PNC Bank, National Association v. Pataskala Town Center, LLC et al
ORDER denying 75 Motion to Stay. Signed by Magistrate Judge Terence P. Kemp on 2/16/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
PNC Bank, National
Case No. 2:15-cv-1038
Magistrate Judge Kemp
Pataskala Town Center, LLC,
This case was brought by plaintiff PNC Bank, NA (“PNC”),
seeking judgment against defendants Pataskala Town Center, LLC
(“Pataskala”), Hazelton Retail I, Ltd. (“Hazelton”), The
Lafayette Partners, LLC (“Lafayette”), and Scott T. Mallory (“Mr.
Mallory”) in relation to a number of promissory notes,
guaranties, mortgages, and other loan documents. On December 5,
2016, summary judgment was granted and judgment was entered in
favor of the plaintiff (Doc. 70-72).
This matter is now before
the Court to consider the defendants’ motion to stay judgment
pending appeal (Doc. 75).
PNC has filed a response.
defendants have not filed a reply.
For the following reasons,
the motion to stay judgment will be denied.
Subsequent to judgment being entered in favor of PNC,
defendants Lafayette and Mr. Mallory (hereinafter “defendants”)
filed a timely notice of appeal (Doc. 74) together with a motion
to stay execution of the judgments against entered against them
in the amounts of $1,510,500.00 plus interest, real estate taxes
and other costs and $4,047,806.47 plus interest, real estate
taxes and other costs. (Doc. 75).
The defendants’ motion is
brought pursuant to Fed.R.Civ.P. 62(f), which provides as
Stay in Favor of a Judgment Debtor Under State
Law. If a judgment is a lien on the judgment
debtor's property under the law of the state where
the court is located, the judgment debtor is
entitled to the same stay of execution the state
court would give.
The defendants acknowledge that Ohio Civ.R. 62(B) provides that
when an appeal is taken the appellant may obtain a stay of
execution of a judgment or any proceedings to enforce a judgment
by giving an adequate supersedeas bond, and moves for the Court
to waive the giving of a supersedeas bond.
They argue that the
bond is not necessary because PNC has “adequate security in the
form of judicial liens [i.e. this Court’s judgment] and mortgage
interests in the real and personal property that is the subject
of this action.” (Doc. 75 at 4).
However, this Court’s judgment
in favor of PNC does not independently constitute a lien on the
property pursuant to Rule 62(f).
Kennedy v. City of Zanesville,
OH, 2008 WL 3993894 (S.D. Ohio Aug. 20, 2008).
The defendants urge the Court to use its discretion to waive
the bond in this case, citing Irvine v. Akron Beacon Journal, 147
Ohio App.3d 428 (Summit Co. 2002). The Irvine court held that the
trial court had not abused its discretion by waiving a bond in a
stay of execution of judgment pending appeal finding that the
successful plaintiffs were “adequately secured by the Defendant’s
solvency ...” Id. at 451. Here, however, there is no indication
that the defendants in this case can adequately secure the
judgment against them by their solvency.
As PNC correctly points
out, the defendants could have brought their motion to stay under
Fed.R.Civ.P. 62(d), which is virtually identical to Ohio Civ.R.
62(B), and provides that when an appeal is taken on a judgment
for money damages, the appellant may obtain a stay by supersedeas
A district court may exercise discretion to dispense with
the bond requirement under Rule 62(d) only under “‘extraordinary
circumstances’, which include either a showing by the appellant
of his ‘ability to pay the judgment is so plain that the cost of
the bond would be a waste of money,’ or that the bond requirement
‘would put [appellant’s] other creditors in undue jeopardy.’” Tri
County Wholesale Distributors, Inc. v. Labatt USA Operating Co.,
LLC, 311 F.R.D. 166 (S.D. Ohio 2015), quoting Hamlin v. Charter
Twp. of Flint, 181 F.R.D., 348, 353 (E.D. Mich. 1998) (quotation
marks and citations omitted); see also Verhoff v. Time Warner
Cable, Inc., 2007 WL 4303743, *2 (N.D. Ohio Dec. 10, 2007) (“[A]
full supersedeas bond should almost always be required and should
only be excused whe[n] the appellant has demonstrated the
existence of extraordinary circumstances”). The defendants have
failed to demonstrate extraordinary circumstances that would
warrant the Court waiving the requirement for a supersedeas bond
in this case.
The motion to stay pending appeal (Doc. 75) will
therefore be denied.
/s/ Terence P. Kemp
United States Magistrate Judge
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