In re: Triple A & R Capital Investment Inc.

• Court: United States Bankruptcy Court, D. Puerto Rico
• Decided: March 9, 2015
• Docket: 14-04744
• Status: Unknown

Opinion

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF PUERTO RICO 2

4 IN RE: CASE NO. 14-04744 Chapter 11 5 TRIPLE A & R CAPITAL INVESTMENT 6 INC

7 Debtor(s) FILED & ENTERED ON 03/09/2015 8

9 OPINION & ORDER 10 11 Before the Court is Debtor's Motion For Stay Pending Appeal filed pursuant to the 12 provisions of Federal Rule of Bankruptcy Procedure 80051 [Dkt. No. 84]; PRLP 2011 Holdings, 13 Inc.'s Opposition [Dkt. No. 94]; Debtor's Reply [Dkt. No. 99]; Amended Debtor's Reply [Dkt. 14 No. 101]; and PRLP 2011 Holdings, Inc.'s Sur-Reply [Dkt. No. 105]. For the reasons stated 15 16 herein, the Debtor's Motion For Stay Pending Appeal is hereby DENIED. 17 Former Federal Rule of Bankruptcy Procedure 8005 provides in relevant part as follows: 18 A motion for a stay of the judgment, order, or decree of a bankruptcy judge, for 19 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 20 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 21 continuation of other proceedings in the case under the Code or make any other 22 appropriate order during the pendency of an appeal on such terms as will protect the rights of all parties in interest. 23 The standards for granting stays pending appeal in the bankruptcy context are well established. A 24 25 court has substantial discretion under Rule 8005 to grant (or deny) a stay pending appeal on such

Federal Rule of Bankruptcy Procedure 8005 was amended on December 1, 2014, with the applicable Rule now 1b eing Rule 8007. The Debtor's Motion for Stay Pending Appeal was filed before the Rules were amended, therefore former Rule 8005 is applicable in this instance. All references made to Rule 8005 in this Opinion and Order is to the pre December 1, 2014 Rule. 1 terms as it may deem appropriate, subject to an abuse of discretion standard of review. In re 2 Target Graphics, Inc., 372 B.R. 866 (E.D.Tenn. 2007). The motion for a stay pending appeal 3 follows the same standard as any motion for stay, which is in the nature of a preliminary 4 injunction and will only be granted upon a showing that: (1) the petitioner is likely to prevail on 5 the merits of its appeal; (2) that without a stay, the petitioner will suffer irreparable injury; (3) 6 7 that other interested parties will suffer no substantial harm; and (4) that the public interest will 8 not be harmed by the granting of the stay. 6 Lawrence P. King, Collier Bankruptcy Practice 9 Guide, ¶ 117.11[2] at page 117-36 (Matthew Bender 2005). If a party fails to satisfy any one of 10 the four requirements for a stay pending appeal, then the court will be acting within its discretion 11 12 to deny the stay. In re Dakota Rail, Inc., 111 B.R. 818, 820 (Bankr.D.Minn.1990). 13 In their Motion for Stay and subsequent Replies, Debtor fails to effectively address the 14 requisite factors. Regarding petitioners likelihood to succeed on the merits, Debtor relies on the 15 argument that if a pre petition waiver is invalid, a post petition ratification would be invalid as 16 well. This argument was considered by the court in its Opinion and Order [Dkt. No. 67], and 17 18 found to be without merit. Debtor does not state any grounds with particularity upon which the 19 requested relief is based. Furthermore, Debtor does not argue the specific basis upon which the 20 appellate court will conclude reversal is appropriate. “The sine qua non of this four-part inquiry 21 is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to 22 23 succeed in his quest, the remaining factors become matters of idle curiosity.” Esso Standard Oil 24 Co. v. Monroig Zayas, 445 F3d. 13 (1st Cir. 2006) citing New Comm Wireless Servs., Inc. v. 25 SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,

102 F.3d 12, 15 (1st Cir.1996); Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). “[W]hat matters ... is not the raw amount of irreparable harm [a] party might conceivably suffer, but 1 || rather the risk of such harm in light of the party’s chance of success on the merits.” Puerto Ric 2 Hospital Supply, Inc. v. Boston Scientific Corp., 426 F.3d 503, 507 n.1 (1st Cir. 2005). As to the other factors, Debtor bases the irreparable harm on the loss of the real estate a

5 the center of this dispute. Without this property, Debtor argues, reorganization and the appea 6 would become moot. However, the record of the case reflects that this real estate has n 7 |! equity and is fully encumbered by creditor PRLP 2011 Holdings, Inc. Accordingly, the loss 0 ° the real estate is inevitable and no surprise because Debtor has no equity in the property. Further in the event that somehow Debtor suffers any injury, the harm could easily be repaired wit

11 monetary damages Thus, the irreparable injury factor is also nonexistent. 12 Having failed to meet two of the factors needed to obtain a stay, judicial econom dictates that the court ends its analysis here. The controversy over the posting of a bond wil likewise not be addressed as that issue becomes moot with the denial of Debtor's petition. 5 16 SO ORDERED 17 San Juan, Puerto Rico, this 9th day of March, 2015. 18

20 Brian K. Tester 21 U.S. Bankruptcy Judge 22 23 24 25