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In re Howes

United States District Court, D. Maryland

September 15, 2016

IN RE JEFFREY V. HOWES

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge

         On March 21, 2016, Jeffrey V. Howes, who is self-represented, filed an appeal to this Court from two orders issued sua sponte by the United States Bankruptcy Court for the District of Maryland (Gordon, J.) in Howes's Chapter 13 bankruptcy case. ECF 1.[1] In particular, Mr. Howes challenges an "Interim Order Requiring Debtor to Escrow Funds Pending Final Judgment in Adversary Proceeding" (ECF 1-2, the "Escrow Order"), dated January 8, 2016, and an "Order Dismissing Case with Prejudice to Debtor's Refiling for Twenty-Four Months" (ECF 1-1, the "Dismissal Order"), dated March 4, 2016. The case sub judice is also related to Case ELH-14-28l4, which involved an appeal from the Bankruptcy Court's dismissal of an adversary proceeding filed in the bankruptcy case. This Court affirmed that dismissal, and that case is now on appeal to the United States Court of Appeals for the Fourth Circuit (Appeal No. 15-2332).[2]

         This Memorandum resolves only the “Debtor's Motion for Stay Pending Appeal and Incorporated Memorandum.” ECF 19 (the “Motion”). The Motion, filed on September 6, 2016, seeks “a stay pending appeal of the Bankruptcy court's sua sponte January 8, 2016 order requiring additional payments to escrow . . . and that court's March 4, 2016 order dismissing the lead Chapter 13 bankruptcy case . . . with prejudice to refiling within 24 months.” Id. at 1. As to the two orders that are the subject of the appeal, Mr. Howes asserts: “A stay is warranted because the balance of hardships tips decidedly in favor of preserving the status quo that existed prior to the two supa sponte orders challenged in this appeal and because the sua sponte orders were otherwise erroneous.” Id.

         The Interim Chapter 13 Trustee previously advised this Court that he “does not believe he is a proper party to this appeal.” ECF 13; see also ECF 8. Moreover, he has noted that there are no opposing parties. ECF 13. Therefore, no response to the Motion is anticipated. Nor is a hearing necessary to resolve the Motion. See Local Rule 105.6.

         For the reasons that follow, I shall deny the Motion, without prejudice.

         I. Procedural Background

         As noted, this appeal concerns two orders issued, sua sponte, by the Bankruptcy Court. One of those orders dismissed Mr. Howes's Chapter 13 bankruptcy case, initiated in 2012. In this case he has taken an appeal from those two orders.

         On April 25, 2016, Mr. Howes filed a “Motion to Vacate or Stay Sua Sponte Orders Dismissing Case and Requiring Additional Escrow Payments to Trustee” (ECF 6, the “First Motion”). He sought to vacate both the Escrow Order (ECF 1-2) and the Dismissal Order (ECF 1-1). Id. The First Motion provided, in relevant part, ECF 6 at 1:

In alternate [sic], Appellant moves, pursuant to Bankruptcy Rules 8007(b), 8013, 8026; F.R.A.P Rule 8(a)(I); F.R.C.P. Rule 62, (RR. 7062), or 11 U.S.C. S 105(a), to stay the Orders and stay proceedings in the instant appeal and the bankruptcy case, pending resolution of this appeal, and separately, to stay the Orders and proceedings in the lower courts pending the related appeal in the United States Court of Appeals for the Fourth Circuit (No. 15-2332) . . . .

         On May 4, 2016, Mr. Howes filed a second “Motion to Vacate or Stay Sua Sponte Orders Dismissing Case and Requiring Additional Escrow Payments to Trustee.” ECF 10 (the “Second Motion”). In a later submission (ECF 15-1), Mr. Howes described the Second Motion as a “corrected copy” of the First Motion, in which he “corrected minor typographical errors and add[ed] a missing exhibit . . . .” Id. at 1.

         Then, on May 13, 2016, Mr. Howes filed a motion to stay the briefing schedule as to his appeal in this case, “pending this Court's ruling on [his] Motion To Vacate or Stay Sua Sponte Orders . . . .” ECF 11 at 1. In an Order of July 21, 2016 (ECF 14), I stated, id. at 3: “The Motion to Stay Briefing asks for a stay pending this court's disposition of the motions to vacate. I cannot address the merits of the motions to vacate, however, in the absence of a brief from appellant.” Accordingly, I directed Mr. Howes to submit his appellate brief. Mr. Howes filed his brief on September 6, 2016. ECF 18. As noted, on the same date, he also filed the Motion at issue.

         II. Discussion

         Rule 8007 (formerly Rule 8005) of the Federal Rules of Bankruptcy Procedure governs a stay pending appeal. In pertinent part, Rule 8007(a)(1)(A) provides: “Ordinarily, a party must move first in the bankruptcy court for . . . a stay of a judgment, order, or decree of the bankruptcy court pending appeal.” Rule 8007(b)(1) is also relevant. It states: “A motion for the relief specified in subdivision (a)(1) . . . may be made in the court where the appeal is pending.” But, “[t]he motion must: show that moving first in the bankruptcy court would be impracticable.” Rule 8007(b)(2)(A). The Advisory Committee to the Federal Rules of Bankruptcy Procedure states: “The Motion for relief in the district court . . . must state why it was impracticable to seek relief initially in the bankruptcy court, if a motion was not filed there . . . .” Notably, “[t]he failure to comply” with the Rule, “by first seeking relief from the bankruptcy court ‘weighs heavily' against a stay, and ‘may be fatal' to the request.” Jalali v. Pierce Associates, Inc., Civil No. WDQ-11-1069, 2011 WL 3648284, at *2 (D. Md. Aug. 11, 2011) (citations omitted).

         “In the Fourth Circuit, the standard for a stay pending appeal of a bankruptcy court's decision is that for a preliminary injunction.” Coler v. Draper, Civil No. WDQ-12-2020, 2012 WL 5267436, at *3 (D. Md. Oct. 23, 2012). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008); see Real Truth About ...


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