In re: Roberta J. Bolden

Filing 21

ORDER denying 16 Motion to Stay, by Judge William J. Martinez on 03/29/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-2163-WJM
ROBERTA J. BOLDON,
Appellant,
v.
LEE E. LINDBLAD,
RUBY H. LINDBLAD,
JAMES S. HELFRICH,
JORDAN FACTOR,
Appellees.

ORDER DENYING APPELLANT’S MOTION FOR STAY OF JUDGMENT ON APPEAL

Before the Court is Debtor-Appellant’s Motion for Stay of Judgment on Appeal
(ECF No. 16), Appellant’s supplement to that Motion (ECF No. 18), and Appellees’
Response (ECF No. 20.) “To receive a stay, debtor must show that: 1. it is likely to
succeed on the merits of its appeal; 2. it will suffer irreparable injury if the stay is
denied; 3. the harm suffered by debtor outweighs the potential injury to the Bank if the
stay were granted; and 4. the stay would be in the public interest.” In re Drislor
Assocs., 110 B.R. 937, 939 (D. Colo. 1990). The Court finds that Appellant fails to
request relief that would have any practical effect, and that she otherwise fails to satisfy
the first and second elements of the stay standard (likelihood of success and
irreparable harm). Appellant therefore is not entitled to a stay pending appeal.
Appellant filed an adversary proceeding in the Bankruptcy Court, alleging that
Appellees were violating the discharge injunction of her Chapter 7 proceeding by suing

her in Weld County District Court on a debt that preexisted her Chapter 7 proceeding.
(Bankruptcy Record on Appeal (“R.”) (ECF Nos. 9-1 & 9-2) at 4–16.) Appellees m oved
to dismiss the adversary proceeding because Appellant never listed Appellees as
creditors on her Chapter 7 schedule, and the relevant bankruptcy statutes therefore
give the state court jurisdiction to determine whether Appellant’s alleged debt to
Appellees has been discharged. (R. at 33–37.) The Bankruptcy Court agreed, noting
that Appellant had “raised the affirmative defense of discharge in bankruptcy in her
[state court] answer. The issue is now pending before the State Court.” (R. at 48.)
The Bankruptcy Court accordingly granted Appellees’ motion to dismiss with prejudice.
(R. at 48–49.)
Appellant appealed to this Court on Septem ber 30, 2015. (ECF No. 2.) The
appeal has been fully briefed since January 2016. (See ECF Nos. 10–12.) On March
11, 2016, Appellant filed the Motion for Stay of Judgment that is at issue here. (ECF
No. 16.) Appellant asks this Court “to stay the judgment dismissing this Adversary
Proceeding.” (Id. at 1.) She argues that she “is likely to succeed on the merits,
because her Adversary Proceeding stated a claim for contempt of the Discharge
Injunction in her no-asset Chapter 7 bankruptcy.” (Id. at 2 (capitalization normalized).)
As this Court explained in its Order requiring Appellant to clarify the relief
requested (ECF No. 17), the Bankruptcy Court’s judgment is not a money judgment, nor
has the Bankruptcy Court entered an injunction against Appellant. Thus, this Court
required Appellant to file a supplement and explain what practical relief she would obtain
through a stay. Appellant responded by explaining that the Weld County District Court
previously stated that it will “defer to the bankruptcy court regarding the resolution of this
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issue [i.e., whether Appellant’s debt to Appellees has been discharg ed].” (ECF No. 18 at
2 (emphasis removed; internal quotation marks omitted).) According to Appellant,
This Court’s Stay of the Bankruptcy Court’s dismissal would
turn the Weld Court back [to] its original position that “The
Court will defer to the bankruptcy court regarding the
resolution of this issue.” [Appellant] would move the Weld
Court to stay proceedings until this Court decided
[Appellant’s] appeal, and use this Court’s Stay to support
that motion. Thus, this Court’s issuing the stay that
[Appellant] requested would, indeed, have a practical effect.
(Id. at 3 (emphasis removed).)
Appellant fundamentally misunderstands what she is requesting. There is nothing
to stay pending appeal. Stated differently, if this Court were to “stay” the Bankruptcy
Court’s judgment, it would be as if the Bankruptcy Court never ruled on Appellees’
Motion to Dismiss below, thus leaving all of the questions raised in the Motion to Dismiss
unresolved. Perhaps that might prompt the Weld County District Court to stay further
proceedings there pending this Court’s resolution of the appeal, but it might not. It is
simply Appellant’s hope that the W eld County District Court would grant her ensuing
motion. Thus, the practical effect of this Court’s “stay” would be entirely contingent on
another court’s later decision on another motion yet to be filed.
Furthermore, in terms of likelihood of success on the merits, Appellant fails to
address her most significant weakness: she did not list Appellees as creditors on her
Chapter 7 schedules. Although the Court cannot make any definitive ruling until it
resolves this appeal on its merits, it is difficult to see how Appellant can state a cause of
action for contempt of an injunction against a party who received no notice of of the
injunction.
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As for irreparable harm, Appellant again falls short. First, Appellant filed this
appeal on September 30, 2015, but waited until March 11, 2016, to move for a stay.
Appellant nowhere explains this delay, and her previous tolerance for the delay suggests
a lack of irreparable harm. Second, the Weld County District Court may ultimately rule
that Appellant’s debt was discharged. Thus, Appellant has failed to explain how she
faces irreparable harm.
For all of these reasons, Appellant’s Motion for Stay of Judgment on Appeal (ECF
No. 16) is DENIED.
Dated this 29th day of March, 2016.
BY THE COURT:

William J. Martínez
United States District Judge

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