Mantiply v. Horne et al
Filing
88
ORDER granting 77 Motion for stay of execution of judgment. The supersedeas bond previously filed by the Appellant shall remain in the bankruptcy court during the pendency of the appeal. If during the pendency of the appeal Appellant seeks to sel l, convey, transfer, mortgage, assign, or otherwise encumber the real property to which the judgment lien has attached, she shall be required to file an additional supersedeas bond equal to 105% of the attorney's fee judgment. Signed by Senior Judge Charles R. Butler, Jr on 5/22/2014. copies to parties. emailed USCA, Bankruptcy, Appeals Clerk, and Butler CRD. (sdb)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
In
Re:
)
)
RICHARD
D.
HORNE
and
)
PATRICIA
NELSON
HORNE,
)
)
Debtors,
)
)
MARY
BETH
MANTIPLY,
)
)
CIVIL
ACTION
NO.
13-‐00258-‐CB-‐B
Plaintiff/Appellant,
)
)
v.
)
)
RICHARD
D.
HORNE
and
)
PATRICIA
NELSON
HORNE,
)
)
Defendants/Appellees.
)
ORDER
This
matter
is
before
the
Court
on
a
“Motion
to
Stay
Proceedings
to
Enforce
Judgment”
filed
by
Appellant
Mary
Beth
Mantiply.
(Doc.
77.)
The
Appellees
have
filed
a
reply
brief.
(Doc.
83.)
Upon
careful
review
and
consideration,
the
Court
finds
that
the
motion
to
stay
enforcement
of
the
judgment
during
the
pendency
of
the
appeal
is
due
to
be
granted
and
that
no
additional
security
should
be
required
at
this
time.
A
brief
review
of
the
pertinent
facts
is
necessary.
The
bankruptcy
court
below
found
that
Mantiply
had
violated
both
the
automatic
stay
and
discharge
injunction
by
filing
and
pursuing
a
civil
action
against
debtor
Richard
D.
Horne.
The
court
also
found
that
both
debtors
suffered
emotional
distress
and
mental
anguish
as
a
result
of
these
violations
and
imposed
compensatory
and
punitive
damages
as
well
as
attorney’s
fees
totaling
more
than
$80,000.
Mantiply
appealed
and
sought
a
stay
of
the
judgment
from
the
bankruptcy
court.
Ultimately,
Mantiply
posted
a
cash
bond
equal
to
105%
of
the
judgment,
and
the
stay
was
granted.
On
appeal,
this
court
affirmed
the
Magistrate
Judge’s
order
and
judgment
and
also
granted
Appellees’
motion
for
attorney’s
fees
on
appeal,
which
totaled
more
than
$34,000.
Appellees
recorded
the
attorney’s
fee
judgment
as
a
lien
against
real
property
owned
by
Mantiply.1
Mantiply
has
filed
a
notice
of
appeal,
and
seeks
a
stay
of
this
Court’s
attorney’s
fee
judgment
as
well
as
the
bankruptcy
court’s
judgment
and
requests
that
no
additional
security
be
required.
Appellees
object,
arguing
that
the
stay
of
judgment
should
be
denied
unless
additional
security
is
posted
for
the
amount
of
the
attorney’s
fee
judgment
plus
an
additional
amount
for
projected
attorney’s
fees
to
be
incurred
on
appeal.
Thus,
the
issue
now
before
this
Court
is
whether
the
stay
should
be
granted
without
requiring
additional
security.
Whether
to
grant
a
stay
pending
intermediate
appeal
(i.e.,
from
the
district
court
or
bankruptcy
appellate
panel
to
the
circuit
court),
is
governed
by
Rule
8017.
That
rule
sets
out
no
specific
criteria
for
granting
or
denying
a
stay,
stating
only
that
a
stay
may
be
extended
“for
good
cause
shown”
and
that
“[a]
bond
or
other
security
may
be
required
as
a
condition
to
the
grant
or
continuation
of
a
stay.”
Fed.
Bankr.
R.
8017(b).
Three
types
of
stays
may
be
applied
to
an
intermediate
appeal—one
fully
secured
by
a
supersedeas
bond,
another
that
is
unsecured
and
discretionary,
and
“a
1
Based
on
a
search
of
the
Baldwin
County
property
records,
this
lien
(recorded
January
10,
2014)
remained
in
effect
as
of
May
19,
2004.
See
Baldwin
County
Probate
Deeds
&
Records
Ref.
No.
1436988,
www.co.baldwin.al.us
(search
Public
Records,
Probate
Deeds
&
Records).
2
third
that
combines
features
of
the
first
two.”
In
re
Wymer,
5
B.R.
802,
804
(9th
Cir.
BAP
1980).2
A
discretionary
stay,
which
is
part
of
the
court’s
inherent
power
to
preserve
the
status
quo,
is
in
the
nature
of
a
preliminary
injunction.
Id.
at
806.
A
party
seeking
to
a
stay
of
judgment
that
cannot
be
secured
by
a
supersedeas
bond
must
meet
the
criteria
applicable
to
a
motion
for
preliminary
injunction.
Cf.
In
re
First
South
Sav.
Ass’n,
820
F.2d
700,
704
(5th
Cir.
1987)
(applying
injunctive
test
to
motion
for
stay
of
bankruptcy
court’s
superpriority
order).3
When
a
monetary
judgment
is
fully
secured
by
a
supersedeas
bond,
the
injunctive
test
is
unnecessary
because
the
status
quo
is
maintained.
See
In
re
Lambert
Oil,
375
B.R.
197,
200
(W.D.
Va.
2007);
see
also
In
re
Mirranne,
94
B.R.
413,
415
(E.D.
La
1988).
The
instant
appeal
falls
into
the
middle
ground
because
it
involves
a
partially-‐secured
monetary
judgment.
The
supersedeas
bond
filed
in
the
bankruptcy
court
secures
the
amount
of
the
bankruptcy
court’s
judgment;
however,
no
supersedeas
bond
has
been
posted
to
secure
the
attorney’s
fee
judgment
issued
by
this
Court.
Moreover,
Mantiply
contends
that
none
is
necessary
because
the
attorney’s
fee
judgment
is
adequately
secured
by
the
lien
on
her
real
property.
The
Court
agrees
that
Appellee’s
judgment
lien
on
Appellant’s
real
property
provides
sufficient
security
for
the
attorney’s
fee
judgment.
Therefore,
pursuant
to
Fed.Bankr.R.
8017,
the
Court
finds
“good
cause”
for
a
stay
pending
appeal
is
satisfied
2At
the
time
Wymer
was
decided,
a
different
version
of
the
Bankruptcy
Rules
was
in
effect
and
Rule
8017
had
not
been
adopted.
The
Wymer
court
interpreted
and
applied
Fed.
R.
Civ.
P.
62
and
Fed.
R.
App.
P.
41,
the
rules
upon
which
Rule
8017
was
based.
See
Fed.
Bankr.
R.
8017
advisory
committee’s
note.
3
The
party
seeking
the
stay
must
demonstrate
the
following:
(1)
a
likelihood
of
success
on
the
merits;
(2)
irreparable
injury
to
the
movant
if
the
stay
is
not
granted;
(3)
no
substantial
harm
to
the
opposing
party
if
a
stay
is
granted;
and
(4)
a
stay
would
serve
the
public
interest.
Id.
at
709.
3
by
the
supersedeas
bond
posted
in
the
bankruptcy
court
and
the
judgment
lien
filed
against
Appellant’s
property.
For
the
reasons
set
forth
above,
the
motion
for
stay
of
execution
of
judgment
is
GRANTED.
The
supersedeas
bond
previously
filed
by
the
Appellant
shall
remain
in
the
bankruptcy
court
during
the
pendency
of
the
appeal.
If
during
the
pendency
of
the
appeal
Appellant
seeks
to
sell,
convey,
transfer,
mortgage,
assign,
or
otherwise
encumber
the
real
property
to
which
the
judgment
lien
has
attached,
she
shall
be
required
to
file
an
additional
supersedeas
bond
equal
to
105
%
of
the
attorney’s
fee
judgment.
DONE
and
ORDERED
this
the
22nd
day
of
May,
2014.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
4
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