Moore v. Bayview Loan Servicing, LLC

Filing 23

ORDER: (1) DENYING APPELLANT'S EX PARTE MOTION TO PAY FUNDS IN INSTALLMENTS IN LIEU OF SUPERSEDEAS BOND 22 AND (2) LIFTING PREVIOUSLY IMPOSED STAY 21 . Signed by JUDGE DAVID ALAN EZRA on 2/9/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

In re

)
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TERESA JEAN MOORE,
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Debtor,
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_____________________________ )
TERESA JEAN MOORE,
)
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Plaintiff-Appellant,
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v.
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BAYVIEW LOAN SERVICING,
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LLC,
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Defendant-Appellee,
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and
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RICHARD A. YANAGI; AND
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OFFICE OF THE U.S. TRUSTEE, )
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Defendants-Trustees.
)
)

CV. NO. 11-00607 DAE-BMK
(Bankruptcy Case No. 10-00771)

ORDER: (1) DENYING APPELLANT’S EX PARTE MOTION TO PAY FUNDS
IN INSTALLMENTS IN LIEU OF SUPERSEDEAS BOND AND (2) LIFTING
PREVIOUSLY IMPOSED STAY
Appellant Teresa Moore has appealed the Bankruptcy Court’s Order
Granting Secured Creditor Bayview Loan Servicing, LLC’s (“Appellee”) Motion
for Relief from Automatic Stay. (Doc. # 1.) On January 17, 2012, Appellant filed

an Ex Parte Emergency Motion for a Stay of the Order Granting Relief from
Automatic Stay during the pendency of the instant appeal before this Court. (Doc.
# 11.) In her Motion, Appellant asked this Court to stay the foreclosure of certain
real property situated at 3792 Greenbriar Drive, Pittsburg, CA 94565 (“Subject
Property”). Appellee opposed the Motion to Stay and, in the alternative, requested
that the Court require Appellant to post a supersedeas bond that includes the
principal balance on the mortgage loan at issue.
On January 20, 2012, the Court heard Appellant’s Motion to Stay.
Appellant represented to the Court at the hearing that she was unable to post a
bond for the principal balance on the loan but would be able to secure the funds for
a lesser amount. On January 27, 2012, the Court issued an Order granting
Appellant’s Motion for Stay Pending Appeal conditioned upon Appellant posting
and filing with the Court a supersedeas bond in the amount of $9,676.92 by no
later than February 7, 2012. This figure was based on the interest, late charges,
and attorneys’ fees that would accrue during the pendency of this appeal.
Although a supersedeas bond ordinarily includes the whole amount of the
judgment remaining unsatisfied, the Court exercised its discretion to reduce the
amount of the bond significantly in light of Appellant’s representation regarding
her ability to pay. The Court warned Appellant that “failure to comply with this
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condition shall result in the automatic lifting of the stay otherwise granted in this
Order.”
On February 8, 2012, one day after the bond was due, Appellant filed
the instant Ex Parte Motion to Pay Funds in Installments In Lieu of a Supersedeas
Bond.1 The Court concludes that the six monthly installments proposed by
Appellant would not adequately protect Appellee’s interest in light of the fact that
only a small amount of the funds would be deposited in each installment and the
Court would have no assurance that all of the funds would eventually be deposited.
Moreover, based on the current briefing schedule, the instant appeal before this
Court is not expected to last six months.2 Appellee would therefore incur all the
costs associated with the instant appeal well before Appellant posts all the funds
and there would be no guarantee that Appellant would continue to make the
required payments. In short, the installment plan proposed by Appellant

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The Court notes that Appellant has failed to demonstrate good cause for her
delay in filing the instant motion. Appellant claims that she was unable to file this
motion sooner because she was in California and did not receive the Court’s order
directing her to post the bond until February 8, 2012. However, the Court’s
records indicate that Appellant is registered to receive electronic notifications by
CM/ECF and therefore received the Court’s Order electronically at the e-mail
address listed on the Notice of Electronic Filing.
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Appellant’s Reply brief for the appeal is due on March 15, 2012.
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would defeat the entire purpose of the supersedeas bond, which is to secure the
Appellee against any loss resulting from the stay.
Accordingly, the Court DENIES Appellant’s Ex Parte Motion to Pay
Funds in Installments. (Doc. # 22.) The Court’s stay as previously imposed is
therefore lifted.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 9, 2012.

_____________________________
David Alan Ezra
United States District Judge

In re Teresa Jean Moore; Civil No. 11-00607 DAE-BMK; ORDER: (1) DENYING
APPELLANT’S EX PARTE MOTION TO PAY FUNDS IN INSTALLMENTS
IN LIEU OF SUPERSEDEAS BOND AND (2) LIFTING THE PREVIOUSLY
IMPOSED STAY

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