United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge
cause comes before the Court on Appellant's Emergency
Motion to Extend the Automatic Stay in Appeal (Doc. 4) (the
“Motion”). The Court, having considered the
Motion and being fully advised in the premises, will deny the
22, 2018, Appellant Gary Lee Woodroffe filed a notice of
appeal in Bankruptcy Court from an Order Denying Confirmation
of Chapter 13 Plan and Dismissing Case. Doc. 1-1. The notice
was docketed in this Court on June 14, 2018 (Doc. 1), and
shortly thereafter, on June 19, Woodroffe filed the instant
Motion seeking an extension of the automatic stay pending
Motion, Woodroffe argues that he has experienced a
substantial change in circumstances since the dismissal of a
prior bankruptcy case. Doc. 4 ¶ 5. Specifically,
Woodroffe argues that during the bankruptcy proceedings, he
was unable to make mortgage payments because of a fraudulent
claim of child support arrears that resulted in improper
garnishment of his social security retirement income, causing
foreclosure on his homestead and dismissal of the bankruptcy
case. Id. ¶ 5b. He urges in the Motion that
absent the fraudulent garnishment, his Chapter 13 bankruptcy
plan would have been confirmed. Id. Additionally, he
contends that this information was presented to the
Bankruptcy Court, but due to “a mistake in the case
number” on his filing, it was not considered by the
Bankruptcy Court, which improperly dismissed the case.
Id. ¶ 5e-f. Woodroffe posits that because a
downward modification of his child support obligations was
warranted, he has experienced a change in circumstances that
justifies an extension of the automatic stay. Id.
from pro se litigants are held to a less stringent
standard than pleadings drafted by attorneys. Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
However, they still must meet minimal pleading standards.
Pugh v. Farmers Home Admin., 846 F.Supp. 60, 61
(M.D. Fla. 1994). “Motions of an emergency nature may
be considered and determined by the Court at any time, in its
discretion.” M.D. Fla. L. R. 3.01(e).
entitled to a stay pending appeal, the movant must show four
factors: (1) that he or she is likely to prevail on the
merits of the appeal; (2) that absent a stay, he or she will
suffer irreparable damage; (3) that the adverse party will
not suffer substantial harm from issuance of the stay; and
(4) that issuing the stay serves the public interest.
Ramos v. Weatherford, No. 6:15-cv-871-Orl-41, 2015
WL 12765453, at *2 (M.D. Fla. July 16, 2015) (citing
Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.
1986); In re Dale Mabry Props., Ltd., 149 B.R. 209,
210 (M.D. Fla. 1992)). “The party requesting the stay
must show satisfactory evidence on all four criteria.”
In re F.G. Metals, Inc., 390 B.R. 467, 472 (M.D.
Fla. 2008) (citing In re Davis, 373 B.R. 207, 210
(Bankr. N.D.Ga. 2007)). Ordinarily, the first factor of the
movant's likelihood of success is the most important
factor, and the movant must show that the court below was
clearly erroneous. Id. (citing Antonio v.
Bello, No. 04-12794-GG, 2004 WL 1895123, at *1 (11th
filed his motion pursuant to 11 U.S.C. § 362(c)(3),
which governs extensions of the automatic stay where an
individual had a prior chapter 7, 11, or 13 case that was
dismissed within one year of the subsequent case. In such
cases, the automatic stay terminates thirty days after the
date of the petition in the latter case, but the debtor may
move to extend the stay. 11 U.S.C. § 362(c)(3)(A). The
bankruptcy court may extend the stay after notice and a
hearing completed before the expiration of the thirty-day
period if the debtor shows that the latter-filed case was
filed in good faith. Id. § 362(c)(3)(B). The
movant must file the motion so that a hearing may be
completed before expiration of the thirty-day period. In
re McLemore, No. 13-80467-WRS, 2013 WL 3760623, at *2
(M.D. Ala. July 16, 2013) (stating that an expired automatic
stay cannot be revived by a late motion); In re
Russ, 19 Fla.L.Weekly Fed. B 373, at *1 (N.D. Fla. Aug.
4, 2006) (“Under the provisions of the Bankruptcy Code,
the Court can only extend the stay after a hearing completed
before the stay terminates on the 30th day post-petition).
motion is not proper in this Court. In this matter, the
district court sits in an appellate capacity to review the
decisions of the Bankruptcy Court. In re Chris-Marine,
U.S.A., Inc., 321 B.R. 63, 64 (M.D. Fla. 2004) (stating
that “the district court sits in an appellate capacity
when reviewing the determination of a bankruptcy
court”). Woodroffe has not presented this Court with an
order by the Bankruptcy Court regarding the automatic stay
even if such a motion was proper, it would be untimely. A
motion under § 362(c)(3)(B) must be made before the
expiration of the automatic stay. In re McLemore,
2013 WL 3760623, at *2. It is unclear when the automatic stay
would have expired in this case, but because the order on
appeal was entered on May 15, 2018, more than thirty days
must have elapsed. Doc. 1-1.
Woodroffe appears misinformed by the nature of the
proceedings in this Court. In his Motion, he indicates that
Bankruptcy Case Number 8:17-bk-8529 is a “prior
case” that was dismissed, using that case as his basis
for argument under § 362(c)(3). That, however, is the
bankruptcy case number for the case on appeal. Doc. 1-1.
Thus, that is the same bankruptcy case, but at a different
stage of the proceedings, and it is unclear whether §
362(c)(3) applies to this case.
even had Woodroffe filed his Motion pursuant to the
applicable rule, the Motion could not be granted. The
applicable rule for obtaining a stay on appeal is Federal
Rule of Bankruptcy Procedure 8007, which advises 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, ”
Fed.R.Bankr.P. 8007(a)(1)(A), with the caveat that such a
motion “may be made in the court where the appeal is
pending, ” Fed.R.Bankr.P. 8007(b)(1). Cf. Matter of
Houchins, No. 14-11928-WHD, 2014 WL 7793416, at *1-2
(N.D.Ga. Oct. 29, 2014) (reviewing a request for a stay of an
order denying a motion for extension of the automatic stay
pursuant to Rule 8007); In re McKenzie, No.
A09-78963-PWB, 2009 WL 6499259, at *1-2 (N.D.Ga. Nov. 2,
2009) (analyzing a request to extend the automatic stay on
appeal pursuant to Rule 8007). If the motion is made in the
district court, it must either “[s]how that moving
first in the bankruptcy court would be impracticable”
or, “if a motion was made in the bankruptcy court,
either state that the court has not yet ruled on the motion,
or that the court has ruled and set out any reasons given for