Foreclosure of property violates automatic stay if any tenant is in bankruptcy
whitm...@gmail.com
Recent Development:
In re Fogarty, 39 F.4th 62 (2d Cir. July 6, 2022)
Foreclosure of property violates automatic stay if any tenant is in bankruptcy
Prepared by Dale Whitman
Eileen Fogarty was 99% owner of 72 Grandview LLC, which owned the property in question. Fogarty herself lived in the property as a tenant of the LLC. 72 Grandview defaulted on a mortgage loan held by Bayview, which filed a judicial foreclosure action in New York trial court against it. Fogarty, as a tenant, was named as a party to the foreclosure, as is standard practice in New York.
Four days before the foreclosure sale, Fogarty filed Chapter 7 bankruptcy and notified Bayview that she had done so. The foreclosure proceeded anyway, with a third party purchasing at the sale. Fogarty then sought sanctions against Bayview in the bankruptcy court on the ground that Bayview had willfully violated the automatic stay. The Second Circuit agreed that Fogarty was entitled to sanctions.
It is hard to fault this conclusion. Sec. 362 of the Bankruptcy Code provides that the filing of a bankruptcy petition operates as a stay of:
- the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; [and]
- the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title[.]
The court held that because Fogarty was named as a defendant in the foreclosure action, the foreclosure sale was a “continuation” of the original foreclosure action and occurred after Fogarty had filed bankruptcy. Since Bayview knew of the bankruptcy filing, the continuation was willful.
Bayview argued that (1) the foreclosure sale was an in rem action and (2) it was a mere ministerial act. Neither of these arguments got to first base with the court. However, the court did recognize that Bayview might have applied for and received relief from the stay from the bankruptcy court before proceeding with the foreclosure sale. Whether such relief would have been granted is problematic; perhaps that depends on whether the leasehold interest had any positive economic value in the bankruptcy court’s view. (It’s not clear that there was any formal lease, and the court never tells us whether actual rent was being paid or what the fair rental value of the property might have been.)
The court also recognizes that Bayview might have avoided this problem by dismissing Fogarty as a defendant before proceeding with the foreclosure sale. However, in New York that apparently would not have worked, since NY case law seems to regard all tenants as necessary parties to mortgage foreclosure actions. See Dime Sav. Bank of N.Y. v. Johneas, 172 A.D.2d 1082 (4th Dep’t 1991), indicating that if a tenant is omitted, the tenant can get the court to order that the tenant be joined as a defendant.
With residential tenants in most states, it’s probably not the practice to attempt to join them in a foreclosure action. Indeed, the foreclosing lender would likely prefer to keep them in place through the foreclosure sale. But with commercial tenants it’s a different story, and the lender, when foreclosing on a multitenant building, might prefer to “pick and choose,” joining some tenants as parties and not others. The states are divided as to whether that is possible; for example, in NY it is apparently not, as mentioned above. But the Fogarty case suggests that, even if state law allows the foreclosing lender to “pick and choose,” the lender had better be sure that none of the subordinate tenants the lender wishes to terminate in the foreclosure sale are in bankruptcy. This means obtaining a title report on each one, with a continuation report up to the date of the foreclosure sale.
It the property is in a so-called “automatic” state – one in which all subordinate tenants are automatically wiped out by a foreclosure – then it becomes essential for the foreclosing lender to be sure that none of the subordinate tenants are in bankruptcy on the date of the sale. The same is true in many nonjudicial foreclosure states, since their foreclosure statutes automatically wipe out all junior interests, and there is no mechanism to “pick and choose.”
All of the foregoing concerning priorities is, of course, subject to being modified by an SNDA agreement or other contractual arrangement, of course.
For additional perspectives on the Fogarty case by the Morrison & Forester firm, see https://www.mofo.com/resources/insights/220921-recent-second-circuit-decision
Dale A. Whitman
Professor of Law Emeritus, University of Missouri
Adam Mikolay
So, foreclosure does not violate the automatic stay if any tenant is in bankruptcy, but rather, if any tenant who is a defendant in the action, is in bankruptcy.
In addition, in New York, while a tenant may be a “necessary” party, they are not “indispensable” parties, nor are various other lienors “indispensable” parties and a foreclosure may proceed without those that are “necessary” but not “indispensable”, subject to any rights they may have.
See; John Hancock Mut. Life Ins. Co. v. 491-499 Seventh Ave. Assocs., 220 A.D.2d 208, 208 (1st Dept. 1995);
“Summary judgment was not precluded by nonjoinder of the building's tenants, who were "necessary" parties only in the sense that their subordinate
interests could be adversely affected only if they were joined, and not in the sense of being indispensable…”
Adam E. Mikolay
ADAM E. MIKOLAY, PC
400 Garden City Plaza
Suite 405
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Fax 516-222-0450
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whitm...@gmail.com
Adam – Hey, the caption isn’t meant to tell the whole story. The automatic stay will be violated by a foreclosure sale only if:
- The lease or tenancy is subordinate to the mortgage. (That may be affected by subordination language in the lease or by an SDNA.) … and
- The tenant is a named defendant in the action. … and
- The bankruptcy court hasn’t given the mortgagee relief from the automatic stay.
The John Hancock case that you cited may or may not be the law in NY. The Dime Savings Bank case I cited in my original post indicates that the court should order the tenant to be added as a defendant if the tenant isn’t named by the mortgagee/plaintiff. So the mortgagee may not have the discretion to omit the tenant and thereby avoid the bankruptcy issue. There’s simply a conflict in case law in the Appellate Division, as I understand it, and no controlling case in the Court of Appeals.
Dale
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Rory O'Bryan
Ladies and Gentlemen:
If memory serves me, I recall attending an ACREL program at some point in the past discussing suggested changes to AIA forms from an Owner’s perspective, but I’m not seeing it on the ACREL website. It may have been so long ago that it isn’t there.
If my memory is correct and you have a copy of the materials from that program, please let me know.
Thank you,
Rory O’Bryan
PLEASE NOTE THAT WE HAVE MOVED – OUR NEW ADDRESS IS BELOW
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Subject: EXTERNAL:: RE: [nyclarealprop] Foreclosure of property violates automatic stay if any tenant is in bankruptcy
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Daniel Rubock
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Paul Hogan
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whitm...@gmail.com
Dan, I think you’re correct. I believe I didn’t originally read Dime Savings correctly. I think the court is indeed saying that if the mortgagee wants to dismiss a tenant from the foreclosure action, and thereby preserve the lease from being wiped out by the foreclosure sale, the mortgagee has discretion to do so, and that the tenant cannot force its way into the action in order to get its lease terminated. The mortgagee can join the tenant, but that’s up to the mortgagee. (I don’t think the court explains this very well, but I do think your interpretation is correct.)
There are a few states where this is not correct; that is, states where the subordinate tenant can, on its own initiative, insist on being joined as a defendant, or where the court will require that the subordinate tenant be joined even if the mortgagee does not want to join the tenant. These states are usually termed “automatic” foreclosure states. New York is not typically listed as one of these states; see, e.g., the listing in Robert D. Feinstein and Sidney A. Keyles, Foreclosure: Subordination, Non-Disturbance and Attornment Agreements, PROBATE AND PROPERTY JOURNAL, July/August, 1989. After rereading Dime Savings, I have to agree that it doesn’t change that conclusion.
Dale
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Adam Mikolay
Dale:
Do we “know” what kind of interest Nicholas Johneas actually had? The appellate court is silent on this point and I cannot access the lower court decision on line.
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whitm...@gmail.com
Adam – No, Westlaw doesn’t report the trial court decision. - Dale
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Gregg Larson
Please see attached trial court decision.
___________________________________________________________________
Gregg Larson
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whitm...@gmail.com
Gregg – that was kind of you, but the trial court decision we were looking for was the one in the Dime Savings case back in 1991. It is cited in the Fogarty case. But thanks anyhow.
Dale
From: nyclar...@googlegroups.com <nyclar...@googlegroups.com> On Behalf Of Gregg Larson
Sent: Wednesday, September 28, 2022 10:57 AM
To: nyclar...@googlegroups.com
Subject: RE: [nyclarealprop] Foreclosure of property violates automatic stay if any tenant is in bankruptcy
Please see attached trial court decision.
.
Adam Mikolay
All:
We have one Note secured by multiple Mortgages. Each mortgage covers one parcel of land. The land is in multiple counties in NY state and also multiple parcels in Connecticut.
We do not have “complete diversity” so I do not believe we can bring the action in Federal Court.
Can we commence an action in NY state to foreclose on the property in NY as well as Connecticut?
Pick a county in NY to commence and then file a Notice of Pendency in any other counties affected in NY as well as Connecticut?
Is there anything that what would prohibit us from filing a Notice of Pendency in Connecticut?
We anticipate moving for a deficiency judgment, at a minimum after all NY parcels are sold (if not after each NY parcel is sold) and then proceed with the Connecticut auction(s). Or, perhaps it cannot be done that way at all?????
Can we proceed in one NY action against both NY and Connecticut property?
Hulse, Brian
Attached is an article I wrote for the ABA’s Real Property, Trust and Probate Journal a few years ago, which addresses the multistate aspects of your questions. I think you’ll find that you need to bring at least one action in each of the states (depending on whether state law allows foreclosure on property in multiple counties within the state in a single action) and that an action for a deficiency judgment after completion of the foreclosures will be governed by the law of the state whose law governs the note or other evidence of the debt.
Brian D. Hulse
| Davis Wright Tremaine
LLP
920 Fifth Avenue, Suite 3300 | Seattle, WA 98104-1610
Tel: (206) 757-8261 | Fax: (206) 757-7261
Email: brian...@dwt.com | Website:
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From: nyclar...@googlegroups.com <nyclar...@googlegroups.com>
On Behalf Of Adam Mikolay
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To: nyclar...@googlegroups.com
Subject: [nyclarealprop] MULTI-STATE FORECLOSURE
[EXTERNAL]
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Adam Mikolay
Thank you very much Brian. I will roll up my sleeves and have a look!
Adam E. Mikolay
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Adam Mikolay
All:
I came across this recent decision from Judge Whelan in Suffolk Supreme concerning someone in possession of part of the home claiming his deceased parents gave him a deed prior to their death which was never recorded;
Whelan found that; (1) a subsequent the mortgagee was not on notice of any right an occupant might have had (the deed from his parents) because he was living with his parents in the subject property and that does not trigger constructive notice / duty to inquire ( of any right an occupant might have) and,
(2) in any event, the occupant never became the owner because the subject deed although purportedly paid for, was never delivered - it remained in escrow with the grantor's attorney.
I wonder how these findings will fair on appeal?
Jonathan Moore
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whitm...@gmail.com
Ordinarily, of course, the possession of property by one other than the record owner will impart constructive notice of the possessor’s rights even if they are unrecorded. However, this principle won’t apply if the record owner is also in possession and if the party in possession is a close relative of the record owner – as in this case, the son of the record owners. The reason is obvious; children or other close relatives of record owners often live with them, and that fact gives no reason to suspect that they make any claim of ownership. There are numerous cases around the country reaching this result, and I would be astounded if a NY court didn’t do so on appeal. See, e.g., Tompkins Cnty. Tr. Co. v. Talandis, 261 A.D.2d 808, 811, 690 N.Y.S.2d 330, 333 (1999) (possession by wife of record owner gave no constructive notice of her interest).
Dale Whitman
Professor of Law Emeritus, Univ. of Missouri
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Adam Mikolay
Query:
Trust #2 is the Trustee of Trust #1. If the substance of our action is against Trust #1, who do we name as a defendant and/or deliver papers to; Trust #2? The Trustee of Trust #2?
Do we have to keep going down the chain until a successive Trustee is something other than another Trust – then name and serve them?
If we don't know the identity of the Trustee is there a requirement that it be registered somewhere? In this case the Trust is a foreign (to NY State) banking entity.
The banking law (Sect 131.3) indicates such an entity must register with the Department of Financial Services. We called them. They said we could make a FOIL request but we are not able to otherwise do a search.
Thanks in advance!
Thomas Cox
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Irving Kamsler
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DAVID M. LINDSEY
Back in the Day in ancient DIRT AND AT ONE TIME in the UMKC ARCHIVES members of the group said only an individual could be a TRUSTEE and title
was held by the trustee ( Dale Whitman, Trustee for the Pat Randolph Dirt Trust).
Pamela Simmons
On Jan 15, 2023, at 3:26 PM, DAVID M. LINDSEY <forens...@davidlindsey.us> wrote:
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cps1jra
Charles Fiscus
In Texas, a Trust is not a separate legal entity, it is a “fiduciary relationship” and cannot hold fee title to real estate in its own name. The Trustee of the Trust is required to be the named Grantor (with additional reference to the benefitted Trust), and must also to be the named Grantee (with additional reference to the benefitted Trust) to acquire and hold fee title to real estate.
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Charles Fiscus Of Counsel Licensed in Texas and Oklahoma Direct: 214.997.1752 Fax: 800.556.1770 |
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From: nyclar...@googlegroups.com <nyclar...@googlegroups.com>
On Behalf Of Pamela Simmons
Sent: Sunday, January 15, 2023 5:30 PM
To: nyclar...@googlegroups.com
Subject: Re: [nyclarealprop] Service on a Trust...
I miss Patrick and Dirt.
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Stephen Anderson
Charles:
I’m very interested to read your latest post. Is that a carryover from Spanish law? It is not the law in Massachusetts, a very common law state.
We do have something called a nominee trust, commonly used for holding title to real estate that is not a separate legal entity (it’s deemed to be nothing more than an agency since the trustee has virtually no independent powers; similar to an Illinois land trust, I think – I’m not sure about that), but true trusts in Massachusetts are definitely separate entities.
Steve Anderson
From: nyclar...@googlegroups.com <nyclar...@googlegroups.com> On Behalf Of Charles Fiscus
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Chris Minor
CM
At 03:58 PM 1/15/2023, Charles Fiscus wrote:
In Texas, a Trust is not a separate legal entity, it is a “fiduciary relationship†and cannot hold fee title to real estate in its own name. The Trustee of the Trust is required to be the named Grantor (with additional reference to the benefitted Trust), and must also to be the named Grantee (with additional reference to the benefitted Trust) to acquire and hold fee title to real estate.
Charles Fiscus
Of Counsel
Licensed in Texas and Oklahoma
Direct: 214.997.1752
Fax: 800.556.1770
cfi...@chspllc.com
8350 N. Central Expressway
Suite 1300
Dallas, Texas 75206
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From: nyclar...@googlegroups.com <nyclar...@googlegroups.com> On Behalf Of Pamela Simmons
Sent: Sunday, January 15, 2023 5:30 PM
To: nyclar...@googlegroups.com
Subject: Re: [nyclarealprop] Service on a Trust...
I miss Patrick and Dirt.
Pamela D. Simmons
Law Office of Simmons & Purdy
2425 Porter Street, Suite 10
Soquel, CA 95073
(831) 464-6884 office
Sent from my iPhone
- On Jan 15, 2023, at 3:26 PM, DAVID M. LINDSEY
<
forens...@davidlindsey.us> wrote:
- 
- 
- Back in the Day in ancient DIRT AND AT ONE TIME in the UMKC ARCHIVES members of the group said only an individual could be a TRUSTEE and title
- was held by the trustee ( Dale Whitman, Trustee for the Pat Randolph Dirt Trust).
- On January 15, 2023, at 7:14 AM, Irving Kamsler <tax...@gmail.com> wrote:
- Hi All,
- I am not an attorney. I am a CPA. I have never come across a situation where a Trust was a Trustee of another Trust. Shouldn't it be the Trustee of the Trust #2 who is the Trustee and not the Trust # 2 itself?
- If it is the Trust #2 that is actually the Trustee, then isn't the Trustee of Trust #2 who would have had to sign any documents relating to acting on behalf of Trust #1?
- My Best,
- Irving
- Irving H. Kamsler, CPA
- 3671 Hudson Manor Terrace
- Riverdale, NY 10463
- (718) 884-8333 Tel.
- (917) 992-5740 Cell
- 1(315) 293-2248 Fax - Please note the new fax number. You must dial the 1 then area code and number.
- On Sat, Jan 14, 2023 at 5:12 PM Thomas Cox <t...@gwi.net> wrote:
- It is my opinion that, unless you are dealing with a Delaware
statutory trust, you need to serve the trustee of Trust #2 in its
capacity as trustee of Trust #2 in its capacity as trustee of Trust #
1. I don’t know NY law, but in my experience, a lot of states do
not require any kind of state registration of trusts.
- Tom
- Thomas A. Cox, Esq.
- P.O. Box 1083
- Yarmouth, Maine 04096
- (207) 749-6671
- t...@gwi.net
- On Jan 13, 2023, at 2:33 PM, Adam Mikolay
<Ad...@mikolaylaw.com>
wrote:
- Query:
- Trust #2 is the Trustee of Trust #1. If the substance of our action is against Trust #1, who do we name as a defendant and/or deliver papers to; Trust #2? The Trustee of Trust #2?
- Do we have to keep going down the chain until a successive Trustee is something other than another Trust – then name andd serve them?
- If we don't know the identity of the Trustee is there a requirement that it be registered somewhere? In this case the Trust is a foreign (to NY State) banking entity.
- The banking law (Sect 131.3) indicates such an entity must register with the Department of Financial Services. We called them. They said we could make a FOIL request but we are not able to otherwise do a search.
- Thanks in advance!
- Adam E. Mikolay
- ADAM E. MIKOLAY, PC
- 400 Garden City Plaza
- Suite 405
- Garden City, NY 11530
- PH 516-222-2050
- Fax 516-222-0450
- Ad...@Mikolaylaw.com
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Chris (John Christopher) Minor
Minor, Bandonis & Haggerty, PC
Attorneys
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Schubin & Isaacs
Same law applies in New York State
Thank you,
Joseph A. Schubin, Esq.
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whitm...@gmail.com
I think these comments have identified a distinction without a difference. The “trust” is never an entity. The trustee (or trustees) is/are always the entity in every state. But in many states the courts have been willing to construe a conveyance or reference to “the trust” as the equivalent of a reference to the trustee, in the interest of completing transactions efficiently and in recognition of common parlance. It’s never technically accurate to convey to “the trust,” but the courts in many states will let us get by with it. However, even in those states it’s not the best practice.
Dale
Dale Whitman, Professor of Law Emeritus
University of Missouri
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Ephraim Bulow
Here in Colorado, under C.R.S. §38-30-108.5 “(1) A trust may acquire, convey, encumber, lease, or otherwise deal with any interest in real
or personal property in the name of the trust”. I don’t know if any other states have equivalent statutes.
Ephraim A. Bulow
Attorney-at-Law
7400 E. Crestline Circle, Suite 250
Greenwood Village, CO 80111
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Paul J. Neal
Virginia has a similar statute. It’s of relatively recent vintage.
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