| Emigrant Sav. Bank v Rappaport |
| 2005 NY Slip Op 06002 [20 AD3d 502] |
| July 18, 2005 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Emigrant Savings Bank, Respondent, v Laurence J. Rappaport et al., Defendants, and Asset Capital, LLC, Appellant. S & K Properties, LLC, et al., Nonparty Respondents. |
—[*1]
In an action to foreclose a mortgage, the appeal is from an order of the Supreme Court, Nassau County (Lally, J.), dated August 23, 2004, which granted the motion of S & K Properties, LLC, and Millennium Home & Land, Ltd., the successful bidders at the foreclosure sale, to confirm the foreclosure sale nunc pro tunc and to direct the referee to issue to them a referee's deed.
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
The successful bidders at a foreclosure sale held on September 29, 2003, were S & K Properties, LLC, and Millennium Home & Land, Ltd. (hereinafter the successful bidders). Subsequently, the successful bidders discovered that on September 26, 2003, the mortgagors, the defendants Laurence J. Rappaport and Susan B. Rappaport, filed a Chapter 7 petition in bankruptcy, thereby invoking an automatic stay of all nonbankruptcy actions and proceedings (see 11 USC § 362 [a]). Thereafter, the successful bidders moved, inter alia, to confirm the foreclosure sale nunc pro tunc, and the Supreme Court granted the motion.
"Once triggered by a debtor's bankruptcy petition, the automatic stay suspends any non-bankruptcy court's authority to continue judicial proceedings then pending against the debtor" (Maritime Elec. Co., Inc. v United Jersey Bank, 959 F2d 1194, 1206 [1991]; see Carr v McGriff, 8 AD3d 420, [*2]422 [2004]). The automatic stay is mandatory and "applicable to all entities, including state and federal courts" (Maritime Elec. Co., Inc. v United Jersey Bank, supra at 1206, quoting 11 USC § 362 [a]). Any nonministerial or "[j]udicial actions taken against a debtor are void ab initio, absent relief from the automatic stay" (Matter of Dominguez, 312 BR 499, 508 [2004]), and "only a bankruptcy court has jurisdiction to terminate, annul, or modify the automatic stay" (Carr v McGriff, supra at 422; see Eastern Refractories Co. v Forty Eight Insulations, 157 F3d 169, 172 [1998]). Accordingly, the Supreme Court should not have granted the motion (see Homeside Lending, Inc. v Watts, 16 AD3d 551 [2005]).
In view of the foregoing, we do not reach the parties' remaining contentions. Cozier, J.P., S. Miller, Rivera and Fisher, JJ., concur.