Schifino et al v. Biltmore Investments, LTD.

Filing 3

ORDER denying without prejudice 2 Appellants' Motion for Approval of Supersedas Cash Bond. Signed by District Judge Max O. Cogburn, Jr on 12/30/13. (emw) NEF regenerated to include Clerk of the Bankruptcy Court.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:13-cv-00317-MOC
IN RE:
BILTMORE INVESTMENTS, LTD,

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Debtor.
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ORDER
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WILLIAM SCHIFINO, SR., et al.,
Appellants,
Vs.
BILTMORE INVESTMENTS, LTD,
Appellee.

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THIS MATTER is before the court on appellants’ Motion for Approval of Supersedeas
Cash Bond (#2), which invokes Rule 62, Federal Rules of Civil Procedure, via Rule 7062 of the
Federal Rules of Bankruptcy Procedure. Issuance of a stay pending an appeal of a bankruptcy
court order is also governed by Rule 8005 of the Federal Rules of Bankruptcy Procedure, which
appellant has also cited.
If a party requesting a stay pending appeal is not granted such relief by the bankruptcy
court, Rule 8005 permits the filing of a motion for stay with the district court. Fed. R. Bankr.P.
8005. Foster v. Wynne, 2012 WL 4458476 (W.D.Va. June 5, 2012). Review of the pleadings in
this matter (as well as the underlying action in bankruptcy) reveals that an identical Motion for
Approval of Supersedeas Cash Bond was filed in the Bankruptcy Court simultaneously with the
filing in this matter.
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Considering the motions filed in both courts, this court concludes that appellant intended
the Bankruptcy Court to consider its motion in the first instance, especially since the proposed
order is for signature by the bankruptcy judge and the motion does not otherwise comply with
Local Civil Rule 7.1, which requires reflection of consultation with opposing counsel. In any
event, this court would prefer that the Bankruptcy Court consider such motion in the first
instance as it is familiar with the conduct which it concluded was sanctionable and is better
positioned to determine whether the proposed amount of bond is sufficient.

ORDER
IT IS, THEREFORE, ORDERED that appellants’ Motion for Approval of Supersedas
Cash Bond (#2) is denied without prejudice as improvidently filed as a “motion” rather than a
notice of the pendency of such motion in the bankruptcy proceeding.

The Clerk of this Court shall transmit a copy of this Order to the Clerk of the Bankruptcy
Court for filing in the underlying actions, In Re: Biltmore Investments, LTD, No. 11-01021.

Signed: December 30, 2013

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