HSBC BANK USA NATIONAL ASSOCIATION VS. ADESINA OGUNLANA (F-012098-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0688-17T2

HSBC BANK USA NATIONAL
ASSOCIATION,

Plaintiff-Respondent,

v.

ADESINA OGUNLANA,

Defendant-Appellant.

Submitted September 13, 2018 – Decided September 20, 2018

Before Judges Koblitz and Currier.

On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
012098-13.

Ejike N. Uzor, attorney for appellant.

Reed Smith, LLP, attorneys for respondent (Henry F.
Reichner, on the brief).

PER CURIAM
 In this foreclosure matter, defendant Adesina Ogunlana appeals from the

September 19, 2017 order denying her motion to stay a sheriff's sale.

Defendant's basis for the stay of the sale was her bankruptcy filing. Under 11

U.S.C. § 362(c)(4)(A)(i), an automatic stay does not take effect when a debtor

has had two or more prior cases dismissed within the year. The automatic stay

did not take effect here because defendant filed a third bankruptcy action just

before the date of the sheriff's sale. Therefore, it was not an abuse of discretion

for the Chancery judge to deny a stay of the sale. We affirm.

After defendant defaulted on the loan securing the mortgage on her

residential property, plaintiff HSBC Bank National Association, filed a

foreclosure action. Defendant did not answer the complaint and final judgment

was entered in June 2015. A sheriff's sale was scheduled for September 19,

2017.

On the day of the sale, defendant requested a stay due to a petition for

relief under Chapter 13 of the Bankruptcy Code, which she had filed the

previous day. See 11 U.S.C. § 362(a)(2). Defendant had filed two prior

petitions for relief in April and July 2017, both of which were dismissed for

failure to file schedules. After hearing counsels' arguments, the Chancery judge

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denied the stay of the sale on September 19, 2017. 1 He noted § 362(c)(4)(A)(i)

of the Bankruptcy Code provides an exception to the automatic stay generally

triggered by a bankruptcy petition filing if two or more prior petitions have been

dismissed within the year. As this was defendant's third Chapter 13 filing within

five months, the automatic stay did not take effect. Therefore, there were no

grounds presented to the court to stay the sheriff's sale.2

On appeal, defendant asserts the Chancery judge erred in denying the

motion to vacate the sheriff's sale. We disagree. Plaintiff presented evidence

of defendant's three bankruptcy filings for relief under Chapter 13. Under 11

U.S.C. § 362 (c)(4)(A)(i), the automatic stay does not trigger upon the third

filing. As there were no other grounds presented to support the application, it

was not an abuse of discretion for the Chancery judge to deny a stay of this

request.

Affirmed.

1
The judge heard additional arguments the next morning following
which he reaffirmed his decision.
2
Defendant's subsequent motion in the Bankruptcy Court to impose an
automatic stay was denied on October 13, 2017.
A-0688-17T2
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