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 Stay Judgment (Doc. 13) (the “Motion”).
The Court, having considered the Motion and being fully
advised in the premises, will deny the Motion.
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 a motion to
extend the automatic stay pending appeal (Doc. 4), which the
Court denied (Doc. 6). Woodroffe has now filed the instant
Motion, which requests that the Court stay a foreclosure sale
scheduled by a Florida court for July 16, 2018 as part of a
foreclosure action pending before that Court. Doc. 13 at 1-2.
Woodroffe has also moved to consolidate this bankruptcy
appeal with case number 8:18-cv-01614-CEH-CPT, pending in
this Court, in which Woodroffe removed the state foreclosure
action. Doc. 12; Doc. 13 at 2.
argues that the foreclosure sale should not be permitted to
proceed for several reasons. First, he argues that service of
process in the foreclosure action was inadequate, and he
received no notice of the hearing at which the foreclosure
sale date was set. Doc. 13 at 2-4. Second, Woodroffe argues
that he has not paid his mortgage because the Department of
Revenue (“DOR”) incorrectly claims he owes child
support arears, and has improperly garnished his Social
Security retirement benefits, which Woodroffe would be using
to pay his mortgage. Id. at 5. He states that a
hearing will be held on July 13, 2018 regarding vacating the
child support arears, and that once this occurs and the
garnishment is lifted, he will pay his mortgage. 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
to Federal Rule of Bankruptcy Procedure 8007,
“[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) Under such circumstances, the
district court reviews the bankruptcy court's order for
abuse of discretion. In re Phillips, 483 B.R. 254,
257 (M.D. Fla. 2012) (citing In re Colony Square
Co., 788 F.2d 739, 741 (11th Cir. 1986)).
in certain circumstances, a motion for a stay “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). Where the moving party first filed the motion in the
district court, the motion 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 the ruling.” Id.
8007(b)(2)(A)-(B). Additionally, the motion must include
“the reasons for granting the relief requested and the
facts relied upon, ” “affidavits or other sworn
statements supporting facts subject to dispute, ” and
“relevant parts of the record.” Id.
it is unclear whether a motion was first made to the
Bankruptcy Court. Woodroffe states that the “Bankruptcy
[C]ourt has ordered as of 7-10-2018, Rule 8007 Relief from a
Motion to Stay does not lie in the Bankruptcy [C]ourt.”
Doc. 13 at 2. Woodroffe then states that because he removed
the foreclosure action and moved to consolidate the cases, he
filed the instant Motion. Id. Woodroffe has not filed
any papers from the bankruptcy proceeding, such as a motion
to stay filed in the Bankruptcy Court, or an Order denying
such a motion, which could clarify the reasons for a denial.
Thus, it is not possible for the Court to determine whether
the Bankruptcy Court abused its discretion in denying a
motion to stay.
Woodroffe fails to comply with other procedural requirements
for requesting a stay. He does not, for example, include
relevant parts of the record, or provide affidavits or sworn
statements that are pertinent to the facts in dispute.
Fed.R.Bankr.P. 8007(b)(3). Although Woodroffe filed
affidavits, they pertain to events in the foreclosure
proceeding, not the bankruptcy proceeding. Doc. 14. He does
not identify the reason why the Bankruptcy Court denied his
Chapter 13 plan and dismissed the case, beyond stating in a
prior filing that he was unable to provide an adequate
payment plan due to his child support obligations. Doc. 4.
These deficiencies prevent the Court from granting a stay.
Rosenbrough v. Regions Bank, NA, No.
15-cv-80391-MIDDLEBROOKS, 2015 WL 12860291, at *1 (S.D. Fla.
July 21, 2015) (denying a motion to stay where the movant
“fail[ed] to explain why the Bankruptcy Court denied
the initial motion to stay” in accordance with Rule
Woodroffe fails to establish that a stay is appropriate in
this case. First, Woodroffe has not shown that he is likely
to succeed on the merits. Woodroffe focuses his argument on
the legitimacy of his child support obligations. Domestic
support obligations, such as child support, are
non-dischargeable under Chapter 13. In re Diaz, 647
F.3d 1073, 1090 (11th Cir. 2011). Additionally, domestic
support obligations are first priority claims, for which a
Chapter 13 plan must provide full payment. 11 U.S.C.
§§ 507(a)(1), 1322(a); see also In re
Hutchens, 480 B.R. 374, 382 (M.D. Fla. 2012); In re
Dupree, 285 B.R. 759, 763 (M.D. Ga. 2002) (stating that
a child support claim was “valid and non-dischargeable
for the full amount” and “must be treated as such
in Debtor's Chapter 13 plan.”). Pursuant to the
Bankruptcy Code, the Court may dismiss a Chapter 13
bankruptcy case under certain circumstances, including if the
debtor fails to make timely payments under the plan, there is
unreasonable delay by the debtor that is prejudicial to
creditors, or the bankruptcy court denies confirmation and
any request for additional time to file a new plan or
modification of a plan. 11 U.S.C. § 1307(c); see
also Slater v. United States Steel Corp., 871 F.3d 1174,
1179 n.3 (11th Cir. 2017) (“If the debtor fails to make
payments due under a Chapter 13 plan, he may be forced to
convert to a Chapter 7 proceeding or the court may dismiss
his bankruptcy case entirely.”). Woodroffe has not