Case No. 06-10185, Adv. No. 06-2048.United States Bankruptcy Court, M.D. North Carolina, Greensboro Division.
September 5, 2006
THOMAS WALDREP JR., Bankruptcy Judge
This matter came before the Court for hearing on August 31, 2006 upon the Defendant’s Emergency Motion for Stay July 14, 2006 Order Pending Appeal and for Expedited Consideration (the “Motion”), filed by the Defendant on August 23, 2006. At the hearing, Christopher C. Finan appeared on behalf of the Plaintiff and Bryant Cunningham (the “Defendant”) appeared pro se.
Based upon a review of the Motion, the evidence presented at the hearing, and a review of the entire official file, this Court makes the following findings of fact and conclusions of law.
On July 14, 2006, this Court entered a Preliminary Injunction (the “Injunction Order”) enjoining and restraining the Defendant from taking any action to assign, transfer, convey, spend, or dissipate funds in the amount of $100,200.00 for the benefit of the Debtor’s estate and unpaid creditors. The Court found, interalia, that the Debtor’s estate would be irreparably harmed if the
injunction was not granted. On July 14, 2006, the Defendant appealed the Injunction Order.
A court should consider four factors when determining whether a stay pending appeal is warranted: the likelihood that the party seeking the stay will prevail on the merits; the likelihood that the moving party will be irreparably harmed absent a stay; the prospect that others will be harmed if the court grants the stay; and the public interest in granting the stay. See Cuomo v.United States Nuclear Reg. Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985), citing WMATA v. Holiday Tours, 559 F.2d 841, 843
(D.C. Cir. 1977).
In this case, for reasons set forth in the Injunction Order and stated during the hearing, the likelihood that the Defendant will prevail on the merits of his appeal are very low. The likelihood that the Defendant will be irreparably harmed absent a stay pending appeal is unclear. The prospect that other creditors will be harmed if the court grants the stay is very high.
Finally, the public interest in granting the stay pending appeal is low.
For reasons stated in open court, the Motion is hereby denied.
This opinion constitutes the Court’s findings of fact and conclusions of law. A separate order shall be entered pursuant to Fed.R.Bankr.P. 9021.
PARTIES IN INTEREST
Southern Solutions Produce, LLC
Christopher C. Finan, Esquire