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i. BDC Capital, Inc. v. Thoburn Limited Partnership, 508 B.R. 633 (E.D. Va. 014)
Issue: Whether stay pending appeal should be granted.
Holding: In deciding whether to grant a stay pending appeal of order of bankruptcy court, district court applies same standard as for a preliminary injunction and considers the following: (1) whether movant will likely succeed on merits of appeal, (2) whether movant will suffer irreparable injury if stay is denied, (3) whether the balance of equities tips in movant's favor, and (4) whether stay is in public interest. In determining whether balance of equities tips in favor of movant, as required for grant of a stay pending appeal of order of bankruptcy court, court must balance likelihood of irreparable harm to movant against likelihood of substantial harm to non- movants. Creditor appealing Chapter 11 plan confirmation order was not entitled to stay pending appeal, where creditor produced no case law supporting arguments that it raised on appeal and did not demonstrate likelihood of success on merits, where possible harm that it alleged was either quantifiable or consisted only of possible equitable mootness of its appeal and did not rise to level of irreparable harm, where stay would delay consummation of plan, would allow interest and administrative fees to accrue, and could render the real property which debtor sought to sell less attractive to potential purchasers, all to substantial detriment of other parties in interest, and where stay would impede development of land contrary to public interest.
ii. In re 473 West End Realty Corp., 507 B.R. 496 (Bankr. S.D.N.Y. 2014).
Issue: Whether stay pending appeal should be granted.
Holding: Movant seeking a stay pending appeal of a bankruptcy court order must demonstrate the following: (i) that movant would suffer irreparable injury if a stay were denied, (ii) that other parties would suffer no substantial injury if the stay were granted, (iii) that the public interest favors a stay, and (iv) that there is a substantial possibility of success on the merits of movant's appeal. "Substantial possibility of success" inquiry, as fourth prong of test is considered an intermediate level between "possible" and "probable" and is intended to eliminate frivolous appeals. Burden of movant seeking a stay pending appeal of a bankruptcy court order is a "heavy" one, as movant must show "satisfactory" ' evidence on all four prongs of test. Stay pending appeal of a bankruptcy court order might be granted where the likelihood of success is not high but the balance of hardships favors the applicant, or where the probability of success is high and some injury has been shown. To obtain a stay pending appeal of a bankruptcy court order, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiff will suffer absent the stay; simply stated, more of one excuses less of the other. Petitioning creditor, which sought stay pending appeal from bankruptcy court order lifting
©2014 William L. Norton III
