- ___ B.R. ___ (1 st. Cir BAP 2016) BAP NO. MS 16-007
- The Bankruptcy Appellate Panel affirms the bankruptcy court's ruling that a postponement of a foreclosure sale did not violate the automatic stay. The BAP maintains the First Circuit approach that the postponements served the purpose of preserving the status quo until the automatic stay is lifted.
- Procedural context:
- Debtor appeals the order denying his motion for Findings of Breaches of the Automatic Stay and Damages requesting sanctions against the creditor for having twice postponed its foreclosure sale post petition. The issue before the BAP is whether the bankruptcy court erred in concluding that the creditor did not violate the automatic stay when it announced the second postponement.
- Debtor defaulted on a loan with New Century Mortgage Corporation in 2010 and the creditor subsequently commenced foreclosure proceedings. The initial foreclosure sale was scheduled for February 10, 2015. Debtor filed for bankruptcy protection on Sunday, February 8, 2015 but accepted that did not communicate with creditor's counsel to inform about the filing. Creditor postpone the foreclosure sale twice. The creditor later cancelled the sale. A few months later Debtor filed the motion where alleged that the two post petition continuances of the foreclosure sale violated section 362(a)(1) since, among other allegations, revived financial pressure on him, acted to harass and damage him; therefore he was entitled to damages for injuries, cost and legal fees. The creditor argued that it acted in accordance to the accepted standards in the district of Massachusetts and that the postponements dis not have an effect on the parties' interests in the property and prevented the increase in the debt that would have resulted had the foreclosure sale been cancelled. At oral argument Debtor admitted that was constrained by applicable First Circuit precedent rule against him. Debtor accepted that creditor didn't has notice of the filing of the petition. The BAP emphasized that there extesnive case law in the First circuit discussing that postponement of foreclosure sales does not violate that automatic stay; in this case, In re De Jesus Saez, 13 B.R. 605,606 (Bankr. D.P.R. 1981)was not simply analogous but was controlling law which must be applied. Therefore the second postponement did not violate the automatic stay.
- Lamoutte, Deasy and Cary.
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