In re Gilbert

541 B.R. 415, 2015 Bankr. LEXIS 3939, 2015 WL 7084658
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedNovember 13, 2015
DocketCase No. 15-45780
StatusPublished
Cited by6 cases

This text of 541 B.R. 415 (In re Gilbert) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Gilbert, 541 B.R. 415, 2015 Bankr. LEXIS 3939, 2015 WL 7084658 (Mich. 2015).

Opinion

[417]*417OPINION REGARDING DEBTOR’S MOTION FOR STAY PENDING APPEAL

Thomas J. Tucker, United States Bankruptcy Judge '

I. Introduction

This case is before the Court on the Debtor’s motion for a stay pending appeal. For the reasons stated below, the Court will deny the motion.

On September 14, 2015, the Court entered an order, which, in relevant part (1) dismissed this case; (2) barred the Debtor “from filing any new case under the Bankruptcy Code, ... unless and until he first pays in full the $598.00 filing fees owing for Case Nos. 09-46016 and 09-56797;” and (3) directed the Clerk “not to accept for filing any further bankruptcy petition(s) by or on behalf of the Debtor, unless and until he first pays in full the $598.00 filing fees owing for Case Nos. 09-46016 and 09-56797.”1 On September 15, 2015, Debtor filed a notice of appeal of the Dismissal Order.2 Almost two months later, on November 9, 2015, Debtor filed a motion seeking a stay pending appeal of the Dismissal Order (the “Stay Motion”).3 The Stay Motion came to the Court’s attention on November 12, 2015, when Debt- or’s counsel first submitted a proposed order.

II. Discussion

A. The relevant factors

The Stay Motion is governed by Fed. R. Bankr. P. 8007, which states that “[o]rdi-narily, a party must move first in the bankruptcy court for ... a stay of a judgment, order, or decree of the bankruptcy court pending appeal.” Fed. R. Bankr. P. 8007(a)(1)(A). This rule also states:

Despite Rule 7062 and subject to the authority of the district court, BAP, or court of appeals, the bankruptcy court may:
(1) suspend or order the continuation of other proceedings in the case; or
(2) issue any other appropriate orders during the pendency of an appeal to protect the rights of all parties in interest.

Fed. R. Bankr. P. 8007(e).

The factors that courts must apply in determining whether to grant a stay pending appeal were discussed in Michigan Coalition of RadioActive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153-54 (6th Cir.1991). In Griepentrog, the Sixth Circuit held:

In determining whether a stay should be granted under Fed. R. Civ. P. 8(a), we consider the same four factors that are traditionally considered in evaluating the granting of a preliminary injunction. These well-known factors are: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will bé irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together.
Although the factors to be considered are the same for both a preliminary injunction and a stay pending appeal, [418]*418the balancing process is not identical due to the different procedural posture in which each judicial determination arises. Upon a motion for a preliminary injunction, the court must make a decision ' based upon “incomplete factual findings and legal research.” Even so, that decision is generally accorded a great deal of deference on appellate review and will only be disturbed if the court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.
Conversely, a motion for a stay pending appeal is generally made after the district court has considered fully the merits of the underlying action and issued judgment, usually following completion of discovery. As a result, a movant seeking a stay pending review on the merits of a district court’s judgment will have greater difficulty in demonstrating a likelihood of success on the merits. In essence, a party seeking a stay must ordinarily demonstrate to a reviewing court that there is a likelihood of reversal. Presumably, there is a reduced probability of error, at least with respect to a court’s findings of fact, because the district court had the benefit of a complete record that can be reviewed by this court when considering the motion for a stay.
To justify the granting of a stay, however, a movant need not always establish a high probability of success on the merits. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay. Simply stated, more of one excuses less of the other. This relationship, however, is not without its limits; the movant is always required to demonstrate more than the mere “possibility” of success on the merits. For example, even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the defendant if a stay is granted, he is still required to show, at a minimum, “serious questions going to the merits.”
In evaluating the harm that will occur depending upon whether or not the stay is granted, we generally look to three factors: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. In evaluating the degree of injury, it is important to remember that
[t]he key word in this consideration is ' irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
In addition, the harm alleged must be both certain and immediate, rather than speculative or theoretical. In order to substantiate a claim that irreparable injury is likely to occur, a movant must provide some evidence that the harm has occurred in the past and is-likely to occur again.

Id. (citations omitted); see also Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir.2012)(per curiam); Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002). Debtor, as the moving party, bears the burden of establishing by a preponderance of the evidence that he is entitled to the stay. See Husted, 698 F.3d at 343; In re Holstine, 458 B.R. 392, 394 (Bankr. E.D.Mich.2011). “[A] court’s decision to [grant or] deny a [stay pending appeal] is [419]

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Cite This Page — Counsel Stack

Bluebook (online)
541 B.R. 415, 2015 Bankr. LEXIS 3939, 2015 WL 7084658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gilbert-mieb-2015.