AMILCAR I FIGUEROA BONILLA and ROSA D VELEZ RIVERA

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF PUERTO RICO
In re: :
:
AMILCAR I. FIGUEROA BONILLA, : Case No. 06-01267 (GAC)
ROSA D. VELEZ RIVERA, :
:
Debtors : Chapter 13
___________________________________:
DECISION AND ORDER
On July 1, 2009, the Court issued a bench order, allowing
creditors Ana I. Roman and Carmen I. Amy (“creditors”) to file a
late proof of claim and granting the creditors relief from the
automatic stay to liquidate their claim in local court. The
debtors filed a notice of appeal and thereafter filed a motion
for stay pending appeal (dkt. #142), which creditors opposed
(dkt. #151).
A motion for stay pending appeal filed pursuant to Rule 8005
of the Federal Rules of Bankruptcy Procedure is governed by Rule
62(c) & (g) of the Federal Rules of Civil Procedure, made
applicable to adversary proceedings by Rule 7062 of the Federal
Rules of Bankruptcy Procedure. Allowance of a motion for stay
pending appeal of a judgment is discretionary. A stay pending
appeal is injunctive in nature and may be granted where: 1) the
movant has made a strong showing of success on the merits; 2) the
movant will suffer irreparable harm if the stay is denied; 3) the
alleged harm to the movant outweighs any harm opposing parties
may suffer if the stay is granted; and, 4) the granting of the
Case:06-01267-BKT13 Doc#:159 Filed:08/18/09 Entered:08/18/09 11:17:09 Desc: Main
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stay will serve the public interest. Acevedo-Garcia v. Vera-
Monroig, 296 F.3d 13, 16 (1st Cir. 2002).
The debtors primarily contend that the Court’s factual
findings were based on testimony that was not entirely clear, and
at times was contradictory. The Court concludes that the debtors
are unlikely to prevail on appeal, since “findings of fact,
whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to
the opportunity of the bankruptcy court to judge the credibility
of the witnesses.” Fed. R. Bankr. P. 8013. Moreover, the Court
cannot conclude that the debtors will be irreparably harmed if
the stay is denied, since the only matter pending in the local
court is the issue of damages. And while the debtors will be
required to expend funds to defend in local court, this is no
different than their expenditure of funds to prosecute their
appeal. Litigation has costs. On the other hand, if the stay is
granted and the debtors are unsuccessful in their appeal, the
local court hearing would still have to be held and the
bankruptcy case and the ultimate resolution of the creditors’
claims will be further delayed. The Court cannot conclude that a
stay would serve the public interest. Accordingly, the debtors’
motion will be denied.
Case:06-01267-BKT13 Doc#:159 Filed:08/18/09 Entered:08/18/09 11:17:09 Desc: Main
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ORDER
WHEREFORE IT IS ORDERED that the debtors’ motion for stay
pending appeal (dkt. #142), shall be, and it hereby is, DENIED.
SO ORDERED.
San Juan, Puerto Rico, this 18th day of August, 2009.
BY THE COURT:
s/Gerardo A. Carlo
_______________________
GERARDO A. CARLO
U.S. Bankruptcy Judge
Case:06-01267-BKT13 Doc#:159 Filed:08/18/09 Entered:08/18/09 11:17:09 Desc: Main
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