Opinion
16-P-1012
06-22-2017
EUGENE M. LAMENTO v. WHIZ KIDS DEVELOPMENT LLC & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brought this action in the Land Court, seeking to foreclose the defendant Whiz Kids Development LLC's (Whiz Kids) right of redemption to a tax title on real property. A judge in the Land Court dismissed the action without prejudice based on the automatic stay in Whiz Kids' pending bankruptcy proceeding. Acting pro se, the plaintiff appeals, claiming the bankruptcy stay does not apply. We affirm the judgment, but on grounds other than those on which the motion judge relied.
Background. In 2013, the city of Worcester recorded a taking of property located at 2 Ionic Avenue for nonpayment of real estate taxes. The property was owned by Whiz Kids. By collector's deed, recorded on June 12, 2015, the city conveyed the property to the plaintiff for $16,016.81, subject to the right of redemption.
On August 11, 2015, Whiz Kids filed a voluntary petition for Chapter 11 bankruptcy, listing the property as an asset and the plaintiff's interest as a secured claim on the property. The plaintiff, represented by counsel, filed an objection. On October 29, 2015, a judge in the Bankruptcy Court issued an order authorizing the sale of the property free and clear of all interests pursuant to 11 U.S.C. § 363 (2012), with the proceeds to be paid to the lienholders in order of priority. The plaintiff's motion for reconsideration was denied and his appeal to the First Circuit Bankruptcy Appellate Panel (BAP) was dismissed. By deed dated November 10, 2015, the property was sold at auction to the defendant Peter Heaney for $130,000. It appears from the record that the bankruptcy action remains open.
The plaintiff claims that Heaney was a partner of James Levin, one of the principals in Whiz Kids.
On November 23, 2015, the plaintiff filed this action in the Land Court seeking to foreclose Whiz Kids' right to redeem the property. Heaney filed a motion to dismiss. After hearing, the Land Court judge allowed the motion, concluding that the Land Court complaint challenging Whiz Kids' right to redeem the property was precluded by the automatic stay in the bankruptcy action. The Land Court complaint was therefore dismissed without prejudice.
Discussion. On appeal, the plaintiff argues that the bankruptcy stay does not apply. We need not reach that question because we affirm the dismissal on other grounds. See Guerriero v. Commissioner of the Div. of Med. Assistance, 433 Mass. 628, 628 (2001) (affirming judgment on grounds other than those relied on by trial judge). Regardless of the effect of the automatic stay, the Bankruptcy Court's sale order became a final judgment binding upon the parties upon the expiration of the appeal period. See In re Saco Local Dev. Corp., 19 B.R. 119, 121 (B.A.P. 1st Cir. 1982). Here, the plaintiff appealed the Bankruptcy Court's sale order, but the appeal was dismissed by the BAP. When the plaintiff failed to appeal to the United States Court of Appeals for the First Circuit, the sale order became final. The sale order terminated the plaintiff's interest in the property. Upon the sale of the property, the plaintiff's interest, if any, was in the proceeds of the sale. Therefore, there was no property on which the Land Court might act and the action to foreclose the former owner's right of redemption in the Land Court was moot. Accordingly, there was no error in the dismissal.
"Other points, relied on by the [plaintiff] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Green, Hanlon & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: June 22, 2017.