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In re Livecchi

November 4, 2010

IN RE CHARLES R. LIVECCHI, SR., DEBTOR.


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

Bankruptcy Case No. 09-20897

INTRODUCTION

Appellant Charles R. Livecchi, Sr., proceeding pro se, commenced the instant action to appeal an Order (Bankruptcy Case No. 09-20897-JCN, Bankruptcy Docket No. [#146]) of the Honorable John C. Ninfo, II, United States Bankruptcy Judge, which converted Appellant's Chapter 11 case to Chapter 7. Now before the Court is an ex parte application by Appellant, entitled "Emergency Application For Stay Order Pending Appeal, and Order for Cease and Desist and Application for Temporary Restraining Order and Other Injunctive Relief."

LEGAL STANDARD

"Federal Rule of Bankruptcy Procedure 8005 sets forth the procedure by which a party to a bankruptcy action may seek a stay pending an appeal to the district court of a bankruptcy judge's order." In re Savage & Associates, P.C., No. 05 Civ.2072(SAS), 2005 WL 488643 at *1 (S.D.N.Y. Feb. 28, 2005) (footnote omitted). The standard to be applied by a district court on such a motion is as follows:

The decision as to whether to issue a stay of an order pending appeal lies within the sound discretion of the district court. Four factors are considered in exercising that discretion: (1) whether the movant will suffer irreparable injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that may be affected.

In re Adelphia Communications Corp., 361 B.R. 337, 346 (S.D.N.Y. 2007) (footnotes, citations, and internal quotation marks omitted); see also, id. (Noting that courts must balance these factors.) (Footnotes and citations omitted).

Bankruptcy Appeals are governed by Part VIII of the Bankruptcy Rules. Bankruptcy Rule 8011, entitled "Motions," states, in pertinent part:

A request for an order or other relief shall be made by filing with the clerk of the district court or the clerk of the bankruptcy appellate panel a motion for such order or relief with proof of service on all other parties to the appeal.

***

Whenever a movant requests expedited action on a motion on the ground that, to avoid irreparable harm, relief is needed in less time than would normally be required for the district court or bankruptcy appellate panel to receive and consider a response, the word "Emergency" shall precede the title of the motion. The motion shall be accompanied by an affidavit setting forth the nature of the emergency. The motion shall state whether all grounds advanced in support thereof were submitted to the bankruptcy judge and, if any grounds relied on were not submitted, why the motion should not be remanded to the bankruptcy judge for reconsideration. The motion shall include the office addresses and telephone numbers of moving and opposing counsel and shall be served pursuant to Rule 8008. Prior to filing the motion, the movant shall make every practicable effort to notify opposing counsel in time for counsel to respond to the motion. The affidavit accompanying the motion shall also state when and how opposing counsel was notified or if opposing counsel was not notified why it was not practicable to do so.

Fed R. Bank. 8011(a)&(d) (emphasis added). Rule 8008(b), entitled "Service of all papers required," states: "Copies of all papers filed by any party and not required by these rules to be served by the clerk of the district court or the clerk of the bankruptcy appellate panel shall, at or before the time of filing, be served by the party or a person acting for the party on all other parties ...


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