in RE: Michael Samek
DECISION AND ORDER denying 5 Motion to Stay: ORDERED, that Appellant Michael Sameks Motion (Dkt. No. 5) to stay a bankruptcy order pending appeal is DENIED; and it is further ORDERED, that the Clerk of the Court close the case In re Michael Samek, 14-MC-0012 (N.D.N.Y. Mar. 18, 2014)1; and it is furtherORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by Senior Judge Lawrence E. Kahn on 5/13/14. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
IN RE MICHAEL SAMEK
FIRST NATIONAL ACCEPTANCE
COMPANY OF NORTH AMERICA, INC.,
DECISION and ORDER
Presently before the Court is pro se Debtor-Appellant Michael Samek’s (“Appellant”)
Renewed Emergency Motion to stay an order of the Bankruptcy Court pending appeal. In re
Samek, 14-MC-0012 (N.D.N.Y. Mar. 18, 2014), Dkt. No. 5 (“Motion”). For the following reasons,
the Motion is denied.
Federal Rule of Bankruptcy Procedure 8005 allows for a stay of a bankruptcy order pending
appeal. Courts in this Circuit consider four factors before granting a stay request: “(1) whether the
movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury
if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less
than a likelihood, of success on appeal, and (4) the public interests that may be affected.”
Hirschfield v. Bd. of Elections in the City of N.Y., 984 F.2d 35, 39 (2d Cir. 1993); see also In re
Deep, 288 B.R. 27, 30 (N.D.N.Y. 2003).
Appellant has failed to show a substantial possibility of success appeal. He argues that, in
January 2013, he discovered accounting errors that caused his 2010 payments on his mortgage to be
credited incorrectly. Mot. According to Appellant, if his payments were properly credited, he
would not be in default now. Samek v. First Nat’l Acceptance Co. of N.A., Inc., 14-cv-0465
(N.D.N.Y. Apr. 24, 2014), Dkt. No. 2-1 (“Transcript”) at 4-5, 25-26. However, Appellant signed a
comprehensive settlement agreement with Appellee First National Acceptance Company of North
America, Inc. (“Appellee”) in July of 2013 that purportedly covered the mortgage and payments at
issue. Tr. at 26. In general, a settlement agreement will be enforced when a party possessed the
necessary information to discover a mutual mistake of fact but “then, of his own accord, chose to
settle rather than investigate.” Waite v. Schoenbach, No. 10 Civ. 3439, 2011 WL 3425547, at *5
(S.D.N.Y. Aug. 5, 2011); see also United States v. Bank of N.Y., 14 F.3d 756, 759 (2d Cir. 1994)
(“When a party makes a deliberate, strategic choice to settle, she cannot be relieved of such a choice
merely because her assessment of the consequences was incorrect.”). Because Plaintiff has
provided no evidence that the alleged payment-crediting error could not have been discovered
through diligent investigation prior to settlement, he has not shown a substantial possibility that he
will succeed on his appeal. Therefore, the Motion is denied.
Accordingly, it is hereby:
ORDERED, that Appellant Michael Samek’s Motion (Dkt. No. 5) to stay a bankruptcy
order pending appeal is DENIED; and it is further
ORDERED, that the Clerk of the Court close the case In re Michael Samek, 14-MC-0012
(N.D.N.Y. Mar. 18, 2014)1; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
Due to a docketing error, separate matters were opened for Appellant’s appeal and his
Motion. To avoid further confusion, Appellant is advised to file all additional filings under his
appeal, No. 14-CV-0465.
parties in accordance with the Local Rules.
IT IS SO ORDERED.
May 13, 2014
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