BANKRUPTCY SUPERIOR COURT - ATTORNEY IN HACKENSACK NJ (201) 646-3333

 

HSBC BANK USA NATIONAL ASSOCIATION, Plaintiff-Respondent,
v.
ADESINA OGUNLANA, Defendant-Appellant.

No. A-0688-17T2.

Superior Court of New Jersey, Appellate Division.

Submitted September 13, 2018.Decided September 20, 2018.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-012098-13.

Ejike N. Uzor, attorney for appellant.

Reed Smith, LLP, attorneys for respondent (Henry F. Reichner, on the brief).

Before Judges Koblitz and Currier.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

PER CURIAM.

In this foreclosure matter, defendant Adesina Ogunlana appeals from the September 19, 2017 order denying her motion to stay a sheriff's sale. Defendant's basis for the stay of the sale was her bankruptcy filing. Under 11 U.S.C. § 362(c)(4)(A)(i), an automatic stay does not take effect when a debtor has had two or more prior cases dismissed within the year. The automatic stay did not take effect here because defendant filed a third bankruptcy action just before the date of the sheriff's sale. Therefore, it was not an abuse of discretion for the Chancery judge to deny a stay of the sale. We affirm.

After defendant defaulted on the loan securing the mortgage on her residential property, plaintiff HSBC Bank National Association, filed a foreclosure action. Defendant did not answer the complaint and final judgment was entered in June 2015. A sheriff's sale was scheduled for September 19, 2017.

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On the day of the sale, defendant requested a stay due to a petition for relief under Chapter 13 of the Bankruptcy Code, which she had filed the previous day. See 11 U.S.C. § 362(a)(2). Defendant had filed two prior petitions for relief in April and July 2017, both of which were dismissed for failure to file schedules. After hearing counsels' arguments, the Chancery judge denied the stay of the sale on September 19, 2017.^[1] He noted § 362(c)(4)(A)(i) of the Bankruptcy Code provides an exception to the automatic stay generally triggered by a bankruptcy petition filing if two or more prior petitions have been dismissed within the year. As this was defendant's third Chapter 13 filing within five months, the automatic stay did not take effect. Therefore, there were no grounds presented to the court to stay the sheriff's sale.^[2]

On appeal, defendant asserts the Chancery judge erred in denying the motion to vacate the sheriff's sale. We disagree. Plaintiff presented evidence of defendant's three bankruptcy filings for relief under Chapter 13. Under 11 U.S.C. § 362 (c)(4)(A)(i), the automatic stay does not trigger upon the third filing. As there were no other grounds presented to support the application, it was not an abuse of discretion for the Chancery judge to deny a stay of this request.

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Affirmed.

[1] The judge heard additional arguments the next morning following which he reaffirmed his decision.

[2] Defendant's subsequent motion in the Bankruptcy Court to impose an automatic stay was denied on October 13, 2017.

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CREDIT COUNSELING CLASSES - BANKRUPTCY LAWYER IN HACKENSACK NJ (201) 646-3333

Credit Counseling Classes

HACKENSACK BANKRUPTCY LAWYER (201) 646-3333

Credit counseling is a crucial part of any bankruptcy case. In fact, it is required that you complete a briefing with a certified credit counseling agency that has been approved by the U.S. Trustee’s Office. Since October of 2005 this requirement has been in place, and a failure to complete credit counseling within 180 days prior to filing may result in the rejection or dismissal of your Chapter 7 or Chapter 13 bankruptcy case. After you complete your credit counseling course, you will receive a certificate of completion that must be filed with your bankruptcy petition.

The average cost for a credit counseling course is approximately $50, but the exact cost may vary depending upon what type of session you undergo and where you live. This briefing may be completed in person, over the phone or online. The basic steps of the briefing will usually include an evaluation of your finances, a personal budget plan and the discussion of alternatives to bankruptcy, if any.

Generally speaking, there are very few exceptions to the requirement that a debtor complete a credit counseling course prior to filing for bankruptcy. Bankruptcy court judges have little to no authority to waive this requirement, so it is important that you discuss this with your attorney prior to filing. A dismissed bankruptcy case may result in your being unable to file for a certain period of time.

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BERGEN COUNTY NJ BANKRUPTCY - (201) 646-3333

 

Considering Filing for Bankruptcy?

(201) 646-3333

HACKENSACK BANKRUPTCY LAWYER

 

With the economy in its current state, hearing that people are struggling with debt is, sadly, not as uncommon as one would like to hear. Too many people find themselves slipping further and further down the slippery slope, caught between the fast paced world that we live in and the simultaneous culture of plastic money and wanting more. Credit card companies are of no help either, as at the end of the day they are only concerned with making a profit, not helping you get your feet back underneath you to successfully move forward with your life.

If you are currently facing a situation similar to this, it is in your best interest to talk to an experienced  New Jersey bankruptcy lawyer about the possibility of filing for bankruptcy. By talking to someone knowledgeable about this process, you can have your questions answered; questions about bankruptcy warnings signs, if you qualify, what chapter is right for you, the bankruptcy benefits, exemptions, what you will lose and the types of debts that can be eliminated. Bankruptcy can be a terrifying, confusing process to try and take on, but with the proper guidance, you have no reason to fear it. It can merely be a way for you to move forward into the next chapter in your life.

 

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Why Hire a Bankruptcy Lawyer?

 

At the law firm of Rafael Gomez, we understand the questions and concerns you will have if you are considering filing for bankruptcy. We know that it appears complex and the ideas of Chapter 7, and Chapter 13 may appear foreign and overwhelming. There, are, however many things that you can do to help yourself. By closely working with your case, and giving you the undivided personal attention that you deserve, you can breathe easier knowing that you are dealing with someone devoted to getting you to the optimum outcome. No matter if you are concerned with credit card debt or life after bankruptcy, we will be here to help you.

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If you are currently considering filing for bankruptcy, contact Rafael Gomez by calling (201) 646-3333.

CAN I ELIMINATE ALL DEBTS? - BANKRUPTCY LAWYER IN HACKENSACK NEW JERSEY (201) 646-3333

CAN I ELIMINATE ALL DEBTS?

HACKENSACK BANKRUPTCY LAWYER (201) 646-3333

Will bankruptcy get rid of my debts?

Before deciding to file for bankruptcy, you must understand what bankruptcy will and  will not do for you. Bankruptcy won't solve every problem or get rid of every  debt.

Types of debts

Whether bankruptcy is the right choice depends in large part on the type of  debt you have. There are two main types of debts: secured and unsecured.  Bankruptcy will discharge most unsecured debts, but not secured debts. It is  important to know the difference between the types.

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The problems bankruptcy will remedy

Bankruptcy won't get rid of all debts, but it will remedy many common problems  including credit cards and utility bills, and wage garnishments. Other debts,  such as mortgages and car loans, can be paid down through a Chapter 13  bankruptcy.

The debts bankruptcy will not eliminate

Some debts cannot be discharged through bankruptcy. These include alimony and  child support, student loans and taxes as well as debts incurred through fraud.

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ANALYZING YOUR BUDGET TO DETERMINE IF BANKRUPTCY WILL HELP - BANKRUPTCY ATTORNEY IN HACKENSACK NJ (201)-646-3333

ANALYZING YOUR BUDGET TO DETERMINE IF BANKRUPTCY WILL HELP 

(201)-646-3333

A final ingredient in the financial picture of a family or individual is a complete  analysis of ongoing expenses and income. Only with this information in hand can the likely outcome of a bankruptcy be projected, for the family will continue  to have its usual expenses, even if most or all debts are discharged, and will  have to pay them with the anticipated available income.

A family or individual that is considering bankruptcy must therefore put  together a budget of ongoing anticipated expenses and income. Once this is  done, it may become apparent that bankruptcy by itself will do little to solve  the financial problem because, even with the elimination of most or all debts,  ongoing expenses still significantly exceed anticipated income. In such cases,  at least part of the solution will be to pare expenses or to raise income.


Cutting expenses is never easy. Families must look at such major items as  housing expenses. Is cheaper housing available? Other items, such as restaurant  meals, fancy automobiles, vacations, expensive clothes and other luxuries must  sometimes be given up. Smaller savings can be made by conserving energy, cutting out extra phone service options, reducing or eliminating cable  television bills, and cost-conscious shopping at thrift stores, garage sales  and supermarkets.


The alternative, of course, is to increase income. This can sometimes be  achieved by a spouse working outside the home, though these gains may be offset  by expenses for child care and transportation. A lower income family may be  eligible for government benefits such as food stamps, energy assistance  payments or public assistance.


In any case, budget information is important for analyzing whether bankruptcy  makes sense. It is also critical for determining whether a Chapter 13 case is  feasible, and it is required on the schedules filed in every bankruptcy case.  Creditors and the court are permitted to examine this information if they wish,  though usually they do not.

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THE MEANS TEST - BANKRUPTCY ATTORNEY IN HACKENSACK NJ (07601) - (201)-646-3333

THE MEANS TEST

BANKRUPTCY ATTORNEY IN HACKENSACK NJ (201)- 646-3333

In 2005, the United States substantially changed its bankruptcy laws, adding a means test to prevent wealthy debtors from filing for Chapter 7 Bankruptcy. The most noteworthy change brought by the 2005 BAPCPA amendments occurred within 11 U.S.C. § 707(b). The amendments effectively subject most debtors who make an income, as calculated by the Code, above the median income of the debtor's state to an income-based test. This test is referred to as the "means test." The means test provides for a finding of abuse if the debtor's income is higher than a specified portion of their debts. If a presumption of abuse is found under the means test, it may only be rebutted in the case of "special circumstances."  Debtors whose income is below the state's median income are not subject to the means test. Notably, the Code-calculated income may be higher or lower than the debtor's actual income at the time of filing for bankruptcy. This has led some commentators to refer to the bankruptcy code's "current monthly income" as "presumed income." If the debtor's debt is not primarily consumer debt, then the means test is inapplicable.

Thus, the means test is "a formula designed to keep filers with higher incomes from filing for Chapter 7 bankruptcy. (These filers may use Chapter 13 bankruptcy to repay a portion of their debts, but may not use Chapter 7 to wipe out their debts altogether.)" The bankruptcy means test is rather complex but quite generous and most debtors have no trouble meeting its requirements. Consumers can use a means test calculator to determine their eligibility. Some bankruptcy practicioners have suggested that the means test is not all that fair or equitable, and have somewhat cynically pointed out that the reference to consumer protection in the bankruptcy act is ironic at best (Orwellian at worst), since those with primarily consumer debt are required to pass a means test while businesses are not. What is undeniable is that it is complex, and the terms that govern many parts of it - including those terms that control whether it applies at all - are of unsettled definition.

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Most individual debtors filing for bankruptcy relief are required to complete either Official Bankruptcy Form 22A or 22C (Statement of Current Monthly Income and calculations). Bankruptcy Form 22A is the form chapter 7 debtors will complete for “means testing” purposes; Form 22C is the form chapter 13 debtors will complete. [The Official Bankruptcy Forms can be found on the Administrative Office of the U.S. Courts Web site.]

A debtor must enter income and expense information onto the appropriate form (i.e., Form 22A or Form 22C) and then make calculations using the information entered. Some of the information needed to complete these forms, such as a debtor's current monthly income, comes from the debtor's own personal records. However, other information needed to complete the forms comes from the Census Bureau and the Internal Revenue Service (IRS).

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PETITION MILLS - BANKRUPTCY ATTORNEY IN HACKENSACK NJ (201)-646-3333

PETITION MILLS

BANKRUPTCY ATTORNEY IN HACKENSACK NJ (201)-646-3333

A petition mill is a fraud in which the perpetrator poses as a financial advisor, sometimes as a credit counselor or paralegal, filing hastily-prepared bankruptcy documents in the name of victims who come to the advisor as clients. The bankruptcy filing is often both incomplete and inappropriate for the victim's condition; and, often, the victim does not even realize that a bankruptcy has been filed.

Victims are people in financial trouble who believe they are becoming clients of a professional operation. The fraudster promises to make the foreclosures, evictions, repossessions, high interest rates on loans, and other debt problems go away. The victim pays a large initial fee for the fraudster's services, and the fraudster usually has the victim sign blank documents. Sometimes the victim is also told to make their usual payments directly to the fraudulent advisor instead of the real creditors, or to transfer their real estate to the fraudster. The payments are stolen by the fraudster instead of being used to pay victims' debts, and real estate is often deeded in fractional shares to other victims unknowingly under bankruptcy, complicating ownership to make foreclosures even more difficult by having multiple (fraudulent) bankruptcies involved in the property.

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In other petition mill schemes, the fraudster simply creates summary bankruptcy filings for the victim. The victim is then told to file pro se in court and deny that anyone helped prepare the documents.

According to the United States Trustee Manual, volume 5, chapter 5, the following are warning signs of a petition mill scheme:

1. Pro se bankruptcy petition where the debtor says no one assisted him/her, but the debtor is clearly unfamiliar with the bankruptcy system
2. Pro se petition filed despite the debtor denying filing bankruptcy
3. Debtor failing to attend the section 341 meeting, where creditors and the United States Trustee first meet with the debtor
4. "Face sheet" (suspiciously small) filing with a single creditor listed, usually the mortgagee or the landlord
5. Debtor facing eviction, foreclosure, or repossession notice
6. Pattern of pro se debtors with identical paperwork form, style, and general content
7. Pattern of complaints from mortgagees or landlords
8. Debtors or others being solicited by petition mills that stress stopping evictions, etc.
9. Complaints by debtor that he/she has been making rent/mortgage/car payments to a third party (instead of to the original creditors)
10. Advertising in budget papers and using flyers to advertise bankruptcy and divorce assistance at a low, fixed fee
11. Implications that attorneys are supervising or approving the service
12. Requests for payment of filing fee in installments
13. Assets or liabilities not scheduled (filed in proper format)
14. Failure to properly fill out or file schedules
15. Use of chapter 7 (complete liquidation) when chapter 13 (reorganization) is clearly feasible

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BANKRUPTCY LAWSUIT IN SUPERIOR COURT NEW JERSEY - (201)-646-3333

MONEY ISLAND MARINA, LLC, Plaintiff-Appellant,
v.
ROGER MAURO and LOIS MAURO, their heirs, devisees, and personal representatives, and his, her, their, or any of their successors in right, title, and interest, Defendants-Respondents.

No. A-2950-14T3.

Superior Court of New Jersey, Appellate Division.

Submitted April 19, 2016.

Decided April 25, 2016.

Terance J. Bennett, attorney for appellant

.

The D'Elia Law Firm LLC, attorneys for respondents (Teresa M. Lentini, on the brief).

Before Judges Fisher and Espinosa.

PER CURIAM.

In this appeal, plaintiff Money Island Marina, LLC (MIM) argues that the findings made by the trial judge in dismissing its claims at the conclusion of a bench trial were either based on erroneous legal rulings or were contrary to the weight of the evidence. Finding no error, we affirm.

The issues posed in this civil action are limited and discrete. MIM, a limited liability company ostensibly controlled by Tony Novak (Novak),^[1] seeks a declaration, by way of this quiet title action, that defendant Lois Mauro's mortgage on the property should be invalidated or have no further impact on its ownership rights. MIM argues, however, that the case should be considered in light of other circumstances, some of which have been resolved in other proceedings. That is, MIM contends that defendant Roger Mauro (Mauro) assaulted Novak by vehicle in 2006 and that this circumstance, and the resulting personal injury action he commenced, should have been more fully considered in the disposition of this quiet title action. We described the vehicular assault allegations in earlier opinions in a criminal matter commenced against Mauro.^[2] In or about 2008, Novak brought a personal injury action against Mauro.^[3]

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Of greater relevance to the matter at hand is the fact that in 1995, Mauro purchased a marina in Downe Township and then, on December 12, 2008, sold the marina to Joseph Acosta for $425,000, receiving more than $100,000 in cash and a purchase money mortgage to secure repayment of a note payable to Mauro from Acosta of the principal amount of $313,000.

Acosta filed a Chapter 7 bankruptcy proceeding on February 28, 2011, and, on April 2, 2012, Mauro assigned the Acosta mortgage to his mother, defendant Lois Mauro (Lois). Lois, as assignee of the mortgage, filed a proof of claim in the Acosta bankruptcymatter on October 16, 2012.

At a hearing in bankruptcycourt on November 13, 2012, Novak bid $12,000 to purchase the marina. When the bankruptcy judge asked Novak if he understood the marina is "subject to the mortgage that's on the property," Novak responded, "Yes." An order entered by the bankruptcy court on November 26, 2012, confirmed the sale of the marina to Novak "or his assignee" for $12,000 "subject to all liens, mortgages and encumbrances on the real estate." The next day, the bankruptcy trustee executed a quitclaim deed in MIM's favor; the deed acknowledged that the grantor had made "no promises as to ownership or title, but simply transfers whatever interest the [g]rantor [i.e., the trustee] has to the [g]rantee [i.e., MIM]." This recitation is in accord with what it means to convey a property interest by quitclaim deed. See N.J.S.A. 46:5-3. The quitclaim deed was recorded on December 12, 2012. On May 16, 2013, the bankruptcy court granted the trustee's motion to expunge Lois's proof of claim in light of the fact that the mortgage remained attached to the property transferred to MIM.

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On February 14, 2013, MIM, as the assignee of the marina purchased by Novak through the bankruptcy court, filed this quiet title action. A few months later, Novak's personal injury action against Mauro settled; Novak received $5000, and Mauro obtained a general, unconditional release of Novak's claims. Lois commenced an action seeking to foreclose her mortgage on the marina.

MIM's quiet title action and Lois's foreclosure action were both the subject of a single bench trial conducted over the course of two days. The trial judge rightfully expressed in her written opinion that "[t]here is something very odd about this litigation and the manner in which the parties have pursued or defended against claims." For example, MIM claimed that Novak's settlement of the personal injury action somehow provided MIM with ownership of the marina free of the mortgage; however, as the judge observed, the release that memorialized the settlement contains no such condition or agreement, and the judge found no other evidence to support MIM's contention.^[4] And, while Novak may have thought, as the judge stated, that he had "outwitt[ed] the Mauros by outbidding them at the bankruptcy hearing" for the marina, the bankruptcy record clearly demonstrates that the interest in the marina which Novak purchased was taken subject to Lois's mortgage. The judge's findings also demonstrate that Roger's assignment of the mortgage to Lois was supported by adequate consideration; she noted that Mauro's financial circumstances had long been troubled by Acosta's failure to make the monthly payments required by the note and mortgage, as well as his many other legal matters, including those involving Novak, resulting in Lois providing Mauro with $200,000 for his support, for which she was compensated by assignment of the mortgage. The judge's findings, based upon what is both clearly demonstrated by the various documents and transcripts emanating from the bankruptcy proceeding and the personal injury settlement, as well as by the judge's careful assessment of the credibility of the many witnesses, are entitled to our deference. Rova Farms Resort Co. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Stephenson v. Spiegle, 429 N.J. Super. 378, 382 (App. Div. 2013).

Accordingly, with these few comments, we affirm the dismissal of the quiet title action substantially for the reasons set forth by Judge Anne McDonnell in her well-reasoned written decision.^[5]

Affirmed.

[1] To add to some of the confusion about the underlying circumstances, the actual owner of MIM has not been adequately disclosed. At his deposition, Novak asserted he is MIM's "authorized representative," but he denied knowledge about the identity of the owners, saying: "[w]e are trying to figure it out. We do have a dispute and I do not know." Upon further questioning, he identified one of the disputed owners as his stepson and disclosed without clarity that other members "have since abandoned" ownership or otherwise "disavow[ed] and resign[ed]."

[2] On February 21, 2013, we reversed the trial court's dismissal of the criminal prosecution, finding no violation of Mauro's speedy trial rights. State v. Mauro, No. A-4950-11 (App. Div. Feb. 21, 2013). The Supreme Court later remanded for our reconsideration in light of State v. Cahill, 213 N.J. 253 (2013), but we again came to the same conclusion. State v. Mauro, No. A-4950-11 (App. Div. June 10, 2014).

[3] The date the personal injury complaint was filed is not disclosed in the record on appeal. The filing date, however, is not particularly relevant; we assume the complaint was filed in 2008 because of its docket number.

[4] Indeed, Mauro was no longer the owner of the mortgage; it had been assigned to Lois well before Novak and Mauro settled the personal injury action. The mortgagewas not something available to Mauro to negotiate with.

[5] By way of the same written decision, the judge determined that the answer and counterclaim filed by Novak and MIM in Lois's foreclosure action were non-contesting. Consequently, the judge referred the matter to the Office of Foreclosure for entry of final judgment, subject to any dispute about the amount of the judgment or MIM's right to a fair market credit or other equitable relief. MIM does not present an argument here regarding the judge'sdisposition of the foreclosure issues; indeed, MIM correctly recognizes that, until entry of final judgment in the foreclosure action, it has no right to file a notice of appeal in that regard.

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