SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5524-17T2

EUGENE GAETA and

MEGAN GAETA,

Plaintiffs-Respondents,

v.

RUDI HENDEL, CATHERINE

LIN-HENDEL, LIN-HENDEL,

C.G. HENDEL, and RUDI TRUST,

Defendants-Appellants.

Submitted November 14, 2019 – Decided

Before Judges Alvarez, Nugent and Suter.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Docket No. L-3484-13.

Kasuri Byck LLC, attorneys for appellants (Harrison 

Ross Byck, on the brief).

Bourne Noll & Kenyon, and White and Williams LLP,

attorneys for respondents (Michael D. Mezzacca, 

Michael Oliver Kassak, Edward Michael Koch, and 

Jared K. Levy, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.

January 14, 2020
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PER CURIAM

This appeal challenges an award of counsel fees to plaintiffs Eugene Gaeta 

and Megan Gaeta, pursuant to the frivolous litigation statute, N.J.S.A. 

2A:15-59.1(a)(1), payable by defendants Rudi Hendel, Catherine Lin-Hendel,

and the Rudi Hendel Revocable Trust. The obligation was imposed before Rudi 

Hendel and Catherine Lin-Hendel filed a Chapter 11 bankruptcy petition. After 

the action was filed, the Law Division judge calculated the actual fee amount 

and entered an order accordingly. The order setting the amount was voided by 

the bankruptcy court because it violated the bankruptcy code's automatic stay 

provision, 11 U.S.C. § 362(a)(2). The bankruptcy petition was then dismissed 

on April 25, 2018. On July 2, 2018, having been informed of the dismissal, the 

judge sua sponte reinstated the counsel fee order. Defendants appeal, and we 

affirm, concluding that once the bankruptcy action was dismissed, precedent 

allows reinstatement of the obligation. 

The procedural history in this matter is unclear. The July 2, 2018 order 

reinstating the $90,848.65 attorney's fee award was entered by the judge without 

a hearing upon being advised by letter from plaintiffs' counsel that the 

bankruptcy petition was dismissed. No attack is being made on the merits of the 

initial pre-bankruptcy decision granting fees to plaintiffs, made when the judge 
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dismissed defendants' eleven-count, 105-paragraph counterclaim alleging,

among other things, trespass, tortious interference with prospective economic 

advantage, defamation, and intentional infliction of emotional distress. From 

what we can discern from the limited record on appeal, this is a dispute between 

neighbors, stemming from the invasion of bamboo into plaintiffs' yard, 

defendants' partial removal of plaintiffs' fence, and similar conflicts. Final 

judgment appears to have been entered.

Defendants raise an issue before us never argued to the trial judge.

1

 They 

contend that the July 2, 2018 order was void ab initio, and thus, pursuant to Rule

4:50-1(d), is unenforceable:

POINT I

THE TRIAL COURT ERRED IN THE JULY 02, 2018 

ORDER BY DIRECTLY REINSTATING THE 

NOVEMBER 02, 2016 ORDER WHICH IS 

RENDERED VOID AB INITIO AS IT WAS 

ENTERED IN VIOLATION OF THE AUTOMATIC 

1

 The judge reinstated the appealed-from order without a hearing, and 

defendants are entitled to appeal because it is final. Ordinarily, we do not 

address arguments not made to the trial court. In this case, defendants had no 

opportunity to object to the reinstatement of the order before issuance. See State 

v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 

(2009)) ("For sound jurisprudential reasons, with few exceptions, 'our appellate 

courts will decline to consider questions or issues not properly presented to the 

trial court when an opportunity for such a presentation is available.'"). 

Additionally, the issue raises a question of law, which we always review de 

novo. Smith v. Millville Rescue Squad, 225 N.J. 373, 387 (2016). Thus, it is 

procedurally proper for us to proceed.
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STAY PURSUANT TO SECTION 362 OF THE U.S. 

BANKRUPTCY CODE, THEREFORE THE JULY 02, 

2018 ORDER MUST BE VACATED UNDER RULE 

4:50-1(D) AS [ITS] SOLE PURPOSE IS TO 

REINSTATE THE VOID AB INITIO NOVEMBER 

02, 2016 ORDER.

Judge Pressler addressed a factually similar scenario in Bascom 

Corporation v. Chase Manhattan Bank, 363 N.J. Super. 334 (App. Div. 2003).

Bascom sought to foreclose a tax sale certificate on property upon which Chase 

Manhattan Bank held a mortgage. Id. at 337. The property owner, Fannie

Askew, was the borrower. Ibid. A tax foreclosure judgment was issued to 

Bascom while Askew's bankruptcy proceeding was pending. Ibid. 

Neither Chase nor Askew responded to Bascom's preaction notice, or to 

the tax foreclosure complaint. Ibid. Bascom obtained an order "fixing the 

amount, time and place of redemption." Ibid. Neither Chase nor Askew 

attempted to redeem. Ibid. The tax foreclosure judgment was entered October 

24, 2001, and Bascom acquired the property at a sheriff's sale. Id. at 337-38. 

Chase, while foreclosing on the property, "missed Bascom's purchase of 

the tax sale certificate." Id. at 338. Chase did not attempt to enforce the 

judgment in the mortgage foreclosure until a year after entry of Bascom's final 

tax foreclosure judgment. Ibid. On October 22, 2002, a sheriff's sale on the 

mortgage foreclosure was conducted at which Chase was the highest bidder. 
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Ibid. Adding to the confusion, Askew "filed a pro se motion in the mortgage 

foreclosure action seeking to set aside Chase's" judgment, on the theory that the 

property had already been sold. Ibid. In response, Chase filed a motion seeking 

to set aside the tax foreclosure judgment under Rule 4:50-1(d). Ibid. The judge 

granted Askew's motion and denied Chase's application. Ibid.

Chase contended that the tax foreclosure judgment was void because the 

redemption order was entered while the bankruptcy court's automatic stay was 

in effect. Id. at 338-39. Bascom was unaware of the bankruptcy proceeding. 

Id. at 339. The automatic stay was dissolved when the petition was dismissed 

"two days after entry of the order fixing the terms of redemption." Ibid.

Askew had actually filed three petitions in bankruptcy—the first 

dismissed October 6, 2001, the second dismissed January 11, 2002, and the third

dismissed October 31, 2002. Ibid. The final judgment of tax foreclosure was 

entered on October 24, 2001, in the hiatus between dismissal of the first petition 

before the second was filed. Ibid. The trial judge decided Chase was not entitled 

to relief because the time that had elapsed before the application was not 

reasonable. Id. at 339-40. 

On appeal, Chase reiterated that the final tax foreclosure judgment was 

void because of the automatic stay, and that the Chancery Division erred in
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denying it relief pursuant to Rule 4:50-1. Id. at 338-39. Judge Pressler began 

her analysis from the premise that pursuant to state law, "[a] state court judgment 

entered while the [bankruptcy code's] automatic stay is in place renders that 

judgment void ab initio . . . ." Id. at 341 (citing Cho Hung Bank v. Ki Sung 

Kim, et al, 361 N.J. Super. 331, 339 (App. Div. 2003)). The defect in such 

judgments is not "waivable" because the lack of authority in the court to render 

judgment is similar to a "non-waivable lack of subject matter jurisdiction." Ibid. 

But in Bascom, the final tax foreclosure judgment was entered after the 

Chapter 13 petition was dismissed and no stay was in effect. Id. at 342. It was 

not the final judgment that was void, only the earlier order fixing the terms of 

redemption while the stay was in effect. Ibid. The interim redemption order 

was void ab initio, which did not make the foreclosure judgment invalid. Ibid. 

Federal bankruptcy law was not violated "when the final judgment itself is free 

of the impediment of the automatic stay." Ibid. Thus, the final tax foreclosure 

judgment was in no way impaired by the nullification of the interlocutory order 

detailing the steps to redemption. Id. at 342-43.

The similarity to this case is self-evident. The order requiring defendants 

to pay fees was not entered while the bankruptcy petition was pending; it 

preceded the filing of the bankruptcy petition and the automatic stay. That order 
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is not even under attack—nor could it be, as the time for the filing of any appeal 

has long since passed. 

The purpose of the automatic stay is to give debtors respite during 

bankruptcy proceedings. Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 

1194, 1204 (3d Cir. 1991). That respite was achieved by the nullification of the 

order specifying the amount of fees. Once the bankruptcy proceedings were 

dismissed, however, defendants returned to the same legal footing as before the 

bankruptcy petition was filed. Defendants faced the pre-existing obligation, and 

the court was again obliged to fix the specific amount owed. 

Furthermore, defendants have not proffered any law or convincing 

rationale that would bar reinstatement after dismissal of the petition. In fact, 

"an automatic stay must plainly terminate upon dismissal of the petition giving 

rise to it." In re Lomagno, 320 B.R. 473, 478 (B.A.P. 1st Cir. 2005) (citation 

omitted). 11 U.S.C. § 349(b)(3) provides that the dismissal of a case revests the 

property of the estate in the entity in which ownership reposed immediately 

before the filing. Ibid. Congress's intent in enacting the law was to return the 

parties to the same position, once a petition is dismissed, as they were before. 

Ibid. Even if a bankruptcy petition is refiled after dismissal, the stay generally 

does not apply retroactively to the earlier action. Id. at 481-82. No purpose 
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intended by Congress in enacting the bankruptcy laws would be served by the 

result defendants urge on appeal. 

Affirmed.