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In re LaPointe

United States Bankruptcy Appellate Panel For the First Circuit

February 24, 2014

ROBERT LAPOINTE, Debtor.
v.
ROBERT LAPOINTE, Appellee TD BANK, N.A., Appellant,

Page 590

Appeal from the United States Bankruptcy Court for the District of New Hampshire. (Hon. Bruce A. Harwood, U.S. Bankruptcy Judge). Bankruptcy Case No. 13-10688-BAH.

Anthony J. Manhart, Esq., on brief for Appellant.

Kevin Chisholm, Esq., on brief for Appellee.

Before Feeney, Tester, and Finkle, United States Bankruptcy Appellate Panel Judges.

OPINION

Page 591

Feeney, U.S. Bankruptcy Appellate Panel Judge.

TD Bank, N.A. (the " Bank" ) appeals the bankruptcy court's order denying its motion for relief from the automatic stay to enforce its state law rights with respect to the debtor's residence. The Bank argues that the bankruptcy court erred in denying its motion because it had conducted a pre-petition foreclosure sale of the debtor's residence, thereby divesting the debtor of any interest in the residence which would be property of the estate protected by the automatic stay. We agree and, therefore, we REVERSE the bankruptcy court's order denying the Bank's motion for relief from the automatic stay, and REMAND to the bankruptcy court for entry of an order granting the Bank's motion for relief from the automatic stay.

BACKGROUND

The material facts of this case are undisputed. In May 2009, Robert LaPointe (the " Debtor" ) granted a mortgage on his residence to the Bank to secure a promissory note. Thereafter, the Debtor defaulted, and the Bank conducted a foreclosure auction on March 20, 2013. The Bank was the successful bidder at the auction and signed a memorandum of sale on that date. The next day, the Debtor filed a chapter 13 petition. The Bank did not record the foreclosure deed before the Debtor filed his bankruptcy petition.

In his chapter 13 plan, the Debtor proposed to make payments to the trustee of $278.00 for 60 months, for a total of $16,680.00.[1] With respect to the Bank's mortgage, the Debtor proposed to cure his mortgage default through the plan and reinstate the mortgage, as follows:

5. SECURED CLAIMS (PRIMARY RESIDENCE)
Residence located at: 75 Nutes Road, Milton, NH 03851
Debtor estimates the fair market value of such primary residence ...

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