United States District Court, M.D. Pennsylvania
D. MARIANI United States District Court Judge.
Lloyd Allen Jones ("Jones") filed the pending
motion to stay the Bankruptcy Court's March 22, 2018
order pending appeal. (Doc. 5). The motion arises out of a
pending appeal before this Court from an order granting
summary judgment to Appellees U.S. Bank, N.A., and
America's Servicing Company by Middle District of
Pennsylvania Bankruptcy Court Judge John J. Thomas on March
22, 2018. (Doc. 1-1). For the reasons that follow, the Court
will deny Appellant's motion.
and Debtor Lloyd Allan Jones ("Jones") filed a
Chapter 13 Bankruptcy case on May 25, 2016 with the United
States Bankruptcy Court for the Middle District of
Pennsylvania. (Doc. 7, at 1). On that same day, Jones also
filed an original proposed Chapter 13 plan. (Id.).
On September 29, 2016, Appellees filed a secured proof of
claim of a mortgage, establishing that the amount of debt
owed by Appellant to U.S. Bank as of the petition date was
$446, 812.25. (Doc. 2, at 53). In addition to the proof of
claim, Appellees attached a Mortgage Proof of Claim
Attachment (Official Form 410-A) (to indicate that the
mortgage is secured by the Debtor's principal business),
an adjustable rate note, a mortgage, an assignment of the
mortgage, a loan modification agreement, and an escrow
account disclosure statement. (Id. at 53-67).
November 4, 2016, Appellant filed a First Amended Chapter 13
Plan, wherein Appellant proposed payments equal to the fair
market value of the property plus interest at 5.5% per annum.
(Id. at 70-77). On December 12, 2016, U.S. Bank
objected to confirmation of the First Amended Plan.
(Id. at 78-79). On March 6, 2017, Appellant then
initiated an adversary proceeding, out of which this appeal
arises, against U.S. Bank to seek declaratory relief to: (1)
value the property of the petition date at $136, 000 and to
determine that the U.S. Bank had a secured claim in the
amount of $136, 000 and an unsecured claim for all additional
amounts owed by the debtor in excess of $136, 000; (2)
declare void the amount of the lien which exceeded $136, 000,
to the extent that U.S. Bank held a lien against the property
that was greater than $136, 000; and (3) declare that the
Second Amended Plan could be confirmed by arguing that
Section 1322(b)(2) and Nobelman v. American Sav.
Bank., 508 U.S. 324 (1993), did not apply to
Debtor's case because the First Amended Plan did not
propose "to 'modify' U.S. Bank's mortgage or
claim, but rather to satisfy it." (Id. at
Bankruptcy Court, after the close of discovery, Appellees
moved for summary judgment (Id., at 167-72). On
March 20, 2018, oral argument was held on the motion for
summary judgment. (Doc. 3). On March 22, 2018, the United
States Bankruptcy Court for the Middle District of
Pennsylvania entered an order granting summary judgment in
favor of Appellees. (Doc. 1-1). In that order, the Bankruptcy
Judge: (1) valued the Debtor's residence at $136, 000 (as
agreed by the parties); (2) allowed the U.S. Bank Secured
Claim to have a secured claim in the Debtor's underlying
bankruptcy case in the amount of $136, 000 and unsecured
claim for all sums due under the Loan Documents as of the
Petition Date that are in excess of $136, 000; (3) declined
to declare void the amount of the lien which exceeded $136,
000; (4) held that Appellant was not entitled to declaratory
relief because the First Amended Plan's proposed
treatment of Appellees' secured claim violated 11 U.S.C.
§ 1322(b)(2) and the Supreme Court's holding in
Nobelman; (5) denied confirmation of the First
Amended Plan because it did not comply with 11 U.S.C §
1322(b)(2); and (6) directed Appellant to file a Third
Amended Chapter 13 Plan within thirty days of the date of
entry of the Summary Judgment Order that did not modify U.S.
Bank's rights and otherwise complied with the Bankruptcy
Bankruptcy Court, Appellant moved to stay the summary
judgment order pending appeal, but that motion was denied on
June 5, 2018. (Doc. 5-2). Moreover, Appellant has yet to file
the Third Amended Plan required as by the March 22 order.
April 19, 2018, Appellant filed a notice of appeal regarding
the March 22 order. (Doc. 7, at 2). Appellant attempted to
have the appeal heard directly by the United States Court of
Appeals for the Third Circuit, however, that appeal and a
subsequently-filed motion for stay of order pending appeal
were both denied by the Third Circuit. (Doc. 5-3). On August
23, 2018, the appeal was brought before this Court. (Doc. 1).
Thereafter, on September 5, 2018, Appellant filed this
motion. (Doc. 5).
argues that a motion for stay pending appeal should be
granted because "the appeal presents 'sufficiently
serious questions going to the merits to make them fair
ground for litigation and a balance of hardships tipping
decidedly in the movant's favor.'" (Doc. 7, at
3) (quoting In re Gen. Credit Corp., 283 B.R. 658,
659 (S.D.N.Y. 2002)). For the following reasons, the Court
disagrees and will deny Appellant's motion for stay
threshold matter, as Appellees argue (Doc. 6, at ¶ 6),
Appellant's motion is deficient in providing this Court
with necessary information in compliance with the Federal
Rules of Bankruptcy Procedure. Fed.R.Bankr.P. 8007(b)(2)
states that "[t]he motion must ... if a motion was made
in the bankruptcy court, ... state that the court has ruled
and set out any reasons given for the ruling."
Appellant's motion (Doc. 5) provides no basis on which
the Bankruptcy Court denied the motion for stay pending
appeal and thus fails to comport with this requirement.
Further, Fed.R.Bankr.P. 8007(b)(3)(B) provides that "the
motion must also include affidavits or other sworn statements
supporting facts subject to dispute." Appellant's
motion failed to include an affidavit that incorporates
sufficient detail for several facts which Appellees dispute,
such as the establishment of the fact that Appellant has made
payment of $ 59, 220 to the Chapter 13 Trustee in the
underlying bankruptcy case, and establishment of the fact
that the Debtor would lose his home if the March 22, 2018
Order is not stayed. (See Doc. 5).
Appellant's failure to comply with Fed.R.Bankr.P. 8007,
which alone provides ample basis for denying Appellant's
motion, see, e.g., Minix v. Stone (In reMinix), 2019 WL 1676007, at *2 (E.D. Ky. 2019)
(citing In re Hake, 2017 Bankr. LEXIS 4382, at *3
(B.A.P. 6th Cir. 2017)), the Court also finds that
Appellant's underlying appeal is from an interlocutory
order of the Bankruptcy Court, as to which Appellant has not
filed a motion for permission to appeal pursuant to 28 U.S.C.
§ 158(a)(3) and Fed.R.Bankr.P. 8004(a)(2). As the
Supreme Court has noted, an order denying confirmation of a
plan is "not final, so long as it leaves the debtor free
to propose ...