Biltmore Investments, LTD. v. TD Bank, N.A.

Filing 5

ORDER setting deadlines re 2 MOTION for Leave to Appeal Pursuant to 28 U.S.C. Section 158(a)(3) and Stay Pending Appeal or Expedited Briefing Schedule, ( Appellant Brief due by 10/26/2015., Appellee Response due by 11/9/2015). There will be no reply. Signed by District Judge Max O. Cogburn, Jr on 10/9/2015. (chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:15-cv-00194-MOC
Related Bankruptcy Case: 11-10053
BILTMORE INVESTMENTS, LTD.,

)
)
)
)
)
)
)
)
)

Appellant,
Vs.
TD BANK, N.A.,
Appellee.

ORDER

THIS MATTER is before the court on Appellant Biltmore Investments, LTD.’s,
(“Biltmore”) “Motion for Leave to Appeal Pursuant to 28 U.S.C. § 158(a)(3) and Stay Pending
Appeal Or Expedited Briefing Schedule” (#2), which was filed on September 3, 2015. Appellee
filed a “Limited Response and Objection” (#3)1 on September 15, 2015, largely raising
objections to the way that Appellant sought a stay of the Bankruptcy Order at issue in its motion.
This matter was reassigned to the undersigned on October 2, 2015 and the court has reviewed the
motion and response.
Here, Appellant has filed a Motion for Leave to Appeal pursuant to Fed. R. Bankr. P.
8004, which governs appeals from interlocutory orders of the Bankruptcy Court. Appellant has
provided, in accordance with such rule, the facts necessary to understand the question presented;
the question itself; the relief sought; a brief statement of reasons why leave to appeal should be
granted; and a copy of the interlocutory order. Appellant did not attach a brief or any supporting

1 It appears that TD Bank filed an identical motion in Bankruptcy Court, which the Bankruptcy Court then
transmitted to this court’s docket. See (#4).

-1-

memorandum of law setting forth legal arguments or relevant cases for the court’s consideration
to such motion. To the extent that Appellant seeks an “expedited briefing schedule,” as indicated
in the title of the motion, the court will allow Appellant fourteen (14) days to so file a supporting
brief. That brief should include reference to all supporting legal authority that Appellant wishes
the court to consider in determining whether to grant leave to appeal. See, e.g.,
In re Robinson, No. 1:10CV226, 2011 WL 1695914, at *3 (W.D.N.C. May 3, 2011); In re
Biltmore Investments, Ltd., No. 1:15-CV-00113-MOC, 2015 WL 5567561, at *3 (W.D.N.C.
Sept. 22, 2015) (discussing the standards that a district court considers when determining
whether to grant leave to appeal). Appellee will have fourteen (14) days to so respond. The
parties are advised that this court is accustomed to receiving supporting briefs along with any
motions before the court. See LCvR 7.1(C) (“Requirement of Briefs. Briefs shall be filed
contemporaneously with the motion…”). In other words, when a party files a motion, it need not
wait for the court to set a briefing deadline. If Appellant wishes to “expedite” the briefing
schedule, it may file a supporting brief as soon as it wishes, and such filing will trigger the 14day response window for Appellee.
To the extent Appellant seeks to stay the Bankruptcy Order at issue, such request is
governed by Fed. R. Bankr. P 8007. Appellant must argue the issue of the stay in its brief as
well, as it has offered no reason why a stay should be granted by this court in its motion. As
Appellee points out in his response, Fed. R. Bankr. P. 8007(a)(1)(A) provides that, “[o]rdinarily,
a party must move first in the bankruptcy court for …a stay of a judgment, order, or decree of the
bankruptcy court pending appeal.” Review of the Bankruptcy Record indicates that Appellant

-2-

made no such motion. Thus, if Appellant seeks a stay from this court under Fed. R. Bankr. P.
8007(b), which governs motions to stay in district court, it must:
(A) show that moving first in the bankruptcy court would be impracticable; or
(B) if a motion was made in the bankruptcy court, either state that the court has not
yet ruled on the motion, or state that the court has ruled and set out any reasons
given for the ruling.
Fed. R. Bankr. P. 8007(b)(2). Appellant must also include: (A) the reasons for granting the relief
requested and the facts relied upon; (B) affidavits or other sworn statements supporting facts
subject to dispute; and (C) relevant parts of the record. Fed. R. Bankr. P. 8007(b)(3). Appellant
must also provide the court with legal authority in support of its motion to stay.

ORDER
IT IS, THEREFORE, ORDERED that Appellant file a brief in support of its Motion
for Leave to Appeal and Stay Pending Appeal (#2) within 14 days of this Order. Appellee shall
have 14 days to so respond. There will be no reply.
IT IS FURTHER ORDERED that the Clerk of Court enter such deadlines in ECF
accordingly.

Signed: October 9, 2015

-3-