Application, Motion-Undefined in Hsbc Bank Usa, N.A., Federal National Mortgage Association v. Deborah A Buczek, Erie County Department Of Social Services, Keybank National Association| Trellis.Law

On July 06, 2015 a Order was filed involving a dispute between Federal National Mortgage Association, Hsbc Bank Usa, N.A., and Deborah A Buczek, Erie County Department Of Social Services, John Does And Jane Does, Said Names Being Fictitious, Parties Intended Being Possible Tenants Or Occupants Of Premises And Corporations, Other Entities Or Persons Who Have Claim Or May Claim A Lien Against, Or Other Interest In The Premises, Keybank National Association, for Foreclosure (residential mortgage) in the District Court of Erie County.

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UNITED STATESBANKRUPTCY
COURT
WESTERNDISTRICT OFNEWYORK
BUFFALODIVISION
IN RE:
CHAPTER13
SHANECHRISTOPHERBUCZEK,
CASENO. 1-19-11441-CLB

DEBTOR. CHIEF JUDGE: Carl L. Bucki

ORDERPURSUANTTO11 U.S.C. § 362(d)
MODIFYINGTHEAUTOMATICSTAYIMPOSEDBY11 U.S.C. § 362(a)

Upon the motion, dated September 6, 2019 (the "Motion"), of Nationstar Mortgage LLC
d/b/a Mr. Cooper, (with any subsequent successor or assign, the "Movant"), for an order,

pursuant to Section 362(d)(1) and (4) of title 11 of the United States Code (the "B_ankruptcy

Code") for in rem relief from the automatic stay imposed in subsequent cases under 11 U.S.C. §

362(a), such that any and all future filings under the Bankruptcy Code during the next two years

by the debtor herein, Shane Christopher Buczek (the "Debtor") or any other person or entity with

an interest in the real property known as 7335 Derby Road, Derby, NY14047 (the "Property"),

or in the alternative vacating the automatic stay imposed in the above-captioned case by section

362(a) of the Bankruptcy Code as to the Movant's interests in the Property to allow the Movant's

enforcement of its rights in, and remedies in and to, the Property; and upon the Motions filed by
the Debtor in opposition to the Motion and to postpone the return date of the Motion filed on

September 20, 2019, September 24, 2019 and September 26, 2019 and reflected on the Docket as

numbers 73, 78, and 85 (the "Motions to Postpone"); and upon the Motion to Strike filed the
by
Debtor on September 30, 2019 and reflected on the docket as number 90 (the "Motion to

Strike"); and upon the response filed by Movant on September 27, 2019 in further support of the

Motion (the "Response"), and upon a finding that due and proper notice of the Motion having

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been madeon all necessary parties; and the Court having held a hearing on the Motion on

October 1, 2019 and upon all of the proceedings had before the Court; and after due

deliberation and sufficient cause appearing, and it appearing that this dispute involves primarily

issues of state law that are properly decided by state court, and for all of the reasons stated on the

record, now, therefore, it is hereby
ORDERED
that the Motion is granted as provided herein; and it is further

ORDERED
that the Motions to Postpone filed by the Debtor and reflected on the docket as

number 73, 78 and 85 and the Motion to Strike filed by the Debtor and reflected on the docket as

number 90 are denied; and it is further

ORDERED
that the automatic stay imposed in this case by section 362(a) of the

Movant'
Bankruptcy Code is vacated under section 362( d)(1) of the Bankruptcy Code as to the

s interests in the Property to allow the Movant's enforcement of its rights in, and remedies in

and to, the Property as qualified below; and it is further

ORDERED
that the Movant is permitted to proceed with enforcement of its rights in,

and remedies in and to, the Property only up through obtaining and noticing a Judgment of

Foreclosure and Sale, but cannot proceed to noticing a foreclosure sale of the Property; and it is

further

ORDERED
that, upon the issuance of a Judgment of Foreclosure and Sale, the Movant

may file a letter requesting that the Motion be restored to the calendar, and a hearing scheduled at

which the Movant may request an order extending the relief granted in the Order to proceed

beyond the Judgment of Foreclosure and Sale; and it is further

ORDERED
that the relief presented herein is expressly limited to the Movant, and not the

successors/assigns of the Movant, who would need to bring a separate motion seeking stay

relief; and it is further

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ORDERED
that, under 11 U.S.C. § 362(d)(4), and provided that this order is recorded in

conformity therewith, this order terminating the automatic stay under 11 § 362(a) as to Secured

Creditor's interest in the Property shall be binding in any other case filed under the Bankruptcy

Code purporting to affect the Property that is filed not later than two years after the date of this

order, such that the automatic stay under 11 U.S.C. § 362(a) shall not apply to Secured Creditor's

interest in the Property; and it is further

ORDERED
that in the event this case is converted to a case under any other chapter of

the U.S. Bankruptcy Code, this Order will remain in full force and effect; and it is further

ORDERED
that the Movant shall promptly report and turn over to the chapter 13 trustee

any surplus monies realized by any sale of the Property.

OCT 1 5 20

0NiTé-t> STATES EA 4S-OPTCH 2Ob66

DCT I 5 20I9

BAN PTC OlJRT

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Notice Recipients
District/Off: 0209−1 User: admin Date Created: 10/15/2019
Case: 1−19−11441−CLB Form ID: pdforder Total: 7

Recipients of Notice of Electronic Filing:
tr Albert J. Mogavero buffaloch13@choiceonemail.com
aty Michael J. Chatwin mchatwin@logs.com
TOTAL: 2

Recipients submitted to the BNC (Bankruptcy Noticing Center):
db Shane Christopher Buczek 435 Creekside Drive Suite 200 Amherst, NY 14228
ntcapr Nationstar Mortgage LLC d/b/a Mr. Cooper Shapiro, DiCaro & Barak, LLC 175 Mile Crossing
Boulevard Rochester, NY 14624
smg Office of the U.S. Trustee 300 Pearl Street, Suite 401 Olympic Towers Buffalo, NY 14202
21752990 Nationstar Mortgage LLC d/b/a Mr. Cooper P.O. Box 619096 Dallas, TX 75261−9741
Nationstar Mortgage LLC d/b/a Mr. Cooper Shapiro, DiCaro & Barak, LLC 175 Mile Crossing
Boulevard Rochester, NY 14624
TOTAL: 5

Case 1-19-11441-CLB, Doc 102-1, Filed 10/15/19, Entered 10/15/19 16:05:20,
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UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF NEW YORK

In Re: Case No.: 1−19−11441−CLB
Chapter: 13
Shane Christopher Buczek
SSN: xxx−xx−5635
Debtor(s)

NOTICE OF ENTRY

PLEASE TAKE NOTICE of the entry of the Order referenced below, duly entered in
the within action in the Clerk's Office of the United States Bankruptcy Court, Western District
of New York on October 15, 2019. The Clerk of Court of the United States Bankruptcy Court,
Western District of New York, hereby certifies that a copy of the subject Order was sent to all
parties in interest herein as required by the Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure.

Docket #102: Order Granting Motion For Relief From Stay re 7335 Derby Road Derby
NY 14047 , Denying Cross Motion, Denying Generic Motion , Denying
Generic Motion , Denying Generic Motion (RE: related doc(s) 60 Motion
for Relief From Stay, 73 Cross Motion, 78 Generic Motion, 85 Generic
Motion, 90 Generic Motion). Signed on 10/15/2019. NOTICE OF ENTRY.
(LaBelle, L.)

Date: October 15, 2019 Lisa Bertino Beaser
Clerk of Court

Form ntcentry/Doc 102
www.nywb.uscourts.gov

Case 1-19-11441-CLB, Doc 102-2, Filed 10/15/19, Entered 10/15/19 16:05:20,
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Notice Recipients
District/Off: 0209−1 User: admin Date Created: 10/15/2019
Case: 1−19−11441−CLB Form ID: noe362 Total: 7

Recipients of Notice of Electronic Filing:
tr Albert J. Mogavero buffaloch13@choiceonemail.com
aty Michael J. Chatwin mchatwin@logs.com
TOTAL: 2

Case 1-19-11441-CLB, Doc 102-3, Filed 10/15/19, Entered 10/15/19 16:05:20,
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gpIES DISTTlCT
UNITED STATESDISTRICT COURT
WESTERN DISTRICT OF NEWYORK FEB 1 7 2021

SHANECHRISTOPHERBUCZEK, TERNDISTR\CT

Appellant,

v. 19-CV-1402 (JLS)

NATIONSTARMORTGAGE
LLC,

Appellee.

DECISION ANDORDER

Appellant Shane Christopher Buczek appeals from an order of the United

States Bankruptcy Court for the Western District of NewYork, entered on the

record on October 1, 2019 and by subsequent written order on October 15, 2019 ,

modifying the automatic stay that went into effect upon the July 19, 2019 filing of

his Chapter 13 bankruptcy case. See generally Dkt. 1.1

For the reasons below, this Court determines that Buczek's arguments on

appeal are without merit. The decision of the Bankruptcy Court, as memorialized

in the October 15 order, is affirmed.

"Dkt."
1Citations to the docket in this appeal (No. 19-CV-1402) will be cited as
Citations to the record and docket of Buczek's bankruptcy case (Bankr. Case No. 19-
Dkt."
11441) will be cited as "Bankr. The record on appeal may also be found at
Dkt. 6. Citations to any other docket will be cited as "Case No. __, Dkt.".

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BACKGROUND
This case concerns real property located at 7335 Derby Road, Derby, NY
14047.2 In 1994, Deborah Buczek executed a note in favor of Republic Bank for

Savings for a principal amount of $100,536.00 plus interest. Bankr. Dkt. 60 Exh. A,

at 18-21. The Note was secured by the property at 7335 Derby Road, Derby, NY
14047. Id. at 22-35. This loan was subsequently assigned and transferred several

times. Id. Exh. B (copies of assignments). On August 23, 2019, Federal National

Mortgage Association ("Fannie Mae") assigned the mortgage to the appellee,

Nationstar Mortgage LLC ("Nationstar"). See id. at 44-45.

After Deborah Buczek failed to make mortgage payments, HSBC-the

predecessor in interest to Fannie Mae---commenced a foreclosure action in New

York Supreme Court, Erie County on July 6, 2015. Dkt. 17, at 3. Deborah Buczek

moved to dismiss this action twice based on HSBC's lack of standing, which the

state court denied on April 3, 2017 and August 10, 2017, respectively. Bankr. Dkt.

60 Exhs. F, I (copies of decisions and orders). Both written decisions concluded that

the plaintiff had standing-evidenced by the assignments of mortgage as well as an

2 This isone of several bankruptcy appeals before this Court stemming from this
petitioner's bankruptcy case--or that of his mother-and involving this property.
See, e.g., Buczek v. KeyBank N.A., No. 20-CV-1697 (W.D.N.Y. filed Nov. 20, 2020);
Buczek v. Nationstar Mortgage LLC, No. 20-CV-1445 (W.D.N.Y. filed Oct. 6, 2020);
Buczek v. KeyBank N.A., No. 20-CV-1322 (W.D.N.Y. filed Sept. 17, 2020); Buczek v.
KeyBank N.A., No. 20-CV-1046 (W.D.N.Y. filed Aug. 7, 2020); Buczek v. KeyBank,
No. 20-CV-80 (W.D.N.Y. filed Jan. 22, 2020); Buczek v. KeyBank, N.A., 19-CV-527
(JLS), 2020 WL7237681 (W.D.N.Y. Dec. 8, 2020). This order is limited to the civil
case No. 19-CV-1402 appealing the decision and order identified on page one above,
and the Court limits the discussion of these other cases, as well as the cases in state
court, except as relevant to this appeal.

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affidavit indicating that the plaintiff was in physical possession of the note before

July 6, 2015, and, thus, held the note at the commencement of the action. See id.

Exh. F, at 7-8; id. Exh. I, at 3-5. The state court ultimately granted summary

judgment to the plaintiff on February 9, 2018, and ordered the caption amended to

substitute Fannie Mae for HSBC, to reflect the transfer of the loan that occurred

while the foreclosure action was pending. See Bankr. Dkt. 60 Exh. J (order

granting summary judgment and appointing referee). On July 20, 2018, Deborah

Buczek filed a voluntary petition for relief under the provisions of Chapter 13 of

Title 11 of the United States Bankruptcy Code in United States Bankruptcy Court

for the Western District of NewYork.3 Dkt. 17, at 4; see also Chapter 13 Voluntary

Petition, In re Deborah Ann Buczeh, No. 18-11401 (Bankr. W.D.N.Y. filed July 20,

2018), Dkt. 1.

Prior to filing a Chapter 13 bankruptcy petition, Deborah Buczek transferred

the property via quitclaim deed to her son, Shane Christopher Buczek ("Buczek")-

the debtor and appellant in this case-signed on August 7, 2017, and recorded on

August 14, 2017. Bankr. Dkt. 60 Exh. K. According to Nationstar, it was not made

aware of this transfer until a filing made by Deborah Buczek on November 1, 2019.

Dkt. 17, at 7.

3
According to Nationstar,in that case Deborah Buczek made numerous filings and
objections to Nationstar's proof of claim and standing-however, the Bankruptcy
Court granted Nationstar's motion for relief from the automatic stay at a hearing on
October 1, 2019, with a written order entered October 15, 2019. Dkt. 17, at 6-7.

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Buczek subsequently filed his own Chapter 13 petition (Case No. 19-11441) in

the United States Bankruptcy Court for the Western District of NewYork on July

19, 2019. Bankr. Dkt. 1.

On September 6, 2019, Nationstar moved for in rem relief from the automatic

stay under 11 U.S.C. § 362(d)(4), or, alternatively, for relief under 11 U.S.C. §

362(d)(1) to terminate the stay accompanied by an order under 11 U.S.C. § 105(a)

preventing, for 180 days, any future filing by Buczek or any other person claiming

interest in the subject property from operating as an automatic stay against

Nationstar. See generally Bankr. Dkt. 60. Buczek filed his opposition to

Nationstar's motion for relief on September 20, 2019, Bankr. Dkt. 73, and also

moved to postpone the hearing scheduled for October 1, 2019, Bankr. Dkt. 85.

Nationstar filed a response to Buczek on September 27, 2019. Bankr. Dkt. 87.

On October 1, 2019, the Bankruptcy Court held a hearing on the motion for

relief from the stay. See generally Dkt. 7, Hr'g Tr., Oct. 1, 2019 (hereinafter "Oct. 1

Hr'g Tr."). At the hearing, Judge Bucki granted the motion for relief under Section

362(d)(1) and for in rem relief under Section 362(d)(4) as follows: Judge Bucki

ordered the automatic stay imposed by 11 U.S.C. § 362(a) lifted to permit

Nationstar to proceed in state court up to the moment of judgment of foreclosure

and sale. Oct. 1 Hr'g Tr. 30:25-31:25. Judge Bucki further ordered that if and when

Nationstar obtained such a final judgment, Nationstar would be required to return

to bankruptcy court to resolve any bankruptcy issues and obtain permission before

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proceeding to notice a sale and actually foreclose on the property. Oct. 1 Hr'g Tr.

32:1-34:5.

Shortly after the hearing, on October 11, 2019, Buczek filed a Notice of

Appeal of Judge Bucki's decision to modify the stay, appearing pro se.4 Bankr. Dkt.

100; Dkt. 1. On October 15, 2019, a written order was entered that memorialized

Judge Bucki's decision from the hearing and granted the motion for relief up to

obtaining a judgment of foreclosure and sale. Bankr. Dkt. 102. On July 27, 2020,

the Bankruptcy Court granted the Trustee's pending motion to dismiss the case.

Dkt. 17, at 12.

Buczek filed his brief in the instant appeal on July 15, 2020. Dkt. 14.

Nationstar filed its brief on September 14, 2020. Dkt. 17. Buczek filed a reply on

September 28, 2020. Dkt. 18.

DISCUSSION

I. ISSUES ONAPPEAL

Buczek contends that the Bankruptcy Court erred in granting the motion for

relief from the automatic stay. Buczek sets forth a lengthy list of issues,

summarized as follows: Buczek has never had any loan with Nationstar; Nationstar

has failed to provided authentic, original documents to support its claim against

4 Buczek filed his Notice of Appeal on October 11, 2019 (Bankr. Dkt. 100)-in
advance of the entry of the order reflecting Judge Bucki's oral ruling, which was
signed and filed on October 15, 2019 (Bankr. Dkt. 102). While Buczek did not
appeal that written order separately, under Federal Rule of Bankruptcy Procedure
8002(a)(2), the Notice of Appeal is treated as filed after entry of the order entered on
October 15, 2019. See, e.g., In re Mayfair Corcoran, LLC, No. 17-00513, 2018 WL
3816760, at *3 (Bankr. D.D.C. Aug. 3, 2018).
5

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Buczek and, thus, is not a secured creditor and does not have standing to lift the

automatic stay; Nationstar failed to post bond as required; Nationstar's materially

false statements and misrepresentations prevent any application of the Rooker-

Feldman doctrine in this case to enforce the state court order of summary judgment;

the Bankruptcy Court lacked jurisdiction to grant stay relief based on Nationstar's

lack of standing; Buczek's due process rights were violated for lack of proper notice;

any order issued in denial of due process is automatically void and issuance of such

an order constitutes per se abuse of discretion; Buczek was not required to make

payments to the creditor; and Nationstar failed to satisfy the requirements under

11 U.S.C. §§ 362(d)(1) or (2) entitling them to relief from the stay. Dkt. 14, at 6-11.

But Buczek offers only two arguments, which focus primarily on his right to an

evidentiary hearing and Nationstar's failure to prove its secured creditor status,

and the Bankruptcy Court's abuse of discretion in issuing an order in denial of due

process. Id. at 23-26.

Nationstar presents the following issues: whether the instant appeal is now

moot in light of dismissal of Buczek's underlying bankruptcy case; whether the

Bankruptcy Court had jurisdiction to grant Nationstar's motion for relief from the

automatic bankruptcy stay; whether the Bankruptcy Court committed reversible

error in granting Nationstar's motion for relief from the automatic stay; and

whether the Bankruptcy Court committed reversible error in finding that

Nationstar had standing to bring the motion for relief from the automatic stay.

Dkt. 17, at 1. Nationstar thus argues that the appeal of the stay relief order is

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moot; the Bankruptcy Court had subject matter jurisdiction to consider the motion;

Buczek's brief fails to offer any meaningful arguments showing that Bankruptcy

Court committed reversible error in granting the stay relief order; Buczek's

arguments regarding lack of notice and due process are unsupported; Nationstar's

standing has been established in both state court and in the Bankruptcy Court; and,

lastly, many of the arguments raised in Buczek's brief lack a basis in law or the

facts, are irrelevant to this appeal, or are not sufficiently argued or briefed to be

addressed. Id. at 13-25.

II. JURISDICTION ANDSTANDARD
OFREVIEW
This Court has jurisdiction to hear appeals from bankruptcy courts under 28

U.S.C. § 158(a), which provides that the "district courts of the United States shall

have jurisdiction to hear appeals . . . from final judgments, orders, and decrees; . . .

[and] with leave of court, from other interlocutory orders and decrees . . . of

bankruptcy judges."5 28 U.S.C. § 158(a)(1), (3). A district court may "affirm,

modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with
proceedings."
instructions for further In re Ehrenfeld, No. 19-CV-8718 (RA), 2020

WL5758819, at *2 (S.D.N.Y. Sept. 28, 2020) (quoting In re Margulies, 566 B.R. 318,

328 (Bankr. S.D.N.Y. 2017)). Part VIII of the Federal Rules of Bankruptcy

Procedure governs the procedures in such appeals.

5 court orders lifting
Bankruptcy an automatic stay are final for purposes of
appealability. See In re Quigley Co., Inc., 676 F.3d 45, 51 (2d Cir. 2012) (citing In re
Chateaugay Corp. Inc., 880 F.2d 1509, 1511 (2d Cir. 1989)); see also Ritzen Group,
Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582 (Jan. 14, 2020).

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This Court will review the Bankruptcy Court's decision to lift the automatic

stay for abuse of discretion. See, e.g., Osuji v. Deutsche Bank, N.A., 589 B.R. 502,

507 (E.D.N.Y. 2018) (citing In re Sonnax Indus., 907 F.2d 1280, 1286 (2d Cir. 1990));

see also Ehrenfeld, 2020 WL5758819, at *2 (first citing In re Sonnax, 907 F.2d at

1286; and then citing In re Adelphia Comm. Corp., 342 B.R. 122, 126 (Bankr.

S.D.N.Y. 2006) ("Matters left to the bankruptcy court's discretion-including

whether to lift a stay under § 362(d)-are reviewed for abuse of discretion.").6 A
bankruptcy court abuses its d

Case Info

Judge

Emilio Colaiacovo Track Judge’s New Case

Case No.

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Document Filed Date

June 10, 2024

Case Filing Date

July 06, 2015

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Parties

BAISLEY, ZACK EVERETT Attorney for the Plaintiff
BOOKSTAVER, JESSICA LYNN Attorney for the Plaintiff
Buczek, Deborah A Attorney for the Defendants
CASE, DAVID P Attorney for the Defendant
Deborah A Buczek Defendant
DI CARO, JOHN A Attorney for the Plaintiff
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES Defendant
Federal National Mortgage Association Plaintiff
GALLO, DEBORAH M Attorney for the Plaintiff
HSBC BANK USA, N.A. Plaintiff
Jennifer C. Persico Referee Non Party
JOHN DOES and JANE DOES, said names being fictitious, parties intended being possible tenants or occupants of premises and corporations, other entities or persons who have claim or may claim a lien against, or other interest in the premises Defendant
KEYBANK NATIONAL ASSOCIATION Defendant
KUBIT, MELISSA S Attorney for the Plaintiff
KUBIT, MELISSA SLOANE Attorney for the Plaintiff
PERSICO, JENNIFER C Attorney
KELLY POOLE Attorney
TINA GENOVESE-MUNOZ Attorneys for Plaintiffs
CHARLES SMITH Attorney
MATTHEW LAZROE Attorneys for Defendants
CHRISTINE FOX Attorney
JEFFREY BARNES Attorney
LEO FOX Attorney
CASEY CALLAHAN Attorney
ROBERT GLEICHENHAUS Attorney
CRAIG BEIDEMAN Attorney
RICHARD FEMANO Attorneys for Plaintiffs
ALAN ROSS Attorney
BRIDGET DEHMLER Attorney
DEBORAH BUYER Attorney
JOSEPH ALLEN Attorney
COURTNEY WILLIAMS Attorney
PATRICIA PIRRI Attorney
Daniel Horwitz Attorney
TRACY BURNETT Attorney
BRIAN FELDMAN Attorney
SAMUEL ROSENTHAL Attorneys for Plaintiffs
JORGE GONZALEZ Attorney
LOUIS CACCIATO Attorney
GARY GARDNER Attorney
MARTIN KURLANDER Attorney
ALBERT MOGAVERO Attorney
PATRICIA MCGRATH Attorney
EVAN ROSEN Attorneys for Defendants
BRISETTE LUCAS Attorney
Sarah Fels Attorneys for Plaintiffs
YOLANDE NICHOLSON Attorneys for Plaintiffs
TRICIA DEFILIPPS Attorney
MARK GRABER Attorney
DOUGLAS BASS Attorney
FRANK CASSARA Attorney
JESSICA LAFAURIE Attorney

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Order: Hsbc Bank Usa, N.A., Federal National Mortgage Association v. Deborah A Buczek, Erie County Department Of Social Services, Keybank National Association

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