MAZZA

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY DISTRICT JUDGE GERALD J. PAPPERT ON 5/10/24. 5/10/24 ENTERED AND COPIES NOT MAILED TO PRO SE AND E-MAILED.(mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: MARK D. MAZZA,
Appellant,

CIVIL ACTION
NO. 23-1876

v.
THE BANK OF NEW YORK MELLON,
F/K/A THE BANK OF NEW YORK, AS
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE CWALT,
INC., ALTERNATIVE LOAN TRUST 2006OA10 MORTGAGE PASS-THROUGH
CERTIFIATES, SERIES 2006-OA10,

BANKRUPTCY
NO. 22-13245

Appellee.
Pappert, J.

May 10, 2024
MEMORANDUM

Mark D. Mazza appeals an order of the United States Bankruptcy Court for the
Eastern District of Pennsylvania modifying the automatic stay imposed by 11 U.S.C. §
362(a). The Court affirms the Bankruptcy Court’s order for the reasons that follow.
I
The filing of a bankruptcy petition automatically stays, inter alia, “any act to
obtain possession of property of the estate or of property from the estate or to exercise
control over property of the estate.” 11 U.S.C. § 362(a)(3); In re Johnson, 601 B.R. 365,
376 (Bankr. E.D. Pa. 2019). Section 362(d)(4)(B) “allows for relief from the automatic
stay against real property for a creditor whose interest is secured by the property ‘if the
court finds that the filing of the petition was part of a scheme to delay, hinder, or
defraud creditors that involved . . . multiple bankruptcy filings affecting such real
property.” In re Gray, 558 F. App’x 163, 165 n.3 (3d Cir. 2014) (quoting 11 U.S.C. §
1

362(d)(4)(B)). Orders entered under Section 362(d)(4), “[i]f recorded in compliance with
applicable State laws governing notices of interests or liens in real property,” are
binding in other bankruptcy proceedings purporting to affect the property “filed not
later than 2 years after the date of the entry of such order”. 11 U.S.C. § 362(d). In a
subsequent bankruptcy proceeding, a debtor “may move for relief from such order based
upon changed circumstances or for good cause shown, after notice and a hearing.” Id.
II
Mazza filed a Chapter 7 bankruptcy petition in December 2022. (Bankruptcy
Petition, Bankr. ECF No. 1.) 1 In March 2023, secured creditor The Bank of New York
Mellon, f/k/a the Bank of New York, as Trustee for the Certificateholders of the
CWALT, Inc., Alternative Loan Trust 2006-OA10 Mortgage Pass-Through Certificates,
Series 2006-OA10 (“BONY”) moved for relief from the automatic stay. (Mot. for Relief
from Stay, Bankr. ECF No. 34.) 2 Specifically, BONY sought in rem relief from the stay
in order to proceed with a mortgage foreclosure. (Id. ¶ 22.)
The foreclosure has a history of its own, some relevant to this appeal. In 2013, a
trial in the foreclosure action was pending in the Chester County Court of Common
Pleas. (Id. ¶¶ 5, 8.) Mazza filed a Chapter 7 bankruptcy petition, which stayed the

The Court takes judicial notice of the Bankruptcy Court’s docket. See Beye v. Horizon Blue
Cross Blue Shield, 568 F. Supp. 2d 556, 577 (D.N.J. 2008). Mazza has also included the Bankruptcy
Court’s docket sheet, as well as several documents filed there, in his designated record on appeal.
See (Original Bankr. R., ECF Nos. 3, 3-1); In re Aponte, No. 18-5108, 2019 WL 3833469, 2019 U.S.
Dist. LEXIS 138012, at *1 n.1 (E.D. Pa. Aug. 15, 2019) (citing the portions of the bankruptcy record
filed on the court’s docket and also taking judicial notice of the bankruptcy docket); Stevenson v.
TND Homes I, LP, 583 B.R. 573, 574 n.1 (B.A.P. 1st Cir. 2018) (citation omitted).
1

This document appears in Mazza’s designated record on appeal filed on the Court’s docket.
See (Original Bankr. R. at 17-20.) Rather than citing this compiled Record, the Court cites the
corresponding filings on the Bankruptcy Court’s docket because they are paginated more legibly.
Page numbers in court filings are those assigned by ECF unless otherwise specified.
2

2

foreclosure action. (Id. ¶ 5.) Mazza’s petition was dismissed less than two months after
he filed it because he failed to timely file information required by the Bankruptcy
Court’s orders. (Id. ¶¶ 5-6.) After the bankruptcy petition was dismissed, the
foreclosure action was placed back on the Common Pleas Court’s docket. (Id. ¶ 7.)
Trial was set to proceed in early 2014, but Mazza filed a second Chapter 7 petition, so
the foreclosure trial was stayed again. (Id. ¶¶ 8-9.) Mazza did not pay the filing fee, so
this petition was dismissed. (Id. ¶ 9.) Just over two weeks later, Mazza filed a third
Chapter 7 petition, once again staying the still-pending foreclosure trial. (Id. ¶¶ 9-10.)
Two months later, this petition was also dismissed when Mazza again failed to pay the
filing fee. (Id. ¶ 10.) Another two months later, Mazza’s wife and co-mortgagor, Lisa,
filed a Chapter 7 petition of her own, once more staying the foreclosure action. (Id. ¶¶
10-11.) This petition was similarly dismissed within two months because Lisa failed to
file information required by the Bankruptcy Court. (Id. ¶ 11.)
Eventually, in 2015, the Common Pleas Court held a one-day bench trial on the
foreclosure action. (Foreclosure Opinion, ECF No. 12-2, at 42-43.) 3 BONY prevailed
(id. at 42, 47-48), and subsequently acquired title to the property in a June 2017
sheriff’s sale. (Mot. for Relief from Stay ¶ 12); (Sheriff’s Deed, ECF No. 3-1, 21-25.)
Having obtained title, BONY filed an ejectment action against Mark and Lisa. (Mot.
for Relief from Stay ¶ 13.) The Mazzas removed the action to federal court in December
2017. (Id.) Litigation continued for several years. (Id.) BONY filed a motion for

The Court takes judicial notice of the foreclosure action. See In Re Ellis, 339 B.R. 136, 138 &
n.4 (Bankr. E.D. Pa. 2006); Martinez v. Bank of Am., N.A., 664 F. App’x 250, 253 n.4 (3d Cir. 2016);
In re Ogilvie, 533 B.R. 460, 463 (Bankr. M.D. Pa. 2015) (taking judicial notice of a state foreclosure
action as well as “the docket entries concerning the appeal of the State Foreclosure Action to the
Pennsylvania Superior Court”).

3

3

summary judgment on October 28, 2022 (No. 17-5453, Ejectment ECF No. 49), and the
court scheduled a hearing on the motion for December 6. (Ejectment ECF No. 48.) 4 On
December 5, Mazza filed a notice of stay, indicating he had filed another bankruptcy
petition that same day. (Ejectment ECF No. 62); see also (Bankruptcy Petition) (dated
December 5, 2022).
On May 5, 2023, BONY filed its motion for relief from stay—the subject of this
appeal. It argued Mazza’s “flagrant number of bankruptcy filings for the purpose of
staying the foreclosure proceedings” entitled it to in rem relief from the automatic stay,
which would allow it to “exercise its rights and proceed in mortgage foreclosure in
regards [sic] to the subject property.” (Mot. for Relief from Stay ¶ 22.) It further
asserted Mark and Lisa had filed bankruptcy petitions in “bad faith . . . solely to
prevent [BONY] . . . from proceeding with mortgage foreclosure.” (Id. ¶ 24.)
Mazza filed his response (Bankr. ECF No. 54) and the Bankruptcy Court held a
hearing on the motion by telephone. (Bankr. ECF No. 56.) During the hearing, Mazza
explained he had filed his response by hand in the courthouse lobby and had filed a
motion for abstention at the same time. (Hr’g. Tr. 5:9-12, Bankr. ECF No. 82.) 5 He told
the Bankruptcy Court he had left the deputy clerk a message earlier that morning

The Court takes judicial notice of the district court’s docket. See In re Calabria, 407 B.R. 671,
682-83 (Bankr. W.D. Pa. 2009) (“federal courts have the authority to take judicial notice of
proceedings in other courts, either within or without the federal system, provided those proceedings
are directly related to the matters at issue” (quoting In re Allegheny, Inc., 86 B.R. 466, 469 (Bankr.
W.D. Pa. 1988)); Orabi v. Att’y Gen., 738 F.3d 535, 537 n.1 (“We may take judicial notice of the
contents of another Court's docket”).
4

Mazza’s designated record on appeal purports to include the transcript of the Bankruptcy
Court’s hearing but does not do so. See (Original Bankr. R.) The Court takes judicial notice of the
transcript. See Aponte, 2019 U.S. Dist. LEXIS 138012, at *1 n.1; Calabria, 407 B.R. at 682-83 (taking
judicial notice of relief from stay proceedings before another bankruptcy court where the content of
those proceedings was relevant to the matter at hand).

5

4

because he had noticed the latter motion was not on the docket. (Id. at 5:12-14.) This
concerned Mazza because he had expected his “emergency motion” for abstention to be
considered at the same time as BONY’s motion for relief from stay. (Id. at 5:14-17.)
Mazza added that he had also referred to abstention in his response to BONY’s motion.
(Id. at 6:9-15.) After confirming the abstention motion was not on the docket, the
Bankruptcy Court instructed Mazza to re-file it if he wanted it to be considered. (Id. at
6:22-24, 7:14-23.)
Turning to the merits of BONY’s motion, the Bankruptcy Court confirmed its
understanding of Mazza’s response, namely that BONY had behaved deceptively and
fraudulently in the Common Pleas Court, where his motion seeking to vacate the
foreclosure and sheriff’s sale was pending. (Id. at 7:24-8:8.) It then granted BONY’s
motion, explaining that Mazza’s challenge to the foreclosure judgment should be
litigated in state court. (Id. at 8:22-9:1.)
The Bankruptcy Court explained that a debtor’s history of prior bankruptcy
filings was not ordinarily a concern when the filings were more than a few years old.
(Id. at 11:23-12:1.) In this case, however, Mazza’s first petition was dismissed for
failure to file necessary information, and the court assumed Mazza “just filed that to
stay a foreclosure.” (Id. at 12:1-5.) In three bankruptcy cases, Mazza had either failed
to file basic information or pay filing fees. (Id. at 12:5-12.) The court accordingly
presumed “that all of those filings, which were done in quick succession, were done in
order to avoid a foreclosure sale.” (Id. at 12:12:14.)
When Mazza asked how those past filings were relevant now, the Bankruptcy
Court explained these filings demonstrated bad faith and indicated Mazza was “trying

5

to stop the foreclosure sale.” (Id. at 12:20-25.) And since the property had been sold to
BONY in the sheriff’s sale, Mazza had “absolutely no right to ownership.” (Id. at 12:2513:2.)
The Bankruptcy Court therefore entered an order granting BONY’s motion and
modifying the automatic stay, permitting BONY “to proceed with a quiet title action
and/or ejectment action and, without limitation, to exercise any other rights it has
under the mortgage or with respect to the property.” (Order Granting Relief from Stay,
Bankr. ECF No. 55.) It further ordered that any future automatic stays “relating to the
interest in the subject property” would be “null and void and w[ould] not prevent the
foreclosure of the Mortgaged Premises from proceeding.” (Id.) Finally, BONY would
not be required to obtain relief from any future automatic stays “that would otherwise
be imposed by the filing of any subsequent case.” (Id.) Mazza filed his notice of appeal
the following day. (Bankr. ECF No. 58.)
III
The Court has jurisdiction over Mazza’s appeal pursuant to 28 U.S.C. § 158(a).
See In re Connors, 497 F.3d 314, 318 (3d Cir. 2007). The Court reviews the Bankruptcy
Court’s grant of relief from the automatic stay for an abuse of discretion. In re Kajla,
824 F. App’x 92, 93 (3d Cir. 2020) (citing In re Myers, 491 F.3d 120, 128 (3d Cir. 2007)).
Otherwise, the Bankruptcy Court’s findings of fact are reviewed for clear error and its
conclusions of law are reviewed de novo. In re Global Indus. Techs., Inc. 645 F.3d 201,
209 (3d Cir. 2011); In re Trans World Airlines, Inc., 145 F.3d 124, 131 (3d Cir. 1998) (a
district court reviews a bankruptcy court’s “legal determinations de novo, its factual
findings for clear error and its exercise of discretion for abuse thereof”).

6

IV
Mazza raises several issues on appeal. 6 He argues the Bankruptcy Court’s
decision to grant BONY relief from the automatic stay, as well as its refusal to consider
his motion for abstention, were not supported by sufficient findings of fact and
conclusions of law. (Br. of Appellant, ECF No. 11, at 5, 9.) He next contends the
Bankruptcy Court improperly ignored his motion for abstention. (Id. at 5, 7.) He also
argues he was entitled to abstention on the merits. (Id. at 5, 10-11.) Finally, he asserts
Lisa was an indispensable party, without whom BONY’s motion could not have
proceeded. (Id. at 11-12.) Failing to do so, he believes, deprived her of due process.
(Id.) None of these arguments have merit.
A
Mazza believes the Bankruptcy Court’s order was not adequately adjudicated
because it was not accompanied by a written opinion. (Id. at 9.) He similarly contends
the order is not supported by sufficient factual findings. (Id.) Neither belief is
accurate.
First, the Bankruptcy Court was not required to issue a written opinion. See In
re R.B. No. 2, No. 06-1331, 2007 WL 852553, 2007 U.S. Dist. LEXIS 18733, at *8-9
(W.D. Pa. Mar. 16, 2007) (Affirming a bankruptcy court’s grant of relief from the
automatic stay without a written opinion because the court “did explain the basis for its
decision on the record during oral argument”). The Bankruptcy Court adequately
explained the basis for its decision. It summarized Mazza’s filing history and noted
these filings were dismissed for failure to either file information required by the
6

For organizational purposes, the Court presents these issues in a different order than Mazza.

7

bankruptcy courts or pay filing fees. (Hr’g Tr. 11:23-12:12.) Consequently, the
Bankruptcy Court presumed “all of those filings, which were done in quick succession,
were done in order to avoid a foreclosure sale.” (Id. at 12:12-14.) In other words, Mazza
was “trying to stop the foreclosure sale,” through a pattern of filing that “evidence[d]
bad faith.” (Id. at 12:23-25.)
These findings were sufficient to justify granting BONY’s motion, since “the
mere timing and filing of several bankruptcy cases is an adequate basis from which a
court can draw a permissible inference that the filing of a subsequent case was part of a
scheme to hinder, delay, and defraud creditors.” In re Blair, No. 09-76150, 2009 WL
5203738, 2009 Bankr. LEXIS 4195, at *12 (Bankr. E.D.N.Y. Dec. 21, 2009); see also In
re Montalvo, 416 B.R. 381, 387 (Bankr. E.D.N.Y. 2009) (“The uncontroverted record of
the filings and lack of any good faith prosecution of these cases allow this Court to draw
a permissible inference and find that the instant petition was part of a scheme of
Debtor to delay, hinder, and defraud”). 7
While “[m]ultiple bankruptcy filings do not alone justify relief under [Section]
362(d)(4)(B),” Gray, 558 F. App’x at 166, the Bankruptcy Court relied on more than
that. In Gray, the party seeking relief from the stay “did not list or examine [the
debtor’s] earlier filings to make its case under the statutory provision it cited.” Id.
BONY described Mazza and Lisa’s filings in its motion, detailing how each was resolved
and the effects they had on BONY’s foreclosure action. See (Mot. for Relief from Stay
¶¶ 4-13.) The bankruptcy court in Gray referred to several bankruptcy filings, “but did

These cases predate the Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327,
124 Stat. 3557 (2010) which amended Section 362(d)(4)(B) by replacing “hinder, delay and defraud”
with “hinder, delay or defraud.” See In re Marcano, No. 19-11228, 2019 WL 2612730, 2019 Bankr.
LEXIS 1891, at *12 n.6 (Bankr. S.D.N.Y. June 24, 2019).
7

8

not list them or make any findings about how they related to” the subject property.
Gray, 558 F. App’x at 166. Here, the Bankruptcy Court concluded Mazza’s failure to
prosecute several bankruptcy proceedings, filed in quick succession, indicated an intent
to delay foreclosure proceedings. (Hr’g Tr. 11:23-12:25.) In short, the Bankruptcy
Court’s conclusions were reasonable and factually supported.
B
1
Mazza also argues the Bankruptcy Court was wrong not to consider his motion
for abstention during the hearing on BONY’s motion. (Br. of Appellant at 5, 7, 9-10.)
As an initial matter, “[i]t is unclear whether the timing of the bankruptcy court’s docket
management constitutes an appealable order.” Liebmann v. Goden, 629 F. Supp. 3d
314, 332 (D. Md. 2022). Even if it does, the Bankruptcy Court did not abuse its
discretion by refusing to adjudicate a motion that did not appear on its docket.
Mazza wanted the Bankruptcy Court to defer ruling on BONY’s motion for relief
from the automatic stay until the Common Pleas Court resolved his motion to vacate
the foreclosure judgment. (Br. of Appellant at 10.) For that reason, Mazza expected the
Bankruptcy Court to rule on his motion for abstention before BONY’s motion. (Hr’g Tr.
9:2-10:21.) But during the hearing, only BONY’s motion appeared on the docket, so the
Bankruptcy Court explained it would not consider a motion that did not appear to have
been properly filed. (Id. at 10:22-11:4.) Mazza believes this decision is also
insufficiently supported, since “the court denied a properly filed motion only saying the
motion is not on the docket without rendering any findings regarding said motion.” (Br.
of Appellant at 9.)

9

The Bankruptcy Court did not ignore Mazza when he claimed to have filed the
abstention motion. Instead, it checked the docket again and confirmed its absence with
the courtroom deputy. (Hr’g Tr. 5:9-6:24.) It was not an abuse of discretion to decline
to hear a motion not properly before it. 8
2
Mazza’s argument for abstention on the merits is not a proper subject of appeal.
He contends the Bankruptcy Court should have “deferred or abstained from deciding”
BONY’s motion since “the issue of ownership of the property claimed by [BONY] is the
very same issue pending in a state court action.” (Br. of Appellant at 5.) But again, the
Bankruptcy Court declined to do so because his motion seeking abstention was not on
its docket. When Mazza filed this appeal, the Bankruptcy Court had not ruled on the
merits of his abstention motion, so they are not a proper subject of this appeal. 9
Mazza’s arguments are unavailing for another reason. He contends the
Bankruptcy Court should have considered his abstention motion under a six-part test
articulated in In re Container Transp., Inc., 86 B.R. 804 (Bankr. E.D. Pa. 1988). But
this test does not apply because it governs mandatory abstention of non-core
bankruptcy proceedings. It is specifically used to determine whether the elements of 28

During the hearing, Mazza said he had a time-stamped copy of his abstention motion, which
would show he had filed it at the same time as his response to BONY’s motion. (Hr’g Tr. 7:2-13.) It
would therefore “have two time stamps on it when [he did] re-file.” (Id. at 9:2-9.) His re-filed motion
shows only one such stamp, dated after the hearing took place. (Emergency Mot. for Abstention,
Bankr. ECF No. 57.)
8

Mazza never litigated his abstention motion before the Bankruptcy Court. After Mazza filed
the motion on its docket, and after he had already appealed the modification of the stay, the
Bankruptcy Court denied his request for an expedited hearing on abstention. It directed Mazza to
“schedule a hearing to consider the Motion in the normal course of business.” (Bankr. ECF No. 64.)
After Mazza failed to do so despite two separate reminders by the Clerk’s Office, the motion was
dismissed for lack of prosecution. (Bankr. ECF No. 83.)
9

10

U.S.C. § 1334(c)(2) have been satisfied, such that abstention is mandatory. L.H. v. Rice
Enters., LLC, No 23-613, 2023 WL 4198475, 2023 U.S. Dist. LEXIS 111859, at *5 (W.D.
Pa. June 26, 2023). Mandatory abstention “applies to only ‘non-core’ proceedings;” it
does not apply to core bankruptcy proceedings. In re Maxus Energy Corp., 571 B.R.
650, 661 (Bankr. D. Del. 2017). 28 U.S.C. § 157(b)(2) contains a non-exhaustive list of
core proceedings. Critically, this list includes “motions to terminate, annul, or modify
the automatic stay.” 28 U.S.C. §157(b)(2)(G). Mazza similarly argues abstention was
proper because his motion to vacate the foreclosure judgment and sheriff’s sale could
have an “impact on liquidation of assets of the [bankruptcy] estate.” (Br. of Appellant
at 10.) But this language comes from 28 U.S.C. § 157(b)(2)(O), which provides another
example of a core proceeding, rather than requiring abstention.
C
Finally, Mazza contends his wife Lisa was an indispensable party to the action
and that granting BONY’s motion in her absence violated her due process rights. (Br.
of Appellant at 5, 11-12.) Even assuming Mazza has third party standing to make this
argument, see Penn. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278,
288-89 (3d Cir. 2002) (discussing third-party standing) (citations omitted), he is
incorrect. See Askri v. U.S. Bank, N.A., 612 B.R. 867, 871-72 (E.D. Va. 2020)
(addressing, and rejecting on the merits, debtor’s argument that his non-debtor wife
had not received proper notice of a bank’s motion for relief from the automatic stay
under Section 362(d)(4)). Section 362(d)(4) provides relief “as to all entities claiming to
hold an interest in the subject property, regardless of whether they sought bankruptcy
protection.” Id. at 871.

11

“Courts have come out on both sides” on the question of whether a non-debtor
with an interest in the subject property is entitled to notice of a motion for in rem relief
from the automatic stay. In re Greenstein, 589 B.R. 854, 863-64 (C.D. Cal. 2018)
(Greenstein II) (collecting cases); compare In re Hatton, No. 16-90946, 2017 WL
4155326, 2017 Bankr. LEXIS 3153, at *8 (Bankr. E.D. Cal. Sept. 15, 2017) (“a person
who is not a debtor in the case is not entitled to notice of a motion for relief from stay”)
with In re Dorsey, 476 B.R. 261, 270 (Bankr. C.D. Cal. 2012) (recognizing potential due
process issues but concluding adequate notice and opportunity to be heard dispelled
those concerns in the instant case).
Even if notice is required, “failure to provide the property owner with prior
notice of a request for in rem relief is [not] necessarily fatal to the validity of the order”
granting that relief, since a property owner burdened by the order “can still move for
relief from that order as soon as she becomes a debtor in her own bankruptcy case.” In
re Greenstein, 2017 Bankr. LEXIS 3770, at *56-57 (Bankr. C.D. Cal. Oct. 31, 2017)
(Greenstein I) (emphasis added), aff’d 589 B.R. 854 (C.D. Cal. 2018), 788 F. App’x 497
(9th Cir. 2019).
In other words, “[a]s long as the debtor has adequate notice that the [S]ection
362(d)(4) order exists and burdens her property, the debtor has an opportunity to be
heard by the bankruptcy court and to obtain relief from the order.” Id. at *57. This is
so because “the burden imposed by a [S]ection 362(d)(4) order—exclusion of the
property from the protection of the automatic stay—is realized only if and when the
property owner elects to seek relief under the Bankruptcy Code.” Id.

12

Mazza therefore cannot use any due process concerns his wife may have to
invalidate the Bankruptcy Court’s order granting BONY relief from the stay. Any of
Lisa’s potential due process issues will become relevant, if at all, if she files her own
Chapter 7 petition. See Greenstein I, 2017 Bankr. LEXIS 3770, at *57-58 (Whether
there has been a violation will depend on whether the property owner ever gets notice
of the in rem order, and whether the notice is adequate to permit the property owner to
timely seek relief from that order based on changed circumstances or good cause
shown” (emphasis added). 10

Mazza’s designation of record on appeal includes several other issues. (Original Bankr. R. at
13-15.) To the extent that he wishes to challenge the Bankruptcy Court’s subject matter
jurisdiction, he cannot, since “the bankruptcy court with jurisdiction over a debtor’s case has the
authority to grant relief from the stay of judicial proceedings against the debtor.” Maritime Elec. Co.
v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir. 1991).
Mazza further argues the Bankruptcy Court improperly waived Bankruptcy Rule 4001(a)(3),
which provides that orders granting relief from the automatic stay are stayed for fourteen days
unless the court orders otherwise. Fed. R. Bankr. P. 4001(a)(3). Any error claimed here is now
harmless. See New York City Shoes, Inc. v. Best Shoe Corp., 106 B.R. 58, 62 (E.D. Pa. 1989)
(affirming bankruptcy court because of harmless error). The purpose of Rule 4001(a)(3) is to “permit
a short period of time for the debtor or the party opposing relief [from the automatic stay] to seek a
stay pending appeal of the order.” In re Sternitzky, 635 B.R. 353, 361 (Bankr. W.D. Wis. 2021)
(quoting 9 Collier on Bankruptcy ¶ 4001.05 (16th ed. 2016)). Mazza filed a motion for a stay pending
appeal with this Court on July 1, 2023. (ECF No. 4). He did so over a month after the Bankruptcy
Court granted relief from the stay, well after Rule 4001(a)(3)’s fourteen-day period would have
already expired. And the Court denied the motion without prejudice because Mazza had not sought
such a stay before the Bankruptcy Court and was not entitled to raise it with this Court in the first
instance because he had not satisfied Bankruptcy Rule 8007(b)(2). (ECF No. 7.) The Court
accordingly instructed Mazza to seek the stay pending appeal before the Bankruptcy Court unless he
could satisfy Rule 8007(b)(2). (Id.) He neither sought a stay pending appeal in the Bankruptcy
Court nor attempted to refile with this Court. Any claimed error by the Bankruptcy Court in
waiving Rule 4000(a)(3) is accordingly harmless.
Mazza also contends the Bankruptcy Court’s order granting BONY relief from the automatic
stay does not describe BONY the same way the deed does. (Original Bankr. R. at 14.) This
incorrect. Both documents describe identify BONY the same way. See (Order Granting Relief from
Stay); (Sheriff’s Deed at 22, 23-24.)
Mazza also argues the Bankruptcy Court failed to consider whether “the sheriff sale was
collusive.” (Original Bankr. R. at 14.) Judge Robreno’s discussion of this issue during the ejectment
proceedings is instructive. See Bank of N.Y. Mellon v. Mazza, 674 F. Supp. 3d 147, 154 (E.D. Pa.
2023) (“A valid judgment in mortgage foreclosure can bar a subsequent claim based on the validity of
the foreclosed mortgage under the Rooker-Feldman doctrine”); see also In re Dunlop, 378 B.R. 85, 9293 (Bankr. E.D. Pa. 2007) (a bankruptcy court “has no jurisdiction to overturn” a state court’s
foreclosure judgment).
10

13

An appropriate Order follows.
BY THE COURT:
/s/ Gerald J. Pappert
Gerald J. Pappert, J.

Finally, Mazza argues the Bankruptcy Court failed to consider the possibility that the
property could become an asset of the bankruptcy estate if the proceeding were “converted to
[C]hapter 13.” (Original Bankr. R. at 14.) But as the Bankruptcy Court explained, the property had
already been sold to BONY. (Hr’g Tr. 12:25-13:10.) And “if a foreclosure sale takes place prepetition,
a [C]hapter 13 debtor has no right to cure or reinstate her mortgage under Pennsylvania law” or in a
“[C]hapter 13 petition under federal bankruptcy law.” Dunlop, 378 B.R. at 92. So “where a prebankruptcy sale has already occurred, courts have routinely held that relief from the bankruptcy
stay generally is appropriate so the buyer may eject the debtor.” Id. Although Mazza wanted the
Bankruptcy Court to abstain from ruling on BONY’s motion until he had finished litigating his
challenge to the foreclosure and sheriff’s sale in state court, he cannot make that argument here.
Again, the Bankruptcy Court did not err by declining to consider Mazza’s abstention motion when it
was not on the docket.

14