DocketNumber: No. CV 95 127550
Citation Numbers: 1996 Conn. Super. Ct. 2408, 16 Conn. L. Rptr. 247
Judges: PELLEGRINO, J.
Filed Date: 3/15/1996
Status: Non-Precedential
Modified Date: 4/17/2021
On June 22, 1995, the bankruptcy court granted the motion of the creditors committee to compel abandonment of the subject property from the bankruptcy estate. Thereafter, the plaintiff instituted the present foreclosure action against each defendant's interest in the subject property on July 7, 1995. CT Page 2409
On July 26, 1995, the bankruptcy court, Krechevsky, J., entered an order granting the plaintiff retroactive relief from the stay as of June 22, 1995. The order reads as follows: "Ordered, Adjudged and Decreed that the automatic stay of section 362(a) of the Bankruptcy Code is modified nunc pro tunc, to the entry of the order directing the debtors to abandon the Property, to allow Prudential to exercise its rights under its security document, against the property." Exhibit B. On July 17, 1995, the defendants filed this motion to dismiss the present action for lack of subject matter jurisdiction.
The automatic stay is "`one of the fundamental debtor protections provided by the bankruptcy laws.'" MidlanticNational Bank v. New Jersey Dept. of Environmental Protection,
The imposition of a bankruptcy stay ousts state courts of jurisdiction regarding any claim made against the debtor. SeeKalb v. Feuerstein,
It is undisputed that the plaintiff violated the automatic CT Page 2410 stay when it commenced the instant foreclosure action after each of the defendants had filed for Chapter 11 protection. The issue before this court then is whether this violation was cured by the retroactive order of the bankruptcy court.
A creditor may obtain relief from a bankruptcy stay under certain limited circumstances. Bankruptcy Code § 362(d) gives the bankruptcy court the power to grant relief from the automatic stay and provides in pertinent part that "[on] request of a party . . . the court shall grant relief from the stay . . . by terminating, annulling, modifying or conditioning such stay" (Emphasis added.). "The inclusion of the word annulling in the statute indicates a legislative intent to apply certain types of relief retroactively and validate proceedings that would otherwise be void ab initio." In re Siciliano,
The defendants argue that the abandonment order did not effectuate the lifting of the automatic stay, and that actions taken in violation of the automatic stay are void. The defendant ignores the fact that the plaintiff was granted retroactive relief from the stay as of June 22, 1995 and that the automatic stay was modified nunc pro tunc. "If a creditor obtains retroactive relief under section 362(d), there is no CT Page 2411 violation of the automatic stay, and whether violations of the stay are void or voidable is not at issue." In re Schwartz, supra, 954 F.2d 573.
The Bankruptcy Court is authorized to grant retroactive relief and did, in fact, grant such relief in this case back to June 22, 1995. This action was commenced on July 7, 1995. The retroactive lifting of the stay to a day preceding the commencement of this action cures any defect that may have existed at the time this action was commenced. Therefore, this court will deny the defendants' Motion to Dismiss.
franklin-savings-association-a-kansas-savings-and-loan-association , 31 F.3d 1020 ( 1994 )
Albany Partners, Ltd. v. Westbrook (In Re Albany Partners, ... , 749 F.2d 670 ( 1984 )
13-collier-bankrcas2d-50-bankr-l-rep-p-70525-algeran-inc-v , 759 F.2d 1421 ( 1985 )
In the Matter of PINETREE, LTD., Debtor. the MUTUAL BENEFIT ... , 876 F.2d 34 ( 1989 )
In Re Leonard J. Siciliano, Debtor. Prudential Savings Bank,... , 13 F.3d 748 ( 1994 )
17-collier-bankrcas2d-1415-bankr-l-rep-p-72135-in-re-48th-street , 835 F.2d 427 ( 1987 )
In Re Bresler , 119 B.R. 400 ( 1990 )
In Re Ormond Beach Associates Ltd. Partnership , 185 B.R. 408 ( 1995 )
In Re Kornhauser , 184 B.R. 425 ( 1995 )
Kalb v. Feuerstein , 60 S. Ct. 343 ( 1940 )
In Re: Russell Schwartz Linda Schwartz, Debtors. Russell ... , 954 F.2d 569 ( 1992 )
Midlantic National Bank v. New Jersey Department of ... , 106 S. Ct. 755 ( 1986 )
In Re Carter , 131 B.R. 4 ( 1991 )
In Re IBI SEC. Service, Inc. , 158 B.R. 1 ( 1993 )
United Sav. Assn. of Tex. v. Timbers of Inwood Forest ... , 108 S. Ct. 626 ( 1988 )