Woodroffe v. Waage et al

Filing 15

ORDER: Appellant's Verified Emergency Motion to Stay Judgment 13 is DENIED. Signed by Judge Charlene Edwards Honeywell on 7/13/2018. (LJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

IN RE:
GARY LEE WOODROFFE

GARY LEE WOODROFFE,
Appellant,
v.

Case No: 8:18-cv-1437-T-36

JON WAAGE, Trustee and STATE OF
FLORIDA, DEPARTMENT OF REVENUE,
Appellees.

ORDER
This cause comes before the Court on Appellant’s Emergency Motion to Stay Judgment
(Doc. 13) (the “Motion”). The Court, having considered the Motion and being fully advised in the
premises, will deny the Motion.
I.

BACKGROUND
On May 22, 2018, Appellant Gary Lee Woodroffe filed a notice of appeal in Bankruptcy

Court from an Order Denying Confirmation of Chapter 13 Plan and Dismissing Case. Doc. 1-1.
The notice was docketed in this Court on June 14, 2018 (Doc. 1) and, shortly thereafter, on June
19, Woodroffe filed a motion to extend the automatic stay pending appeal (Doc. 4), which the
Court denied (Doc. 6). Woodroffe has now filed the instant Motion, which requests that the Court
stay a foreclosure sale scheduled by a Florida court for July 16, 2018 as part of a foreclosure action
pending before that Court. Doc. 13 at 1-2. Woodroffe has also moved to consolidate this

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bankruptcy appeal with case number 8:18-cv-01614-CEH-CPT, pending in this Court, in which
Woodroffe removed the state foreclosure action. Doc. 12; Doc. 13 at 2.
Woodroffe argues that the foreclosure sale should not be permitted to proceed for several
reasons. First, he argues that service of process in the foreclosure action was inadequate, and he
received no notice of the hearing at which the foreclosure sale date was set. Doc. 13 at 2-4.
Second, Woodroffe argues that he has not paid his mortgage because the Department of Revenue
(“DOR”) incorrectly claims he owes child support arears, and has improperly garnished his Social
Security retirement benefits, which Woodroffe would be using to pay his mortgage. Id. at 5. He
states that a hearing will be held on July 13, 2018 regarding vacating the child support arears, and
that once this occurs and the garnishment is lifted, he will pay his mortgage. Id. at 5-6.
II.

LEGAL STANDARD
Pleadings from pro se litigants are held to a less stringent standard than pleadings drafted

by attorneys. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, they
still must meet minimal pleading standards. Pugh v. Farmers Home Admin., 846 F. Supp. 60, 61
(M.D. Fla. 1994). “Motions of an emergency nature may be considered and determined by the
Court at any time, in its discretion.” M.D. Fla. L. R. 3.01(e).
To be entitled to a stay pending appeal, the movant must show four factors: (1) that he or
she is likely to prevail on the merits of the appeal; (2) that absent a stay, he or she will suffer
irreparable damage; (3) that the adverse party will not suffer substantial harm from issuance of the
stay; and (4) that issuing the stay serves the public interest. Ramos v. Weatherford, No. 6:15-cv871-Orl-41, 2015 WL 12765453, at *2 (M.D. Fla. July 16, 2015) (citing 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)). “The party requesting the stay must show satisfactory evidence on all four criteria.” In re

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F.G. Metals, Inc., 390 B.R. 467, 472 (M.D. Fla. 2008) (citing In re Davis, 373 B.R. 207, 210
(Bankr. N.D. Ga. 2007)). Ordinarily, the first factor of the movant’s likelihood of success is the
most important factor, and the movant must show that the court below was clearly erroneous. Id.
(citing Antonio v. Bello, No. 04-12794-GG, 2004 WL 1895123, at *1 (11th Cir. 2004)).
Pursuant to Federal Rule of Bankruptcy Procedure 8007, “[o]rdinarily, a party must move
first in the bankruptcy court for . . . a stay of a judgment, order, or decree of the bankruptcy court
pending appeal.” Fed. R. Bankr. P. 8007(a)(1)(A) Under such circumstances, the district court
reviews the bankruptcy court’s order for abuse of discretion. In re Phillips, 483 B.R. 254, 257
(M.D. Fla. 2012) (citing In re Colony Square Co., 788 F.2d 739, 741 (11th Cir. 1986)).
However, in certain circumstances, a motion for a stay “may be made in the court where
the appeal is pending.” Fed. R. Bankr. P. 8007(b)(1). Cf. Matter of Houchins, No. 14-11928WHD, 2014 WL 7793416, at *1-2 (N.D. Ga. Oct. 29, 2014) (reviewing a request for a stay of an
order denying a motion for extension of the automatic stay pursuant to Rule 8007); In re McKenzie,
No. A09-78963-PWB, 2009 WL 6499259, at *1-2 (N.D. Ga. Nov. 2, 2009) (analyzing a request
to extend the automatic stay on appeal pursuant to Rule 8007). Where the moving party first filed
the motion in the district court, the motion must either “[s]how that moving first in the bankruptcy
court would be impracticable” or, “if a motion was made in the bankruptcy court, either state that
the court has not yet ruled on the motion, or that the court has ruled and set out any reasons given
for the ruling.” Id. 8007(b)(2)(A)-(B). Additionally, the motion must include “the reasons for
granting the relief requested and the facts relied upon,” “affidavits or other sworn statements
supporting facts subject to dispute,” and “relevant parts of the record.” Id. 8007(b)(3)(A)-(C).

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III.

DISCUSSION
Here, it is unclear whether a motion was first made to the Bankruptcy Court. Woodroffe

states that the “Bankruptcy [C]ourt has ordered as of 7-10-2018, Rule 8007 Relief from a Motion
to Stay does not lie in the Bankruptcy [C]ourt.” Doc. 13 at 2. Woodroffe then states that because
he removed the foreclosure action and moved to consolidate the cases, he filed the instant Motion 1.
Id. Woodroffe has not filed any papers from the bankruptcy proceeding, such as a motion to stay
filed in the Bankruptcy Court, or an Order denying such a motion, which could clarify the reasons
for a denial. Thus, it is not possible for the Court to determine whether the Bankruptcy Court
abused its discretion in denying a motion to stay.
Moreover, Woodroffe fails to comply with other procedural requirements for requesting a
stay. He does not, for example, include relevant parts of the record, or provide affidavits or sworn
statements that are pertinent to the facts in dispute. Fed. R. Bankr. P. 8007(b)(3). Although
Woodroffe filed affidavits, they pertain to events in the foreclosure proceeding, not the bankruptcy
proceeding. Doc. 14. He does not identify the reason why the Bankruptcy Court denied his
Chapter 13 plan and dismissed the case, beyond stating in a prior filing that he was unable to
provide an adequate payment plan due to his child support obligations. Doc. 4. These deficiencies
prevent the Court from granting a stay. Rosenbrough v. Regions Bank, NA, No. 15-cv-80391MIDDLEBROOKS, 2015 WL 12860291, at *1 (S.D. Fla. July 21, 2015) (denying a motion to stay
where the movant “fail[ed] to explain why the Bankruptcy Court denied the initial motion to stay”
in accordance with Rule 8007).

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No Order has been entered on Woodroffe’s motions to consolidate. See Docs 9, 12. Until an Order is entered
consolidating Woodroffe’s cases, matters relating to the foreclosure action should be filed in Case No. 8:18-cv1614-T-36CPT. Although Woodroffe has filed a notice removing the foreclosure action to federal court, the Court
questions whether it has subject matter jurisdiction over the foreclosure action.

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Regardless, Woodroffe fails to establish that a stay is appropriate in this case. First,
Woodroffe has not shown that he is likely to succeed on the merits. Woodroffe focuses his
argument on the legitimacy of his child support obligations. Domestic support obligations, such
as child support, are non-dischargeable under Chapter 13. In re Diaz, 647 F.3d 1073, 1090 (11th
Cir. 2011). Additionally, domestic support obligations are first priority claims, for which a
Chapter 13 plan must provide full payment. 11 U.S.C. §§ 507(a)(1), 1322(a); see also In re
Hutchens, 480 B.R. 374, 382 (M.D. Fla. 2012); In re Dupree, 285 B.R. 759, 763 (M.D. Ga. 2002)
(stating that a child support claim was “valid and non-dischargeable for the full amount” and “must
be treated as such in Debtor’s Chapter 13 plan.”). Pursuant to the Bankruptcy Code, the Court
may dismiss a Chapter 13 bankruptcy case under certain circumstances, including if the debtor
fails to make timely payments under the plan, there is unreasonable delay by the debtor that is
prejudicial to creditors, or the bankruptcy court denies confirmation and any request for additional
time to file a new plan or modification of a plan. 11 U.S.C. § 1307(c); see also Slater v. United
States Steel Corp., 871 F.3d 1174, 1179 n.3 (11th Cir. 2017) (“If the debtor fails to make payments
due under a Chapter 13 plan, he may be forced to convert to a Chapter 7 proceeding or the court
may dismiss his bankruptcy case entirely.”). Woodroffe has not shown that the Bankruptcy Court
could alter his child support obligation, or was clearly erroneous in dismissing his Chapter 13 case.
In re F.G. Metals, 390 B.R. at 472 (stating that to show a likelihood of success on the merits,
requires a showing that the bankruptcy court was clearly erroneous). Accordingly, Woodroffe has
failed to establish the first element required for a stay pending appeal.
Because Woodroffe did not show a likelihood of success on the merits, a stay may be
imposed only if each of the other criteria “tend strongly” in his favor. Id. The Court finds that
they do not. Although Woodroffe will suffer harm from the sale, he has not shown that his creditor

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will not suffer substantial harm if the sale is not permitted to proceed. Instead, he argues that
neither his child nor the child’s mother will be harmed. Doc. 13 at 9. Based on the documents
before the Court, the creditor in the foreclosure action is Federal National Mortgage Association.
Doc. 14-1 at 1. Because the property is the subject of a foreclosure action and no Chapter 13 plan
is in place, nothing indicates that the creditor is being paid for the property, which Woodroffe
states “has fallen into . . . disrepair.” Doc. 13 at 4. The public interest is not served by delaying
repayment of Woodroffe’s creditor under these circumstances.

Thus, the Court finds that

Woodroffe did not meet the burden required for this Court to impose a stay pending appeal.
Accordingly, it is ORDERED
1.

Appellant’s Verified Emergency Motion to Stay Judgment (Doc. 13) is DENIED.

DONE AND ORDERED in Tampa, Florida on July 13, 2018.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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