BancorpSouth Bank v. Blackwell et al

Filing 88

OPINION AND ORDER by Magistrate Judge Kimberly E. West : Plaintiff's Amended Application for Order of Disbursement of Funds Held by Marshal (DE No. 70 ) will be held in abeyance if Defendants post a $10,000 supersedeas bond with the Court by 6/29/2012. As a result of the reduced amount of the bond, Defendants' Application to Reduce Bond (DE No. 79 ) is granted. The request to waive the bond requirement contained in the same Application is hererby DENIED. (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

BANCORPSOUTH BANK, Successor
in Interest to THE CITY
NATIONAL BANK,
Plaintiff,

)
)
)
)
)
)

v.

)

EDMUND EUGENE BLACKWELL, III;
and TINA R. BLACKWELL,

)
)
)
)

Defendants.

Case No. CIV-09-102-KEW

)

OPINION AND ORDER

This matter comes before this Court on Plaintiff's Amended
Application for Order of Disbursement of Funds Held by Marshal
(Docket Entry #70) and Defendants' Application to Reduce or Waive
Bond (Docket Entry #79).

On May 18, 2012, this Court conducted a

hearing on these filings with counsel for both parties present as
well as the purchaser of the property which is the subject of this
foreclosure, Mr. Dwight Caughern.
This action was commenced by Plaintiff on March 16,

2009,

seeking the foreclosure of Plaintiff's mortgage on certain real
property owned by Defendants located in LeFlore County, Oklahoma
and the enforcement of Plaintiff's security interest in certain
personal property.

The parties consented to the jurisdiction of

the undersigned on April 7, 2009.

Summary judgment was granted in

Plaintiff's favor by Opinion and Order entered September 4, 2009
with a Journal Entry of Judgment entered September 22,

2009 as

proposed by Plaintiff in conformity with the Opinion and Order.

Defendants filed for relief under Chapter 7 of the United
States Bankruptcy Code on October 3,

2010 and Defendants were

discharged from bankruptcy on January 12, 2011.

On June 23

1

2011 1

the United States Marshal offered the subject property for sale to
the highest bidder.

On August 12, 2011, the Marshal filed a return

on the sale showing the property was sold to Dwight Ray Caughern
and Charles Caughern jointly for the sum of $85,000.00.

After an

appropriate hearing on the

to which

confirmation of

the

sale

Defendants objected, this Court confirmed the sale of the property
by

Order

entered

October

19,

Defendants

2011.

requested

reconsideration of the confirmation but the request was denied on
February 17, 2012 as no new issues were raised which would warrant
reconsideration.
Plaintiff requested that the monies derived from the Marshal's
sale be distributed to it.

Defendants objected and filed a Notice

of Appeal of the Order Confirming the Sale on March 14,
While

considering

proceeds,

Plaintiff's

request

to

distribute

the

2012.
sale

this Court gave Defendants the opportunity to seek a

supersedeas bond in order to forestall the dissemination of the
monies since they sought this Court to hold Plaintiff
Application to Disburse

the Funds

in abeyance.

1

S

Amended

To that

end,

Defendants filed the subject Application.
As this Court previously stated in the Opinion and Order on
disbursement of the proceeds, requests for a stay pending appeal as

2

sought by Defendants in this case are governed by Fed. R. Civ. P.
62(d)

1

which provides:

When an appeal is taken the appellant by giving a
supersedeas bond may obtain a stay subject to the
exceptions contained in subdivision (a) of this rule.
The bond may be given at or after the time of filing the
notice of appeal or of procuring the order allowing the
appeal as the case may be. The stay is effective when
the supersedeas bond is approved by the court.
1

"The purpose of requiring a supersedeas bond pending appeal is
to secure the judgment throughout the appeal process against the
possibility

of

the

judgment

debtor's

insolvency.~~

Olcott

v.

Delaware Flood Co., 76 F.3d 1538, 1559-60 (lOth Cir. 1996) citing
Grubb v.

FDIC,

833 F.2d 222,

226

(lOth Cir.

1987)i Miami Int'l

Realty Co. v. Paynter, 807 F.2d 871, 873 (lOth Cir. 1986). In most
cases/ the amount of the bond should be set at the full amount of
the judgment.

Id.

However 1 the bond should normally be sufficient

in amount to satisfy the judgment in full, plus interest and costs.
Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc.
600 F.2d 1189

1

1

1191 (5th Cir. 1979).

Defendants contend they cannot secure a bond because of their
prior bankruptcy while also stating that they expect to receive
funds

from their participation in other litigation.

Moreover,

Defendants assert Plaintiff will suffer no prejudice by allowing
the status quo to be maintained while the appeal is pending.
evidence

at

the

hearing

indicated

that

Plaintiff

attorney fees and costs of approximately $2,500.00.

3

will

The
incur

Additionally,

Plaintiff will be deprived of the sales proceeds during the course
of the appeal.

More importantly, the purchaser will be deprived of

possession of the property he purchased, forced to pay on a bank
note without the benefit of his bargain, while Defendants continue
to enjoy the possession and benefit of the property.

Mr. Caughern

testified he could be harvesting hay from the property and selling
it for somewhere between $7,200.00 to $10,800.00, depending upon
the

number

of

cuttings

he

could

obtain

from

the

property.

Additionally, the purchaser had planned to use the property to feed
his cattle and cannot do so while he is displaced from the land.
After consideration of the benefits Defendants are receiving
as

a

result of the

filing and pendency of the appeal and the

detriment suffered by Plaintiff and the purchaser, Defendants will
be required to post a supersedeas bond in the amount of $10,000.00
in order to stay the effect of the Order Confirming Sale which they
have appealed.

This amount will sufficiently protect Plaintiff s
1

and Mr. Caughern's interests during the extended time until final
judgment is entered on the appeal.
IT IS THEREFORE ORDERED that Plaintiff's Amended Application
for Order of Disbursement of Funds Held by Marshal
#70)

will

(Docket Entry

be held in ABEYANCE if Defendants post a

supersedeas bond with the Court by JUNE 29,

2012.

$10,000.00
The United

States Marshal shall not issue a deed to the subject property to
the purchaser pending further order of this Court.

4

As a result of

the reduced amount of the bond, Defendants' Application to Reduce
Bond (Docket Entry #79)

is hereby GRANTED.

The request to waive

the bond requirement contained in the same Application is hereby

DENIED.

Should Defendants

fail

to post

the bond by the date

specified, Plaintiff shall immediately notify the Court of the fact
by filed notice and,

absent exigent circumstances,

the Amended

Application to disburse the sales proceeds to Plaintiff will be
granted and the United States Marshal will be directed to issue a
deed to the purchaser.
IT IS SO ORDERED this

,-4tv

/t)

day of June, 2012.

'
JUDGE

5