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Ferrone v. Cardiello

United States District Court, W.D. Pennsylvania

September 29, 2014

ROCK FERRONE, Appellant,
v.
NATALIE LUTZ CARDIELLO, as Chapter 11 Trustee, Appellee

ROCK FERRONE, Appellant, Pro se, Tarentum, PA.

For NATALIE LUTZ CARDIELLO, Chapter 11 Trustee, Appellee: Kirk B. Burkley, LEAD ATTORNEY, Bernstein Law Firm, P.C., Pittsburgh, PA; Daniel R. Schimizzi, Bernstein-Burkley, P.C., Pittsburgh, PA.

OPINION

Page 766

MEMORANDUM ORDER

Arthur J. Schwab, United States District Judge.

Presently before the Court is an Emergency Motion to Stay Sale Pending Appeal (" Motion" ) filed by Rock Ferrone (" Ferrone" ) at 3:00 p.m. on September 25, 2014. Doc. no. 1. In light of the fact that the sale referenced in Appellant's filing was to take place on Tuesday, September 30, 2014, this Court Ordered that Appellee file a Response to the Motion to Stay Sale by 10:00 a.m. on September 26, 2014. This Court construes Ferrone's instant motion as a Motion for Preliminary Injunction.

This Court is very familiar with the underlying circumstances surrounding the key issue presented herein, having already issued other appellate decisions which have stemmed from the underlying bankruptcy case. See Bankruptcy Case no. 09-23155-CMB, and District Court Case nos. 14-cv-00085, 14-cv-00086, 14-cv-00091, and 14-cv-01105. Thus, the Court endeavored to resolve the instant matter as expeditiously as possible to preserve the rights of all of the Parties.

I. Standard Of Review

Bankruptcy Rule of Procedure 8005 states in relevant part:

Rule 8005 Stay Pending Appeal
A motion for a stay . . . of the order . . . of a bankruptcy judge . . . for other

Page 767

relief pending appeal must ordinarily be presented to the bankruptcy judge in the first instance. . . . A motion for such relief, or for modification or termination of relief granted by a bankruptcy judge, may be made to the district court or the bankruptcy appellate panel, but the motion shall show why the relief, modification, or termination was not obtained from the bankruptcy judge. . . .

B.R. 8005 (2014) (emphasis added). Assuming that the movant can adequately show why a motion for relief was not first made to the Bankruptcy Court, the movant must establish four elements in order to obtain ...


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