United States District Court, N.D. California, San Jose Division
LAURA A. GENS, Appellant,
DORIS KAELIN, Appellee.
ORDER DENYING DEBTOR'S MOTION FOR STAY PENDING
APPEAL [RE: ECF 4]
LABSON FREEMAN United States District Judge.
Laura Gens has filed four separate bankruptcy cases in the
past seven years in an effort to prevent foreclosure of her
multi-million dollar home located in Palo Alto,
California.Her fourth bankruptcy, from which the
present appeal arises, was filed as a Chapter 11 case in
November 2015 and converted to a Chapter 7 case over
Debtor's objection in February 2017. The bankruptcy
court's conversion order is the subject of a separate
appeal pending before this Court in Case No. 17-cv-01001-BLF.
In the present case, Debtor appeals two orders of the
bankruptcy court: Order Granting Trustee's Motions to (1)
Sell Real Property and Pay Fees, Costs, Taxes, and
Commissions, Other than the Lien of Wells Fargo, and (2) Sell
Free and Clear of Claims, Liens, and Interests (“Sale
Order”); and Order Granting Trustee's Motion to
Expunge, or, Alternatively, Sell Real Property Free and Clear
of Lis Pendens (“Expungement Order”).
See Notice of Appeal, ECF 1-1.
seeks a stay of those orders pending appeal. Although styled
as an application for temporary restraining order
(“TRO”), the motion asserts that Debtor will
suffer “immediate and concrete irreparable harm . . .
if a stay of the Sale Order pending appeal is not
issued.” Debtor's Ex Parte Emergency Application
for a TRO Pending Appeal (“Stay Motion”) at 2,
ECF 4. Debtor's Stay Motion is DENIED for the reasons
filed this pro se appeal of the bankruptcy court's Sale
Order and Expungement Order on June 19, 2017. See
Notice of Appeal, ECF 1-1. She also filed an application for
TRO pending appeal. See Application for TRO, ECF
1-5. The appeal and TRO application initially were referred
to the Bankruptcy Appellate Panel, but subsequently they were
transferred to this Court pursuant to a Statement of Election
filed by the Chapter 7 Trustee. See Notice of
Referral to Bankruptcy Appellate Panel, ECF 1-4; Statement of
Election, ECF 1-3. This Court denied the TRO application
without prejudice on the basis that Debtor had not presented
the TRO application to the bankruptcy court in the first
instance as required by Federal Rule of Bankruptcy Procedure
8007. See Order Denying Application for TRO, ECF 3.
Debtor subsequently filed a TRO application in the bankruptcy
court, which the bankruptcy court construed as a stay motion
and denied by written order on July 14, 2017. See
Bankruptcy Court's Order Denying Debtor's Motion for
Stay Pending Appeal, ECF 417 in Case No. 15-br-53563. On the
same date, Debtor filed the present Stay Motion in this
Court. See Stay Motion, ECF 4. The Stay Motion was
docketed and received by the undersigned on July 17, 2017.
motion for a stay pending appeal ordinarily must be brought
in the bankruptcy court in the first instance. Fed.R.Bankr.P.
8007(a). If a party moves for such relief in the district
court, “[t]he motion 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).
the bankruptcy court has denied a motion for a stay pending
appeal, the district court may grant a stay only if it
determines that the bankruptcy court's denial was an
abuse of discretion. See In re Wymer, 5 B.R. 802,
808 (9th Cir. B.A.P. 1980) (“It is . . . important to
the properly functioning bankruptcy court that the trial
judge's rulings on stays pending appeal be disturbed only
in the event of error or abuse of discretion.”); In
re North Plaza, LLC, 395 B.R. 113, 119 (S.D. Cal. 2008)
(“Where the bankruptcy court has already denied a stay
. . . the appellate court's review is limited to a simple
determination of whether the bankruptcy court abused its
discretion.”). “The abuse of discretion standard
on review of the bankruptcy court's order denying a stay
encompasses a de novo review of the law and a
clearly erroneous review of the facts with respect to the
underlying issues.” In re North Plaza, 395
B.R. at 119.
Requirements of Rule 8007
has complied with Rule 8007 only in part. Although she states
in her Stay Motion that she first sought relief in the
bankruptcy court, and that the bankruptcy court denied her
motion, she does not “set out any reasons given for the
ruling” of the bankruptcy court. Fed.R.Bankr.P.
8007(b)(2). Because it can access the bankruptcy court's
Order Denying Debtor's Motion for Stay Pending Appeal,
this Court will not deny Debtor's Stay Motion based on
her failure to comply fully with Rule 8007.
The Bankruptcy Court did not Abuse its Discretion in Denying
forth above, this Court's consideration of Debtor's
motion for a stay is limited to determining whether the
bankruptcy court's denial of a stay was an abuse of
discretion. See In re Wymer, 5 B.R. at 808; In
re North Plaza, 395 B.R. at 119. In making that
determination, this Court reviews the bankruptcy court's
conclusions of law de novo and its factual findings
for clear error. In re North Plaza, 395 B.R. at 119.
turning to that review, the Court observes that Debtor does
not acknowledge or discuss the abuse of discretion standard.
All of her arguments focus on asserted errors in the
bankruptcy court's rationale for granting the Sale Order
and Expungement Order. However, the issue presented by
Debtor's motion for a stay is not whether the bankruptcy
court erred in issuing those orders, but whether the
bankruptcy court abused its discretion in denying
Debtor's motion for a stay pending appeal of the ...