273 B.R. 671 (M.D.Fla. 2001), 01-05524, In re Shunnarah

Docket Nº:Bankruptcy No. 01-05524-3P3.
Citation:273 B.R. 671
Party Name:In re Farid E. SHUNNARAH, Deanna A. Shunnarah, Debtors. Health Services Credit Union, Appellant/Petitioner, v. Farid E. Shunnarah, Deanna A. Shunnarah, Appellees/Respondents. No. 3:01-CV-989-J-20.
Case Date:September 06, 2001
Court:United States District Courts, 11th Circuit, Middle District of Florida
 
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Page 671

273 B.R. 671 (M.D.Fla. 2001)

In re Farid E. SHUNNARAH, Deanna A. Shunnarah, Debtors.

Health Services Credit Union, Appellant/Petitioner,

v.

Farid E. Shunnarah, Deanna A. Shunnarah, Appellees/Respondents.

No. 3:01-CV-989-J-20.

Bankruptcy No. 01-05524-3P3.

United States District Court, M.D. Florida, Jacksonville Division.

September 6, 2001

Charles Walker McBurney, Jr., Fischette, Owen, Held & McBurney, Jacksonville, FL, H. Michael Muniz, Trimmier Law Firm, Boca Raton, FL, for appellant.

Page 672

Jennifer Lynne Blair, William B. Johnson, Johnson & King, P.A., Jacksonville, FL, David Julian Pinkston, Pinkston, Cohen & Pinkston, P.A., Jacksonville, FL, for appellees.

EMERGENCY ORDER

SCHLESINGER, District Judge.

Before the Court is Creditor/Appellant's Emergency Motion for Stay of Order and Suspension of Other Proceedings in the Case (Doc. No. 2, filed on August 28, 2001), requesting this Court to enter a stay of the Bankruptcy Court's Order entered on August 16, 2001, Granting Debtors' Motion to Compel Turnover of Collateral, Imposing Sanctions Against Creditor for Debtors' Attorney's Fees, Denying Creditor's Motion for Sanctions Against Debtors' Attorney, Denying Debtors' Motion for Sanctions Against Creditor's Attorney, and Denying Creditor's Motion to Strike Debtor's Amended Motion to Compel Turnover, as well as a suspension of other proceedings in the case, and such other relief as is just and proper. Having heard oral argument by counsel for both parties on the issues, this Court makes the following conclusions.

First, the Bankruptcy Court's ruling must be vacated on its merits. This Court agrees with the opinion of the Middle District Court Judge Fawsett in Tooke v. Sunshine Trust Mortgage Trust, 149 B.R. 687 (M.D.Fla.1992) that Rule 8005 is the applicable standard to obtain a stay pending an appeal from a bankruptcy court.

This Court finds that the Bankruptcy Court improperly applied the standard provided in Rule 8005. Such Rule provides four elements that a movant must clearly establish in order to obtain a stay pending an appeal from a Bankruptcy Court, which are: (i) that the movant is likely to prevail on the merits of its appeal, (ii) that the movant will suffer irreparable injury if a stay or other injunctive relief is not granted, (iii) that other parties will suffer no substantial harm if a stay or other injunctive relief is...

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