Modica v. OZONE PARK FUNDING ASSOCIATES
2010 U.S. Dist. LEXIS 129019
E.D.N.Y2010Background
- Ozone Park Funding Associates obtained a first mortgage on a commercial property; Antoinette Modica guaranteed the loan but was not a property owner or resident.
- Anthony Modica defaulted, resulting in a foreclosure judgment of $1,347,594.44 as of December 31, 2008.
- Antoinette Modica filed a Chapter 13 petition on May 7, 2009, and told the court the automatic stay applied to the foreclosure.
- Bankruptcy Court lifted the stay for the property on July 14, 2009, while noting the stay could not affect any deficiency.
- Anthony Modica filed a Chapter 13 petition on October 22, 2009; Judge Feller dismissed his case on December 29, 2009 and ordered that future filings within two years would not trigger automatic stay as to the property or the debt to Ozone Park.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Feller's order limiting the automatic stay in future cases is valid | Modica argues due process and lack of party rights to be bound. | Ozone Park invokes 11 U.S.C. §105(a) authority to limit stay as an abuse-prevention measure. | Affirmed; order within §105(a) power and not a due process violation. |
Key Cases Cited
- Kalilow (Kalikow) v. N.Y. State Higher Educ. Svcs. Corp., 602 F.3d 82 (2d Cir.2010) (limits on equitable powers under §105(a))
- In re Greenberg, 200 B.R. 763 (Bankr.S.D.N.Y.1996) (dismissal for debtor abuse of bankruptcy process and stay limits)
- In re Kizelnik, 190 B.R. 171 (Bankr.S.D.N.Y.1995) (limits automatic stay where filings block foreclosure)
- In re Wong, 30 B.R. 87 (Bankr.C.D.Cal.1983) (filings solely to block foreclosure; relief extends to future cases)
- In re Felberman, 196 B.R. 678 (Bankr.S.D.N.Y.1995) (multiple petitions to energize stay; limits on future filings)
- In re Ouverson, 79 B.R. 830 (Bankr.N.D.Iowa) (abuse of bankruptcy process by repetitive filings)
- In re Kinney, 51 B.R. 840 (Bankr.C.D.Cal.1985) (bar on filings for the predominant purpose of reimposing stay)
- In re Abdul-Hasan, 104 B.R. 263 (Bankr.C.D.Cal.1989) (stay relief available with pre-filing judicial intervention)