In re Oligbo
| Decision Date | 28 April 2005 |
| Docket Number | Adversary No. 04-1037-ESS.,Bankruptcy No. 03-26161-ESS. |
| Citation | 328 B.R. 619 |
| Parties | In re Roberto OLIGBO, Debtor. Roberto Oligbo, Plaintiff, v. Albert Louis, Claudine Belony, Jean Gardy Bapteau, Milthy Gomez, Angela Pisciotta, Defendants. |
| Court | U.S. Bankruptcy Court — Eastern District of New York |
Jeff Morganstern, Carle Place, NY, for Roberto Oligbo.
Percy A. Randall, Kew Gardens, NY, for Jean Gardy Bapteau, Angela Pisciotta.
Marianne De Rosa, Jericho, NY, trustee.
This adversary proceeding was commenced by the filing of a complaint (the "Complaint") by Roberto Oligbo (the "Plaintiff") for a declaratory judgment that he has been the equitable owner of the premises known as 122-14 135th Avenue, Jamaica, New York, 11420 (the "Property") since October 1999, with a right to cure the prepetition default on the mortgage and/or to redeem the mortgage under a Chapter 13 plan, and that upon the mortgage being redeemed, a deed should be executed transferring title to the Property to him ("Count One"); a declaratory judgment that the changing of the locks at the Property and/or the loss or displacement of the Plaintiff's personalty was a willful violation of the automatic stay by Jean Gardy Bapteau ("Bapteau"), and damages, attorneys' fees, and costs ("Count Two"); a declaratory judgment that the Plaintiff's right, title, and interests in the Property were not affected by a foreclosure sale of the Property held on December 5, 2003 ("Count Three"); a declaratory judgment that the Plaintiff has a purchaser's lien against the Property and/or any surplus monies in the amount of $15,000, arising from his down payment to purchase the property from Defendants Albert Louis ("Louis") and Claudine Belony ("Belony"), plus the value of improvements that he made to the Property ("Count Four"); and treble damages against Bapteau arising out of Bapteau's wrongful eviction of the Plaintiff ("Count Five").
The Plaintiff moves for summary judgment against Bapteau on Counts One, Three, and Four of the Complaint under Federal Rule of Civil Procedure 56, as incorporated by Bankruptcy Rule 7056; and for default judgment against Louis, Belony, Milthy Gomez ("Gomez"), and Angela Pisciotta ("Pisciotta") on all Counts under Federal Rule of Civil Procedure 55, as incorporated by Bankruptcy Rule 7055 (the "Motion").
Bapteau opposes the Motion and moves for summary judgment against the Plaintiff under Federal Rule of Civil Procedure 56, as incorporated by Bankruptcy Rule 7056. Bapteau also moves for relief from the automatic stay, or in the alternative, for adequate protection, under 11 U.S.C. § 362. Louis, Belony, Gomez, and Pisciotta have not appeared in this matter, responded to the Complaint, or opposed the Motion.
The matter came before the Court on November 30, 2004, at which counsel for the Plaintiff and counsel for Bapteau appeared and were heard (the "November 30 Hearing"). After consideration of the submissions, the arguments of counsel, and the record before the Court, for the reasons set forth below, the Plaintiff's Motion for summary judgment against Bapteau on Counts One, Three, and Four is granted in part; the Plaintiff's Motion for a default judgment against Gomez, Louis, Belony, and Pisciotta is granted in part; Bapteau's cross-motion for summary judgment is denied; and Bapteau's motion for relief from the automatic stay is granted in part.
This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 1334(b) and 157(b)(2). The following constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52, as incorporated by Bankruptcy Rule 7052.
On December 4, 2003 (the "Petition Date"), the Plaintiff filed a voluntary petition for relief under Chapter 13 of Title 11 of the United States Code (the "Bankruptcy Code"). On January 20, 2004, the Plaintiff filed the Complaint against Defendants Louis, Belony, Bapteau, Gomez, and Pisciotta (the "Defendants"). On March 10, 2004, Bapteau filed an answer to the Complaint (the "Answer") and counterclaim (the "Counterclaim") for his attorneys' fees, costs, and expenses. On March 16, 2004, the Plaintiff filed a Reply to the Counterclaim.
On July 22, 2004, the Plaintiff filed a Notice of Motion for Default Judgment against Louis, Belony, Gomez, and Pisciotta on all Counts of the Complaint and for Summary Judgment against Bapteau on Counts One, Three, and Four of the Complaint, a Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment ("Plaintiff's S.J. Br."), an Affidavit of Roberto Oligbo ("Oligbo Aff."), and Statement Pursuant to Rule 7056-1 ( ).
On September 2, 2004, Bapteau filed a Cross Motion for Summary Judgment (the "Cross Motion"); Defendant's Memorandum of Law in Support of Defendant's Opposition to Plaintiff's Motion for Partial Summary Judgment ("Bapteau's Opp. Br."); Defendant's Statement of Material Facts as to Which There Is No Genuine Dispute ("Undisputed Facts Stmt."); Defendant's Statement of Material Facts Genuinely in Dispute ("Disputed Facts Stmt."); Affidavit of Angela Pisciotta in Support of Defendant's Cross-Motion for Summary Judgment Motion, Relief from the Automatic Stay and Adequate Protection ("Pisciotta Aff."); Motion for Relief from the Automatic Stay, or in the Alternative, for Adequate Protection against the Plaintiff (the "Lift Stay Motion"), and Defendant's Memorandum of Law in Support of Defendant's Cross-Motion for Summary Judgment, Relief from Automatic Stay, Adequate Protection ("Bapteau's Lift Stay Br.").
On October 13, 2004, the Plaintiff filed a Reply Memorandum ("Plaintiff's Reply Mem.") and Reply Affidavit of Roberto Oligbo ("Oligbo Reply Aff.").
The Plaintiff is the Debtor in this bankruptcy case. Gomez is the Plaintiff's former spouse. Louis and Belony entered into a contract to sell the Property to the Plaintiff and Gomez in October 1999, and owned the Property until it was sold at a foreclosure sale on December 5, 2003 (the "Foreclosure Sale"). Bapteau acquired a mortgage on the Property from Greenpoint Bank ("Greenpoint") before the Foreclosure Sale, purchased the Property at the Foreclosure Sale, and holds legal title to the Property. Pisciotta is a rental tenant in a second-floor apartment at the Property.
The following facts are undisputed except where indicated otherwise. The Plaintiff occupied the Property under a written lease (the "Lease") with Louis from January 1, 1996, to December 31, 1999. After that date, the Plaintiff continued to occupy the Property as a month-to-month tenant. The parties dispute whether the Plaintiff occupied the Property on a continuous basis. Oligbo Aff. ¶ 5 and Exh. A (Lease); Disputed Facts Stmt. ¶ 1. Louis and Belony held legal title to the Property from January 1996 until December 2003. Complaint ¶¶ 3, 4.
The Lease provides for a term of January 1, 1996, to December 31, 1999, and monthly rent of $1,000. Oligbo Aff., Exh. A (Lease). The Lease also refers to a Lease Rider dated January 1, 1996, and signed by Louis as landlord and the Plaintiff as tenant (the "Lease Rider"). Oligbo Aff., Exh. A (Lease Rider). The Lease Rider provides that "[t]he Landlord has authorized Roberto Oligbo to be Care-taker of the house at 122-14 135 Avenue, Jamaica, N.Y. 11420," and that he will collect the monthly rent from Pisciotta. Id. The Lease Rider also states that the Plaintiff will "take over the mortgage payment" and that "every rent paid goes towards his mortgage after the deed Transfer." Id. The Lease Rider further states that in the absence of Louis, Belony will be authorized "to sign all documents concerning the sale or deed Transfer." Oligbo Aff., Exh. A (Lease Rider).
In July 2002, the mortgage on the Property held by Greenpoint went into default. Complaint ¶ 17; Oligbo Aff. ¶ 14. On December 3, 2002, Greenpoint commenced a foreclosure action by filing a Summons and Complaint in New York Supreme Court, Queens County. Complaint ¶ 18; Oligbo Aff. ¶ 17. On September 5, 2003, a Judgment of Foreclosure and Sale was entered in the Supreme Court action. Complaint ¶ 19; Oligbo Aff. ¶ 20 and Exh. H (New York Supreme Court, Queens County Judgment of Foreclosure and Sale). In November 2003, the Plaintiff learned through a letter from Greenpoint to Louis and Belony dated October 31, 2003, that Bapteau had acquired the mortgage from Greenpoint pursuant to a transfer agreement. Oligbo Aff. ¶ 19 and Exh. G-2 (assignment of mortgage from Greenpoint to Bapteau). As assignee of the mortgage, Bapteau conducted the Foreclosure Sale on December 5, 2003, and was the successful bidder with a bid of $350,000. Complaint ¶ 20; Oligbo Aff. ¶ 22 and Exh. G-2 (assignment of mortgage from Greenpoint to Bapteau); November 30, 2004, Hearing Record, Transcript ("Tr.") at 35. At the time of the Foreclosure Sale, the balance due on the mortgage was approximately $175,000. Complaint ¶ 21; Oligbo Aff. ¶ 23. Bapteau, as the successful bidder, the mortgagor, and the holder of the mortgage by assignment, forgave the difference between the mortgage and the $350,000 bid. November 30, 2004, Hearing Record, Tr. at 35.
The parties dispute whether the Plaintiff has occupied the Property continuously after December 31, 1999. Undisputed Facts Stmt. ¶¶ 6, 13; Disputed Facts Stmt. ¶¶ 1, 29; Pisciotta Aff. ¶ 7; Complaint ¶ 10; Oligbo Reply Aff. (I — Reply to...
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