v. Green Tree Servicing LLC

Filing 3

Order on Motion (COMPLAINT) for Stay Pending Appeal; Dismissing Case; Remanding to the Bankruptcy Court for Adjudication; Closing Case. Signed by Judge Beth Bloom on 5/6/2015. (ls) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-MC-60925-BLOOM
RAQUEL CATSELALNOS-FERNANDEZ,
Plaintiff,
v.

Adv. Case No. 14-01929-JKO

BANK OF NEW YORK MELLON
and GREEN TREE SERVICING, LLC,
Defendants.
______________________________________/
In re:

Bankr. Case No. 14-24358-JKO

RAQUEL CATSELALNOS-FERNANDEZ,
Debtor.
______________________________________/
ORDER ON MOTION FOR STAY PENDING APPEAL
THIS CAUSE is before the Court upon Plaintiff, Debtor Raquel CastellaniosFernandez’s (“Debtor”) Motion for Stay Pending Appeal, ECF No. [1] (the “Motion”). The
Court has reviewed the Motion and the record in this case.
Debtor requests a stay of proceedings, including a foreclosure and sale of real property,
pending her appeal of an order issued by the United States Bankruptcy Court for the Southern
District of Florida (the “Bankruptcy Court”) in an adversary proceeding, Adv. Case No. 1401929-JKO (the “Adversary Proceeding”) related to her chapter 7 bankruptcy proceeding, Bankr.
Case No. 14-24358-JKO (the “Bankruptcy Proceeding).
Federal Rule of Bankruptcy Procedure 8007 provides, in relevant part, that “[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). The requirement to first
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seek relief from the bankruptcy court may have jurisdictional implications. See In re Taub, 470
B.R. 273, 276 (E.D.N.Y. 2012) (“If the party improperly bypasses the bankruptcy court and
seeks a stay first from the district court, the district court lacks the jurisdiction to hear the
matter.”); accord, e.g., In re Phillps, 483 B.R. 254, 257 (M.D. Fla. 2012) (“The decision whether
to grant a stay pending appeal is left to the sound discretion of the bankruptcy court.”); In re
Pullen, 2008 WL 7842092, at *1 (Bankr. N.D. Ga. Jan. 3, 2008) (bankruptcy court retains
jurisdiction even where appeal noticed). “Thus, district courts routinely dismiss motions for a
stay pending appeal when stay relief is not first sought from the bankruptcy judge and the failure
to do so is not adequately explained.” In re BGI, Inc., 504 B.R. 754, 761 (S.D.N.Y. 2014).
Here, Debtor, proceeding pro se, appears to have filed the instant Motion both before the
Bankruptcy Court in the Adversary Proceeding below and before this Court. See ECF No. [1-1]
at 3 (docket in adversary proceeding). The order subject of her appeal was issued by that court
and in that proceeding, and is the proper forum for the Motion. This Court, especially absent any
explanation from Debtor, is not.
Accordingly, it is hereby ORDERED and ADJUDGED that this case is DISMISSED,
and, to the extent it is not pending before the Bankruptcy Court in the Adversary Proceeding, this
cause and the Motion are REMANDED to the Bankruptcy Court for adjudication, pursuant to
Fed. R. Bankr. P. 8007(a)(1)(A).

The Clerk is directed to CLOSE this matter and to

TRANSMIT this Order to the Bankruptcy Court in accordance with all relevant rules and
procedures.

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DONE and ORDERED in Chambers at Ft. Lauderdale, Florida, this 6th day of May,
2015.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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