Workingmen's Sav. Loan v. Kestner

14 Citing cases

  1. Taylor v. Slick

    178 F.3d 698 (3d Cir. 1999)   Cited 66 times
    Holding plaintiff was not denied due process where plaintiff was provided notice of the original sale, the original scheduled sale time was rescheduled orally, then the land subsequently sold on the rescheduled sale date, because the debtor's "voluntary absence" did not deprive him of the ability to bid on the property

    , In re Peters, 101 F.3d 618 (9th Cir. 1996); In re Roach, 660 F.2d 1316 (9th Cir. 1981); In re Fritz, 225 B.R. 218 (E.D. Wash. 1997); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H. 1993); In re Tome, 113 B.R. 626 (Bankr. C.D. Cal. 1990); Workingmen's Savings and Loan Ass'n of Dellwood Corp. v. Kestner, 652 A.2d 327 (Pa. Super. Ct. 1994); see also In re Roche, 228 B.R. 102, 103-104 (Bankr. M.D. Pa. 1998) ("[E]very court that has studied this specific issue (and has not been reversed) has found no violation.").

  2. In re Townsville

    268 B.R. 95 (Bankr. E.D. Pa. 2001)   Cited 30 times
    Concluding that "completion of a foreclosure sale," as used in H.R. Rep. No. 103-835, refers to "the event of the foreclosure sale ( i.e., the auction)"

    The interested parties are the debtor, the creditor and the potential bidders for the property. In light of the Pennsylvania Superior Court's teachings in Workingmen's Savings [and Loan Ass'n of Dellwood Corp. v. Kestner, 438 Pa. Super. 186, 652 A.2d 327 (1994)], it is reasonable to expect that notice of a continuation of a sale will be announced at the scheduled sale date — because potential bidders will likely be unaware that the debtor has filed a bankruptcy petition — but it is not reasonable for a debtor to choose not to attend the scheduled sale simply because he knows that the sale will not be consummated at that time because of his ex parte intervention in the bankruptcy court. Because it can be expected that the debtor, the creditor and potential bidders will attend the sale, oral notice as provided by Rule 3129.

  3. In re Hart

    246 B.R. 709 (Bankr. D. Mass. 2000)   Cited 47 times
    Holding Fannie Mae vicariously liable for unfair trade practices that violated Chapter 93A

    W.D. Pa. 1997); In re Stober 193 B.R. 5 (Bankr. D. Ariz. 1996); In re Doud. 30 B.R. 731, 733-734 (Bankr. W.D. Wash. 1983);Workingmen's Savings and Loan Association of Dellwood Corp. v. Kestner 438 Pa. Super. 186, 652 A.2d 327 (1994). According to the principle of noscitur a sociis, the word "continuation," as used in § 362(a)(1), must be read in conjunction with other words that surround it, such as "commencement."

  4. In re Roche

    228 B.R. 102 (Bankr. M.D. Pa. 1998)   Cited 7 times
    Concluding no damages were assessable for the creditor's willful violation of the stay because there "considerable amount of `persuasive legal authority'" and thatUniversity Medical Center found an exception "where a creditor's actions are consistent with `contemporaneous interpretations of Section 362'"

    As to whether the postponement of a sale in accordance with state law procedure during the pendency of the automatic stay is a violation of the automatic stay, every court that has studied this specific issue (and not been reversed) has found no violation. Workingmen's Savings and Loan Association of Dellwood Corp. v. Kestner, 438 Pa. Super. 186, 652 A.2d 327 (1994); In re Peters, 101 F.3d 618 (9th Cir. 1996); In re Roach, 660 F.2d 1316, 1319 (9th Cir. 1981); In re Fritz, 225 B.R. 218 (E.D.Wash. 1997); Zeoli v. RIHTMortgage Corp., 148 B.R. 698 (D.N.H. 1993); In re Tome, 113 B.R. 626, 630-632 (Bkrtcy. C.D.Cal. 1990); In re Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989); In re Taylor 207 B.R. 995, 999 (Bankr.W.D.Pa. 1997); In re Stober, 193 B.R. 5 (Bankr.D.Ariz. 1996); In re Doud, 30 B.R. 731, 733-734 (Bankr.W.D.Wash.

  5. In re Taylor

    207 B.R. 995 (Bankr. W.D. Pa. 1997)   Cited 13 times
    Finding that the oral postponement and rescheduling of a sheriff's sale was not a violation of the automatic stay and that the continuance merely maintained the status quo pending further proceedings; "[s]uch continuances often occur in bankruptcy cases but the rescheduled sales do not take place unless and until relief from stay is granted"

    Such continuances often occur in bankruptcy cases but the rescheduled sales do not take place unless and until relief from stay is granted. In Workingmen's Savings and Loan Association of Dellwood Corp. v. Kestner, 438 Pa. Super. 186, 652 A.2d 327 (1994), the mortgagors challenged the validity of a postpetition sheriff's sale. The mortgagors contended, as Debtor does here, that the continuation of the sheriff's sale by public announcement to a date certain in accordance with Pa.R.Civ.P. 3129.3(b) violated the automatic stay.

  6. Witkowski v. Knight

    523 B.R. 291 (B.A.P. 1st Cir. 2014)   Cited 21 times
    Finding no reason to deviate from the majority of courts and holding that under section 362(c), the automatic stay terminates as to the debtor and the debtor's property, but remains in effect as to the property of the estate

    or v. Slick, 178 F.3d 698 (3d Cir.1999) ; In re Roach, supra.Accord Roche v. Franklin First Fed. Sav. Bank (In re Roche), 228 B.R. 102, 103–04 (Bankr.M.D.Pa.1998) (noting that “every court that has studied this specific issue (and not been reversed) has found” that the postponement of a sale in accordance with state law procedure during the pendency of the automatic stay is not a violation of the automatic stay) (citing Mason–McDuffie Mortg. Corp. v. Peters (In re Peters), 101 F.3d 618 (9th Cir.1996) ; In re Roach, supra; Wash. Mut. v. Fritz (In re Fritz), 225 B.R. 218 (E.D.Wash.1997) ; In re Barnes, 119 B.R. 552, 556 (S.D.Ohio 1989) ; Taylor v. Slick (In re Taylor), 207 B.R. 995, 999 (Bankr.W.D.Pa.1997), aff'd, 178 F.3d 698 (3d Cir.1999) ; In re Stober, 193 B.R. 5 (Bankr.D.Ariz.1996) ; Zeoli v. RIHT Mortg. Corp., supra ; Tome v. Baer (In re Tome), 113 B.R. 626, 630 (Bankr.C.D.Cal.1990) ; United Mut. Sav. Bank v. Doud (In re Doud), 30 B.R. 731, 733 (Bankr.W.D.Wash.1983) ; Workingmen's Sav. and Loan Ass'n of Dellwood Corp. v. Kestner, 438 Pa.Super. 186, 652 A.2d 327 (1994) ); but seeLynn–Weaver v. ABN–AMRO Mortg. Grp., Inc. (In re Lynn–Weaver), 385 B.R. 7 (Bankr.D.Mass.2008) (holding that five foreclosure continuances, in the absence of stay relief, were each violations of the automatic stay); In re Heron Pond, LLC, 258 B.R. 529, 530 (Bankr.D.Mass.2001) (stating that the “right to continue [a foreclosure sale] must be subject to reasonable limitations” and holding that “a single continuance of a foreclosure sale following the filing of a petition is not a violation of the automatic stay if, before the continued sale date, the creditor filed an appropriate motion for relief from stay”). For example, in Roach, an early case on this issue, the debtor contended that the secured creditor violated the automatic stay by publishing several successive notices of postponement of sale.

  7. In re Walker

    Bankruptcy No. 03-33446F (Bankr. E.D. Pa. May. 31, 2005)   Cited 4 times
    Characterizing it as "debatable" whether courts can treat certain motions to reopen as implicitly seeking reconsideration of a dismissal order under Rule 9024, but concluding that even if it was considered acceptable arguendo, such a motion still must be timely under the rule

    Conversely, if it concludes that the provisions of section 549(c) are inapplicable, it can nullify the sale.See In re Tax Sale Held Sept. 10, 2003 by Tax Claim Bureau of County of Lackawanna, 859 A.2d 15, 19 n. 3 (Pa.Cmwlth. 2004) ("In any case, we do not agree with Sposito's claim that the trial court lacked jurisdiction to enforce the automatic stay on behalf of a debtor that has filed for protection against creditors pursuant to the Bankruptcy Code. Indeed, it was the obligation of the trial court to give effect to the automatic stay."); Haggerty v. Erie County Tax Claim Bureau; see generally Workingmen's Sav. and Loan Ass'n of Dellwood Corp. v. Kestner, 438 Pa. Super. 186 (1994) (resolving a challenge to an ejectment action based upon a purported violation of the bankruptcy stay). The movants argue that section 549(d)(2), which provides that an action under section 549 cannot be brought after a case has been closed or dismissed, renders section 549(c) inapplicable to the parties' dispute.

  8. In re Fine

    285 B.R. 700 (Bankr. D. Minn. 2002)   Cited 12 times
    Ruling postponement of sheriff's sale was an act but not a continuation of a proceeding

    where the Supreme Court held that a hank could put an administrative freeze on a debtor's hank account to protect its setoff rights as long as it did not actually offset until it obtained relief from the stay. Talor v. Slick, 178 F.3d 698 (3rd Cir. 1999), In re Peters, 101 F.3d 618 (9th Cir. 1996); First Nat'l Bank of Anchorage v. Roach (In re Roach), 660 F.2d 13 16 (9th Cir. 1981); Washington Mutual v. Fritz (In re Fritz), 225 B.R. 218 (E D. Wash. 1997); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H. 1993), In re Barnes, 119 B.R. 552 (SD. Ohio 1989), Workingmen's Saving and Loan Ass'n of Dellwood Corp. V. Kestner, 438 Pa. Super 186, 652 A.2d 327 (1994); see also In re Roche, 228 B.R. 102, 103-104 (Bankr.M.D.Pa 1998) (stating that every court that has studied this specific issue (and has not been reversed) has found no violation). The Notice of Postponement of the sheriffs sale in this case was not a continuation of any action or proceeding against the debtor Similarly, it was not an act to obtain possession of property of the estate or property from the estate.

  9. In re O'Neill

    204 B.R. 881 (Bankr. E.D. Pa. 1997)   Cited 6 times
    Concluding that it would be "counterintuitive to allow the Debtor to forego the appropriate means [under state law] for adjusting the amount of the [foreclosure] judgment and instead parlay this slight error against him into a preference claim."

    In that regard, Pennsylvania law provides that, after a sheriff's deed has been recorded and delivered to the purchaser of a property at a sheriff's sale, the only acceptable reason for a court to allow a contest of the sheriff's sale is fraud in the sale or the sheriff's lack of authority to sell the property. See Concord-Liberty Savings Loan Ass'n v. NTC Properties, Inc., 454 Pa. 472, 476, 312 A.2d 4, 5-6 (1973); Garrison v. Erb, 424 Pa. 306, 309, 227 A.2d 848, 849 (1967); Knox v. Noggle, 328 Pa. 302, 304, 196 A. 18, 19 (1938); Lengert v. Chaninel, 208 Pa. 229, 232, 57 A. 561, 561 (1904); Workingmen's Savings Loan Ass'n of Dellwood Corp. v. Kestner, 438 Pa. Super. 186, 189, 652 A.2d 327, 328 (1994); and Kowatch v. Home Building Loan Ass'n of Latrobe, 131 Pa. Super. 517, 522, 200 A. 111, 113 (1938). The deed to the Home was recorded and delivered to the Dells on April 10, 1996.

  10. Citizens Bank v. Myrthil

    J-A21026-19 (Pa. Super. Ct. Oct. 22, 2019)

    In fact, all of the cases cited by Appellant simply state that a motion to set aside a sheriff's sale must be filed before the deed is recorded. See Concord Liberty Sav. and Loan Ass'n v. NTC Properties, 312 A.2d 4 (Pa. 1973); Mortg. Elec. Registration Sys. v. Ralich, 982 A.2d 77 (Pa. Super. 2009); Workingmen's Sav. and Loan Ass'n of Dellwood Corp. v. Kestner, 652 A.2d 327 (Pa. Super. 1994). Herein, Myrthil complied with both Rule 3132 and 3135. Indeed, Myrthil filed a timely motion to set aside the sheriff's sale on November 20, 2017. Myrthil's Motion to Set Aside Sheriff's Sale, 11/20/17, at 1-4. The sheriff's deed was not recorded until January 8, 2018. Appellant's Brief at 6. Accordingly, Appellant's reliance on the above-mentioned case law is erroneous.