Lombardo v. Gerard

• Decision Date: 03 August 1992
• Docket Number: No. 91-P-67,91-P-67
• Citation: 592 N.E.2d 1333,32 Mass.App.Ct. 589
• Parties: Lorraine LOMBARDO v. Melvin GERARD et al. 1
• Court: Appeals Court of Massachusetts

Page 1333

592 N.E.2d 1333

32 Mass.App.Ct. 589

Lorraine LOMBARDO v. Melvin GERARD et al. ¹

No. 91-P-67.

Appeals Court of Massachusetts,

Middlesex.

Argued Feb. 21, 1992.

Decided May 27, 1992.

Further Appellate Review Denied Aug. 3, 1992.

John W. Burt, Braintree, for defendants.

Frank J. Ciano, Cambridge, for plaintiff.

Before PERRETTA, FINE and GILLERMAN, JJ.

GILLERMAN, Justice.

A judge of the Probate Court, following a trial of a complaint for declaratory judgment, permanently enjoined the defendants as holders, by assignment, of a duly recorded mortgage ² granted by the owner of the fee (Jason Lombardo) from proceeding with the foreclosure of the mortgage. The mortgage covered property (the locus) which was the marital home of the plaintiff, her husband, Jason, and their two children. We affirm the judgment. ³

1. The facts. The judge made comprehensive findings and rulings based upon undisputed facts. The controversy involved proceedings by various parties in the Bankruptcy Court, the Probate Court and the Land Court over a period of five years. A detailed statement of the chronological sequence of events, rulings, and judgments is required.

On December 6, 1984, Jason Lombardo, the plaintiff's husband, filed a petition for relief under chapter 13 of the Bankruptcy Code, 11 U.S.C. §§ 1301-1330 (1982), with the United States Bankruptcy Court for the District of Massachusetts. Approximately four months later (April 23, 1985), Maria Lombardo, Jason's mother, conveyed the locus, which is located partly in Middlesex county and partly in Suffolk county, to Jason. The locus then became part of the bankruptcy estate. 11 U.S.C. § 1306(a)(1). On January 7, 1986, the bankruptcy judge entered an order confirming Jason's plan for the payment of his creditors, see 11 U.S.C. §§ 1321-1325, ⁴ and on August 4, 1986, Jason borrowed $25,000 from Capitol Bank and Trust Company and granted a mortgage covering the locus to secure the debt.

Domestic difficulties, meanwhile, were developing between the plaintiff and her husband. On June 18, 1987, the plaintiff filed a complaint against her husband under the provisions of G.L. c. 209A, alleging that Jason, on or about June 12, 1987, had physically abused her. Jason was ordered to vacate the marital home. Shortly thereafter, the plaintiff learned that Jason was about to mortgage the marital home without her consent, in consequence of which the plaintiff, on June 23, 1987, filed a complaint for separate support, ⁵ see G.L. c. 209, § 32, which prayed for the conveyance of the locus to her, together with a motion for leave to file a lis pendens, which recited that she claimed an interest in the locus. See G.L. c. 184, § 15 (a lis pendens may be available ⁶ if the pending proceedings affect the title to real property or "the use and occupation thereof"). After a hearing, the motion was allowed by a first Probate Court judge (the first judge), and the memorandum of lis pendens (which, inter alia, recited the pendency of the complaint brought by the plaintiff against Jason Lombardo in the Middlesex Probate Court), the motion, and the affidavit of service, were duly recorded in the Middlesex, but not the Suffolk, registry of deeds on June 24, 1987. The first judge made no written findings other than the allowance of the motion. See G.L. c. 184, § 15, second par.

The plaintiff's information proved to be correct. On June 26, 1987, with the approval of the Bankruptcy Court, Jason granted a mortgage (which is the subject of these proceedings) covering the locus and securing a note of $77,000. The mortgage was recorded on the same day, and funds of the mortgagee were advanced to Jason on June 30, 1987. Another Probate Court judge (the second judge) found that the plaintiff did not receive any part of these funds. The mortgage proceeds had been applied to discharge the prior mortgage to Capitol Bank and Trust Company, to pay $13,676.22, on account, to Jason's creditors, and to pay the balance of $42,274.57 to Jason.

Jason soon was in default of his obligations under the mortgage note, and on November 25, 1987, the mortgagee sought leave from the Bankruptcy Court to foreclose on the mortgage. On the same day and in the same court, after learning of Jason's bankruptcy proceedings, the plaintiff sought the Bankruptcy Court's approval of the lis pendens previously recorded. The bankruptcy judge declined to rule on either application; the second Probate judge found, on testimony before him, that the bankruptcy judge "deferred to the Probate Court." Arrangements were then made to pay the entire balance owed to Jason's bankruptcy creditors, and on March 23, 1988, an order of discharge of Jason was entered in the Bankruptcy Court. See 11 U.S.C. § 1328.

The controversy then returned to the Probate Court. On June 8, 1988, the first judge entered a final judgment on the plaintiff's separate support petition ordering, inter alia, Jason to convey the locus to the plaintiff. The judge relied on the provisions of G.L. c. 208, § 34, as the basis for his order. It is undisputed that that order was erroneous. ⁷ Nevertheless, Jason did not claim an appeal from this judgment.

The Land Court, on October 18, 1988, entered judgment against Jason and authorized the mortgagee, the defendants herein, to make an entry and sell the property covered by the mortgage. On November 14, 1988, the plaintiff recorded the judgment in the separate support proceeding in the Middlesex South District Registry of deeds which had the same effect as a duly recorded deed, see G.L. c. 183, §§ 43-44, and on the same day she filed a complaint for declaratory judgment against the defendants seeking to enjoin the foreclosure. The second judge preliminarily, and, after a full hearing, permanently enjoined the foreclosure. The defendants filed a timely claim of appeal.

2. Discussion. Relying upon Amonte v. Amonte, 17 Mass.App.Ct. 621, 461 N.E.2d 826 (1984), the defendants argue that the automatic stay provisions of the Bankruptcy Code, 11 U.S.C. § 362(a) (1982), prohibited the allowance and recording of the lis pendens. In order to consider that argument, we must first discuss whether the automatic stay provisions prohibited the filing of the separate support complaint.

First, Amonte v. Amonte, supra, has no bearing on the facts of this case. There, the wife's separate support proceedings were commenced two years before the husband's bankruptcy proceedings were filed. While the bankruptcy proceedings were pending, the wife obtained a judgment in the separate support proceedings ordering support payments and the conveyance of certain real estate by the husband to the wife. We held that while the automatic stay provisions of § 362(a)(1) apply to the financial and property settlement aspects of domestic proceedings, the exception provided by 11 U.S.C. 362(b)(2) (1982) (collection of alimony and support payments ⁸) is not available unless the final judgment for alimony or support is entered before the filing of the bankruptcy petition. Id. at 625-626, 461 N.E.2d 826.

Here the issue is the scope of the automatic stay provisions, not the scope of the exception provided by § 362(b). Putting to one side, as we have said, the effect of the recording of the lis pendens, it is clear that the automatic stay provisions did not prohibit the commencement of the later filed separate support petition. Section 362(a)(1) applies to any proceeding against the debtor "that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title ..." (emphasis added). The plaintiff's separate support complaint was filed two and one-half years after the filing of Jason's bankruptcy petition, and there was no finding--nor could there be one on the facts of this case, see note 5, supra, and related text--that the separate support proceeding was based on a claim that arose before the commencement of the case. We conclude that § 362(a)(1) did not prohibit the commencement of the plaintiff's separate support proceeding. See Taylor v. First Fed. Sav. & Loan Assn., 843 F.2d 153, 154 (3d Cir.1988) ("the automatic stay is not intended to bar proceedings for post-petition claims that could not have been commenced before the petition was filed"); Holland America Ins. Co. v. Succession of Roy, 777 F.2d 992, 996 (5th Cir.1985) ("the stay simply does not apply to post-bankruptcy events"); Turner Bdcst. Sys., Inc. v. Sanyo Elec., Inc., 33 B.R. 996, 999-1000 (N.D.Ga.1983) ("the plain language of the statute, the legislative history, the purposes for which the statute was enacted, and strong policy reasons all warrant the conclusion that section 362[a]'s automatic stay does not apply to a case commenced after a bankruptcy petition is filed"). Contrast Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir.1988) (when the acts constituting the claim occur prior to the petition the claim is barred by § 362[a] ).

That the filing of the separate support complaint was permissible does not necessarily mean, however, that the recording of the lis pendens was permissible. As the court in Turner Bdcst. Sys., Inc. v. Sanyo Elec., Inc., supra, pointed out at 1000-1001 note 2, the automatic stay provisions of 11 U.S.C. § 362(a)(3) and (4), which we set out in the margin, ⁹ have the effect of precluding a post-petition creditor from attaching or executing on property of the estate without the Bankruptcy Court granting relief from the stay. See also Bellini Imports, Ltd. v. The Mason and Dixon Lines, 944 F.2d 199, 201 (4th Cir.1991) (relief from the automatic stay provisions of §§ 362[a] and is required to satisfy a judgment against property of the bankruptcy estate on a post-petition claim).

We need not pause on the question whether the recording of a lis pendens is an act to "obtain possession of property" or an act to "enforce any lien against property" within...