EMIGRANT SAVINGS BANK v. LLC (2005)

In an action to foreclose a mortgage, the appeal is from an order of the Supreme Court, Nassau County (Lally, J.), dated August 23, 2004, which granted the motion of S & K Properties, LLC, and Millennium Home & Land, Ltd., the successful bidders at the foreclosure sale, to confirm the foreclosure sale nunc pro tunc and to direct the referee to issue to them a referee's deed.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

The successful bidders at a foreclosure sale held on September 29, 2003, were S & K Properties, LLC, and Millennium Home & Land, Ltd. (hereinafter the successful bidders).   Subsequently, the successful bidders discovered that on September 26, 2003, the mortgagors, the defendants Laurence J. Rappaport and Susan B. Rappaport, filed a Chapter 7 petition in bankruptcy, thereby invoking an automatic stay of all non-bankruptcy actions and proceedings (see 11 USC § 362[a] ).   Thereafter, the successful bidders moved, inter alia, to confirm the foreclosure sale nunc pro tunc, and the Supreme Court granted the motion.

 “Once triggered by a debtor's bankruptcy petition, the automatic stay suspends any non-bankruptcy court's authority to continue judicial proceedings then pending against the debtor” (Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1206;  see Carr v. McGriff, 8 A.D.3d 420, 422, 781 N.Y.S.2d 34).   The automatic stay is mandatory and “applicable to all entities, including state and federal courts” (Maritime Elec. Co. v. United Jersey Bank, supra at 1206, quoting 11 USC § 362[a] ).   Any non-ministerial or “[j]udicial actions taken against a debtor are void ab initio, absent relief from the automatic stay” (Matter of Dominguez, 312 B.R. 499, 508), and “only a bankruptcy court has jurisdiction to terminate, annul, or modify the automatic stay” (Carr v. McGriff, supra at 422, 781 N.Y.S.2d 34;  see Eastern Refractories Co. v. Forty Eight Insulations, 157 F.3d 169, 172).   Accordingly, the Supreme Court should not have granted the motion (see Homeside Lending v. Watts, 16 A.D.3d 551, 792 N.Y.S.2d 513).

In view of the foregoing, we do not reach the parties' remaining contentions.