In the Matter of THOMAS POMILIO and STEPHANIE T. POMILIO, Debtors. THOMAS POMILIO and STEPHANIE T. POMILIO, Plaintiffs, -against- MERS, HOMEBRIDGE MORTGAGE BANKERS CORP. and EMC MORTGAGE CORPORATION, Defendants.

CHAPTER 7, Case No.  809-76399-reg, Adv. Proc. No.809-8493-reg
UNITED STATES  BANKRUPTCY COURT FOR THE EASTERN DISTRICT OFNEW YORK
425 B.R. 11; 2010 Bankr. LEXIS  503

February 23, 2010, Decided

COUNSEL:  For Thomas Pomilio, Debtor: Richard F Artura, Phillips, Weiner, Artura&  Cox, Lindenhurst, NY.
For Stephanie T. Pomilio, Joint Debtor: Richard F  Artura, Phillips, Weiner,Artura & Cox, Lindenhurst, NY.
Trustee:  Kenneth Kirschenbaum, Kirschenbaum & Kirschenbaum, Garden City,  NY.
U.S. Trustee: Diana G. Adams, Office of the United States Trustee,  Long IslandFederal Courthouse, Central Islip, NY.
JUDGES: Robert E.  Grossman, United States Bankruptcy Judge.
OPINION BY: Robert E.  Grossman
OPINION

MEMORANDUM  DECISION
In this Chapter 7 case, Thomas and Stephanie  T. Pomilio (the "Debtors" or"Plaintiffs") seek judgment by default in their  adversary proceeding to "stripoff and avoid the second mortgage lien on  their residence (the "Property") under11 U.S.C. §§ 506(a) and (d)  (hereinafter references to title 11 of the UnitedStates Code will be  "Bankruptcy Code"). The defendants, MERS as nominee forHomebridge Mortgage  Bankers Corp. ("Homebridge") and EMC Mortgage Corp. asservicer for the  mortgagee (collectively, the "Defendants") have failed to filean answer or  respond to the Debtors' motion for default judgment. The Debtorsargue that  they are entitled to judgment by default because they have asserted avalid  cause of action in their complaint. According to the Debtors, §  506(d)confers standing upon a Chapter 7 debtor to avoid a validly perfected  juniormortgage lien where the lien of the first mortgage exceeds the value  of theunderlying collateral. For the reasons set forth below, the Court  denies theDebtors' motion and dismisses the  complaint.
Facts
On August 26, 2009 (the  "Petition Date"), the Debtors filed a petition forrelief under Chapter 13 of  the Bankruptcy Code. According to an appraisalobtained by the Debtors, the  Property had a value of $ 275,000 as of July 11,2009. The Property is  encumbered by a first mortgage lien held by America'sServicing Company with  a principal balance due in the amount of $ 302,103.00.The Property is also  encumbered by a validly perfected second mortgage lien heldby the Defendants  securing a note in the original principal amount of $78,000.00 ("Second  Mortgage Lien"). On October 14, 2009, the Debtors filed thisadversary  proceeding seeking to reclassify any claim filed by the Defendants  asunsecured, and seeking to avoid the Second Mortgage Lien pursuant to 11  U.S.C.§§ 506 (a) and (d).
The complaint was served  on the Defendants and the deadline for theDefendants to file an answer or  otherwise respond to the complaint was fixed forNovember 16, 2009. An  initial pretrial conference for the adversary proceedingwas scheduled for  December 2, 2009. Prior to confirmation of the Debtors' plan,on November 30,  2009, the Debtors voluntarily converted their case to a caseunder Chapter 7,  and Kenneth Kirschenbaum, Esq. was appointed as the Chapter 7Trustee (the  "Trustee"). The pretrial conference in the adversary proceeding wasadjourned  to January 11, 2010.
The Defendants failed to timely  file an answer and failed to appear at thepretrial conference on January 11,  2010. At the pretrial conference, the Courtnoted the Defendants' default and  directed the Debtors to file a motion fordefault judgment against the  Defendants. On January 15, 2010, the Trustee fileda report of no assets in  the Debtors' case. On January 28, 2010, the Debtorsfiled a motion for  default judgment in the adversary proceeding, requesting thatthe Court grant  judgment in favor of the Debtors and against the Defendants. Asrequested by  the Court, the Debtors filed a memorandum of law in support oftheir motion  for default judgment. To date, the Defendants have not filed ananswer to the  complaint, nor have they filed a response to the Debtors' motionfor default  judgment. Oral argument on the Debtors' motion was held on February22, 2010  and the matter was marked  submitted.
Discussion
The Debtors seek judgment  against the Defendants claiming that they areentitled to the relief  requested in their adversary proceeding, despite the factthat their case was  converted to Chapter 7 and they are no longer proposing aplan to repay their  creditors under Chapter 13. According to the Debtors, theyhave standing as  Chapter 7 debtors to maintain this avoidance action because thelanguage in §  506(d) concerning lien avoidance is not limited only to propertywhich  constitute property of the estate. Therefore, the Debtors argue that ifthe  property in question is abandoned by the Chapter 7 trustee and no  longerconstitutes property of the estate, a Chapter 7 debtor may seek  avoidance of alien secured by the debtor's real property under this section.  The Debtors alsoargue that in the seminal case Dewsnup v. Timm, 502 U.S.  410, 112 S. Ct. 773,116 L. Ed.2d 903 (1992), the Supreme Court did not  specifically find that aChapter 7 debtor lacks standing to avoid a mortgage  lien, and therefore theDebtors may continue with this adversary proceeding  notwithstanding theconversion of their case from Chapter 13 to Chapter 7. In  support of theirargument the Debtors rely on Bankruptcy Code § 522(f), which  confers standingupon a Chapter 7 debtor to avoid a non-consensual lien that  impairs the debtor'shomestead exemption, as evidence that Chapter 7 debtors  have standing in generalto affect liens on their real  property.
The Debtors assert that they are entitled to  the relief requested in theircomplaint as a matter of law. According to the  Debtors, the Supreme Court'sdecision in Dewsnup was narrowly written and is  not applicable to the issuesraised in this adversary proceeding. The Debtors  assert that Dewsnup must beread narrowly to apply only to a debtor who seeks  to "strip down" a primarymortgage lien encumbering the debtor's real  property and does not bar the reliefsought by the Debtors in this adversary  proceeding which is to "strip off" awholly unsecured junior lien. The  Debtors rely heavily on a recent decision Inre Lavelle, No. 09-72389-478,  2009 Bankr. LEXIS 3811, 2009 WL 4043089 (Bankr.E.D.N.Y. Nov. 19, 2009), by  Judge Dorothy Eisenberg in which she granted asimilar request for relief by  Chapter 7 debtors.
Analysis
Before judgment by  default may be granted, the Court must determine whetherthe Debtors'  complaint states a proper cause of action. In In re DrexlerAssociates, 57  B.R. 312 (Bankr. S.D.N.Y. 1986), the Bankruptcy Court for theSouthern  District of New York enunciated the standard in this Circuit forevaluating  an unopposed motion for default judgment: "Upon a default, the  courtgenerally must take the well-pleaded allegations of a complaint as  true." Id.(citing Fed. R. Civ. P. 55(a) and (b); Fed. R. Bankr. P. 7055 and  9014; TransWorld Airlines, Inc. v. Hughes, 449 F.2d 51, 63-64 (2d Cir.  1971), reversed onother grounds, 409 U.S. 363, 93 S. Ct. 647, 34 L. Ed.2d  577 (1973)). "However,the court is not required to accept the legal  conclusions and need not agreethat the alleged facts constitute a valid  cause of action." Id. (citing Au BonPain Corp. v. Artect, Inc., 653 F.2d 61,  65 (2d Cir. 1981); 10 Alan Wright, etal., Federal Practice and Procedure §  2688 (2d ed.). "This court is thereforenot be required [sic] to accept what  is essentially a legal conclusion [setforth in the complaint]." Id.  (citation omitted).
The relief sought by the Debtors in  this adversary proceeding is based on thetheory that a Chapter 7 debtor has  the standing to avoid a junior mortgagepursuant to Bankruptcy Code §§ 506(a)  and (d), and therefore avoidance of theDefendants' second mortgage is  permitted as a matter of law and is warranted inthis case. The Court finds  it is appropriate to test whether the Debtors'complaint states a valid cause  of action. The Court concludes that it does not.
The  Court's analysis begins with Bankruptcy Code §§ 506(a) and (d), uponwhich  sections the Debtors rely and which the Court agrees govern the issuesraised  in this adversary proceeding.
Bankruptcy Code §  506(a)(1) provides in pertinent part:

An allowed claim of a creditor secured by a lien on property  inwhich the estate has an interest, or that is subject  to setoff undersection 553 of this title, is a secured  claim to the extent of thevalue of such creditor's  interest in the estate's interest in suchproperty, or to  the extent of the amount subject to setoff, as thecase  may be, and is an unsecured claim to the extent that the value ofsuch creditor's interest or the amount so subject to setoff is  lessthan the amount of such allowed claim. Such value  shall be determinedin light of the purpose of the  valuation and of the proposeddisposition or use of such  property, and in conjunction with anyhearing on such  disposition or use or on a plan affecting suchcreditor's  interest.

11 U.S.C. § 506(a)(1).
Bankruptcy  Code § 506(d) provides

To the  extent that a lien secures a claim against the debtor thatis not an allowed secured claim, such lien is void, unless--(I)  suchclaim was disallowed only under section 502(b)(5) or  502(e) of thistitle; or (2) such claim is not an allowed  secured claim due only tothe failure of any entity to  file a proof of such claim under section501 of this  title.

11 U.S.C. § 506(d).
The Supreme Court  analyzed these two provisions in depth in Dewsnup. TheSupreme Court was  called on to resolve a conflict between the Circuit Courtsover whether a  Chapter 7 debtor could, based on the fair market value of realproperty,  "strip down" the secured creditor's partially secured lien by reducingthe  amount of the debt to the "secured" portion of the lien and voiding the  liento the extent the lien exceeded the value of the  property.
The Supreme Court's ruling turned on the  meaning of the words "allowedsecured claim" contained in Bankruptcy Code §  506(d). Did it mean, as urged bythe debtors, that if a claim secured by a  lien on property exceeded the value ofthe property, the unsecured portion of  the claim was not an "allowed securedclaim" and therefore the corresponding  lien could be avoided; or did it meanthat so long as a claim secured by a  lien on property was not disallowed as theresult of a claims objection  procedure, the corresponding lien could not  beavoided?
The Supreme Court considered several  arguments raised by both sides ininterpreting these sections, including the  debtor's argument that BankruptcyCode "§ 506(a) bifurcates classes of claims  allowed under § 502 into securedclaims and unsecured claims; any portion of  an allowed claim deemed to beunsecured under § 506(a) is not an 'allowed  secured claim' within thelien-voiding scope of § 506(d)." Dewsnup, 502 U.S.  at 414-15. Under this theory.Bankruptcy Code § 506(a) acts as the mechanism  by which a claim secured by alien could be bifurcated into a secured and  unsecured claim. The debtors alsoargued in Dewsnup that the result was not  affected by whether the property hadbeen abandoned by the Chapter 7 trustee  and therefore was no longer property ofthe debtor's estate. The creditor  argued that "§ 506(a) performs the function ofclassifying claims by true  secured status at the time of distribution of theestate to ensure fairness  to unsecured claimants. In contrast, the lien-voiding§ 506(d) is directed to  the time at which foreclosure is to take place, and,where the trustee has  abandoned the property, no bankruptcy distributionalpurpose is served by  voiding the lien." Id. at 415. The creditor advancedanother argument,  supported by the United States as amicus curiae, that so longas the claim  had been allowed pursuant to § 502 and was secured by a lien withrecourse to  the underlying collateral, it could not come within the scope of §506(d).  Id. According to the creditor and the United States, this interpretationof §  506(d) which requires a determination as to whether the claim is otherwisean  allowable claim "ensures that the Code's determination not to allow  theunderlying claim against the debtor personally is given full effect  bypreventing its assertion against the debtor's property." Id. at 416. They  arguedthat § 506(d) cannot be used on a stand alone basis to confer standing  to avoida lien that secures a valid claim. See id. at  415-17.
The Supreme Court agreed with the secured  creditor and the United States, andheld that "§ 506(d) does not allow the  [debtor] to 'strip down' [the creditor's]lien, because [the creditor's]  claim is secured by a lien and has been fullyallowed pursuant to § 502."  Dewsnup, 502 U.S. at 417. 1 Under thisinterpretation, the words "allowed  secured claim" in § 506(d) are readterm-by-term to refer to a claim that is  first allowed under § 502, and securedin the sense that the claim is backed  up by a lien on the collateral, regardlessof the value of the collateral.  Id. at 416. The Supreme Court found support forthis interpretation in the  results of its ruling, which would provide that anyincrease in the value of  the property would inure to the benefit of the securedcreditor. This was  what the parties had bargained for at the outset. Id. at 417.The Supreme  Court also noted that this interpretation comported with applicablelaw prior  to passage of the 1978 Bankruptcy Act whereby liens passed throughbankruptcy  unaffected. Id. at 417-18. The Supreme Court found no evidence thatCongress,  in passing the 1978 Bankruptcy Act, intended to grant to a debtor sucha  broad remedy against allowed claims such as to as to render them  "unsecured"without explicitly so providing in the Bankruptcy Code. Id. at  420.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -  -1   Pursuantto Bankruptcy Code § 502, a timely filed claim  is "allowed" if no party ininterest objects, or the bankruptcy court makes a  determination that the claimis valid, thereby overruling any objection made  by a party in interest. 11U.S.C. § 502.- - - - - - - - - - - - End  Footnotes- - - - - - - - - - - - - -
The Dewsnup Court  recognized that in a Chapter 7 case, '"a bankruptcydischarge extinguishes  only one mode of enforcing a claim - namely, an actionagainst the debtor in  personam - while leaving intact another - namely, anaction against the  debtor in rem.'" Dewsnup, 502 U.S. at 418 (quoting Johnson v.Homestate Bank,  501 U.S. 78, 84, 111 S. Ct. 2150, 2154, 115 L. Ed.2d 66 (1991)).If the  debtor in Dewsnup was permitted to avoid the lien, the debtor would  beextinguishing the creditor's in rem rights against the property itself.  Such aresult would have been contrary to the purpose of Chapter 7, which is  to givethe debtor a fresh start, not an undue advantage. The Supreme Court's  ruling isconsistent with the policy that any increase in the value of the  propertypost-petition should be preserved for the benefit of the creditor,  whichbargained for the mortgage. See id. at  417-18.
The Debtors argue that standing is a  "non-issue" because (i) the SupremeCourt in Dewsnup did not find that the  debtor lacked standing to avoid the lien,(ii) Chapter 7 debtors have  standing to affect non-consensual liens againsttheir property under §  522(f), and therefore debtors must have standing ingeneral to affect liens  against their property, and (iii) there is norequirement in the text of §  506(d) that the property sought to be affected mustbe "property in which the  estate has an interest." Presumably, the thirdargument is based on the fact  that this section speaks in terms of avoidingliens which secure claims  against the debtor, and not liens against property ofthe debtor's estate.  However, the Debtors miss the point. The question is notwhether the Debtors  have standing to avoid the Defendant's lien under § 506(d),but whether §  506(d) confers standing upon the Debtors, or any party, to avoidsuch a lien.  2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -  -2   ThisCourt makes no determination regarding the rights a  Chapter 7 trustee may haveunder the Bankruptcy Code, which issue is not  before this Court.- - - - - - - - - - - - End Footnotes- - - - - - - - - - -  - - -
In Dewsnup, the Supreme Court specifically  recognized that § 506(d) servesthe "function of voiding a lien whenever a  claim secured by the lien itself hasnot been allowed." Dewsnup, 502 U.S. at  415-16. This function cannot occurunless and until a secured claim is  disallowed. The Supreme Court pointed to §502 as the operative section under  which a court determines whether a claim isdisallowed. Dewsnup, 502 U.S. at  417 ("[W]e hold that § 506(d) does not allowpetitioner to "strip down"  respondent's lien, because respondents' claim issecured by a lien and has  been fully allowed pursuant to § 502.") (emphasisadded). The Debtors claim  that § 506(d) acts as a source of power for thedisallowance of the claim,  but this argument was impliedly rejected by theSupreme Court in Dewsnup. See  id. at 415-17; Laskin v. First Nat 7 Bank ofKeystone (In re Laskin), 222  B.R.872, 875-76 (B.A.P. 9th Cir. 1998). Courts haveconcluded that based on  the Supreme Court's analysis in Dewsnup, § 506(d) doesnot provide a  mechanism to "disallow" a claim. Rather, this section acts topermit the  avoidance of liens based on the disallowance of claims secured bysuch liens  during the bankruptcy process. Laskin, 222 B.R. at 875-76; Ryan  v.Homecomings Fin. Network, 253 F.3d 778, 783 (4th Cir. 2001); Talbert v.  CityMortgage Servs. (In re Talbert), 344 F.3d 555, 561 (6th Cir. 2003). The  SupremeCourt "implicitly adopted" the analysis that "§ 506(d) confers no  standing onanyone" to avoid a lien; it merely "'provides the avoidance  consequences ofimplementing a host of discrete powers conferred in other  parts of the Coderather than acting as an avoiding power per se.'" Laskin,  222 B.R. at 875 (quoting Oregon v. Lange, 120 B.R. 132, 135 (B.A.P. 9th Cir.  1990)). Other courtsinterpreting Dewsnup in this context have reached the  same result. See Ryan, 253F.3d at 783 ("Section 506 was intended to  facilitate valuation and dispositionof property in the reorganization  chapters of the Code, not to confer avoidingpower on a Chapter 7 debtor.")  (quoting Laskin, 222 B.R. at 876; Talbert, 344F.3d at 561-62 (quoting  Laskin, 222 B.R. at 876; and Ryan, 253 F.3d at 783; forthe same  proposition); In re Cunningham, 246 B.R. 241, 247 (Bankr. D. Md.  2000)(quoting Laskin for the same proposition); and In re Virello, 236 B.R.  199(Bankr. D.S.C. 1999) (Dewsnup stands for the proposition that § 506(d)  does notconfer upon a Chapter 7 debtor the power to strip down  liens.).
The Debtors' second argument, which relies on  the avoidance powers containedin § 522(f) as evidence that Chapter 7 debtors  have standing in general to avoidliens, also fails to provide a basis for  standing in this case. Section 522(f)specifically confers upon Chapter 7  debtors the authority to avoid certain liensas follows: "[T]he debtor may  avoid the fixing of a lien on an interest of thedebtor in property to the  extent that such lien impairs an exemption to whichthe debtor would have  been entitled under subsection (b) of this section ...."11 U.S.C. § 522(f)  (emphasis added). The standing conferred upon Chapter 7debtors is limited to  avoidance of non-consensual liens which impair thedebtor's applicable  exemption, and does not apply to mortgage liens. The Debtorsfail to explain  how this statute compels a finding that Chapter 7 debtors havestanding in  general to avoid a lien for any other purpose, In fact, theBankruptcy Code  grants to Chapter 7 debtors certain specific powers, such as thepower to  avoid certain liens under § 522(f) and the power to redeem personalproperty  under § 722. However, the Court cannot extrapolate from these statutesa  general right by a Chapter 7 debtor to avoid liens.
The  Debtors' third argument appears to be based on the premise that whetheror  not the property which is subject to the lien has been abandoned by  theTrustee, the Debtors have standing to bring this action. The Debtors draw  thisconclusion because there is no requirement in the text of § 506(d) that  theproperty be "property of the estate." This argument does not provide a  basis forconcluding that the Debtors have standing to bring this action  because § 506(d)does not even address the type of property at issue. Rather,  this section turnson whether claims against the debtor have been allowed or  disallowed. Withoutthe occurrence of a prior allowance process, a lien  cannot be avoided under thissection. 3
- - - - - - - - - - - - - -  Footnotes - - - - - - - - - - - - - - -3   TheDebtors are  correct that the Dewsnup Court did not rule on whether abandonmentof the  property by the Chapter 7 trustee affected the debtor's right or standingto  avoid a lien on such property. The issue regarding standing does not turn  onwhether the property is "'property of the estate" or whether it has  beenabandoned, but turns on whether § 506(d) gives a Chapter 7 debtor the  right orstanding to avoid a lien on the debtor's property.- - - - - - -  - - - - - End Footnotes- - - - - - - - - - - - - -
The  Court is aware that in the Lavelle decision, Judge Eisenberg  recentlyconcluded that based on a plain reading of § 506, the rationale of  Dewsnupshould not be extended to bar a Chapter 7 debtor from seeking to  avoid a juniormortgage lien where the value of a first priority lien  exceeded the value of thereal property. Lavelle distinguishes Dewsnup by  concluding that there is nospecific language in the decision which prevents  the Court from finding that ina case under Chapter 7 a wholly unsecured  junior lien can be "stripped off."While this is a well reasoned argument  which finds support in a number ofscholarly articles discussing Dewsnup,  this Court is nevertheless persuaded thatit is constrained to apply Dewsnup  to the facts of the case before this Court.The Fourth and Sixth Circuits and  the Ninth Circuit Bankruptcy Appellate Panelagree that Dewsnup applies to  bar a Chapter 7 debtor from avoiding an allowed,secured mortgage lien  against the debtor's property, whether the mortgage lienis partially secured  or wholly unsecured. Talbert, 344 F.3d at 555-56; Ryan, 253F.3d at 779;  Laskin, 222 B.R. at 875-76. In each of these cases, the issuebefore the  court was whether the reasoning of the Supreme Court in Dewsnupextended to  bar a Chapter 7 debtor from avoiding a junior lien holder's claimsolely on  the basis that it is wholly unsecured. According to the FourthCircuit,  "[f]ollowing the Supreme Court's teachings in Dewsnup, as we must, wediscern  no principled distinction to be made between the case sub judice andthat  decided in Dewsnup. The Court's reasoning in Dewsnup is equally relevantand  convincing in a case like ours where a debtor attempts to strip off,  ratherthan merely strip down, an approved but unsecured lien." Ryan, 253  F.3d at 782.As recognized by the Ninth Circuit Bankruptcy Appellate Panel in  Laskin, thereasons cited by the Supreme Court for its holding in Dewsnup,  that liens passthrough bankruptcy unaffected, and that the bargained-for  consensual liengranted by the mortgagor to the mortgagee contemplated that  the mortgagee's lienstays with the property until its disposition at  foreclosure or sale, should notchange based on the value of the collateral  in relation to the debt. Laskin, 222B.R. at 876. In Talbert, the Sixth  Circuit concluded that under the reasoning ofDewsnup, if a claim is not  disallowed under § 502 and is secured by a validjunior lien, then the debtor  may not utilize §§ 506(a) and (d) to avoid thejunior lien, regardless of  whether the amount of the senior lien exceeds thevalue of the property.  Talbert, 344 F.3d at 561.
These same courts have  concluded that Dewsnup does not apply toreorganization chapters which have  claims allowance processes, In Chapter 13, adebtor may propose a plan which  pursuant to § 1322(b)(2) modifies "the rights ofholders of secured claims,  other than a claim secured only by a securityinterest in real property that  is the debtor's principal residence ...." 11U.S.C. § 1322(b)(2). "Secured"  in § 1322(b)(2) is defined by § 506(a), while"secured" in § 506(d) is not.  Laskin, 222 B.R. at 875. Furthermore, §1325(a)(5)(B)(ii) requires that  claims be determined in the confirmationprocess, which does not exist in a  Chapter 7 case. The court in Laskin alsorefused to apply Chapter 13 case law  regarding lien "strip-off" to a Chapter 7case because "[t]hose authorities  do not support the free-standing lienavoidance sought [by the Chapter 7  debtor]." Laskin, 222 B.R. at 875. In Chapter11 cases, § 1123(b)(5) permits  a plan proponent to "modify the rights of holdersof secured claims, other  than a claim secured only by a security interest inreal property that is the  debtor's principal residence ...." In addition, §1129(b) contemplates the  modification of lien rights of secured creditors in thecontext of  confirmation of a Chapter 11 plan. There is no such similar rightfound in  Chapter 7 because Chapter 7 is not a reorganization chapter. As thereis no  need to undergo a claims allowance process for the purposes of proposingand  confirming a plan which pays creditors, there is no corresponding right fora  Chapter 7 debtor to avoid liens. See Talbert, 344 F.3d at 561-62 (The  purposeof § 506 is to provide a mechanism for valuation and disposition of  property inthe reorganization chapters, not for use by a Chapter 7 debtor).  This Courtfinds the reasoning of each of these cases to be persuasive. The  holding ofDewsnup applies to the facts of this case and bars the Debtors  from obtainingthe relief they seek in this adversary  proceeding.
Conclusion
For the reasons set forth  above, the Debtors' motion is denied and theadversary proceeding shall be  dismissed. An order consistent with thisMemorandum Decision shall be entered  forthwith.
Dated: Central Islip, New  York
February 23, 2010
By: /s/  Robert E. Grossman
Robert E.  Grossman
United States Bankruptcy Judge