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Cook v. Huey

United States District Court, N.D. New York

October 4, 2013

JEFFREY A. COOK and SHERRIE A. COOK, Appellants,
v.
DAVID HUEY, Appellee,

For Appellants: THOMAS F. TURTURO, ESQ., OF COUNSEL, THE TURTURO LAW FIRM, Auburn, NY.

For Appellee: DAVID B. THURSTON, ESQ., OF COUNSEL, THE THURSTON LAW OFFICES, PC, Auburn, NY.

For Trustee: MARK W. SWIMELAR, ESQ., OF COUNSEL, OFFICE OF MARK W. SWIMELAR, Syracuse, NY; TRACY HOPE DAVIS, ESQ., OF COUNSEL, OFFICE OF THE UNITED STATES TRUSTEE, Utica, NY.

OPINION

DAVID N. HURD, United States District Judge.

Page 175

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Appellants Jeffrey A. and Sherrie A. Cook (" the Cooks" or " debtors" ) appeal from a decision of United States Bankruptcy Judge Margaret Cangilos-Ruiz, dated October 5, 2012, denying their motion to enforce the automatic stay provisions of 11 U.S.C. § § 362(a)(3) and (5) and avoid the transfer of legal title of their residence to David Huey (" Huey" ). The debtors filed a Notice of Appeal on November 11, 2012. No opposition has been filed. This appeal was considered on submission without oral argument.

II. BACKGROUND

The Cooks filed a petition for Chapter 13 bankruptcy relief on the afternoon of July 5, 2012. They listed their residence, located at 2733 Franklin Street, Weedsport, New York, at a value of $129,000. The home was listed subject to two mortgages. The first mortgage was held by Nationstar Mortgage, LLC (" Nationstar" ), in the amount of $59,000. First Niagara Bank held the second mortgage in the amount of $56,120. The debtors also claimed a homestead exemption in the remaining equity of $22,880 in the property.

On the morning of July 5, 2012, prior to the filing of their Chapter 13 petition, the Cooks' residence was sold to Huey at a foreclosure sale by Nationstar for $66,000. Although the debtors were aware of the pending foreclosure proceeding, they believed that the sale was scheduled for July 9, 2012.

Attorney for the debtors filed a motion on August 19, 2012, seeking to enforce the automatic stay provisions of 11 U.S.C. § § 362(a)(3) and (5) and invalidate the foreclosure sale.[1] The motion was unopposed, and a hearing was held on September 11, 2012. Judge Cangilos-Ruiz denied the motion from the bench on September 11, 2012. A written decision was filed on October 5, 2012. This appeal followed.[2]

III. STANDARD OF REVIEW

In reviewing a bankruptcy court's decision, district courts apply a de novo standard of review to conclusions of law and a clearly erroneous standard to findings of fact. In re Manville Forest Prods. Corp., 209 F.3d 125, 128 (2d Cir. 2000). Although this appeal is unopposed, " the appellant must still establish that there was reversible error" to be granted relief. Swimelar v. Baker, No. 5:09-CV-502, ...


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