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Craig D. Robins, Esq. New York Bankruptcy Attorney, Longisland bankruptcy attorney

“ Craig D. Robins, Esq., has been a practicing Long Island bankruptcy attorney for over twenty-four years ”

Craig D. Robins, Esq.

Central Islip Bankruptcy Court & Judges

Long Island Bankruptcy Court – Housed in Controversial Architecture

Posted on Monday (March 23, 2009) at 11:27 pm to Central Islip Bankruptcy Court & Judges

The Federal Courthouse building in Central Islip that houses the Long Island Bankruptcy CourtWritten by Craig D. Robins, Esq.

The gleaming white architecture housing the Long Island Bankruptcy Court has been controversial since the building was opened in the fall of 2000.

Designed by renowned architect Richard Meier, the Central Islip building looks like a large, stark, white rectangular monolith with a missile silo in the middle.  The $190 million, 850,000-square-foot-building, at 11-stories tall, is the tallest building in Suffolk County.

After some members of the public complained that the building lacked a warm and fuzzy feeling, Michael Harris Spector, a co-architect of the building, announced that the building was designed to express the “dignity and the authority of the federal government.”

However, some attorneys called the building a “monstrosity,” “ugly and totally out of context,” and “sterile and completely inappropriate,” according to a New York Times article published when the building had just opened.

From the upper floors, looking to the north, you can see a good amount of Long Island. Looking to the south, you can see Fire Island, the Great South Bay, Robert Moses bridge, the lighthouse and the ocean.

The building contains 23 courtrooms, one special proceedings courtroom, 13 District courts, four Magistrate and five Bankruptcy courtrooms. In addition there are spaces for 25 judges chambers, a law library, offices for Federal agencies and a cafeteria. The building is 235 ft. tall and is one of the tallest structures on Long Island.

Entry to the courthouse is via a raised stone podium, with landscaping and reflecting pools, to a conical drum (the so-called missile silo) that leads to an 11-story atrium.

This entrance rotunda is 175 feet tall and devoid of floors, having tapered round walls that are structured out of a huge steel space frame.

According to a description from architectural magazine Archidose, the atrium acts as a focal point and a means of orientation. Public corridors extend from the atrium along the south curtain wall, overlooking the plaza below and the Great South Bay and the Atlantic Ocean beyond. The north side houses the offices and the judge’s chamber: the elevation articulated accordingly with narrow ribbon windows. These two distinct facades are separated by a pair of walls that peak above the adjacent parapets, intersecting the atrium. The distinction between the two sides of the building is both formal and programmatic, acting as a separation between public and judicial circulation.

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Bankruptcy Judge Stan Bernstein Announces His Resignation

Posted on Thursday (February 8, 2007) at 4:33 pm to Central Islip Bankruptcy Court & Judges
Suffolk Lawyer

Written by Craig D. Robins, Esq.

Just weeks after then-Chief Bankruptcy Judge Melanie L. Cyganowski shocked the bankruptcy bar last month by unexpectedly announcing that she was stepping down from the bench, Judge Stan Bernstein suddenly dropped a bombshell that he was resigning effective July 31, 2007.

However, unlike Judge Cyganowski who will be leaving at the end of her fourteen-year term, Judge Bernstein will be resigning two years early. The Judge has accepted a full professorial position at John Marshall Law School in Atlanta which will begin with the Fall 2007 semester.

 The judge apparently revealed the decision at the end of January to a few attorneys prior to formally notifying the clerk’s office. This resulted in a flurried maelstrom of gossip and speculation in the relatively close-knit bankruptcy bar. The official notification came in early February.

The news of Judge Bernstein’s departure spells additional turmoil for the Bankruptcy Court for the Eastern District of New York which has courthouses in Central Islip and Brooklyn. Now, two of the three judges sitting in the Central Islip Court will be leaving within a period of just months. Meanwhile, the remaining judge, Judge Dorothy T. Eisenberg, who is in her late seventies, previously completed her fourteen-year term a number of years ago, but has been called back to continue sitting for one-year periods.

In the Brooklyn Bankruptcy Court, where there are four judges, Judge Jerome Feller is currently on medical leave after having just undergone open-heart surgery, and it is a well known fact that Judge Dennis Milton was previously treated for cancer, although he is in a period of remission.

Reaction to the news from the bankruptcy bar was one of surprise. Many practitioners were aware of Judge Bernstein’s desire to return to teaching full time, but were greatly surprised to hear that he was doing so now, two years before the end of his fourteen-year term. The bankruptcy bar was also surprised by the timing, which occurred so soon after Judge Cyganowski announced her decision to leave.

Interviewed for this article, Judge Bernstein discussed his long thought-out decision. He commented extensively on his passion for teaching which pre-dated his ascendency to the bench.

Judge Bernstein first sat as a bankruptcy judge in the Eastern District of Michigan from 1982 to 1984 at the relatively young age of 41, and began his current term in the Eastern District of New York in 1996.

Just prior to taking the bench here, the Judge engaged in private practice involving big business transactions and Chapter 11 bankruptcies for several larger law firms in Michigan, California, Arizona and Massachusetts.

However, the Judge was a professor as early as 1973 and taught law for most of the 1980’s at Wayne State University Law School and University of Detroit Law School. Since 2000, the judge has been an Adjunct Professor of Law at Touro Law School and an Adjunct Associate Professor of Philosophy at Hofstra University. The Judge has a Ph.D. in political science and taught full time for seven years before even going to law school.

“It’s no secret that I had been considering going back to teaching. My colleagues knew that I had been interviewing for a teaching position for a while,” said the Judge who turned 65 last April. He expressed excitement about returning to teaching full time.

Judge Bernstein noted that John Marshall Law School recently doubled in size. Among the courses he plans on teaching there will be Bankruptcy law, Sales, and Secured Transactions.

The Judge also discussed his desire to leave New York and move to Atlanta. He lamented that his children live so far away and commented that “I have never really acclimated myself to Long Island. It is very difficult when you don’t have any family here.” His daughter lives in Atlanta and has a one-year-old baby girl, the Judge’s third grandchild. Judge Bernstein and his wife, also an attorney, have been flying down to Atlanta about once a month to visit, ever since she was born.

The problems with how expensive it is to live on Long Island was a topic that he harped on, which he often brought up in his dialogue in the courtroom as well. He feels that for many, the cost of living on Long Island is prohibitive and that a great number of Long Islanders are falling further and further behind economically. “Housing here is priced way beyond the reach of middle-class families,” he said, noting that this had affected him as well.

As for the awkward timing of his notice, the Judge commented that “it was just fortuitous.” Apparently, he received the offer in early January and at that time, he was totally unaware of Judge Cyganowski’s decision to step down which, like the bankruptcy bar, caught Judge Bernstein off-guard. “I was very surprised that Judge Cyganowski turned down her second full-length term,” he said. Nevertheless, he figured that giving the Second Circuit six months notice would be more than sufficient to make appropriate arrangements to cover his vacancy.

Judge Bernstein believes that despite two judicial vacancies within a short period, court proceedings will nevertheless go smoothly. He will continue to take new cases through May. Then he anticipates needing sixty to ninety days to wrap up his existing case load. A new visiting bankruptcy judge is already slated to take over Judge Cyganowski’s calendar in March. Judge Joel B. Rosenthal, from Worcester, Massachusetts, will serve from March 1, 2007 to August 31, 2007. The Second Circuit also posted a notice seeking applicants to permanently fill the seat vacated by Judge Cyganowski.

Judge Bernstein remarked that the Second Circuit has a pretty good understanding that most filings here are consumer cases and that they will select a candidate who will be able to accommodate such a caseload.

When asked about what aspects of sitting on the bench here have made an impression on him, Judge Bernstein cited his appreciation of the varied cases that came before him and mentioned that he enjoyed the diversity of handling different matters. “You never know what to expect. There are many novel issues that come up,” he said.

The judge felt that he was especially good about keeping his docket current and was proud of this continuity. All counsel who litigate in his Court are well aware of his predilection for pushing the parties to move their cases along.

Positive relationships between the judges in the court was another aspect the Judge was proud of. “We have a very hardworking set of judges who enjoy a good rapport. Lawyers have benefitted from this,” he said.

The 2005 Bankruptcy Amendment Act is a topic that the Judge has always been rather outspoken about. The Judge commented that he felt the new laws were demoralizing because they prevented him from being as helpful to debtors in need as he used to be under the old laws. “I think of myself as a helping judge,” he remarked.

The judge also noted the declining number of Chapter 11 cases in Central Islip, which went from about 100 a year to just 20 a year. Nevertheless, Judge Bernstein indicated that he enjoyed hearing these cases, and felt that he produced some noteworthy decisions in some of the larger Chapter 11 cases which included Med Diversified, Photo Circuits and Innapharma.

Judge Bernstein, who previously was an active participant in various legal education programs and seminars, expects to continue his involvement with organizations such as the American Bankruptcy Institute. In addition, he is currently collaborating on a book on the use of expert witnesses in bankruptcy cases. The Judge has previously authored or edited a number of legal treatises including the Matthew Bender Bankruptcy Practice Guide and the publication, Collier Compensation Guide which covers bankruptcy compensation.

During his tenure, Judge Bernstein always had a number of clerks as well as interns from local law schools. The Judge took great pride and felt that one of his most important accomplishments was that he had the opportunity to teach, train and mentor so many “elbow clerks” who would later go on to become successful attorneys. “I loved doing show and tell with the summer clerks; they learned quickly who the good and the bad lawyers were,” he said. Like a true teacher, he felt gratitude that many of them have maintained contact with him.

Michael J. Macco, the standing Chapter 13 trustee assigned to Judge Bernstein, recognized that “teaching has become his passion.” He said that he will be sorry to see him go and commented that “it is clear that the Judge has a love for the law. He always wanted to teach law and this new position is a great opportunity for him.”

However, Mr. Macco expressed concern about the number of judicial vacancies. “We’re in a situation where we’ve lost two of our very experienced judges.”

Formalization of noticing requirements was a matter that Mr. Macco felt the Judge improved. “I’m going to miss Judge Bernstein. He came into the system. He changed the system – to make sure that debtors received reasonable notice,” he said. Mr. Macco was referring to Judge Bernstein’s concern over debtor’s rights which the Judge felt should preclude oral motions by trustees to dismiss Chapter 13 cases. “Very little was done by oral motion after he took the bench,” he remarked.

Mr. Macco also attributes to the Judge greater efficiency in the administration of Chapter 13 cases. “He tried to streamline the Chapter 13 process so that it was more efficient for both trustee and counsel,” he noted.

Robert Pryor, a bankruptcy attorney and Chapter 7 trustee who regularly appeared before Judge Bernstein, commented on the Judge’s keen analytical ability. “He is obviously an impressive legal mind. He brings to an issue a thoroughness of analysis and often times a refreshing slant. He has a very scholarly approach towards reasoning through problems from the bench,” he said.

My own personal observation in having appeared before Judge Bernstein for eleven years is that he has a most unusual courtroom demeanor. While I know very little about most other judges’ personal lives, my colleagues and I have come to learn about Judge Bernstein’s children, travels, political beliefs, ideology, philosophy, likes and dislikes – just from listening to the judge provide substantial “dicta” and commentary in the courtroom. On any given day, one could expect the Judge to deliver commentary on any number of subjects. His life and experiences were somewhat of an open book.

I also found the Judge to be most pragmatic about his approach to lawyering. Judicial efficiency and transactional costs were always key points to him.

Another personal observation is that unlike most other judges, Judge Bernstein has engaged in an unusual but highly appreciated informality with those who regularly appear before him. This is evidenced by his sincere interest in the lives and interests of the practitioners in his Court, and his habit of routinely teasing counsel in an affectionate way.

In addition, I have found Judge Bernstein to be one part judge, one part fatherly figure and one part professor/teacher. In the “parental mode” he recognizes that those who regularly practice before him are sort of like his “kids” who may get out of line or have disputes with each other. However, he takes steps to gently nudge them to “bring them back in line” or persuade them to work out their differences. His passion for teaching is clearly evident in the courtroom as he strives to provide counsel with scholarly commentary on the law and political events.

These sentiments were echoed by many of those who practiced before him. Said Mr. Pryor, “He is a genuinely nice man. You liked him off the bench.” Mr. Pryor remarked that what he will miss about Judge Bernstein is that “he was a friend in the courtroom. He didn’t have an intimidating presence. Instead, there was a level of informality.”

Michael Farina, another attorney who frequently practiced before the Judge, also commented on the Judge’s warmth. “I liked how the Judge took the time to learn about and know the attorneys who regularly practiced before him. That’s a very positive thing because you are not just another face in the crowd.”

Mr. Farina continued, “Yet, he never showed any favoritism. Just because he was extremely congenial, didn’t mean that he would rule in your favor. I am going to miss him.”

Indeed, another accomplishment cited by the Judge was his impartiality. “From my standpoint, this has been a Court that has had an extraordinary reputation for integrity. The lawyers have been very fortunate. There has never been any favoritism. Never a whiff of controversy,” said the Judge.

Such informality was also echoed by Richard Arturo, a practitioner who appeared before the Judge on a number of consumer bankruptcy cases. “When I learned of Judge Bernstein’s decision to resign, I thought back to my first time before him, Mr. Arturo said. “The fact that he did not want to be addressed as “your honor” put us all on notice that this was going to be a different kind of judge.”

Mr. Arturo also appreciated the Judge’s willingness to bring counsel into chambers on contested matters. The Judge frequently did so to encourage the parties to resolve their issues in an informal environment.

Katherine Geraci, an attorney who previously clerked for the judge and now appears before him, called the Judge “unique” and recognized the Judge’s unusual way of interacting with counsel. “His Ph.D. and background in philosophy works into his informality,” she observed, adding “He is really a wonderful teacher,” having been mentored by him during her clerkship. She noted that some of the clerks of other judges were jealous that Judge Bernstein provided so much of a better teaching environment to his clerks than the other judges.

With the tempting prospect of spending most of his time teaching, Judge Bernstein summed it up: “I think it’s time to step down from being a judge.”

 About the Author.  Long Island Bankruptcy Attorney Craig D. Robins, Esq., is a regular columnist for the Suffolk Lawyer, the official publication of the Suffolk County Bar Association in New York. This article appeared in the February 2007 issue of the Suffolk Lawyer. Mr. Robins is a bankruptcy lawyer who has represented thousands of consumer and business clients during the past twenty years. He has offices in Medford, Commack, Woodbury and Valley Stream. (516) 496-0800. For information about filing bankruptcy on Long Island, please visit his Bankruptcy web site: http://www.BankruptcyCanHelp.com.

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Chief Bankruptcy Judge Melanie Cyganowski Stepping Down

Posted on Sunday (January 7, 2007) at 1:09 am to Central Islip Bankruptcy Court & Judges
Suffolk Lawyer

Written by Craig D. Robins, Esq.

The bankruptcy bar is in shock by the sudden and unexpected news on January 5, 2007 that Chief Bankruptcy Judge Melanie L. Cyganowski has decided to retire from the bench effective February 28, 2007.

Judge Cyganowski, who had just assumed the role of Chief Bankruptcy Judge one year ago, succeeding Judge Conrad Duberstein who passed away in November, 2004, has been on the bench since March 1, 1993. She sits in the Central Islip Federal Courthouse. The judge, known to many members of our bar association, has served with distinction and is highly regarded by her peers and by the bankruptcy bar. She has regularly participated in seminars and presentations here.

Upon stepping down, Judge Cyganowski will immediately re-enter private practice to become the chair of the bankruptcy litigation department in the New York office of Greenberg Traurig, an international firm with 1,500 lawyers in 29 offices. Bankruptcy Judge Carla E. Craig, who sits in Brooklyn, will become the new Chief Judge.

The reaction from bankruptcy attorneys who practice before her seems to unanimously be one of shock and disbelief, as they anticipated that Judge Cyganowski, who enjoys a stellar reputation and great deal of respect and admiration, would be on the bench forever.

Interviewed for this article, Judge Cyganowski described her decision to leave as being “extremely difficult,” and “triggered by having to face all of the financial challenges that a typical Long Island family faces.” In private practice, the Judge stands to earn many times her existing judicial salary.

Bankruptcy Judges serve fourteen-year terms and Judge Cyganowski’s term expires February 28, 2007. The Judge said that a year ago, the Second Circuit asked her intentions about serving another term. The Judge agreed to serve a second, fourteen-year term, went through the process, and was approved for re-appointment.

However, after going through a stressful family situation several months ago in which her husband’s employment was in jeopardy when his employer was acquired by another company, and considering the difficulty of supporting an elderly mother and aunt, combined with the prospect of expensive college tuition in the near future for her twelve-year-old son, the judge decided that she had the difficult dilemma of exploring other options. At that time, she learned of the opportunity at Greenberg Traurig, and accepted it just days before she provided formal notice to the Court and bar.

She pointed out that Federal Court judges are underpaid as they have not received any increase in salary for 19 years, other than some cost of living increases. Consequently, she said, judicial pay has eroded to the extent that it became hard for her to support an extended family on Long Island and this created a very difficult choice of staying on the bench, which she enjoys, or returning to the private sector at a great increase in pay.

Asked about her recent accomplishments as Chief Bankruptcy Judge, Judge Cyganowski stated that there were many that she was proud of. She feels that she successfully met the challenge of moving the Bankruptcy Court along after the death of former Chief Judge Duberstein. She was very satisfied with the way the Court dealt with the new procedures required by the 2005 Bankruptcy Amendment Act. The Brooklyn Bankruptcy Court changed buildings last year and she felt that the move went extremely smoothly. She introduced a pro se law clerk and program to assist the increasing number of pro se filers, a program she believed would be a model for other courts. She thought that under her guidance, the Court made great strides towards full electronic case filing and use of computers in the Court. Finally, she felt that she was very instrumental in bringing together the Bankruptcy Judges in this district into a cohesive group.

In discussing the practical considerations of the Central Islip Bankruptcy Court going from three judges down to two, Judge Cyganowski indicated that there have been several discussions to date with the other judges about “sharing the load.” Although there is a possibility of seating a new judge or bringing in a visiting judge, Judge Cyganowski said that the Court is in the process of exploring the matter to see what makes the most sense.

Marianne DeRosa, the standing Chapter 13 trustee assigned to Judge Cyganowski, felt the transition for Chapter 13 cases should be smooth. All of Judge Cyganowski’s Chapter 13 cases will be re-assigned to Judge Dorothy Eisenberg. Ms. DeRosa said that there were only 182 unconfirmed open Chapter 13 cases which were assigned to Judge Cyganowski and that re-assignment to Judge Eisenberg should not cause a major disruption.

Ms. DeRosa also pointed out that the number of Chapter 13 filings was substantially less than usual, primarily due to the new bankruptcy laws, and that Judge Eisenberg should not have any problem for now with her new, increased calendar or caseload. Ms. DeRosa did note, however, that the situation could become difficult if the filing numbers increased.

Fourteen years ago, I wrote an article for the Suffolk Lawyer discussing Judge Cyganowski, who had just been named as the new Bankruptcy Judge to replace then-retiring Judge Cecilia Goetz. At that time, no one had any idea of who this New York City litigation attorney was. We all wondered how well she would do on the bench, considering her relative lack of bankruptcy experience, especially with consumer matters.

Since then, she has deservedly earned a reputation as an unusually fair, extremely intelligent and thoughtful jurist who always maintained an expert grasp of the law and an understanding of the cases before her. I found her always very approachable and willing to engage in conversation, unlike some judges who prefer to maintain a distance from those who practice before them.

Ms. DeRosa, who worked very closely with Judge Cyganowski for the past fourteen years, expressed disappointment and sadness that the Judge was leaving. Not only did she enjoy appearing before the Judge, but she felt that “without a doubt, there’s not an attorney who did not learn something from her.” She added that although she was very surprised that the Judge had decided to retire so early, she understood her reasons.

Richard Stern, a Chapter 7 trustee and former Chair of the Suffolk County Bar Association’s Bankruptcy Committee, said “Judge Cyganowski has been a great judge. She is extremely bright, articulate, always polite and considerate of counsel, always prepared on the bench, and has an incredible ability to listen to complex oral arguments.” He pointed out that she has a brilliance that has been recognized by the bankruptcy bar.

Mr. Stern also commented on the Judge’s ability to maintain a good sense of control over her cases and her courtroom. Regarding her accomplishments in the past year, he acknowledged her enthusiasm and noted that “when she became Chief Judge, she took the bull by the horns to implement new programs and procedures.”

As to the Judge’s decision to leave, Mr. Stern remarked, “she obviously did this with very mixed emotions because she really loved what she did on the bench.” He said that he could empathize with the demands of her financial situation, acknowledging, “she received a wonderful offer to become a partner with a major law firm.”

Sal LaMonica, a former law clerk to Judge Eisenberg and a bankruptcy attorney who regularly practiced before Judge Cyganowski, lamented about the difference in pay a judge can receive in private practice and said that “this should be a wake-up call for Congress to increase the salaries of judges. To lose a judge like this, of her quality and stature, for financial reasons, is a shame. We will all miss her.”

The Judge, who hails from Chicago, studied anthropology at Iowa’s Grinnel College. She attended Buffalo Law School and started her career as a clerk to retired Southern District Judge Charles Brieant. Thereafter she became an associate with Milbank Tweed Hadley and McCloy for four years. She also spent seven years at Sullivan & Cromwell as a senior litigation attorney.

Judge Cyganowski teaches LLM courses at St. John’s University School of Law. She lives with her husband and son in Suffolk County. She holds a red belt in karate and enjoys reading detective novels.

Judge Cyganowski expressed conflicting emotions about her decision to move on to private practice, feeling much sadness about leaving the bench. Still, she is very excited about her new position, the compensation package she will receive, the opportunity to litigate again as a partner of a “phenomenal” law firm, and the new challenges ahead, which she considers the next chapter in her life.

About the Author.  Long Island Bankruptcy Attorney Craig D. Robins, Esq., is a regular columnist for the Suffolk Lawyer, the official publication of the Suffolk County Bar Association in New York. This article appeared in the January 2007 issue of the Suffolk Lawyer. Mr. Robins is a bankruptcy lawyer who has represented thousands of consumer and business clients during the past twenty years. He has offices in Medford, Commack, Woodbury and Valley Stream. (516) 496-0800. For information about filing bankruptcy on Long Island, please visit his Bankruptcy web site: http://www.BankruptcyCanHelp.com.


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Defending Motions to Lift the Stay

Posted on Tuesday (November 23, 2004) at 10:48 am to Bankruptcy Practice
Bankruptcy Procedure
Central Islip Bankruptcy Court & Judges
Chapter 13 Bankruptcy
Foreclosure Defense
Nassau Lawyer

Defending Motions to Lift the StayWritten by Craig D. Robins, Esq.

Motions to lift the stay must comply with the various rules.     The most common type of motion in consumer bankruptcy practice is a motion to lift the stay. Such motions are typically brought by a secured creditor, such as a mortgagee or auto lender, because the debtor has fallen behind with his or her payment obligations.

Almost all creditors’ attorneys now bring “lift-stay” motions by filing and serving a “notice of presentment of a proposed order lifting the stay,” as this type of application alleviates the need to make a court appearance unless opposition is filed. However, the judges in this district have strict chamber’s rules pertaining to how such applications can be brought, which are in addition to Bankruptcy Code and local rule requirements. The various court rules seek to protect a debtor by requiring that various due process requirements be satisfactorily addressed.

Lift-stay motions often contain fatal mistakes.    Most lift-stay motions are prepared by secretaries and paralegals. A large percentage of these applications are not sufficiently reviewed by supervising attorneys and do not meet all of the court’s requirements. Consequently, it is often possible to spot a fatal procedural flaw, which, if brought to the attention of the court, could end up buying your client more time in their home. A former law clerk estimated that as many as one-fourth of all lift-stay motions are initially defective.

Reviewing a lift-stay motion for errors can help your client.    Even in situations where there is a low likelihood of the debtor ultimately saving the subject premises, you may be able to extend the debtor’s time in the house by bringing these fatal flaws to the attention of the court. No matter how solid a creditor’s position is, the creditor still has an absolute obligation to make sure that its motion papers are properly prepared and conform to the Bankruptcy Code as well as local rules and chamber’s rules. I have focused the following discussion primarily on lift-stay motions brought by mortgagees (as opposed to other secured creditors like car loan lenders), as efforts undertaken by a foreclosing mortgagee will probably affect your client the most. However, the same principals apply to all lift-stay motions.

Were the motion papers properly served?     Make sure that service of the motion was proper. The moving party must file with the court an affidavit of service or certificate of mailing indicating that all proper parties were served. This includes the debtor, debtor’s counsel, and the bankruptcy trustee, all of whom are indispensable parties who must be joined. In addition, notices of presentment must have a time period of at least 20 days from the date of service to the date of presentment.

Did the motion include the necessary supporting documents?   A motion to lift the stay must include a copy of the mortgage note and mortgage, and these documents must show the date of recording. In addition, the debtor must be a party to the note or mortgage. All exhibits must be legible. This is important as exhibits are often generated from microfiche where the legibility may be poor.

Did the moving party establish standing?   Mortgages are frequently assigned. If the moving creditor is not the same entity as the creditor set forth in the mortgage and note, then there must be a recital in the motion papers explaining that either the mortgage was assigned or that the movant is a servicing agent. If the mortgage was assigned, a copy of the recorded instrument of assignment must be attached to the motion papers. If the movant is the servicing agent, then the motion papers must contain a copy of the servicing agreement or power of attorney authorizing the servicing agent to take legal action to enforce the mortgage.

Is there a supporting affidavit from the loan representative?   It is elementary law that all motions must be supported by an affidavit from someone who has actual knowledge of the relevant facts. Accordingly, there must be a notarized and executed affidavit from a loan representative. This affidavit must set forth the post-petition payment defaults and the total amount of the mortgage indebtedness. In addition, the affidavit must either indicate that the stay should be lifted for cause, in which event the specific cause should be set-forth, or the stay should be lifted because the mortgage indebtedness exceeds the value of the property. Finally, the affidavit must correctly identify the address of the subject property.

Has the mortgagee properly demonstrated the value of the property?    When the mortgagee asserts that the ground for lifting the stay is that the mortgage indebtedness exceeds the value of the property, then the mortgagee must include a valuation report such as an appraisal or broker’s price opinion letter as an exhibit to the motion. The valuation report must be current, which generally means that it must have been made within the preceding 90 days, or within 90 days of the petition date. Anything older than that can be considered obsolete. The valuation report must be signed and must also contain language in the form of an affidavit that the person who prepared the report attests that he or she is disinterested and is not a broker or selling agent under a listing agreement and does not anticipate acting as the broker or listing agent for any party in interest. The person who signs the valuation report must include a statement of his or her professional qualifications. The report must contain a suitable description of comparable values of properties that have been recently sold. If the moving party is taking the position that the mortgagee lacks adequate protection, then the moving papers cannot contain any inconsistent statements which indicate that the mortgagee is fully secured. In lieu of providing a valuation report, the mortgagee can rely on the debtor’s admission of the value of the property as indicated in the debtor’s bankruptcy schedules. In such an event, the creditor must include a legible copy of the debtor’s schedule “A” or “D” as an exhibit.

Is the motion seeking proper relief?   Generally, a motion to lift the stay, when brought by notice of presentment, may not seek any type of equitable relief other than an unadorned vacating or modifying of the stay to permit the mortgagee to enforce its state law remedies. Accordingly, a proposed order cannot seek payment of costs and attorney’s fees as this creates an inconsistency between section 362 (a)(d)(2) and section 506 (b).

What happens if you demonstrate a fatal error?   The mortgagee must usually start the entire motion process all over again. This means that the mortgagee must take the necessary time to correct and amend its motion. The mortgagee must then re-serve all necessary parties, and begin the twenty-day time period all over again. This can get your client an extra four to six weeks or more in their home. Keep in mind that this article focused on utilizing procedural errors as a defense. There are numerous substantive issues that you can raise as well.


Long Island Bankruptcy Attorney Craig D. Robins, Esq., is a frequent columnist for the Nassau Lawyer, the official publication of the Nassau County Bar Association in New York. This article appeared in the November 2004 issue of the Nassau Lawyer. Mr. Robins is a bankruptcy lawyer who has represented thousands of consumer and business clients during the past twenty years. He has offices in Medford, Commack, Woodbury, Patchogue, Mastic, Coram and Valley Stream. (516) 496-0800. For information about filing bankruptcy on Long Island, please visit his Bankruptcy web site: http://www.BankruptcyCanHelp.com.

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Craig D. Robins, Esq. is a Long Island bankruptcy lawyer, who is focused primarily on helping individuals and families, find solutions to their debt problems. Read more »


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Craig D. Robins, Esq.
35 Pinelawn Road, Suite 218E, Melville, NY 11747.

Tel : 516 - 496 - 0800