Mortgage Electronic Reg. S. v. Simmons, No. Cv 01 0385013 S (Mar. 7, 2003)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

SUMMARY RULING ON MOTION TO MODIFY SALES PRICE AND EXTEND SALE DATE AND MOTION FOR RETURN OF DEPOSIT Pending before the court is the motion to modify sales price and extend sale date and motion for return of deposit filed by Edouard Edouard, the successful bidder at the foreclosure sale ordered by the court. The sale was confirmed, but because of damage occurring to the property post-confirmation, Edouard seeks to modify the sale price or have the court reconsider approval of the sale. Although the plaintiff has objected to the motion on the merits, a threshold issue is being raised by defendant, Conseco Finance Servicing Corporation, a subsequent lienor who has filed bankruptcy. Conseco claims that the bankruptcy filing stays the court from adjudicating final disposition of this matter.

If the sale is approved, over Edouard's objection, and Edouard is ordered to perform pursuant to the terms of the sale, there may be sufficient funds to distribute to Conseco from the sale proceeds. Consequently, Conseco's interest in the disposition of the motion appears to represent a claim that is the property of the bankruptcy estate for which the automatic stay applies. Edouard has not shown that this interest is not property of the estate, or if it is, how the stay is inapplicable. His citation to Clermont Loubier, 6 B.R. 298 (Bankr.Conn. 1980) is inapposite because the instant case, as compared to Loutier, does not involve a claim of redemption after confirmation of a foreclosure sale. At this point, the instant case is more akin to an interpleader action where the issue is what claimant, including one who is in bankruptcy, is entitled to disputed proceeds.

Neither the plaintiff, nor Edouard have moved in bankruptcy court for relief from the automatic stay. In the absence of the movant showing a release of the automatic stay or an abandonment of the claim by the estate, it appears that this case is subject to the stay.

Therefore, Edouard Edouard's motion to modify the sales price, or in the alternative for the return of the deposit, is hereby denied without prejudice.

So ordered March 6, 2003. STEVENS, J.

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