XXX BANKRUPTCY COURT
EASTERN DISTRICT OF XXX
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In Re:
XXX,
Debtor. |
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MOTION TO CHALLENGE RECORDED LIEN AND FORECLOSURE SALE
Case No.: XXX (Chapter 7)
Assigned to: Hon. XXX Bankruptcy Judge
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Debtor, XXX, (hereinafter the “Debtor”), and files this Motion to Challenge Recorded Lien and Foreclosure Sale. In support thereof, Debtor states as follows:
- Background
On November XXX, the Board of Managers of Patchogue Homes Condominium II filed a Notice of Lien over Debtor’s Howard Beach property. The Board claimed the lien on account of alleged unpaid common charges.
Debtor’s former attorney, XXX, informed Plaintiff that the said unpaid common charges were already discharged in Bankruptcy XXX
Notably, the foreclosure process was initiated in XXX, when Debtor’s son had been living there since 2011.
On October XXX, a foreclosure sale was done on the Howard Beach Property. Attorney Morton Povman acted as referee for the alleged foreclosure sale of the Howard Beach property. On October 14, 2022, Morton filled in and signed a Foreclosure Auction Surplus Monies Form. Morton again filed the Foreclosure Auction Surplus Monies Form on March XXX.
Also, on the same day, XXX filed a Referee’s Report of Sale. He stated that he sold the property to the highest bidder, who was the U.S. Bank National Association as Legal Trustee for Truman 2016 SC6 Title Trust.
In addition to the foregoing, it is interesting to note that the Foreclosure Action Monies Surplus Form, the purchaser section stated Michael W. Nardolillo as the purchaser. Michael is an employee of XXX LLP. The same Attorneys from XXX LLP bought the Magnolia Court Property.
- Arguments
- There was a blatant violation of 11 U.S.C. § 524(a)(2)
11 U.S.C. § 524(a)(2) provides that a discharge order operates as an injunction against further collection efforts. “The purpose of the permanent injunction . . . is to effectuate one of the primary purposes of the Bankruptcy Code: to afford the debtor a financial `fresh start.'” In XXX.
“Congress designed and intended the permanent injunction `to give complete effect to the discharge, . . . to eliminate any doubt concerning the effect of the discharge as a total prohibition on debt collection efforts, . . . and . . . to insure that once a debt is discharged, the debtor will not be pressured in any way to repay it.'”XXX.
It follows; Section 524(a)(2) was designed to broadly prevent any form of harassment of a debtor. An action by a creditor violates the discharge injunction if “the objective effect of the creditor’s action is to pressure a debtor to repay a discharged debt, regardless of the legal entity against which the creditor files its claim.”
In this action, Jeffrey Chances, attorney for the Board of Managers of the Patchogue Homes filed a Proof of Claim (Claim No. 7-1) against Debtor’s property. The Claim was allegedly for HOA fees and additional charges.
This Honorable Court should note that the alleged debt was discharged (discharge number 7727995 and 7728006). This was confirmed to Debtor in 2012 by Debtor’s Chapter 7 Bankruptcy Attorney Craig Robins. The discharge meant that the Board of Managers of Patchogue Homes took an IRS write-off on this debt in its 2012 tax returns.
Besides, Debtor was paying the HOA fees since June of 2012. In spite of that, the Board of Managers threatened and took away the parking spot for an amount that was discharged.
Notably, harassed and targeted Debtor’s son and his wife, who are Muslims. For over five years, they had no parking space. They ultimately had to move as a result of the harassment.
The foreclosure sales of Debtor’s Magnolia Court and Howard Beach properties have subjected Defendant to a lot of suffering and trouble. Besides, the two illegal foreclosure file in 2010 and 2012 the court never had jurisdiction. The attorneys of the alleged creditors also made blatant lies to the Court.
A lot of injustice has been occasioned against Debtor and her family. It is only fair for the Court to grant Debtor’s prayers herein.
WHEREFORE, Debtor requests this Court Reverse the Sale by Auction, and rescind the recorded lien. Debtor further prays this Court issues any other Order it deems expedient and just.
By:
_________________________________ ______________________
XXX Date
CERTIFICATE OF SERVICE
I certify that a copy of this foregoing document will be served electronically mail on __________ via USPS First Class Mail on _________ to the following:
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By:
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ashmeen ModikhaN Date
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