Danley et al v. Liberty Bank and Trust Company (JOINT ASSIGN)

Filing 5

MEMORANDUM OPINION AND ORDER that the 2 Emergency Motion to Stay Foreclosure Pending Appeal is DENIED as further set out in the order. It is further ORDERED that the 3 Motion for Expedited Hearing on Emergency Motion to Stay Foreclosure is DENIED as further set out in the order. Signed by Chief Judge William Keith Watkins on 11/4/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
STACY L. DANLEY, II and
STEPHANIE L. DANLEY,
Appellants,
v.
LIBERTY BANK AND TRUST
COMPANY,
Appellee.

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CASE NO. 3:15-CV-821-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court are Appellants’ Emergency Motion to Stay Foreclosure
Pending Appeal (Doc. # 2) and Motion for Expedited Hearing on Emergency
Motion to Stay Foreclosure (Doc. # 3). For the reasons that follow, the motions
are due to be denied.
I. BACKGROUND
This appeal arises from two loans made by Liberty Bank to the Danleys.
One loan was secured by a mortgage on the Danleys’ investment rental property.
The other was secured by a mortgage on the Danleys’ personal residence. Since
Liberty Bank sent its initial notice of default with respect to these loans, the
Danleys have initiated four separate bankruptcy actions. As of the date of this

order, the Danleys still owe almost $840,000 to Liberty Bank, more than $270,000
of which is in arrears. (Doc. # 1-1, at 18.)
After the Danleys initiated the instant Chapter 11 proceeding, Liberty Bank
filed a motion for relief from the automatic stay. The bankruptcy court granted
that relief pursuant to 11 U.S.C. § 362(d)(4)(B), which allowed Liberty Bank to
continue with foreclosure.

The Danleys moved unsuccessfully for an order

altering, amending, or vacating that decision. (See Doc. # 1-3.) Appellants now
seek review of the Order Granting Relief From Automatic Stay (Doc. # 1-2) and
the Order Denying Motion to Alter and Amend (Doc. # 1-3). They request a stay
of the impending foreclosure proceedings pending the outcome of this appeal.
(Doc. # 2.)
II. DISCUSSION
This court has jurisdiction to decide the instant bankruptcy appeal. 28
U.S.C. § 158(a). An order granting relief from the automatic stay is final and
appealable. In re Dixie Broadcasting, Inc., 871 F.2d 1023, 1026 (11th Cir. 1989);
Matter of Chunn, 106 F.3d 1239, 1241 (5th Cir. 1997). Accordingly, the merits of
this application for stay will be considered.
The Danleys’ Motion for Stay of Foreclosure is due to be denied. Rule 8007
of the Federal Rules of Bankruptcy Procedure authorizes district courts to stay
orders of the bankruptcy court pending appeal. But allowing such a stay is an
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“exceptional response granted only upon a showing of four factors: 1) that the
movant is likely to prevail on the merits on appeal; 2) that absent a stay the movant
will suffer irreparable damage; 3) that the adverse party will suffer no substantial
harm from the issuance of the stay; and 4) that the public interest will be served by
issuing the stay.” In re Land Ventures for 2, No. 2:10cv839-MHT, 2010 WL
4176121, at *2 (M.D. Ala. Oct. 18, 2010) (citing Garcia-Mir v. Meese, 781 F.2d
1450, 1453 (11th Cir. 1986)).
Upon consideration of the record in this case, it is evident that the Danleys
fail to make a sufficient showing to satisfy this standard. At the very least, Liberty
Bank would suffer substantial harm from issuance of the stay. It is also unclear
how the public interest would be served by preventing the foreclosure sale from
proceeding as scheduled. Because a hearing is unnecessary for a determination on
this issue, the Motion for Expedited Hearing is also due to be denied.
III. Conclusion
Accordingly, it is ORDERED that the Emergency Motion to Stay
Foreclosure Pending Appeal (Doc. # 2) is DENIED. It is further ORDERED that
the Motion for Expedited Hearing on Emergency Motion to Stay Foreclosure (Doc.
# 3) is DENIED.
DONE this 4th day of November, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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