Illya Georgyevich Alexieff

1 The debtor filed Case No. 11-05495-8-JRL on July 19, 2011, which was dismissed on
November 18, 2011. Several months later, the debtor filed Case No. 12-00310-8-SWH on
January 13, 2012, which was dismissed on March 1, 2012.
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
ILLYA GEORGYEVICH ALEXIEFF,
DEBTOR.
CASE NO. 12-03248-8-JRL
CHAPTER 13
ORDER
This matter came before the court on the motion of Philip A. Glass, in his capacity as
trustee in foreclosure (“trustee”), requesting relief from the automatic stay and co-debtor stay, in
rem relief from the automatic stay, and a declaratory ruling that the automatic stay is not in
effect. A hearing was held on June 6, 2012, in Raleigh, North Carolina.
The debtor filed a voluntary petition under chapter 13 of the Bankruptcy Code on April
30, 2012. This marked the debtor’s third chapter 13 filing in a twelve-month period. 1 The issue
currently before the court arises out of an April 2012 foreclosure sale of certain real property
belonging to the debtor.
On May 25, 2001, the debtor executed a promissory note for $192,700.00 (“note”) for the
SO ORDERED.
SIGNED this 07 day of June, 2012.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
Case 12-03248-8-JRL Doc 28 Filed 06/07/12 Entered 06/07/12 16:15:55 Page 1 of 4

2 The deed of trust was recorded at Book 8946, Page 760, in the Office of the Register of
Deeds of Wake County.
3 The SECU was the highest bidder.
-2-
benefit of the State Employees’ Credit Union (“SECU”). On that same day, the debtor and his
wife, Elizabeth Alexieff executed a deed of trust pledging the real property located at 1317
Mordecai Drive, Raleigh, North Carolina (“property”) as security for the debtor’s obligations
under the note (“deed of trust”).2 The current payoff on the obligation is approximately
$193,751.14.
Following the debtor’s default on his obligations under the note, the trustee initiated
foreclosure proceedings against the property, pursuant to the terms of the deed of trust. On April
16, 2012, the trustee conducted a foreclosure sale and filed a report of foreclosure sale (“report”)
with Clerk of Superior Court for Wake County.3 On April 30, 2012—after the ten-day upset bid
period expired, but before the trustee recorded the deed to the SECU—the debtor filed a petition
commencing the current bankruptcy case. On May 8, 2012, the trustee moved the court for
various forms of relief from the automatic stay, as well as a declaratory ruling that the automatic
stay is inapplicable as to the foreclosure sale and the property. On May 29, 2012, the
debtor—acting pro se—filed an objection to the trustee’s motion. Pragmatically, if the court
determines that the automatic stay is inapplicable to the foreclosure sale and the property, the
trustee’s remaining requests for relief will be moot. Therefore, the court will address this issue
before making any other determinations.
A bankruptcy petition operates as an automatic stay of “any act to obtain possession of
property of the estate or of property from the estate or to exercise control over property of the
Case 12-03248-8-JRL Doc 28 Filed 06/07/12 Entered 06/07/12 16:15:55 Page 2 of 4

4 Certain property is excepted from being property of the estate under 11 U.S.C. §§
541(b), (c)(2), but these provisions do not apply to the present case.
-3-
estate.” 11 U.S.C. § 362(a)(3). Generally, property of the estate includes “all legal or equitable
interests of the debtor in property as of the commencement of the case.”4 11 U.S.C. § 541(a)(1).
Therefore, for the foreclosure sale to be stayed, the debtor must have had an interest in the
property at the time the petition was filed.
In North Carolina, after a foreclosure sale is conducted, a ten-day upset bid period
follows during which any person may bid on the property. See N.C. Gen. Stat. § 45-21.1 to .33.
To be effective, the required deposit and notice must be filed with the clerk of the appropriate
superior court “by the close of normal business hours on the tenth day after the filing of the
report of the sale or the last notice of upset bid.” Id. § 45-21.27(a). If a debtor files a bankruptcy
petition within the upset bid period, the upset bid period is suspended and the subject property is
property of the estate. In re Lordship Dev., LLC, 403 B.R. 772, 773 (Bankr. E.D.N.C. 2008)
(citing Beneficial Mortgage Co. of N.C. v. Barrington & Jones Law Firm, 595 S.E.2d 705, 709
(N.C. Ct. App. 2004)). However, if a debtor fails to file within the statutory period for upset
bids,
ownership rights of the prior owner of the real property shift to the high bidder at
foreclosure sale upon expiration of upset bid period at the normal close of the
business on the tenth day. Thus, property formerly owned by the debtor which was
sold 	at 	foreclosure 	and 	for 	which 	the 	upset 	bid 	period 	expired 	prior 	to
commencement of the bankruptcy case is not property of the estate. The result is the
same whether the petition was filed one minute late or five days late.
In re Figured, Nos. 09-03251-8-JRL, 09-06490-8-JRL, 2009 Bankr. LEXIS 2580, at *7 (Bankr.
E.D.N.C. Aug. 31, 2009). This rule is well-established in this district and has been followed
without exception. See, e.g., In re Monroe, No. 11-05167-8-RDD, 2011 Bankr. LEXIS 4417, at
Case 12-03248-8-JRL Doc 28 Filed 06/07/12 Entered 06/07/12 16:15:55 Page 3 of 4

-4-
*5 (Bankr. E.D.N.C. Nov. 7, 2011) (citing In re Figured, 2009 Bankr. LEXIS 2580)); In re
Hawkins, No. 11-02379-8-JRL, 2011 Bankr. LEXIS 4650, at *2 (Bankr. E.D.N.C. June 9, 2011);
In re McDonald, No. 10-09196-8-JRL, 2011 Bankr. LEXIS 4683, at *1 (Bankr. E.D.N.C. June 1,
2011); In re Lordship Dev., LLC, 403 B.R. at 773; In re Saunders, No. 07-02455-8-JRL, at 2
(Bankr. E.D.N.C. Sept. 12, 2007); In re Barham, 193 B.R. 229, 232 (Bankr. E.D.N.C. 1996).
The court finds that in this case, the foreclosure sale was not stayed because the debtor
failed to file his petition within the statutory period for upset bids. On April 16, 2012, the trustee
conducted the foreclosure sale and properly filed the report. As a result, the ten-day upset bid
period expired on April 26, 2012, four full days before the debtor filed his chapter 13 petition.
Thus, because the property was sold at foreclosure and the upset bid period expired prior to the
commencement of the present bankruptcy case, the property is not property of the estate and was
in no way affected by the debtor’s bankruptcy petition. In light of this ruling, the trustee’s
alternative requests for relief are moot and need not be considered.
Based on the foregoing, the trustee’s motion for declaratory ruling that the automatic stay
is inapplicable is ALLOWED.
END OF DOCUMENT
Case 12-03248-8-JRL Doc 28 Filed 06/07/12 Entered 06/07/12 16:15:55 Page 4 of 4