Myra Quintero

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
In re:
MYRA QUINTERO, Chapter 13
Case No. 26-10376-1-pgr
Debtor.
_______________________________________
APPEARANCES:
LAW OFFICE OF OPAL HINDS OPAL FAYNE HINDS, ESQ.
650 Franklin Street, Suite 501
Schenectady, New York 12305
Counsel for Debtor Myra Quintero
STEIN, WIENER & ROTH, LLP EDWARD WIENER, ESQ.
1400 Old Country Road, Suite 315
Westbury, New York 11590
Counsel for SEFCU Services, LLC, dba Homeowners Advantage
ANDREA E. CELLI
CHAPTER 13 STANDING TRUSTEE BONNIE S. BAKER, ESQ.
7 Southwoods Boulevard
Albany, New York 12211
MEMORANDUM-DECISION AND ORDER
DENYING DEBTOR’S MOTION TO IMPOSE
AUTOMATIC STAY NUNC PRO TUNC
Myra Quintero lost her home in a foreclosure sale minutes after she filed this
case. Presently pending is her motion to impose the automatic stay retroactively and
Signed this 3 day of September, 2026.
Patrick G. Radel
_______________________________
United States Bankruptcy Judge
So Ordered.
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reverse the sale. For the following reasons, this Court finds that it lacks the authority
to grant the requested relief.
Jurisdiction
This Court has core jurisdiction over the parties and the subject matter of this
contested matter under 28 U.S.C. §§ 1334(b) and 157(b)(2). Venue is proper in this
Court pursuant to 28 U.S.C. §§ 1408 and 1409.
Background
Myra Quintero (the “Debtor”) filed a petition for relief under Chapter 13 of the
Bankruptcy Code on June 22, 2024. (Case No. 24-10717, Docket No. 1). The case was
dismissed upon Debtor’s request on June 10, 2025. (Case No. 24-10717, Docket No.
38).
The Debtor filed another Chapter 13 petition on June 11, 2025. (Case No. 25-
10669, Docket No. 1). That case was dismissed on January 20, 2026, based upon
Debtor’s failure to make payments. (Case No. 25-10669, Docket No. 47).
The Debtor commenced the present case by filing a Chapter 13 Petition on
April 10, 2026. (Docket No. 1).
Typically, a bankruptcy filing imposes an automatic stay that prevents
creditors from continuing collections against a debtor and/or their property. See 11
U.S.C. § 362(a). However, an exception applies where, as here, the debtor was a
debtor in two or more bankruptcy cases pending and dismissed within the one-year
period preceding the filing. See 11 U.S.C. § 362(c)(4)(A)(i). In such cases, the stay is
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not imposed automatically upon the filing; a motion, hearing, and court order are
required. See 11 U.S.C. § 362(c)(4)(B).
This case was filed at 9:30am on April 10, 2026. Debtor’s counsel acknowledges
that she and the Debtor were aware that the automatic stay was not imposed upon
the filing. (Docket No. 55, at ¶ 4).
It is undisputed that Edward Weiner, Esq., counsel for SEFCU Services, LLC,
d/b/a Homeowners Advantage, called Debtor’s counsel shortly after the filing, advised
her a foreclosure sale regarding Debtor’s residence was scheduled for later that
morning, confirmed that no stay was in place, and conditionally agreed to adjourn the
foreclosure sale. (Docket No. 55, at ¶ 8; Docket No. 67, at ¶ 25).
The question of what condition(s) Attorney Weiner imposed on his agreement
to adjourn the sale is disputed.
Debtor’s counsel contends that Attorney Weiner agreed to adjourn the sale if
she filed a motion to extend the stay by 11:30 that morning. (Docket No. 55, at ¶ 8).
Attorney Weiner avers that he told Debtor’s counsel that the sale would
proceed as scheduled unless she filed a motion and obtained an Order imposing the
stay prior to the sale. (Docket No. 67, at ¶ 25). He supports this argument by
providing a copy of an internal email sent the morning of the bankruptcy filing in
which he memorialized the conversation. (Docket No. 67-3).
This Court resolves this question of fact in Debtor’s favor for purposes of
deciding this motion.
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Debtor’s counsel filed a Motion to Extend the Automatic Stay at 11:19am on
the date of filing. (Docket No. 6). The foreclosure sale was completed shortly
thereafter, with Debtor’s residence being sold to a third party. (Docket No. 67, at ¶
2). No objections were filed to the Debtor’s motion.
On May 25, 2026, this Court entered an Order noting that the motion should
have been filed as a request to impose, rather than extend, the automatic stay, but
nevertheless imposing the stay as of the date of the Order because the Debtor had
demonstrated a substantial change in her financial circumstances since the dismissal
of her prior cases. (Docket No. 25).
Presently pending is Debtor’s motion, filed on July 25, 2026, to impose the
automatic stay nunc pro tunc to the date of filing, set aside the foreclosure sale, and
direct SEFCU to reconvey the property to Debtor. (Docket No. 55). SEFCU opposes
the motion. (Docket No. 67). This Court heard oral argument on August 18, 2026, in
Albany, New York, with appearances as indicated above, and reserved decision.
Analysis
Section 362(c)(4)(A)(i) was added to the Bankruptcy Code as part of the
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 to discourage
“serial filers” from repeatedly frustrating collections through last-minute petitions.
See Laura B. Bartell, Staying the Serial Filer - Interpreting the New Exploding Stay
Provisions of § 362(c)(3) of the Bankruptcy Code, 82 Am. Bankr. L.J. 201, 222 (2008).
Section 362(c)(4)(B) gives this Court the power to impose the stay upon motion
if the debtor demonstrates that the case was filed “in good faith as to the creditors to
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be stayed.” 11 U.S.C. § 362(c)(4)(B). As noted above, this Court imposed the stay
pursuant to this Section upon Debtor’s motion, and without opposition, on May 25,
2026. (Docket No. 25).
In the instant motion, the Debtor asks this Court for additional relief –
imposition of the stay retroactive to the date of filing and a reversal of the foreclosure
sale.
However, the plain language of the statute does not give this Court the power
to grant such relief and, in fact, precludes it.
To wit, Section 362(c)(4)(C) provides that a stay imposed pursuant to Section
362(c)(4)(B) “shall be effective on the date of the entry of the order allowing the stay
to go into effect....” 11 U.S.C. § 362(c)(4)(C) (emphasis added).
Courts interpreting this provision have concluded that granting retroactive
relief from the stay would “flout the express language of the Bankruptcy Code” and
is therefore impermissible. In re Cook, 614 B.R. 635, 643 (Bankr. N.D. Ga. 2020); see
also In re Plasterer, No. 8-24-70347-LAS, 2024 WL 606264, at *4 (Bankr. E.D.N.Y.
Feb. 13, 2024); In re Robie, No. 21-31772, 2021 WL 5183528, at *1 (Bankr. N.D. Ohio
Oct. 20, 2021).
In addition, while federal courts have the power to issue nunc pro tunc orders,1
they may do so only “’to reflect the reality’ of what has already occurred,” and not to
“make the record what it is not.” Roman Cath. Archdiocese of San Juan, Puerto Rico
1“Nunc pro tunc, Latin for ‘now for then,’ refers to a court’s inherent power to enter an order having
retroactive effect.” Negron v. U.S., 394 Fed.Appx. 788, 791 (2d Cir. Oct. 1, 2010) (quoting Black's
Law Dictionary 1100 (8th ed. 2004).
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v. Acevedo Feliciano, 589 U.S. 57, 65 (2020) (quoting Missouri v. Jenkins, 495 U.S. 33,
49 (1990)).
Further, granting retroactive relief under these circumstances would
improperly disrupt the parties’ rights under applicable non-bankruptcy law. See
Plasterer, 2024 WL 606264, at *5 (“The right to redeem is extinguished as a matter
of law upon the foreclosure sale, whether or not the deed has been delivered, and once
the right to redeem is lost, it cannot be revived, even by court order.”) (quoting Liberty
Dabar Assocs. v. Mohammed, 183 A.D.3d 880, 883 (2d Dep’t 2020)).
This Court recognizes Debtor’s arguments sounding in equity based on her
contention that Attorney Weiner: (a) agreed to adjourn the foreclosure sale if her
attorney filed a motion to extend/impose the stay; and then (b) failed to honor that
agreement.
However, even construing the facts in the light most favorable to the Debtor
for purposes of this motion, the Debtor must still identify some legal basis under
which this Court can grant the requested relief notwithstanding the plain language
of the Code and other concerns recognized above. Equity is not enough. See Robinson
v. Deutsche Bank Nat. Tr. Co., 932 F. Supp. 2d 95, 114 (D.D.C. 2013) (“Equitable
estoppel is not a freestanding claim, and a plaintiff seeking the benefit of equitable
estoppel must have some claim, sounding in equity or in law, that otherwise entitles
it to prevail against the defendant.”); see also Gillespie v. City of Yonkers, 88 Misc. 3d
1242(A), 252 N.Y.S.3d 451 (N.Y. Sup. Ct. 2026) (“Equitable estoppel may be used to
hold a defendant to its purported obligations but cannot be used as the sole basis for
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recovery of damages.”); Sabilia v. Richmond, No. 11 CIV. 739 JPO MHD, 2011 WL
7091353, at *29 (S.D.N.Y. Oct. 26, 2011), report and recommendation adopted, No.
11-CV-739 JPO, 2012 WL 213656 (S.D.N.Y. Jan. 24, 2012) (“[Equitable estoppel] does
not operate to create rights otherwise nonexistent; it operates merely to preclude the
denial of a right claimed otherwise to have arisen.”).
Here, the Debtor has not cited any statutory and/or case law in support of her
motion.
This Court is mindful of authority suggesting that Section 105 of the
Bankruptcy Code2 might confer “sufficient equitable powers to set aside a foreclosure
sale, under appropriate circumstances.” Piccolo v. Dime Sav. Bank of New York, 145
B.R. 753, 757 (N.D.N.Y. 1992) (citing In re Lashley, 825 F.2d 362, 364 n.1 (11th Cir.
1987) & In re Krueger, 69 B.R. 845, 849 (Bankr. C.D. Cal. 1987), aff’d on other
grounds, 88 B.R. 238 (B.A.P. 9th Cir. 1988)).
However, courts in this District have: (a) declined to read Section 105 this
broadly; (b) identified federalism concerns raised by such a reading; and (c)
recognized the limits of the bankruptcy court’s authority with respect to property
removed from the bankrupt estate by operation of applicable non-bankruptcy law.
See Piccolo, 145 B.R. at 757-60; Cook v. Huey, 506 B.R. 174, 176 (N.D.N.Y. 2013).
Lastly, although the Debtor’s personal circumstances are profoundly
sympathetic, this is not a sufficient basis for granting the requested relief. See Piccolo,
145 B.R. at 759 (“If a mortgagor’s children were a basis for setting aside a valid
2 Section 105 (a) provides, in pertinent part, that the “court may issue any order, process, or
judgment that is necessary or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105(a).
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judgment and sale of foreclosure, very few foreclosure sales would survive attack.”);
see also generally Vincent v. Shalala, 830 F. Supp. 126, 129 (N.D.N.Y. 1993)
(recognizing that “the temptation to blur the distinction between individual need and
statutory eligibility is strong; but our authority as judges often fails to match our
sympathy for our fellow human beings”) (quoting Singletary v. Sec'y of Health &
Human Services, 623 F.2d 217, 220 (2d Cir.1980) (Meskill, J., dissenting)).
Conclusion
For the foregoing reasons, Debtor’s Motion to Impose the Automatic Stay Nunc
Pro Tunc (Docket No. 55) is DENIED.
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