UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

Miami Division 

IN RE: CASE NO. 20-10440-LMI 

DOREEN REYES, CHAPTER 13 

SS#: XXX-XX-8144 

Debtor. 

_______________/ 

EMERGENCY MOTION TO ANNUL THE AUTOMATIC STAY NON PRO TUNC TO 

PETITION DATE AND FOR RATIFICATION OF FORECLOSURE SALE, ISSUANCE 

OF THE CERTIFICATE OF SALE AND CERTIFICATE OF TITLE 

EMERGENCY HEARING REQUESTED 

REASON FOR EXIGENCY AND NECESSITY 

FOR EMERGENCY HEARING-LOCAL RULE 9075-1

1. There is no policy of insurance protecting the property which is the 

subject of this Motion because the Bonafide Purchaser has been unable to enter 

the property despite obtaining a Certificate of Sale and a Certificate of Title and is 

unable to obtain a writ of possession since the Debtor is contesting the validity of 

the Certificate of Sale and Title on the basis that the foreclosure sale took place 

the same day as the Debtor filed her bankruptcy. Bonafide Purchaser requests 

that a hearing be set prior to March 2, 2020 as the Debtor is attempting to vacate 

the sale in state court despite the dismissal of her bankruptcy case. 

 COMES NOW the Bonafide Purchaser ROCCAFORTE LLC (“Roccaforte”), by 

and through its undersigned counsel, files this Motion to Annul the Automatic Stay and 

pursuant to 11 USC §362(d)(1) as grounds states: 

 2. The Debtor owned the following real property: 

Case 20-10440-LMI Doc 19 Filed 02/20/20 Page 1 of 7
 Unit 101 of Bldg. 7, MONTEREY AT MALIBU BAY CONDOMINIUM ONE, 

 according to the Declaration of Condominium recorded in 

 Official Records Book 23185, Page 1069 of the Public Records of 

 Miami-Dade County, Florida (“the Property”) 

 a/k/a 3385 NE 10 Street, #101, Homestead, Florida 33033 

 3. The Property was foreclosed on by Malibu Bay Community Assn., Inc. 

and a Final Judgment of Foreclosure was entered on December 9, 2019. 

 4. The Property was scheduled for foreclosure sale on January 14, 2020. 

5. The property was sold on January 14, 2020 to Roccaforte and a 

Certificate of Sale was issued 3 days later. A copy of the Certificate of Sale is attached 

as Exhibit A. 

6. Unbeknownst to Roccaforte, the Debtor filed the instant bankruptcy on the 

same day of the foreclosure sale and provided no notice of her bankruptcy filing to the 

state court. 

7. Roccaforte obtained the Certificate of Title to the Debtor’s former property 

on January 30, 2020- 3 days after the Debtor’s case was dismissed. A copy of the 

Certificate of Title is attached as Exhibit B. 

8. The Debtor did not obtain budget and credit counseling pre-petition and 

did not state an exigent circumstance that prevented her from receiving the credit 

counseling. See D.E 4. 

9. Debtor’s case was dismissed on January 27, 2020 for her failure to file a 

Creditor Matrix by the deadline of January 21, 2020. See D.E 13 Order Dismissing 

Case. 

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THE DEBTOR WAS INELIGIBLE DUE TO HER FAILURE TO OBTAIN 

CREDIT COUNSELING PREPETITION 

 10. The Debtor has never completed a credit counseling course. 

 11. Consequently, she was ineligible to be a debtor under 11 U.S.C. § 

109(h)(1) since she did not obtain budget and credit counseling pre-petition and did not 

demonstrate that exigent circumstances prevented her from receiving the counseling. 

12. The Debtor does not even meet the eligibility requirement under 11 

U.S.C. § 109(h)(3) as the Debtor’s filed certification did not describe the exigent 

circumstances that merit a waiver of the requirements or state she was unable to obtain 

counseling within 5 days of requesting it from a counseling agency. The Debtor merely 

states in her Motion for Waiver of Credit Counseling, D.E. 4 that “I was informed by a 

lawyer to come here to try and save my condo but was not told that I needed to 

complete any course.” 

 THE AUTOMATIC STAY SHOULD BE ANNULED AND THE 

POSTPETITION FORECLOSURE SALE, ISSUANCE OF THE CERTIFICATE OF 

SALE AND CERTIFICATE OF TITTLE SHOULD BE RATIFIED 

 13. The following factors as those a court should consider in determining 

whether to grant a request to annul the stay and validate a post petition foreclosure 

sale: 

 (1) whether the creditor had actual or constructive knowledge of the 

 bankruptcy filing and, therefore, of the stay; 

 (2) whether the debtor has acted in bad faith; 

 

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 (3) whether grounds for relief from stay exist and a motion, if filed, 

 would have been granted prior to the violation; 

 (4) whether failure to grant retroactive relief would cause unnecessary 

 expense to the creditor; 

 (5) whether the creditor has detrimentally changed its position on the 

 basis of the action taken; 

 In re Barr, 318 B.R. 592 (Bankruptcy. M.D. Florida 2004) 

ROCCAFORTE DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE 

OF THE BANKRUPTCY FILING 

14. To repeat, on January 14, 2020, the Property was sold at foreclosure 

pursuant to the Final Judgment. Roccaforte was the successful bidder at the 

foreclosure sale and paid all amounts due the Circuit Court Clerk. 

 10. Upon the filing of the Debtor’s bankruptcy she failed to disclose the filing 

to the state court and the foreclosure sale went through the normal auction process 

which led to Roccaforte obtaining the Certificate of Sale and Certificate of Title to the 

property. Consequently, neither the state court nor Roccaforte had knowledge- actual or 

constructive - of the Debtor’s bankruptcy filing. A copy of the state court docket is 

attached as Exhibit C. 

11. Notice was only given to the state court only February 7, 2020- 25 days 

after the filing of the bankruptcy, by the Debtor filing a Motion to Set Aside the 

Foreclosure Sale. Despite having received the Certificate of Sale and Certificate of Title 

from the state court, Roccaforte was not even noticed regarding the Motion to Set Aside 

the Foreclosure sale. 

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THIS CASE HAS BEEN FILED IN BAD FAITH 

12. As has been shown above, the Debtor did not obtain budget and credit 

counseling pre-petition and did not demonstrate that exigent circumstances prevented 

her from receiving the counseling. She is therefore ineligible to be a debtor under 11 

U.S.C. § 109(h)(1). 

13. The Debtor filed her Petition in this case despite the fact that she was 

ineligible to do so in order to prevent the sale of the Property and has acted in bad faith. 

14. Despite this Court providing deadlines to file required documents and a 

creditor matrix, the Debtor failed to meet the deadlines provided. The Debtor had until 

January 21, 2020 to file a creditor matrix and failed to do so, even though she had an 

additional 6 days to file it before the entry of the dismissal order. This Court also 

provided a reminder to the Debtor to comply with the deadline in its Order Setting 

Hearing and Setting Deadline to file Credit Counseling Certificate. See D.E 7. The 

Debtor did nothing. 

GROUNDS FOR RELIEF FROM STAY EXIST 

 15. There is no policy of insurance on the Property for the benefit of 

Roccaforte. Roccaforte therefore lacks adequate protection of its interest in the 

Property. 

16 Since the interest of Roccaforte in the Property is not adequately 

protected, 11 U.S.C.§ 362(d)(1) of the Bankruptcy Code requires this Court to grant 

Roccaforte relief from the automatic stay. 

17. Furthermore, the Debtor was not eligible to be a Debtor as she failed to 

receive budget and credit counseling prepetition as required by 11 USC § 109(h)(1). 

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18. Consequently, cause would exist to grant a creditor or a Bonafide 

purchaser relief from stay. 

FAILURE TO GRANT ROCCAFORTE RETROACTIVE RELIEF WILL 

CAUSE IT UNNECESSARY EXPENSE 

 19. Roccaforte was required to pay the Circuit Court Clerk of over Two 

Thousand ($2,000.00) in fees in order to complete the sale of the Property. These fees 

will not be refunded to Roccaforte if its purchase of the Property is not upheld by this 

Court. 

 20. Roccaforte has lost the use of the $95,600.00 now in the possession of 

the Circuit Court Clerk and has had to incur attorney’s fees and costs in order to bring 

this Motion before the Court. 

ROCCAFORTE DETRIMENTALLY CHANGED ITS POSITION ON THE BASIS 

OF THE FAILURE OF THE DEBTOR TO TIMELY FILE HER PETITION AND 

PROVIDE NOTICE 

 21. The Debtor filed the instant bankruptcy to stop the sale of the Property 

and but took no action to stop the sale before it actually took place and Roccaforte 

detrimentally relied on this inaction. 

 22. Roccaforte has incurred attorney fees and costs for having to come into 

bankruptcy court to preserve its rights and interest in the property and requests-as 

sanctions for Debtor’s inaction- reimbursement for attorney fees and costs in the 

bankruptcy court plus any additional fees for having to defend in the state court against 

the Debtor’s attempt to vacate the sale, plus any clerks’ fees that may not otherwise be 

reimbursed by the Clerk of Court. 

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WHEREFORE, Bonafide Purchaser ROCCAFORTE, LLC. respectfully requests 

that the Court grant its Motion, enter an order annulling the stay non pro tunc as of the 

petition date of January 14, 2020, that the foreclosure sale be considered valid and the 

Certificates of Sale and Title be ratified, that the ten day stay of the order if any be 

waived, award attorney’s fees and costs and provide such other and further relief to 

Roccaforte as this Court deems proper. 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of this Emergency Motion to Annul 

the Automatic Stay Non Pro Tunc to Petition Date and For Ratification of Foreclosure 

Sale, Issuance of the Certificate of Sale and Certificate of Title was served 

electronically or by mail to Nancy Neidich, Trustee, P.O.B. 279806, Miramar, FL 33027 

and Timothy Kingcade, Esq., 1370 Coral Way, FL 33145 and Doreen Reyes, 3385 NE 

10th Street, #101, Homestead, FL 33033 on February 20, 2020. 

Respectfully Submitted, 

Sabrina Chassagne, P.A. 

The White Building 

One N.E. 2nd Avenue 

Suite 208 

Miami, FL 33132 

Phone (305) 358-0005 

justice.one@earthlink.net 

By: s/Sabrina Chassagne

 Sabrina Chassagne 

 Fla. Bar No. 60682 

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