AVAIL 1, LLC v. Kurimsky (In re Kurimsky)

• Decision Date: 24 June 2021
• Docket Number: CASE NO. 21-50021 (JAM)
• Court: United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — District of Connecticut
• Parties: IN RE: GARY F. KURIMSKY, DEBTOR. AVAIL 1, LLC, MOVANT, v. GARY F. KURIMSKY, RESPONDENT.

IN RE: GARY F. KURIMSKY, DEBTOR.

AVAIL 1, LLC, MOVANT,
v.
GARY F. KURIMSKY, RESPONDENT.

CASE NO. 21-50021 (JAM)

UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT

June 24, 2021

CHAPTER 7

ECF NO. 40

APPEARANCES

Linda St. Pierre
McCalla Raymer Leibert Pierce, LLC
50 Weston Street
Hartford, CT 06120

Attorney for the Movant

Gary F. Kurimsky
268 Hammertown Road
Monroe, CT 06468

Pro se Debtor

MEMORANDUM OF DECISION GRANTING SECOND AMENDED MOTION FOR RELIEF FROM THE AUTOMATIC STAY

I. INTRODUCTION

On January 14, 2021, Gary F. Kurimsky (the "Debtor"), appearing pro se, filed a Chapter 7 petition commencing this case. On January 29, 2021, AVAIL 1, LLC (the "Movant") filed an Amended Motion for Relief from Stay (the "Amended Motion," ECF No. 16) seeking relief from the automatic stay pursuant to section 362(d)(1), (d)(2), and in rem relief pursuant to section 362(d)(4) regarding the real property commonly known as 268 Hammertown Road, Monroe,

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Connecticut (the "Property"). On February 12, 2021, the Debtor filed an objection to the Amended Motion, asserting, among other things, that the Movant lacks standing, is not a creditor of the Debtor, and has no possessory interest in the Property.

The Court held a hearing on the Amended Motion on March 23, 2021, at which the Movant's counsel and the Debtor appeared. After the hearing, the Court denied the Amended Motion without prejudice because the documentation attached to the Amended Motion did not sufficiently establish the Movant's standing. On March 26, 2021, the Movant filed a Second Amended Motion for Relief from Stay (the "Second Amended Motion," ECF No. 40). On April 9, 2021, the Debtor filed an objection to the Second Amended Motion (the "Objection," ECF No. 44), again asserting that Movant lacks standing, is not a creditor of the Debtor, and has no possessory interest in the Property.

The Court held a hearing on the Second Amended Motion on April 27, 2021, at which counsel for the Movant and the Debtor appeared. At the conclusion of the hearing, the Court ordered the Movant to file a supplemental affidavit in support of the Second Amended Motion by May 4, 2021, and took the Second Amended Motion under advisement. The Movant filed a supplemental affidavit on May 3, 2021. On May 4, 2021, the Debtor filed a counter affidavit. After careful review of the record in this case, the Second Amended Motion and documents in support thereof, the Objection and documents in support thereof, the supplemental and counter affidavits, and under the specific facts and circumstances of this case, the Second Amended Motion is granted and relief from stay will enter under 11 U.S.C. §§ 362(d)(1), (d)(2), and (d)(4).

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II. FACTS

1. On August 28, 2007, the Debtor executed a promissory note (the "Note") in favor of CitiMortgage, Inc. in the original principal amount of $650,000.00. The Note was seemed by a mortgage recorded against the Property (the "Mortgage").

2. On June 2, 2009, CitiMortgage, Inc. commenced an action against the Debtor and his wife in the Connecticut Superior Court to foreclose the Mortgage (the "State Court Action"). See CitiMortgage Inc. v. Paulette Kurimsky, et al., Docket No. FBT-CV09-6003098-S.

3. On September 6, 2011, a judgment of strict foreclosure entered in the State Court Action, setting a law day of January 10, 2012 (the "Judgment"). The Judgment found that (i) CitiMortgage, Inc. was the holder and owner of the Note; (ii) the Debtor was in default of the terms of the Note; (iii) the fair market value of the Property was $552,000.00; and (iv) the debt owed to CitiMortgage, Inc. was $808,790.87.

4. The chart below demonstrates that the bankruptcy cases filed by the Debtor and his wife since the entry of the Judgment were filed shortly before a court ordered law day or the execution of a Summary Process Execution for Possession (Eviction).

Debtor
Bankruptcy Case
No.
Law Day or execution date of
Summary Process

...