NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA2 s 0.23 for rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Second Circuit.
In re Shay LIBERMAN, Debtor,Shay LIBERMAN, Debtor-Appellant,v.Sanford WEINBERG, Trustee-Appellee,Citibank, N.A., Creditor-Appellee.
Sept. 14, 2000.
Appeal from the United States District Court for the Eastern District of New York, Arthur D. Spatt, Judge.
Shay Liberman, pro se.
Kenneth Kirschenbaum, Kirschenbaum & Kirschenbaum, P.C., Garden City, NY, for appellee.
Present CALABRESI, and SOTOMAYOR, Circuit Judges. [FN*]
FN* District Court Judge Trager of the Eastern District of New York, sitting by designation, was assigned to hear this appeal but recused himself before argument. Pursuant to this Court's Rule § 0.14, the appeal has accordingly been heard and decided by the remaining two judges of the panel, who constitute a quorum.
**1 UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and hereby is AFFIRMED.
Debtor-appellant Shay Liberman appeals the district court's affirmance of the bankruptcy court's orders in favor of the appellee, Ocwen Federal Bank ("Ocwen"), the successor in interest to Citibank, N.A. ("Citibank"). We affirm.
* * * * *
In 1998, Citibank commenced a foreclosure action against Liberman in New York State Supreme Court following hisdefault on a $150,000 mortgage. The court ruled in favor of Citibank and directed a foreclosure sale of Liberman's house, located in Suffolk County, New York. Liberman appealed to the Appellate Division, which affirmed in June 1999. See Citibank N.A. v. Liberman, 93 N.Y.2d 1041 (1999) (table).
In the meantime, Liberman filed a petition for a Chapter 13 reorganization to halt the foreclosure sale as well as a motion to vacate the lien held by Citibank under 11 U.S.C. § 522(f). Citibank opposed the motion and cross- moved to lift the automatic stay and for leave to proceed with the foreclosure sale. The bankruptcy court (Bernstein, Bankr.J.) orally denied Liberman's motion to vacate the lien, granted Citibank's motion, and dismissed the bankruptcy case. Before the court issued a written order, however, Citibank scheduled the foreclosure sale. Liberman responded by filing another Chapter 13 petition in bankruptcy court and seeking another stay of the sale. The bankruptcy court sua sponte issued an order to show cause why Liberman's two cases should not be dismissed and why he should not be prohibited from filing any new petitions for 180 days. After a hearing on the motion in February 1999, the bankruptcy judge dismissed both Chapter 13 petitions with prejudice and barred Liberman from filing another petition for 180 days. [FN1]
FN1. The bankruptcy court also ordered Liberman to show cause why he should not be sanctioned for an abuse of the bankruptcy process and Citibank to show cause why it should not be sanctioned for scheduling the foreclosure sale prior to entry and docketing of the order granting relief from the stay. The court sanctioned Liberman $900 but suspended collection on the condition that Liberman comply with the remainder of the order. The court does not appear to have sanctioned Citibank.
Liberman appealed to the district court (Spatt, J.), challenging the bankruptcy court's denial of his request to void the lien on his house under § 522(f), and moving the district court to stay the sale of his house. The district court granted a temporary stay until May 4, 1999, on the condition that Liberman pay three weeks worth of rent to Ocwen Federal Bank, the assignee of Citibank's mortgage, but later denied Liberman's motion.
After a thorough analysis, the court concluded that Lieberman was not entitled to void the lien on his house. Section 522(f), which allows a debtor to exempt certain real property of up to $10,000 from judgments and liens, does not apply when the judgment or lien results from a mortgage lender's foreclosure on the mortgage. Accordingly, the district court affirmed the bankruptcy court's order and entered judgment on February 2, 2000. On April 12, 2000 the house was sold to Ocwen, leaving a deficiency balance of $5,176.54.
On appeal to this court, Liberman challenges (1) the district court's affirmance of the bankruptcy court's denial of Liberman's request to void the lien under § 522(f) and (2) the district court's affirmance of the bankruptcy court's dismissal of his Chapter 13 petitions. We affirm the denial of Liberman's request to void his lien under § 522(f) based on the carefully reasoned opinion of the district court. And, as Liberman no longer retains any ownership interest in the property, we affirm the dismissal of his Chapter 13 proceedings as moot.
**2 We have considered all of Liberman's claims and find them to be without merit. The judgment of the district court is therefore AFFIRMED.
225 F.3d 646 (Table), 2000 WL 1340520 (2nd Cir.(N.Y.)), Unpublished Disposition
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