United States District Court, W.D. New York
Decided: March 15, 2012.
For 1256 Hertel Avenue Associates, LLC, Appellant: Edward Crossmore, LEAD ATTORNEY, Ithaca, NY.
For Tanya R. Calloway, Debtor, doing business as Miniature Moments Daycare, Appellee: Diane M. Ciurczak, LEAD ATTORNEY, Law Office of Diane Ciurczak, Buffalo, NY.
Harold P. Bulan, Trustee, Pro se, Bulan, Chiari, Horwitz & Ilecki, LLP, Williamsville, NY.
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief United States District Judge.
Appellant, 1256 Hertel Avenue Associates, LLC (" 1256 Hertel" ), seeks to reverse the Order of the Honorable Carl L. Bucki, Chief Bankruptcy Judge of the Western District of New York, which granted Tanya Calloway's motion to avoid a judgment lien against her homestead. Although Calloway has not submitted a brief, for the following reasons, Chief Judge Bucki's Order is affirmed.
In July of 2003, Hertel secured a judgment lien against Calloway's residential property, or " homestead," located at 118 Homer Avenue in Buffalo, New York.(Ciurczak Affidavit, ¶ ¶ 5-5(b), attached as exhibit
to Notice of Appeal; Docket No. 1-10.)
Five years later on May 12, 2009, before that judgment was perfected, Calloway filed a voluntary petition for relief under Chapter 7 of Title 11 of the United States Code.(Id., ¶ 2.) As part of that proceeding, in July of 2009, Calloway moved the Bankruptcy Court to cancel all judgment liens against her homestead. (Id., " wherefore" clause.) In adjudicating that motion, Chief Judge Bucki found that, under New York's Civil Procedure Law and Rules (" CPLR" ) § 5206, Calloway was entitled to a $50,000 homestead exemption and, because the equity in her property was less than that amount, granted Calloway's motion in full. (Decision and Order, p. 5; attached as exhibit to Notice of Appeal; Docket No. 1-3.)
This appeal followed.
A. Standard of Review