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Cac Leasing, Inc v. George Riveiro

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2011

CAC LEASING, INC., PLAINTIFF-RESPONDENT,
v.
GEORGE RIVEIRO, HIS/HER HEIRS, DEVISEES, AND PERSONAL REPRESENTATIVES, AND HIS, HER, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; MIRIAM RIVEIRO, HIS/HER HEIRS, DEVISEES, AND PERSONAL REPRESENTATIVES, AND HIS, HER, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST, DEFENDANTS-APPELLANTS, AND MUSTANG GAS & OIL; MONMOUTH OCEAN HOSPITAL SERVICE CORP.;
MONMOUTH CARDIOLOGY ASSOCIATES; STATE OF NEW JERSEY, DEFENDANTS.

On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-4794-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2011

Before Judges Ashrafi and Nugent.

Defendants George and Miriam Riveiro appeal from an order of the Chancery Division denying their motion to vacate a sheriff's sale following foreclosure judgment. We affirm.

In May 2006, plaintiff filed a mortgage foreclosure complaint against defendants. Defendants did not file an answer, and default was entered in August 2006. Plaintiff obtained a final judgment of foreclosure on November 21, 2007, and a writ of execution was issued on the same day directing the sale of plaintiff's residence.

On February 2, 2009, Miriam Riveiro filed a Chapter 13 petition in the United States Bankruptcy Court. The Bankruptcy Court dismissed her petition on April 29, 2009. On May 11, 2009, Miriam Riveiro filed a second Chapter 13 bankruptcy petition. The Bankruptcy Court dismissed the second petition on July 8, 2009, the date a confirmation hearing was scheduled. However, an order of dismissal was not entered on the Bankruptcy Court's docket until July 21, 2009, one day after the sheriff's sale of the home on July 20, 2009.

Defendants moved to vacate the sheriff's sale on the ground that the bankruptcy petition was still pending and the sale violated the automatic stay provision of the United States Bankruptcy Code, 11 U.S.C. 362. The Chancery Division heard argument on defendants' motion on September 25, 2009, and issued an oral decision and order denying the motion on October 19, 2009. Defendants have belatedly provided a transcript of the Chancery Division's oral decision, which included findings of fact and conclusions of law.

We find no merit in the appeal. We agree with and affirm the Chancery Division's decision for the reasons stated by the Chancery judge in his oral decision of October 19, 2009, and in a supplementary statement of reasons dated December 3, 2009, filed with us in accordance with Rule 2:5-1(b).

The automatic stay contained in the Bankruptcy Code terminates when a bankruptcy case is dismissed. 11 U.S.C. §362(c)(2)(B). We do not need to address whether the Bankruptcy Court's oral decision dismissing the second petition on July 8, 2009, was effective in terminating the automatic stay, as opposed to its order of July 21, 2009. If a debtor files a second bankruptcy petition within one year after dismissal of the first, the automatic stay terminates on the thirtieth day after the filing of the second case unless the Bankruptcy Court expressly extends the stay. 11 U.S.C. §362(c)(3). There was no express extension of the stay in this case. The automatic stay effected by Miriam Riveiro's second petition terminated on June 10, 2009, thirty days after she filed her second petition. That was long before the sheriff's sale.

Affirmed.

20110208

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