United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
XINIS, UNITED STATES DISTRICT JUDGE
before the Court is Appellant Barbara Ann Kelly's
(“Kelly”) emergency motion for stay pending
appeal. ECF No. 18. Appellee Trustee Nancy Spencer Grigsby
(the “Trustee”) opposes the motion. ECF No. 19.
The matter has been fully briefed and no hearing is
necessary. D. Md. Loc. R. 105.6. For the reasons that follow,
the motion is DENIED.
action commenced when Kelly, pro se, noted her appeal from
the Bankruptcy Court's dismissal of her Chapter 13
bankruptcy case. ECF No. 1. On February 12, 2019, Kelly filed
with the Bankruptcy Court an emergency motion to stay the
dismissal pending appeal with the express purpose of halting
the foreclosure sale of real property in Naples, Florida,
scheduled to take place on February 28, 2019. BK No.
18-13244-WIL, Dkt. No. 113. The Bankruptcy Court denied the
motion to stay on February 14, 2019. BK No. 18-13244-WIL,
Dkt. No. 116. As grounds for the denial, the Bankruptcy Court
reiterated that “Kelly was ineligible for Chapter 13
because her debts exceeded the statutory limits, ” and
found that the motion to stay was “nothing more than a
veiled attempt to seek injunctive relief against U.S. Bank to
stop the pending foreclosure.” Id. at 3-4.
This motion seeking the same stay followed. ECF No. 18; Fed.
R. Br. P. 8007.
in this Circuit consider motions to stay pending appeal under
the Long test and the Real Truth test.
Rose v. Logan, No. RDB-13-3592, 2014 WL 3616380, at
*1 (D. Md. July 21, 2014). The Long test requires
the party seeking a stay to show:
(1) that [the movant] will likely prevail on the merits of
(2) that [the movant] will suffer irreparable injury if the
stay is denied, (3) that other parties will not be
substantially harmed by the stay, and (4) that the public
interest will be served by granting the stay.
Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970).
The Real Truth test substitutes the third factor of
the Long test with the requirement that the movant
show that “the balance of equities tips in his
favor.” Coler v. Draper, No. WDQ-12-2020, 2012
WL 5267436, at *3 (D. Md. Oct. 23, 2012) (quoting Real
Truth About Obama, Inc. v. Fed. Election Comm'n, 575
F.3d 342, 346 (4th Cir. 2009) and noting that “the
courts of this circuit have applied Real Truth to
stays pending appeal.”).
either test, Kelly's emergency motion fails. First, Kelly
is not likely to prevail on the underlying merits of her
appeal. In the appeal, Kelly challenges the propriety of the
Bankruptcy Court's dismissing the Chapter 13 case where
judgments were subject to a “bona fide dispute, ”
and contends that the Bankruptcy Court violated due process
rights by denying her request for an evidentiary hearing. ECF
No. 15. As to the claims subject to a bona fide dispute, the
contention appears meritless because “[e]ven claims
that are disputed as to liability must be counted in
determining the debtor's eligibility for Chapter 13
relief.” In re Stern, 266 B.R. 322, 327
(Bankr. D. Md. 2001). Likewise, Kelly's due process claim
fares no better. She offers no support for why the Bankruptcy
Court's determination that a hearing was unnecessary
amounts to a constitutional due process violation. BK No.
18-13244-WIL, Dkt. No. 95 at 14. Accordingly, Kelly has not
demonstrated that will likely prevail on the merits of her
the second factor, Kelly argues that she will suffer
irreparable harm absent a stay because the Naples property
will be sold at foreclosure for less than the current list
price. Notably, Kelly frames the irreparable injury as the
likelihood that the foreclosure sale price will be below
market value. ECF No. 18 at 14. Any purported “injury,
” therefore, is monetizable, compensable, and not
irreparable. See Hughes Network Sys., Inc. v.
InterDigital Commc'ns Corp., 17 F.3d 691, 694 (4th
Cir. 1994) (“Where the harm suffered by the moving
party may be compensated by an award of money damages at
judgment, courts generally have refused to find that harm
irreparable.”). “A party does not normally suffer
irreparable harm simply because it has to win a final
judgment on the merits to obtain monetary relief.”
Id. Thus, without more, Kelly cannot demonstrate
irreparable harm. As to the third prong, the Trustee
rightfully notes that a stay would harm U.S. Bank (which
seeks the foreclosure), the Trustee, and all creditors
because it will delay resolution of this outstanding claim.
See Rose v. Logan, 2014 WL 3616380 at *4 (“The
court proceedings for the sale of the property in question
have lasted for well over a year. Granting a stay pending
appeal will substantially injure the creditors because it
will delay the payments owed to the creditors. . .”).
Accordingly, the balance of equities tips in favor of the
Trustee and all creditors. With regard to the fourth prong,
the public maintains an interest in finality and prompt
resolution of debts. The tortured history of this case
militates against any further delay.
Kelly has failed to sustain her burden of demonstrating the
propriety of a stay, it is this 26th day of February 2019,
ORDERED that the ...