Motion-Secondary: In The Matter Of The Foreclosure Of Tax Liens By Proceeding In Rem Pursuant To Article Eleven Of The Real Property Tax Law By The County Of Orange v. Ricky Guzman

On June 11, 2021 a Motion-Secondary was filed involving a dispute between In The Matter Of The Foreclosure Of Tax Liens By Proceeding In Rem Pursuant To Article Eleven Of The Real Property Tax Law By The County Of Orange, and Ricky Guzman, for Real Property - Tax Foreclosure in the District Court of Orange County.

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FILED: ORANGE COUNTY CLERK 06/14/2021 10:06 AM INDEX NO. EF003978-2021
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 06/14/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
-------- ---------------------------X
In the Matter of the Foreclosure of Tax
Liens by Proceeding In Rem pursuant to
Article Eleven of the Real Property Tax
Law by the COUNTY OF ORANGE,

Petitioner, Index No.: EF003978-2021

-against-

RICKY GUZMAN,

Respondent.
------ ---------------------------------------------------X

MEMORANDUM OF LAW
ON BEHALF OF
PETITIONER COUNTY OF ORANGE

Matthew J. Nothnagle
Chief Assistant County Attorney
Langdon C. Chapman

County Attorney for Orange County
Attorney for Petitioner

255-275 Main Street

Goshen, NY 10924

(845) 291-3150

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PRELIMINARY STATEMENT

Petitioner County of Orange ("the County") submits this Memorandum of Law in support

of its Motion for summary judgment, allowing itto foreclose upon the parcel of real property at

issue in this proceeding for nonpayment of real property taxes. Respondent's Answer raises no

meritorious defenses.

FACTS

Respondent Ricky Guzman is a record owner of a parcel of real property in the Town of

Warwick, Orange County, which parcel is designated on the tax map as Section 12, Block 5, Lot

6. As of January 1, 2016, January 1, 2017, January 1, 2018, Jañüary 1, 2019, Jañüary 1, 2020,

and January 1, 2021, the County levied real property taxes on the parcel at issue. Taxes due and

owing for each year's tax lien.

Accordiñgly, on November 1, 2016, the County commenced tax foreclosure proceedings,

pursuant to Article 11, Title 3 of the Real Property Tax Law, with respect to this and other

parcels with tax delinqucñcies, by filing a list of delinquent parcels pursuant to Real Property

Tax Law section 1122. In October 2017, the County filed and mailed a Notice of Petition of

Foreclosure with respect to the delinquent parcels, pursuant to Real Property Tax Law sections

1123-1125. The County mailed notice to Respondent by certified mail, return receipt requested,

and by regular first-class mail, to the address in Town's records, 36 Little York Road, Warwick,

"uñclaimed."
New York 10990. The Postal Service returned the certified mailing as The Postal

Service did not return the first-class mailing. The County wrote to the Warwick Postmaster to

seek an alternative address; the Postmaster responded by saying "[n]o chañge or address order on

file."
The County posted notice of this proceeding at the parcel at issue on January 19, 2018.

On February 23, 2018, Respondent served a timely Answer by cóüñsel.

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On February 27, 2018, Respondent filed a bankruptcy petition in the United States

Bankruptcy Court for the Southern District of New York. That Court disrñissed the bankruptcy

petition on May 5, 2021, and closed the bankruptcy case on May 13, 2021.

The County moved on May 23, 2018, for a Judgmeñt of foreclosure as to each parcel in

the tax foreclosure proceeding for which no payment was made and no Answer served. The

County also requested an Order of Severance as to each parcel for which an Answer was served,

including the parcels at issue in this proceediñg. The Court issued a Judgment of Foreclosure

which was entered on August 22, 2018. Pursuant to the Judgment, the proceeding with respect

to the Answers was severed.

ARGUMENT

POINT I

RESPONDENT'S ANSWER SHOULD BE STRICKEN AS MERITLESS

Real Property Tax Law §1124 allows respondents in the tax foreclosure proceeding to

serve an Answer to the Petition, but Real Property Tax Law §1136(2) states that "if the court

determines that the answer is not meritorious, the court shall make a final judgment awarding to

."
[the] tax district the possession of the affected parcel or parecis. . . In this matter, the Court

should strike the Answer and grant judgmeñt in favor of the County, because the Answer has no

merit.

The Answer is insufficiently pleaded. Real Property Tax Law §1123(7) requires that "an

answer to a petition of foreclosure . . . shall set forth in detail the nature and amount of [the

lien."
respondent's] interest and any defense or objections to the foreclosure of the tax In

addition, Real Property Tax Law §1134 requires that,

[a] respondent alleging any jurisdictional defect or invalidity in the

tax, or in the proceeding for the enforcement thereof, must

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particularly specify in his or her answer such jurisdictional defect
or invalidity and must affirmatively establish such defense.

These statutes require a respondent to plead defenses with particularity.

In addition, becãüse an unpaid tax lien is presumptively valid, (see Real Property Tax

Law section 1134), a respondent has the burden of establislñng any affirmative defense. In the

Matter of the Foreclosure of Tax Liens by County of Otsego v. Oplacky, 103 A.D.3d 1020 (3d

Dep't 2013); In the Matter of the Foreclosure of Tax Liens by Village of Fleischmanns v.

Delaware Nat'l Bank of Delhi, 77 A.D.3d 1146 (3d Dep't 2010). Respondent relies solely on the

existence of a bankruptcy proceeding, which, as discussed herein, has been dismissed.

Accordingly, for this reason, Respondent's Answer has no merit and should be stricken.

POINT II

THE BANKRUPTCY STAY NO LONGER APPLIES

Respondent's sole defense was that "Respondent denies the liability alleged as of

February 28, 2018, in that a Chapter 13 bankruptcy filing prior or to or on that date will stay the

plan."
action and arrange for fullpaymcñt to petitioner through a Chapter 13 Respondent filed a

bauluuptcy petition on February 27, 2018. That filing effected an automatic stay of any in rem

tax foreclosure proceedings agaiñst Mr. Guzman's property. Saticoy Bay LLC Series 2110 Club

Meadows v. JP Morgan Chase Bank, N.A., 2018 WL 11203041 (N.D.N.Y., November 21, 2018),

at *3, n. 4; In re Killmer, 501 B.R. 208, 213 (Bankr., S.D.N.Y. 2013). However, the Bankruptcy

Court's act of closing the bankruptcy case extinguished the automatic stay. Saticoy Bay, supra;

Killmer, supra. Even a discharge in bankruptcy does not extinguish the County's lien and

to foreclose; a mere dismissal of a bankruptcy case provides for that reason no
opportunity

defense to a tax foreclosure proceeding. See Schmelcher v. County of Oneida, 2016 WL 297713

(N.D.N.Y., January 22, 2016).

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Here, Respondent has not paid what is owed. The bankruptcy proceeding has been

closed. The County took no action in this State Court proceeding during the pendency of the

bankruptcy precceding. However, now that the bankruptcy proceeding is closed, the County

may go forward with itsforeclosure. Accordingly, the Answer should be stricken, and smmmary

judgment should be granted in the County's favor.

CONCLUSION

For the reasons stated above, the Court should grant a judgment striking Respondent's

Answer, and grant a judgment of foreclosure in the County's favor with respect to the parcel at

issue in this proceeding.

Matthew J. Nothnagle
Chief Assistant County Attorney
Langdon C. Chapman

County Attorney for Orange County
Attorney for Petitioner
255-275 Main Street

Goshen, New York 10924

(845) 291-3150

June 11, 2021

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1
H. BACKGROUND
2018 WL 11203041
On January 30, 2009, se Meys bonowed2%,5R00
Only the Westlaw citation is currently available.
in exchange for a mortgage lien (the "Mortgage
United States District Court, N.D. New York.
Lien") on realproperty locatedat 2110 Club Meadows

SATICOY BAY LLC SERIES 2110 Drive in Henderson, Nevada (the "Property"), a

CLUB parcel subject to theLegacy Village Property Owners
MEADOWS, Appellant,
Association (the "HOA"). At some point thereafter,
Chase came to hold the Mortgage Lien.
JP MORGAN CHASE BANK, N.A., Appellee.

On April 25, 2012, afterthe Rileys failedto pay their
3:18-CV-579
homeowners'
association dues, the HOA recorded

Signed November 2018 with the Clark County Recorder's Office a lienagainst
21,
the Property in the amount of $1,000.00. When these
Attorneys and Law Firms dues remained in the HOA recorded a Notice
arrears,
of Default and Election to Sellon September 11, 2012.
OF COUNSEL: SANFORD F. YOUNG, ESQ.,
SANFORD F. YOUNG, PC, Attorneys forAppellant, On August 15, 2013, the Rileys filed a voluntary
225 Broadway, Suite 2008, New York, NY 10007.
Chapter 7 bankruptcy petition in theNorthern District
of New York. As part of theirfiling,debtors disclosed
OF COUNSEL: MELISSA N. LICKER, ESQ.,
their ownership of the Property,indicated that Chase
BUCKLEY MADOLE P.C., Attorneys for Appellee,
held a $252,000.00 Mortgage Lien on it,listed the
420 Lexington Avenue, Suite 840, New York, NY
HOA as an unsecured creditor with a claim for
10170.
$1,000.00 of unpaid dues, and expressed theirintent
OF COUNSEL: RICHARD P. HABER, ESQ., to surrender the parcel.Debtors failed to divulge the
MCCALLA RAYMER, LEIBERT PIERCE LLC, existence of thesecured HOA lien.

Attorneys for AppeUee 420 Lexington Avenue, Suite

840, New York, NY 10170. The HOA didnot filea proof of claim or objectto the
Rileys'
classificationofitsclaim as an unsecured one.

Instead, on August 20, 2013, the HOA sent a Notice
of Trustee'sSale to Chase and to the Rileys.About a
MEMORANDUM-DECISION and ORDER
week the
later, HOA posted Notices of Sale inpublic
DAVID N. HURD, United States District
Judge places around Clark County. The HOA also personally
served a copy of theNotice of Saleupon theProperty's
L INTRODUCTION
then-current occupant. Finally,the HOA recorded the
*1 Appellant Saticoy Bay LLC Series 2110 Club Notice of Sale on August 30, 2013.
Bay"
Meadows ("Saticoy or"appellant") appeals from
a September 28, 2017 Memorandum-Decision and On November 25, 2013, the Rileys received their
Order (the "September 28 MDO") issued by United Chapter 7 discharge from the banlauptcy court.Nine
States Bankruptcy Judge Diane Davis, which denied days later,with the bankruptcy case stillopen, the
itsmotion to reopen the Chapter 7 bankruptcy case HOA soldthe Property to SaticoyBay at public
auction
of debtors Travis G. Riley and Denise E. Riley (the debtors'
for $18,800.00. The bankruptcy court closed
"Rileys"
or "debtors") afterappellcc JP Morgan Chase case on December 11, and Saticoy Bay recorded its
("Chase" Rileys'
Bank, N.A. or "appellee"),one of the foreclosure deed the very next day. Netwith±nding
bankruptcy creditors, objected to appellant'srequest
for renewed proceedings. The appeal has been
the automatic stay of procccdings imposed by 2 §
fully
362(a) of the Bankruptcy Code, the partiesagree the
briefed and will be decided on the basis of the
HOAnever sought or receivedjudicial approval to take
submissions without oral argument.
any of thesepost-petitionactions

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On January 8, 2014, Saticoy Bay filed suitin Nevada continüsties of proceedings against the
virtuallyany
state court seeking to quiet title to the Property debtor or against of the estate.
property bankruptcy
and obtain a declaration that the HOA's non-judicial
t 11 U.S.C. § 362(a); In re Salov, 510 B.R. 720,
foreclosure sale extinguished the Mortgage Lien held
726 (Bankr. S.D.N.Y. 2014) (explaining that the stay
by Chase (the "Quiet TitleAction").
encompasses "almost any type of formal or informal
actiontaken againstthe debtor or the property of the
*2 On September 21, 2016, the Nevada state court ,,
parties' [bankruptcy] estate ).
entered a conditional on the cross-
ruling
motions for summary judgracñt in the Quiet Title . ,. . . .
This stay of pracecumgs "Is effective Immediately
Action. As relevant here, theNevada court indicated
. upon the filingof a bankruptcy petition without
Itwould enter a judgment in favor of Saticoy Bay, but .
action."
further In re Salov, 510 B.R. at 726;see also
only ifappellant could convince the bankruptcy court
Rileys' In re Prusan. 495 B.R. 203,_206 (Bankr.
to reopen the bankruptcy case and retroactively E.D.N.Y.

annul the automatic stay.Otherwise, the Nevada court 2010) ("The antematic stay istriggered the instant a

planned torule that would take itsinterest bankruptcy petitionis filed.").
Saticoy Bay
in theProperty subjectto Chase's Mortgage Lien.
"The protections afforded by the nutomatic stay
On February 9, 2017, Saticoy Bay moved before the process."
are fundaracntal to the bankruptcy EIn
bankruptcy court in the Northern DistrictofNew York
re Robinson, 228 B.R. 75, 80 (Bankr. E.D.N.Y.
Rileys'
to reopen the bankruptcy case pursuant to
1998). "First,the automatic stay provides the debtor

P § 350(b) of theBankruptcy Code and Federal Rule
with a spell from his
creditors."
In re
breathing
of Bankruptcy Procedure ("Rule") 5010. Predictably, Ionosphere Clubs, Inc.,922 F.2d 984, 989 (2d Cir.
Chase objected to appellant's request. Judge Davis
1990) (citationand internalquotation marks omitted);
heard argument and ordered briefing on the issue
before Bay's motion to reopen in the
4n re Robinson, 228 B.R. at 80 ("The automatic stay
denying Saticoy
September is designed to givedebtors breathing space so thatthey
28 MDO.
may reorder theiraffairs.").

Among other things, the September 28 MDO
Second, the stay allows the bankruptcy court to
concluded thatSaticoy Bay did not qualify as a "paty
interest" debtors' "centralize all disputes concerning property of the
in entitledto reopen case because
it have debtor's estate ... unimpeded by uncoordinated
(1) did not any pre-petition relationship with
debtors and itsinterestinthe did notarise arenas."
(2) Property preceedings in other In re Ionosphere
until after they received their discharge. This appeal Inc., 922 F.2d at In re Soüñdview Elite
Clubs, 989;
followed. Ltd.,565 B.R. 534, 543 (Bankr. S.D.N.Y. ("One
2017)
of the primary goals of the automatic stay is to
protectproperty of theestateand thereby ensure equal
2
IIL DISCUSSION treatment and provide equal protection all
among, to,
Saticoy Bay contends the September 28 MDO must creditorsof a debtor.").
be reversed because Judge Davis failed to recognize
interest"
appellant as a "party in entitled to reopen *3 To advance these twin "[a]ctions taken
goals,
Rileys'
the bankruptcy case. According to appellant, in violationof the automatic are void
stay gcñcrally
itqualifies for this status by virtueof itspectmia*·y ab even where there isno actual notice of the
initio,
interest in the Property. Chase responds that the stay."
existence of the In re Stockwell, 262 B.R. 275,
foreclosure sale where appellant purports to have "w
. 280 (Bankr. D. Vt. 2001); PIn re Ebadi, 448 B.R. at
acquired thisinterestviolated the automatic stay and is . .
313 ("Inthe Second Circuit,actions taken m violation
therefore invalid.
3
of theautomatic stay aregenerally void ab initio.").

By way of background, the filing of a voluntary
bankruptcy petition precludes the commencement or

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In theabsence of such a rule,"certain creditorswould
be able to pursue their own remedies against the Even so, one benefitofthe Code's
salütary Bankruptcy
debtor'sproperty. Those who acted firstwould obtain almost frightening degree of complexity is that it
payment of the claims in preference to and to the provides the necessary precedural tools forsorting out
creditors."
dctriment of other In re Soundview Elite a whole range ofunusual circnen~s. As relevant in
Ltd., 565 B.R. at 543 (citation and internal quotation
thiscase, therelief-from-stayprovision of 6 362(d)
marks omitted). . interest'
,
alsopermits a "partym toseek annulment of
the automatic stay,an order which ifgranted has the
As a result of these well settled principles, the
Rileys' effect of validating a prior,improper proceeding. I_n
filingof their bankruptcy petitionon August
re Marketxt Holdings, Corp., 428 B.R. at 585 ( [A]n
15, 2013 should have halted the continuation of 'annulling' .
order a stay ...reaches back m time to
the HOA's proceedings against the Property and
validate proceedings or actionsthat would otherwise
permitted the bankruptcy court an opportunity to . . ,,
creditors' be deemed void abrmtio. ).
assess the claims without worrying about
arenas,"
"uncoordinated procccdings
4
in other such
N M d h Nd m w's q¾ h h
as in an unsütherized foreclosure sale based on a
exactly what Saticoy Bay eventually sought to do
homeowners'
association lien· in 2017. But ran
early appellant immediately into a
roadblock thatled to theinstantappeal: itfirstneeded
To be clear, itis not as though the HOA had no Rileys'
to convince the bankruptcy courttoreopen the
other choice than to unilaterally proceed with an
bankruptcy case, something only "the debtor or other
unsanctioned, extra-judicialsale.At the very least,the interest"
party in isentitledto do. See Fed. R. Bankr.

HOA could have tried for judicialreliefunder P. 5010 ("A case may be reopened on motion of the
El
362(d), which "allows a court, upon the request of debtor or other in In
party interest...."); re Arana,
a party [in interest]and afternotice and a hearing, 456 B.R. 161, 172 (Bankr. E.D.N.Y. 2011) ("The
to 'grant relief from the [automatic] stay ...such as
moving party has the burden of establishingcause to
by terminating, annumng, modifying, orconditioning reopen.").
stay,' 'cause.' "
such for In re Marketxt Holdings,
Cgn.. 428 B.R. 579, 585 (Bankr. S.D.N.Y. 2010) The parties agree the bankruptcy court correctly
interest"
11 U.S.C. determined that "party in is a term not
(quoting § 362(d)).
explicitlydefined, either in the Bankruptcy Code's

the HOA plowed ahead with a saleto provisions concerning Chapter 7 petitions or by Rule
Instead, Saticoy
an action rendered void ab initioregardless of 5010 itself.See, e.g.,In re Am. Motor Club. Inc.,
Bay,
whether or not due diligencewould have put appellant 149 B.R. 317,321 (Bankr.E.D.N.Y. 1993) ("The term
interest'
on notice of theexistence of the stay.In re 'party in is not defined in the Bankruptcy
bankruptcy
Code."). The partiesalso agree the bankruptcy court
Stockwell. 262 B.R. at 280; In re Ebadi, 448 B.R. .
correctlydetermined thatthe questionof preciselywho
at 313;In re Leeds, 589 B.R. 186. 192. . . . n
or what qualifies as a 'partym mterest has not yet
been analyzed by the Second Circuit,at leastin the
And while it is unclear from the record and
contextofaRule 5010 motion seeking to reopen a case.
unnecessary to resolvehere, itappears thatneither the
Rileys nor Chase did anything to bring the HOA's
In lightof these thresheld conclusions, Judge Davis
misconduct to thebankruptcy court'sattention.See In
looked to two other sources of authority to help her
re Stockwell, 262 B.R. at 281 (observing that while
resolve the issue at hand: (1) a leading bankruptcy
debtors do not have an affhiliative
duty to remind
treatise(which stated thatthe concept of a "party in
a known creditor of the pendency of a bankruptcy interest" construed"
should be "broadly under Rule
proceeding, they are under a duty to exercise due
5010) and (2)judiciallycrafteddefinitionsof a "party
diligcñce in protecting and pursuing their rightsand interest"
in put forward by theFourth, Ninth,and Tenth
in mitigating any damages resultingfrom a creditor's
Circuits. See In re Papazov, 610 F. App'x 700 (Mem)
violationof theautomatic stay).

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(9th Cir.2015) (looking to § 1109(b)'s non-exclusive come to mean an entitythathas a directlegalinterest
listof partiesin interestto determine thatbankruptcy at issueinthe case, ratherthan an entitythatis merely

appellate panel properly denied trustee's motion to interested in its
outcome.").
reopen Chapter 7 case); Alexandria Consulting Grp..
LLC v. Alexandria Surveys Int'l
LLC, 589 E App'x 126 *5 Saticoy Bay's second argument is also easily
(per curiam) (4th Cir.2014) (affirming district
court's
interest" dispatched. Appellant citesÛ In re Koch, 229 B.R.
conclusion that "party in includes debtor,
78 (Bankr. E.D.N.Y. 1999), for the proposition that
trustee,creditor,or otherparticipant in theunderlying .
any party with a legal stakem the outcome of a state
case and rejectmg attempt by business entity toreopen
courtproceeding over a potentialassetof a bankruptcy
interest"
Chapter 11 case); In re Alpex Comput. Corp., 71 estatequalifies as a "partyin for purposes of

E3d 353 (10th Cir. 1995) (reversing districtcourtin the Bankruptcy Code. But therelevant chain of events
interest"
Chapter 11 case afterconcluding a "party in leading up to the Koch decision renders that case and
isa "concept implicitly confined to debtors, creditors, itsholding wholly distiñgaishablefrom thisone.
or trustees").
The debtor in Koch was a professional sports
Guided by these three testsand the aforementioned photographer who failed to list
his allegedownership
Judge
treatise, Davis concluded that Saticoy Bay did interestin thousands of valuable phatagraphic slides
interest"
not qualifyas a "partyin entitledto reopenthe when he initially filed a voluntary Chapter 7
Rileys'
bankruptcy case because it was not involved
. bankruptcy petition. In re Koch, 229 B.R. at 79.
m the case as a debtor, a creditor,a trustee,or any
Eighteen months afterhisbankruptcy case was closed,
of the additional partieslisted m § 1109(b). Indeed '
the photographcr-debtor sued the National Basketball
Judge Davis noted that appellant did not participate . .
. Association ("NBA") m an unrelated statecourt action
Rileys'
m the bankruptcy case at all.Accordingly,
seeking to force the NBA to returnthese photo slides
the September 28 MDO denied appellant's request to
to hispossession. -Id.
reopen the case.

. During discovery in the statecourt action,the NBA
Saticoy Bay attacks this adverse deter-metion on a
learned about the photographer's bankruptcy case.
number of differentgrounds. First,appellant suggests
that the non-exclusive listof potential "parties in In re Koch, 229 B.R. at 79.After reviewing those
interest" filings,the NBA argued to the statecourt
identified in § 1109(b) does not limit the bankruptcy
parties who be heard on a motion to reopen a that the photographer-debtor had lost any and all
may
case. Insofar as this suggesticñ be rightsto thephoto slides at issuebecause of hisprior
bankruptcy may
construed as an attempt to faultJudge Davis for mis- bankruptcy. M. According to the NBA, any interest

1109(b)'s listof potential "parties in the photographer-debtor might have had in the slides
perceiving §
interest" should have passed to the estateduring the
as an exhaustive or exclusive one, a review bankruptcy
of theSeptember 28 MDO confirms thatthis is bankruptcy proceedings. M.
simply
not the case-Judge Davis readily recognized that§
1109(b)'slistisnon-exclusive in nature. On the advice of new bankruptcy counsel, the
photographer-debtor sought to defend against the

the extent that be NBA's new argument by moving to (1) reopen his
Alternatively, to Saticoy Bay may
of bankruptcy case and (2) amend his asset schedules
suggesting the non-exclusive nature § 1109(b)'slist

of potential parties in interest means thatthere are to include an alleged ownership interestin the photo

somehow zero limitson who may qualifyunder Rule NBA. In re Koch, 229 B.R.

Case Info

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Sandra B Sciortino Track Judge’s New Case

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Document Filed Date

June 14, 2021

Case Filing Date

June 11, 2021

County

Parties

HAYSOM, SIMON DAVID Attorney for the Defendant
In the Matter of the Foreclosure of Tax Liens by Proceeding In Rem Pursuant to Article Eleven of the Real Property Tax Law by the County of Orange Plaintiff
In the Matter of the Foreclosure of Tax Liens by Proceeding In Rem Pursuant to Article Eleven of the Real Property Tax Law by the County of Orange Plaintiff
NOTHNAGLE, MATTHEW JOSEPH Attorney for the Plaintiff
Ricky Guzman Defendant
Ricky Guzman Defendant
LANCE PORTMAN Attorney
DAVID GILBERT Attorney
SANFORD YOUNG Attorneys for Plaintiffs
MELISSA LICKER Attorney
RICHARD HABER Attorney
JAMES SELBACH Attorney
MERRITT LOCKE Attorney

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Motion-Secondary: In The Matter Of The Foreclosure Of Tax Liens By Proceeding In Rem Pursuant To Article Eleven Of The Real Property Tax Law By The County Of Orange v. Ricky Guzman

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