United States District Court, D. Maryland
IN RE JEFFREY V. HOWES
Lipton Hollander United States District Judge
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. 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).
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.
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
reasons that follow, I shall deny the Motion, without
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.
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) . . . .
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.
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.
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)
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