 106, 108 (Bankr.W.D.N.Y. 1980); In re Butchman, 4 B.R. 379, 380, 6 B.C.D. 403 (Bankr.S.D.N.Y. 1980). As the Smith court observed, "the mortgagor's right of redemption, which can still be exercised after the Judgment of Sale, no longer exists after the sale itself; the sale cuts off any such right."

  7. In re Rouse

    48 B.R. 236 (Bankr. E.D. Pa. 1985)   Cited 32 times
    Applying test of debtor's remaining interest in property under state law as test to determine right to cure

    Property sold at a foreclosure sale cannot be redeemed under Chapter 13 when the debtor's right of redemption under state law was terminated before bankruptcy. In re Butchman, 4 B.R. 379 (Bankr.S.D.N.Y. 1980) [denial of confirmation]; see also In re Smith, 7 B.R. 106 (Bankr.W.D.N.Y. 1980) [declaring that automatic stay does not apply]; In re Loubier, 6 B.R. 298 (Bankr.D.Ct. 1980) [chapter 11; automatic stay modified to permit delivery of deed]. In sum, where the debtor's legal title or equity of redemption have been terminated before bankruptcy, "the Bankruptcy Court cannot then cultivate rights where none can grow."

  8. Matter of Wilson

    11 B.R. 986 (Bankr. S.D.N.Y. 1981)   Cited 17 times
    Finding that an attorney's representation of the debtor was neither competently performed or zealously provided, it ordered that all fees paid to the attorney be remitted to the debtor

    Accordingly, the motion to reinstate the stay was denied because once a mortgage has been merged into a judgment it can no longer be reinstated for the purpose of supporting payments under a Chapter 13 plan. See In re Butchman, 4 B.R. 379, 2 C.B.C.2d 174, 177 (Bkrtcy.S.D.N.Y. 1980). Moreover, this court also concluded that the debtor still had no equity in the residence and the second mortgagee's interests were not adequately protected.

  9. Robinson v. Chicago Housing Authority

    54 F.3d 316 (7th Cir. 1995)   Cited 44 times
    Concluding that there is no meaningful difference between "expired" and "terminated" for purposes of § 365

    Thus, leases that state courts had determined to be at an end could suddenly be revived, and landlords would face continuing uncertainty whether a lease was in fact alive or dead. Such a result seems irrational and is not congruent with the general principles of bankruptcy law. See In re Triangle Laboratories, Inc., 663 F.2d 463, 468 (3d Cir. 1981) (citing In re Butchman, 4 B.R. 379, 381 (Bankr.S.D.N.Y. 1980) ("when a debtor's legal and equitable interests in property are terminated prior to the filing of the petition with the Bankruptcy Court that was intended to preserve the debtor's interest in such property, the Bankruptcy Court cannot then cultivate rights where none can grow"); Talley, 69 B.R. at 223. Hence we conclude that federal bankruptcy law draws no meaningful distinction between "expired" and "terminated" residential leases and does not provide greater federal protection for lessees under residential leases, the stated terms of which have not run, even though they have been otherwise terminated.

  10. Matter of Triangle Laboratories, Inc.

    663 F.2d 463 (3d Cir. 1981)   Cited 82 times
    Ruling that § 365(e) renders bankruptcy termination clauses "unenforceable"

    , S.D.N.Y. 1980); Fogel, Executory Contracts and Unexpired Leases in the Bankruptcy Code, 64 Minn.L.Rev. 341, 346 (1980). As the court observed in In re Butchman, 4 B.R. 379, 381 (Bkrtcy., S.D.N.Y. 1980), "When a debtor's legal and equitable interests in property are terminated prior to the filing of the petition with the Bankruptcy Court that was intended to preserve the debtor's interest in such property, the Bankruptcy Court cannot then cultivate rights where none can grow." See also Bank of Marin v. England, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197 (1966) ("[t]he trustee succeeds only to such rights as the bankrupt possessed").