Latest Second Circuit Choice Holds That Conducting A Foreclosures Sale Upon A Property After A Tenant Recordsdata For Chapter Violated The Automated Keep – Landlord & Tenant – Leases

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In New York, it’s a commonplace observe to call all tenants
residing in a constructing when foreclosing upon the property. That’s
as a result of part 1311 of the New York Actual Property Actions and
Proceedings Regulation (“RPAPL”) states that the mandatory
defendants in a foreclosures motion embody anybody “whose
curiosity is claimed to be topic and subordinate to the
plaintiff’s lien,” together with “[e]very individual having
an property or curiosity in possession, or in any other case, within the property
as tenant in charge, for all times, by the courtesy or for years.”
Thus, New York courts have held that “tenants are vital
events to a foreclosures motion.” 1426 46 St., LLC v.
, 60 A.D.3d 740 (2nd Dep’t 2009). Because of this, a
current determination by the Second Circuit Court docket of Appeals holding that
the automated keep precludes a foreclosures sale from being
performed when a tenant of the property recordsdata for chapter
doubtlessly raises troubling roadblocks to a lender’s potential
to foreclose upon actual property in New York – a course of that
may already be time-consuming and stuffed with potential potholes
alongside the best way.

Going ahead, if a tenant of a property is in a chapter
continuing previous to the submitting of a foreclosures motion, or recordsdata
for chapter in the course of the pendency of the foreclosures motion, a
lender looking for to foreclose might want to both: (i) forgo naming
the tenant – or dismiss an already-named tenant – and
settle for that the lease will stay unaffected by the foreclosures; or
(ii) search reduction from the automated keep from the chapter courtroom.
Nevertheless, neither of those choices ensures that the foreclosures
motion will have the ability to proceed. With respect to the primary possibility,
even when a lender is content material to have the lease stay in place,
as a result of tenants are vital events to a foreclosures motion below
New York legislation, failing to call a bankrupt tenant dangers the
foreclosures motion being dismissed for failure to call a vital
occasion or the courtroom ordering that the tenant be named in lieu of
dismissal. With respect to the second possibility, there isn’t any assure
that the chapter courtroom will grant reduction from the keep.


On July 6, 2022, the Court docket of Appeals for the Second Circuit
determined Bayview Mortgage Servicing LLC v. Fogarty (In re
, No. 20-2187, 2022 U.S. App. LEXIS 18515 (2nd Cir.
July 6, 2022), wherein the Court docket held {that a} lender had willfully
violated the automated keep by continuing with a foreclosures sale
after having been knowledgeable that the property’s tenant, a named
defendant within the foreclosures motion, had filed for chapter. In
Fogarty, Eileen Fogarty held a 99% curiosity in 72
Grandview LLC (the “LLC”), an entity that owed cash
pursuant to a Notice and Mortgage secured by an curiosity in actual
property (the “Property”), wherein Fogarty was a tenant.
After the LLC ceased making funds on the Mortgage and Notice,
Bayview Mortgage Servicing LLC, the proprietor and holder of the Notice and
Mortgage (the “Lender”), obtained a judgment in a state
courtroom foreclosures motion (the “Foreclosures Motion”),
which licensed the Lender to conduct a foreclosures sale (the
“Sale”). 4 days previous to the scheduled Sale, Fogarty
filed a Chapter 7 chapter case within the Jap District of New
York, and her counsel notified the Lender of the submitting and
Fogarty’s place that the flexibility to proceed with the Sale
was topic to the automated keep. Taking the place that the LLC
alone owned the Property and that solely a chapter by the LLC
would keep the Sale, the Lender proceeded with the Sale as

Following the Sale, Fogarty sought sanctions towards the Lender,
arguing that the Lender had willfully violated the automated keep.
Though the chapter courtroom denied Fogarty’s request for
sanctions, the district courtroom reversed, discovering that as a result of
Fogarty was a debtor in chapter and a named defendant within the
Foreclosures Motion, the Sale violated the automated keep. In
addition, as a result of the Lender knew of the chapter petition when
it proceeded with the Sale, the district courtroom discovered that the keep
violation was willful and granted sanctions.

The Second Circuit’s Choice

On enchantment, in what the Second Circuit Court docket of Appeals described
as “a matter of first impression,” the courtroom agreed with
the district courtroom, discovering that two of the Chapter Code’s
automated keep provisions, 11 U.S.C. § 362(a)(1) and (a)(2),
had been violated by the foreclosures sale of a property when the debtor
is a named occasion within the foreclosures proceedings, “even when the
debtor’s direct curiosity within the property is simply
possessory.” The Second Circuit likewise agreed with the
district courtroom that, as a result of the Lender was conscious of the chapter
submitting on the time it performed the Sale, the violation of the
automated keep was willful and warranted sanctions. The courtroom
reasoned that, by the plain language of the Part 362(a) of the
Chapter Code, the continuation of the Foreclosures Motion and
Sale was topic to the automated keep.

Specifically, Part 362(a)(1) stays the “graduation or
continuation . . . of a judicial, administrative, or different motion
or continuing towards the debtor,” and Part 362(a)(2) stays
the “enforcement” of a judgment towards the debtor or
towards property of the property. As a result of the debtor Fogarty was a
named defendant within the Foreclosures Motion, the Second Circuit discovered
that the Foreclosures Motion was a judicial continuing towards the
debtor stayed by operation of Part 362(a)(1) and that the
foreclosures Sale itself was a “continuation” of that
judicial continuing and thus was additionally stayed below Part
362(a)(1). As well as, as a result of the judgment of foreclosures
authorizing the Sale had been beforehand entered, the Second
Circuit discovered that the Sale “implement[d]” a judgment
“towards the debtor” in violation of Part 362(a)(2).
The Second Circuit reasoned that Sections 362(a)(1) and (a)(2)
apply to any motion wherein a debtor is called as a defendant
– no matter whether or not the motion affected property of the
chapter property and whatever the capability wherein the
debtor is called or even when the debtor had been merely a
“nominal” defendant. In brief, the courtroom concluded that
Part 362(a)’s “language calls for a bright-line rule
that, as long as the debtor is a named occasion in a continuing or
motion, the automated keep applies to the continuation of that
continuing, and to the enforcement of, a judgment rendered in that

Though Fogarty concerned a residential constructing with a
residential tenant, the reasoning would appear to use equally to
industrial and different kinds of actual property. As well as, though
the tenant/debtor in Fogarty additionally occurred to personal 99% of
the borrower/proprietor of the constructing, that truth doesn’t seem to
have factored into the Court docket’s evaluation. Because of this, the
Fogarty determination seems to open the door to arguments
that the chapter of any tenant – even when the
tenant leases solely a newspaper stand in a big industrial constructing
– stays a foreclosures go well with from persevering with if that tenant is
named as a defendant within the foreclosures motion (as RPAPL 1311
seems to require).


If a tenant of a constructing in New York on which a lender is
looking for foreclosures recordsdata for chapter, the lender can be left
with two less-than-perfect choices.

First, the lender may select to not identify a bankrupt tenant or
to dismiss from the motion a tenant who recordsdata for chapter. One
consequence of that can be that the lease will come by means of the
foreclosures unaffected. See 71-21 Loubet, LLC
v. Financial institution of Am
., N.A., 2022 N.Y. Slip Op. 5012 (2nd Dep’t
Aug. 24, 2022) (“‘The absence of a vital occasion in a
foreclosures motion leaves that occasion’s rights unaffected by the
judgment and sale, and the foreclosures sale could also be thought of void
as to the omitted occasion.'” (quoting 6820 Ridge Realty
v. Goldman
, 263 A.D.2nd 22, 26 (2nd Dep’t 1999))). One other
consequence is that there’s a danger that, if the borrower/proprietor
strikes to dismiss the foreclosures motion for failure to call a
vital occasion, the courtroom will grant the dismissal or order that
the tenant be named, which the lender won’t be able to do
with out violating the automated keep. See, e.g., Toiney LLC v.
, No. 18-cv-40 (NGG) (VMS), 2022 WL 4118520 (E.D.N.Y.
Sept. 9, 2022) (dismissing foreclosures motion for failure to call
all and vital events); Dime Sav. Financial institution of N.Y.
v. Johneas
, 172 A.D.2nd 1082 (4th Dep’t 1991) (the place
defendant moved to dismiss foreclosures motion as a result of plaintiff
failed to call a tenant as a defendant, courtroom dominated that
“correct treatment for nonjoinder was to not dismiss the
motion” however to direct that tenant be joined as defendant).

If a lender needs to terminate the lease of the bankrupt tenant
or is unwilling to probability the potential of its foreclosures motion
being dismissed for failure to call a vital occasion, the Lender
might want to petition the chapter courtroom for reduction from the
automated keep in an effort to start or proceed its foreclosures
motion. Evidently, there are not any ensures that such reduction
can be granted. Nevertheless, presumably, the chances of keep reduction being
granted can be larger the place the lender is prepared to permit the
lease to stay in impact than if the lender is looking for to
terminate a lease which will have worth to the chapter property.

Given the issues attributable to the chapter of a tenant,
lenders ought to anticipate that debtors might attempt to use the chapter
of a tenant as leverage in negotiations and to demand extra
compensation for delivering a deed in lieu. Lenders ought to contemplate
whether or not modifications to their mortgage documentation ought to be made to
guard towards a situation wherein the borrower’s sponsor or
affiliate has a lease within the constructing and seeks to make use of a chapter
by such affiliate as a delay tactic. If a “unhealthy boy”
assure is being put in place, a lender might wish to make sure that a
chapter by a tenant-affiliate of the borrower is a triggering
occasion for legal responsibility below the assure.

Due to the generality of this replace, the data
supplied herein might not be relevant in all conditions and may
not be acted upon with out particular authorized recommendation based mostly on specific

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