In re McInerney

490 B.R. 540, 2013 WL 1497297, 2013 Bankr. LEXIS 1556
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedJanuary 30, 2013
DocketNo. 11-58953
StatusPublished
Cited by2 cases

This text of 490 B.R. 540 (In re McInerney) 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 McInerney, 490 B.R. 540, 2013 WL 1497297, 2013 Bankr. LEXIS 1556 (Mich. 2013).

Opinion

OPINION REGARDING DEBTOR’S MOTION FOR STAY PENDING APPEAL

THOMAS J. TUCKER, Bankruptcy Judge.

I. Introduction

On November 2, 2012 the Court entered an order which, among other things, converted this case from Chapter 11 to Chapter 7, “effective immediately.” The Order is entitled “Order Granting, in Part, the Becker Parties’ Latest Motion to Sanction Debtor ..., Granting the Pending Motions to Convert, and Converting this Case to Chapter 7” (the “November 2 Order”).1 On November 15, 2013, the Debtor filed a motion for reconsideration of the November 2 Order.2 The Court denied that motion in an order filed on November 16, 2013 (the “November 16 Order”).3 On November 30, 2013, Debtor filed a notice of appeal.4 Based on the wording of the first paragraph of the notice of appeal, it appears that Debtor has only actually appealed the Court’s November 16 Order, deny[544]*544ing Debtor’s motion for reconsideration, and has not also appealed the November 2 Order, which converted this case to Chapter 7.

This case is now before the Court on Debtor’s motion for a stay pending appeal, filed on November 30, 2013 (the “Stay Motion”).5 The following parties in interest have filed objections to. the Stay Motion: the Chapter 7 Trustee; the creditor Northern Trust Company; and the creditors Charles E. Becker, Becker Ventures, LLC, and Charles E. Becker, Trustee under Trust Agreement of Charles E. Becker Dated September 16, 1977 as Amended (collectively, “Becker”).6

The Court has reviewed the Stay Motion and the objections, and concludes that a hearing on the Stay Motion is not necessary, and that the motion should be denied, for the reasons stated in this opinion.

II. Discussion

A. The relevant factors

Debtor’s Stay Motion is based on Fed.R.Bankr.P. 8005, which states, in pertinent part:

A motion for a stay of the judgment, order, or decree of a bankruptcy judge, for approval of a supersedeas bond, or for other relief pending appeal must ordinarily be presented to the bankruptcy judge in the first instance. Notwithstanding Rule 7062 but subject to the power of the district court and the bankruptcy appellate panel reserved hereinafter, the bankruptcy judge may suspend or order the continuation of other proceedings in the case under the Code or make any other appropriate order during the pen-dency of an appeal on such terms as will protect the rights of all parties in interest. A motion for such relief, or for modification or termination of relief granted by a bankruptcy judge, may be made to the district court or the bankruptcy appellate panel, but the motion shall show why the relief, modification, or termination was not obtained from the bankruptcy judge. The district court or the bankruptcy appellate panel may condition the relief it grants under this rule on the filing of a bond or other appropriate security with the bankruptcy court....

(emphasis added). The factors that courts must apply in determining whether to grant a motion for a stay pending appeal were discussed at length in Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153-54 (6th Cir.1991). In Griepentrog, the Sixth Circuit stated, in relevant part:

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 be 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, the balancing process is not identical due to the different procedural posture [545]*545in 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.

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Bluebook (online)
490 B.R. 540, 2013 WL 1497297, 2013 Bankr. LEXIS 1556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcinerney-mieb-2013.