In Re. Krowel et al

Filing 7

Judge Indira Talwani: ORDER entered denying 5 Motion to Stay (Talwani, Indira)

Case 1:17-cv-11385-RWZ Document 7 Filed 08/16/17 Page 1 of 2

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
In re: TRACY KROWEL,

*
*
Debtor.
*
____________________________________*
*
TRACY KROWEL,
*
*
Appellant,
*
*
v.
*
*
SANTO ARCURI,
*
*
Appellee.
*

Civil Action No. 17-cv-11385-RWZ

ORDER
August 16, 2017
TALWANI, D.J.
Pending before this court is Appellant Tracy Krowel’s Emergency Motion for Stay
Pending Appeal [“Emergency Motion”] [#5]. In the underlying case, the bankruptcy court’s
Order on Appellee Santo Arcuri’s Motion for Relief from the Automatic Stay granted Arcuri
relief from the automatic stay provisions in part, allowing him to seek to obtain possession of
real property located at 49 Olde Colony Drive, Shrewsbury, Massachusetts (the “Property”).
Krowel now seeks an order staying the order granting partial relief from the automatic stay.
The traditional four-part test applicable to preliminary injunctions applies to a district
court’s entertainment of a motion to stay a bankruptcy order pending appeal. In re Elias, 182
Fed. App’x. 3, *1 (1st Cir. 2006) (citing Acevedo-Garcia v. VeraMonroig, 296 F.3d 13, 16 (1st
Cir. 2002)). That four-part test consists of “(1) whether the applicant has made a strong showing
of success on the merits; (2) whether the applicant will be irreparably harmed absent injunctive

Case 1:17-cv-11385-RWZ Document 7 Filed 08/16/17 Page 2 of 2

relief; (3) whether issuance of the stay will injure other parties; and (4) where the public interest
lies.” Id. While the movant must satisfy each of the four factors, most important is whether the
movant is likely to succeed on the merits. As the bankruptcy judge concluded, Krowel cannot
show a strong likelihood of success on the merits here, where Arcuri has demonstrated a
colorable claim that the Property was transferred to him in a judicial sale prior to the filing of the
bankruptcy petition.
Krowel argues that the bankruptcy court erroneously relied upon state court rulings that
she did not possess a homestead right, and that the question of whether the homestead right
applies must be decided under federal law. But Krowel does not dispute that the judicial sale of
the property occurred prior to the filing of the bankruptcy petition, and she has not articulated a
basis for applying federal law, rather than state law, to the validity of that pre-petition transfer.
Krowel argues further that the bankruptcy court failed to consider whether the Property
was property of the bankruptcy estate and whether she had equity in that property. But to the
extent that Krowel had equity in the property independent of the homestead right claims, that
equity remains protected, as the bankruptcy judge did not lift the stay beyond obtaining
possession of the real property, and specifically denied Arcuri relief to enforce or collect
monetary damages against the Debtor pursuant to any execution. The housing court docket
reflects that careful distinction, allowing execution to issue for possession only, and denying
execution as to release of funds until the matter is resolved in bankruptcy court.
For these reasons, the Emergency Motion [#5] is DENIED.
Date: August 16, 2017

/s/ Indira Talwani
United States District Judge

2