Malleghem v. Ocwen Loan Servicing, LLC

Filing 16

ORDER denying 7 motion to stay. Signed by Judge Carlos E. Mendoza on 10/5/2016. (KMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

In Re: Erminio Van Malleghem
ERMINIO VAN MALLEGHEM,
Appellant,
v.

Case No: 6:16-cv-1433-Orl-41
Bankr. Case No.: 6:15-bk-6189-RAC

OCWEN LOAN SERVICING, LLC,
Appellee.
/
ORDER
THIS CAUSE is before the Court on Appellant Erminio Van Malleghem’s Motion to Stay
Orders Pending Outcome of Appeal (Doc. 7). Appellee Ocwen Loan Servicing, LLC (“Ocwen”)
filed a Response in opposition (Doc. 13). As set forth below, Van Malleghem’s motion will be
denied.
Federal Rule of Bankruptcy Procedure 8007 allows a party to move for a stay pending
appeal in both the bankruptcy court and the reviewing district court. Where, as here, a motion to
stay was first made and ruled on in the bankruptcy court, the motion before the district court must
“state that the [bankruptcy] court has ruled and set out any reasons given for the ruling.” Fed. R.
Bankr. P. 8007(b)(2)(B). Van Malleghem indicated that the bankruptcy court denied his motion to
stay, but he did not provide the basis for the denial.
Further, to obtain a stay pending appeal under Rule 8007, the movant must establish the
following 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

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substantial harm from the issuance of the stay”; and (4) “that the public interest will be served by
issuing the stay.” Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986); In re Dale Mabry
Props., Ltd., 149 B.R. 209, 210 (M.D. Fla. 1992). Significantly, Van Malleghem does not address
the first factor—the likelihood of success on the merits of the appeal—which is generally
considered the most important factor. Robles Antonio v. Barrios Bello, No. 04-12794-GG, 2004
WL 1895123, at *1 (11th Cir. June 10, 2004) (per curium).
Additionally, Van Malleghem fails to articulate any irreparable harm that he will face if
the stay is not granted. Indeed, Van Malleghem appears to argue merely that he does not want
Ocwen to be able to proceed with a motion to dismiss in the bankruptcy court. This is insufficient
to establish that a stay is warranted. See In re F.G. Metals, Inc., 390 B.R. 467, 472 (Bankr. M.D.
Fla. 2008) (noting that a stay may be issued “where the appellant demonstrates that his or her
chances of success are merely substantial,” as opposed to likely, “so long as a strong showing
weighing heavily in the appellant’s favor is made on the latter three elements” (quotation omitted)).
Accordingly, it is ORDERED and ADJUDGED that Van Malleghem’s Motion to Stay
Orders Pending Outcome of Appeal (Doc. 7) is DENIED.
DONE and ORDERED in Orlando, Florida on October 5, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Party

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