09-3139-bk
Wisotzke v. Ontario County

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the twenty-ninth day of June, two thousand and ten.

PRESENT:

          RALPH K. WINTER,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                               Circuit Judges.
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WILLIAM J. WISOTZKE , JR .,

                     Appellant,

                     -v.-                                                                  No. 09-3139-bk

ONTARIO COUNTY and DONALD BRAULT,

                     Appellees,

GEORGE M. REIBER,

                     Trustee.
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FOR APPELLANT:                                      PETER D. GRUBEA , Buffalo, NY (Rachel S. Sherman, Troy, NY,
                                                    of counsel).

FOR APPELLEES:                                      JASON S. DIPONZIO , Rochester, NY, for Appellee Ontario County.

                                                    DAVID D. MAC KNIGHT , Lacy, Katzen, Ryen and Mittleman LLP,
                                                    Rochester, NY, for Appellee Donald Brault.
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        Appeal from a June 23, 2009 judgment of the United States District Court for the Western
District of New York (David G. Larimer, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

       On June 23, 2009, the District Court affirmed a judgment of the United States Bankruptcy
Court, Western District of New York (John C. Ninfo, II, Judge), holding that certain real property (the
“Property”) was not an asset of appellant Wisotzke’s estate at the time he filed for protection under
Chapter 13 of the Bankruptcy Code. 11 U.S.C. § 541. Wisotzke filed a timely appeal.

        Wisotzke makes two arguments on appeal.1 First, he argues that the District Court erred in
concluding that his legal and equitable title to the Property had expired when he failed to redeem it
within the thirty day grace period for redemption following a judgment of foreclosure under New York
law. N.Y. Real Prop. Tax Law § 1131 (2000). Because he retained a legal and equitable interest in the
Property at the time he filed for bankruptcy protection, Wisotzke claims, the Property was property of
the estate pursuant to 11 U.S.C. § 541.

         Second, Wisotzke argues that the District Court erred in concluding that the in rem tax
foreclosure proceeding conducted by Ontario County following the judgment of foreclosure was not a
“foreclosure sale” within the meaning of 11 U.S.C. § 1322(c). Even if his legal and equitable interest and
right to redeem the Property expired under New York law, he asserts, § 1322(c) supersedes state law and
tolls the redemption period until “a foreclosure sale is conducted in accordance with nonbankruptcy
law.” 11 U.S.C. § 1322(c)(1).

        “[W]e review the decision of the bankruptcy court independently,” examining its conclusions of
law de novo and its factual findings for clear error. Adelphia Bus. Solutions, Inc. v. Abnos, 482 F.3d 602, 607
(2d Cir. 2007). “We will determine that a finding is clearly erroneous when we are left with the definite
and firm conviction that a mistake has been made.” In Re Ames Department Stores, 582 F.3d 422, 426 (2d
Cir. 2009) (internal quotation marks omitted).

        After an independent review, we hold, for substantially the reasons stated by the District Court
in its well-reasoned opinion, Wisotzke v. Ontario County, 409 B.R. 20 (W.D.N.Y. 2009), that the Property
was not property of the estate pursuant to 11 U.S.C. § 541 and that the in rem tax foreclosure proceeding
conducted by Ontario County following the judgment of foreclosure was not a “foreclosure sale” within
the meaning of 11 U.S.C. § 1322(c).



          1
            It is undisputed that the County failed to execute and record the deed to the Property until
  after it was sold at auction. Whether that step was a necessary predicate to the complete divestment
  of Wisotzke’s interest in the Property pursuant to state law, N.Y. Real Property Tax Law § 1136(3),
  or instead a mere “ministerial act,” In re Rodgers, 333 F.3d 64, 67 (2d Cir. 2003), we express no
  judgment. Because Wisotzke neglected to raise that argument on appeal, it is “abandoned and lost.”
  United States v. Joyner, 313 F.3d 40, 44 (2d Cir. 2002).
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                                         CONCLUSION

        We have considered each of Wisotzke’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the judgment of the District Court.

                                            FOR THE COURT,
                                            Catherine O’Hagan Wolfe, Clerk of Court




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