Serial Filers, New York

In cases of serial filers where the automatic stay terminates after 30 days (§362(c)(3)), the following action must be taken to proceed / initiate foreclosure: In NY, 11 USC §362(c)(3) is interpreted to mean the stay ceases to exist as to the Debtor but remains in effect as to the property of the estate, with the exception of Judge Grossman. Judge Grossman’s opinion in In re Bender 562 B.R. 578 (2016) indicates the stay ceases to exist as to the Debtor and the estate. Since in most cases the stay remains in effect as to the estate, a motion for stay relief must still be filed to proceed against property of the Debtor’s estate. In Judge Grossman cases, best practice would be to pursue a comfort order.

In cases of serial filers where the automatic stay does not go into effect (§362(c)(4)), the following action must be taken to proceed / initiate foreclosure: While no comfort order is required, it may be preferable to obtain an Order confirming the absence of the stay.

If the stay only terminates as to the debtor and there is no equity above and beyond any homestead exemption for the estate, the servicer may proceed under the following circumstances: Servicer may proceed when there has been an abandonment by the Chapter 7 trustee and a discharge or when the case is closed (final decree entered) or dismissed or when a Chapter 13 plan providing for surrender of the property is confirmed IF in the SDNY, EDNY or WDNY. In NDNY an Order confirming the stay has been vacated needs to be submitted per language in form plan which reads: “Debtor surrenders his or her interest in the following collateral in
satisfaction of the secured portion of the creditor’s allowed claim. Debtor requests that upon confirmation of this plan the stay under 11 U.S.C. § § 362(a) and 1301(a) be terminated as to the collateral. After the plan is confirmed, on request of a party in interest, the court shall promptly enter an order confirming that the stay under 11 U.S.C. § § 362(a) and 1301(a) is terminated as to the collateral. Any allowed unsecured claim resulting from the disposition of the collateral will be treated in Part 5 below.”