United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION FOR STAY PENDING APPEAL [RE: ECF
LABSON FREEMAN United States District Judge.
Timothy Gens appeals an order issued in his wife's
bankruptcy case: 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”). See Notice of Appeal, ECF 1-1.
Appellant seeks a stay of that order pending appeal. Although
styled as an application for temporary restraining order
(“TRO”), Appellant's motion asserts that
Appellant will suffer “immediate and concrete
irreparable harm . . . if a stay of the Sale Order pending
appeal is not issued.” Appellant's Ex Parte
Emergency Application for a TRO Pending Appeal (“Stay
Motion”) at 2, ECF 4. Appellant's Stay Motion is
DENIED for the reasons discussed below.
filed this pro se appeal of the bankruptcy court's Sale
Order on June 19, 2017. See Notice of Appeal, ECF
1-1. He 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 Appellant 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.
Appellant 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 Timothy
Gens' Motion for Stay Pending Appeal, ECF 416 in Case No.
15-br-53563. On the same date, Appellant 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 he states
in his Stay Motion that he first sought relief in the
bankruptcy court, and that the bankruptcy court denied his
motion, he 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 Timothy Gens' Motion for Stay Pending
Appeal, this Court will not deny Appellant's Stay Motion
based on his failure to comply fully with Rule 8007.
The Bankruptcy Court did not Abuse its Discretion in Denying
forth above, this Court's consideration of
Appellant'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 Appellant
does not acknowledge or discuss the abuse of discretion
standard. All of his arguments focus on asserted errors in
the bankruptcy court's rationale for granting the Sale
Order. However, the issue presented by Appellant's motion
for a stay is not whether the bankruptcy court erred in
issuing that order, but whether the bankruptcy court abused
its discretion in denying Appellant's motion for a stay
pending appeal of the order. For the reasons discussed below,
this Court concludes that the bankruptcy court did not abuse
its discretion in denying a stay.
Bankruptcy Court Applied the ...