United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this bankruptcy appeal is
the emergency motion to stay pending appeal filed by
Appellant Michelle Denese Barnes (“Appellant” or
“Debtor”). (ECF No. 2). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motion to stay will be denied.
Rule of Bankruptcy Procedure 8007 provides that a party may
seek a stay of a judgment, order, or decree of the bankruptcy
court pending appeal.” Bate Land Co., LP v. Bate
Land & Timber LLC, 2016 WL 3582038, at *1 (E.D. N.C.
June 27, 2016). “The party seeking such a stay must
show: (1) that [she] will likely prevail on the merits of the
appeal; (2) that [she] 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.”
Culver v. Boozer, 285 B.R. 163, 166 (D.Md. 2002)
(citing Long v. Robinson, 432 F.2d 977, 979 (4th
argues that the Long test is “a sliding
scale” and that the court “should balance all of
the Long factors, and not require an independent
showing of each[.]” (ECF No. 2, at 8). This is an
unsettled area of law. Generally, “[t]he standard of
review on a motion to stay pending appeal is similar to the
standard for granting a preliminary injunction.”
CWCapital Asset Mgmt., LLC v. Burcam Capital II,
LLC, 2013 WL 3288092, at *2 (E.D. N.C. June 28, 2013).
The standard for a preliminary injunction is decidedly higher
today than at the time Long was decided. See
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7
(2008); The Real Truth About Obama, Inc. v. Fed. Election
Comm'n, 575 F.3d 342 (2009). Now, to obtain a
preliminary injunction, a party must show: (1) that she is
likely to succeed on the merits; (2) that she is likely to
suffer irreparable harm in the absence of preliminary relief;
(3) that the balance of equities tips in her favor; and (4)
that an injunction is in the public interest. Real
Truth, 575 F.3d at 346. The party must satisfy all four
Bennett explained the uncertainty regarding the continued
similarity between the preliminary injunction standard and
the bankruptcy stay standard:
The United States Court of Appeals for the Fourth Circuit has
not recently opined on the standard for motions to stay
pending appeal. The [c]ourt's decision in Long v.
Robinson, 432 F.2d 977 (4th Cir. 1970), established a
four factor sliding-scale test for courts to apply when
considering motions to stay. Until recently, courts varied
little in applying the Long test because it so
closely mirrored the analysis for granting a preliminary
injunction laid out in Blackwelder Furniture Co. of
Statesville, Inc. v. Seilig Manufacturing Co., 550 F.2d.
189 (4th Cir. 1997). However, the Blackwelder
standard has been modified by the Fourth Circuit's
opinion in The Real Truth About Obama, Inc. v. FEC,
575 F.3d 342 (4th Cir. 2009). Both a stay pending an appeal
and preliminary injunctions are forms of preliminary
equitable relief, and as such courts often regarded the two
standards as analogous. However, after the [Fourth Circuit]
adopted a more rigid standard for granting preliminary
injunctions in The Real Truth About Obama (“Real
Truth”), the district courts in this circuit have
considered stays pending appeal under both the Long
test and the Real Truth test. . . Notably, three of
the factors in the Real Truth test are substantially
similar to those in the Long test. However, factor
three in the Long test requires the movant to show
that the other party will not be “substantially harmed,
” while in the Real Truth test the movant must
show that “the balance of equities tip in [her]
favor.” When reviewing the third factor of the Real
Truth test, “courts ‘must balance the
competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested
relief.'” The Real Truth test is also more
difficult to satisfy than the Long test because the
movant must satisfy all four requirements.
Rose v. Logan, No. 13-cv-3592-RDB, 2014 WL 3616380,
at *1-2 (D.Md. July 21, 2014) (internal citations omitted).
cannot satisfy either test. See Rose, No.
13-cv-3592-RDB, 2014 WL 3616380, at *3; In Re
Schweiger, 578 B.R. 734, 737 (D.Md. 2014). Judge Simpson
appears to apply the Long test in her order denying
Debtor's emergency motion for stay pending
appeal. (ECF No. 3, at 4-7). The court agrees
unreservedly with Judge Simpson's analysis and
conclusions of law. If Appellant cannot prevail under the
less stringent Long standard, she necessarily cannot
prevail under the more stringent Real Truth
standard, if it applies.
Simpson's order denying Debtor's emergency motion to
stay outlines the factual and procedural background, which
the court incorporates and references. (ECF No. 3, at 1-4).
Appellant's motion seemingly argues that the single
estate rule does not apply because the first case
“should have been closed” and the third case
“should have been properly administered.” (ECF
No. 2, at 5-7). This argument ignores that the first case
remains open, and that the trustee's motion to dismiss
the first case is pending. (ECF No. 1-3, at 2).
contends that she will suffer irreparable injury absent a
stay because her home will be sold and her appeal will be
moot. (ECF No. 2, at 9-11). Judge Bennett's analysis is
Of course, Appellant may experience harm if the property in
question is sold before an appeal, but this assertion alone
does not establish irreparable harm. Appellant
insists the harm is irreparable because a sale prior to an
appeal will render his appeal moot. However, “an appeal
being rendered moot does not itself constitute irreparable
Rose, No. 13-cv-3592-RDB, 2014 WL 3616380, at *3.
contends that “other parties will not be substantially
harmed by the stay” because she “is seeking to
take three specific actions to protect all of the. . .
creditors by seeking a supersedeas bond.”
(Id., at 11-12). Absent irreparable harm to
Appellant, the third factor weighs in favor of Creditor.
Rose, No. 13-cv-3592-RDB, 2014 WL 3616380, at *4. A
stay would delay Creditor's ability to pursue its rights
under state law, and as Judge Simpson phrased it,
“merely serve to delay the inevitable.” (ECF No.
3, at 7).
the public interest will not be served by granting a stay.
Judge Simpson explained that the United States Congress
enacted 11 U.S.C. § 109(g)(2) “specifically to
prevent debtors from accomplishing [Appellant's] goal in
filing the [t]hird [c]ase.” (ECF No. 3, at 6). The
court agrees that “the public interest, as evidenced by
Congress's adoption of § ...