Ball v. Franklin Williamson Properties Inc. et al

Filing 22

ORDER denying 14 Motion to Stay. Signed by Chief Judge David R. Herndon on 12/13/13. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENNIES ANDREW BALL,
Appellant,
v.

No. 13-1023-DRH

FRANKLIN WILLIAMSON
PROPERTIES, INC. and CREDIT UNION
WEST,
Appellees.
MEMORANDUM and ORDER
HERNDON, Chief Judge:
Pending before the Court is Ball’s motion for stay pending appeal and oral
argument (Docs. 14, 16 & 17).

Ball moves the Court to stay two hearings

scheduled in state court on December 17, 2013 and December 19, 2013. Both
Franklin Williamson Properties, Inc. and Credit Union West have filed oppositions
to the motion (Docs. 19 & 20). Based on the pleadings, the exhibits and the case
law, the Court denies Ball’s motion.
Four factors are used in deciding whether a discretionary stay pending
appeal is appropriate. In re Forty-Eight Insulations, 155 F.3d 1294, 1300 (7th Cir.
1997). The factors are as follows: “1) whether the appellant is likely to succeed on
the merits of the appeal; 2) whether the appellant will suffer irreparable injury
absent a stay; 3) whether a stay would substantially harm other parties in the
litigation; and 4) whether a stay is in the public interest.” Id. The party seeking a
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stay has the burden of proving it has met the first two threshold factors in a
preliminary analysis, and if the movant succeeds, all four factors are considered on
a sliding scale. Id. at 1300-01. Should the applicant not meet the preliminary
threshold or, assuming the threshold is met, not meet the overall standards, the
stay should be denied. Id. The Court finds that Ball has failed to come close to
meet any of these requirements.
(1) Likelihood of Success on the Merits
As a threshold matter, the applicant for a stay pending appeal must first
show some likelihood of success on the merits. Forty-Eight Insulations, 115 F.3d
at 1300-01. Without such a showing, no further inquiry from the Court is merited.
Id. Once the threshold burden is met, however, the applicant is required to make a
stronger showing of the likelihood of success on the merits than the mere
possibility of success that is required in a preliminary injunction context. Id. (citing
Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150,
153 (6th Cir.1991)). This is due to the fact that a Court has previously substantively
evaluated the applicant's arguments. Id.; see also Adams v. Walker, 488 F.2d
1064, 1065 (7th Cir.1973) (a stay applicant is required to make a “substantial
showing of probable success”). While this probability of success, laying somewhere
along a continuum of likeliness, requires a substantial showing, it also calls for
something less than a demonstration that the applicant will probably win on
appeal. Lewis v. City of Chicago, No. 98 C 5596, 2007 WL 1686975, at *1 (N.D.Ill.
June 7, 2007).
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Here, the Court finds that Ball has not raised any facts or cited any law in
support of a stay pending appeal. First, he has not demonstrated a showing of
likelihood of success on the merits of the appeal. The record reveals that Ball has
had many bankruptcy cases “pending” and dismissed during 2013. 1

Section

362(c)(4)(A)(i) applies to a debtor that has had two or more cases dismissed in a
year. That provision states that “if a single or joint case is filed by or against a
debtor … and if 2 or more single or joint cases of the debtor were pending within the
previous year but were dismissed … the stay under subsection (a) shall not go into
effect upon the filing of the later case.” Section 362(c)(4)(A)(i) thereby provides in
no uncertain terms that the automatic stay does not come into effect at all upon the
filing of the debtor’s third bankruptcy case within a one year period. It is clear that
Ball has had two previous Chapter 13 cases dismissed during the preceding year as
the Clerk of the Southern District of Illinois Bankruptcy Court prepared and
entered a “Clerk’s Evidence of Repeat Filings” that states:
Clerk’s Evidence of Repeat Filings – Debtor had a prior bankruptcy
case, 11-12248 in the District of Arizona that was filed as a Chapter 13
on 4/28/2011 and converted to a Chapter 7 on 10/11/2011 and
discharged on 5/29/2013. Debtor also had to prior bankruptcy cases
in the Southern District of Illinois, 13-40016 (Chapter 13), filed on
1/8/2013 and dismissed on 3/4/2013 AND 13-40561 (Chapter 13),
filed on 5/17/2013 and dismissed on 5/20/2013. (tg)
In Re Ball, 13-bk-40863-lkg; (Doc. 8). Further on August 30, 2013, Bankruptcy

1 In fact, the record reveals that Ball has filed 4 Chapter 13 bankruptcies and over eight different
appeals in the Arizona Appellate Court, Arizona Supreme Court, the Ninth Circuit Court of Appeals,
the Ninth Circuit Bankruptcy Appellate Panel, the Seventh Circuit Court of Appeals, the Arizona
Federal District Court and the Illinois Federal District Court.

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Judge Kenneth Myers found that “the filing of the bankruptcy petition was part of a
scheme to delay and hinder Franklin-Williamson Properties, Inc., as the filing is
one of multiple bankruptcy filings by the Debtor affecting the above-described real
estate. See 11 U.S.C. 362(d)(4).” In Re Ball, 13-40016-lkg; (Doc. 128). Ball has
not submitted anything to the Court to suggest that the filings were not in bad faith
and that he has a chance of success on the merits. The record is replete with his
multiple filings and conduct. Thus, the Court finds that Ball has failed to establish
that there is a reasonable likelihood that the rulings he appeals will be overturned.
As he has failed to this requirement, the Court need not address the remaining
requirements.
Accordingly, the Court DENIES Ball’s motion for stay pending appeal and
oral argument (Doc. 14).
IT IS SO ORDERED.
Signed this 13th day of December, 2013.

Digitally signed
by David R.
Herndon
Date: 2013.12.13
11:43:44 -06'00'

Chief Judge
United States District Court

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