UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of
Chapter 7
CONNIE ROSE DELOSA Case No. 01-83801-288
COMPLAINT
Debtor.
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KENNETH KIRSCHENBAUM, Trustee
for the Estate of CONNIE ROSE DELOSA,
Plaintiff, Adv. Pro. No.
-against-
WELLS FARGO HOME MORTGAGE, INC. AND
ROBERT DELOSA,
Defendants.
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Plaintiff, by his attorneys, KIRSCHENBAUM & KIRSCHENBAUM, P.C., as and
for his complaint herein alleges:
THE PARTIES
1. Plaintiff is the duly appointed, qualified, and acting Chapter 7
trustee of the estate of the above-named debtor.
2. Defendant WELLS FARGO HOME MORTGAGE, INC., (HEREINAFTER "WELLS FARGO")
was, and upon information and belief, still is a corporation doing
business in New York.
3. That at all times hereinafter mentioned defendant ROBERT DELOSA did,
and upon information and belief, still does, reside at 27 Tulip Avenue,
Hampton Bays, New York 11946, and is the husband of the debtor.
JURISDICTION AND VENUE
5. This Court has jurisdiction over this matter pursuant
to 28 U.S.C. Section 1334.
6. This is a core proceeding under 28 U.S.C. Section 157
(b)(2)(A), and (b)(2)(K).
7. Pursuant to 28 U.S.C. Section 1409, this is the proper venue for this
adversary proceeding.
8. The statutory predicates for the relief sought herein are Rule 7001(2)
of the Federal Rules of Bankruptcy, 28 U.S.C. Section 2201, Rule 57 of
the Federal Rules Of Civil Procedure made applicable through Rule 9029 of
the Federal Rules of Bankruptcy Procedure and 11 U.S.C. Sections 363(b)
and (h) to sell both the estate’s interest under 11 U.S.C. Section
363(b) and the interest of the co-owner in real property located in the
County of Suffolk, Section 298, Block 1, Lot 43.004, commonly known as 27
Tulip Avenue, Hampton Bays, New York 11946.
GENERAL ALLEGATIONS
9. CONNIE ROSE DELOSA (hereinafter the "Debtor") filed a voluntary
Chapter 7 bankruptcy petition on May 9, 2001, under case number
01-83801-288, (hereinafter "the petition").
10. This adversary proceeding arises out of and relates to the Chapter 7
case of the debtor on the docket of this court.
11. On March 13, 1997, the debtor’s husband conveyed his 100%
interest in real property commonly known as 27 Tulip Avenue, Hampton
Bays, New York, 11946 (hereinafter "the property") by bargain and sale
deed (hereinafter "the deed") to himself and the debtor to hold jointly
as tenants by the entirety.
12. On March 26, 1997, the deed was duly recorded in the Suffolk County
Clerk’s Office at 12:03 p.m.
13. On March 13, 1997, defendant ROBERT DELOSA executed a mortgage note
obligating him to pay the sum of $122,500.00 to NORWEST MORTGAGE OF NEW
YORK (hereinafter "NORWEST").
14. As security for the debt, defendant ROBERT DELOSA executed a mortgage
also dated March 13, 1997, covering the Hampton Bays property.
15. The note and mortgage to NORWEST were not executed by the debtor.
16. On March 26, 1997, the mortgage was duly recorded in the Suffolk
County Clerk’s Office at 12:03p.m.
17. On June 28, 2000, Norwest assigned to defendant WELLS FARGO, all its
right, title and interest in and to the mortgage executed by the
debtor’s husband on March 13, 1997.
AS AND FOR A FIRST CAUSE OF ACTION PURSUANT TO 28 U.S.C. SECTION 157(k) &
28 U.S.C. SECTION 2201 FOR A DECLARATORY JUDGMENT DETERMINING THAT THE
NORWEST MORTGAGE DID NOT ATTACH TO THE DEBTOR’S INTEREST IN THE
PROPERTY AND THAT THE TRUSTEE’S INTEREST IN THE PROPERTY IS FREE
AND CLEAR OF THE WELLS FARGO LIEN.
18. Upon information and belief, at the time defendant ROBERT DELOSA
executed and delivered the deed conveying an interest in the Hampton Bays
property to the debtor, the NORWEST mortgage had not been recorded and
did not encumber the property. 19. The NORWEST mortgage was not recorded
prior to the date and time that the deed conveying an interest in the
property to the debtor was recorded.
20. Defendant ROBERT DELOSA tendered an interest in the Hampton Bays
property to the debtor free and clear of the NORWEST lien.
21. Upon information and belief, the NORWEST lien did not attach to the
debtor’s interest in the property.
22. Upon the filing of the debtor’s petition, the debtor’s
interest in the property vested in the trustee.
23. By virtue of the foregoing, the trustee’s interest in the
property should be declared free and clear of the mortgage lien currently
held by defendant WELLS FARGO.
AS AND FOR A SECOND CAUSE OF ACTION
PURSUANT TO 11 U.S.C. SECTION 363(h)
24. Upon information and belief, the property, if sold in its entirety,
has a value of approximately $180,000.00.
25. Upon information and belief, the sale of the estate’s interest
as a co-owner of the property would realize significantly less for the
estate than the sale of the property free and clear of the interest of
the defendant ROBERT DELOSA.
26. The benefit to the estate from the sale of the property free and
clear of the interest of the co-owner outweighs the detriment, if any, to
the defendant DELOSA.
27. Any partition in kind of the property between the estate and
defendant DELOSA is impracticable.
28. The property is not being used in the production, transmission or
distribution of electric energy or of natural synthetic gas for heat,
light or power.
29. By virtue of the foregoing, the plaintiff should be authorized to
sell the subject property free and clear of the interests of defendant
ROBERT DELOSA pursuant to 11 U.S.C. Section 363(h).
AS AND FOR A THIRD CAUSE OF ACTION FOR A DECLARATORY JUDGMENT ENTITLING
THE ESTATE TO A 50% INTEREST IN THE GROSS PROCEEDS FROM SALE OF THE
PROPERTY
30. As of March 13, 1997, the property was held jointly by the debtor and
her husband as tenants by the entirety.
31. Upon a sale of the subject real property, the estate should receive
one-half of the gross proceeds of sale of the real property.
WHEREFORE, Plaintiff prays that this Court grant judgment for the
plaintiff; (a) on the first cause of action declaring the trustee’s
interest in the Hampton Bays property to be free and clear of the WELLS
FARGO lien; (b) on the second cause of action authorizing the sale of the
property free and clear of the interests of the defendant ROBERT DELOSA
pursuant to 11 U.S.C. Section 363; (c) on the third cause of action
granting the estate a 50% interest in the gross proceeds of sale of the
subject real property; and (d) such other and further relief as this
Court deems just and proper, including costs and attorneys fees.
Dated: Garden City, New York
November 15, 2001
KIRSCHENBAUM & KIRSCHENBAUM, P.C.
Attorneys for the Trustee
By:_________________________________ Steven Sheinwald, Esq (SS-6336) 200
Garden City Plaza
Garden City, New York 11530
(516) 747-6700