12 B 26779
Secured judgment creditor brought motion for stay pending appeal of prior court order avoiding its judicial lien on debtor’s exempt retirement accounts and denying creditor’s motion for relief from stay. The Bankruptcy Court held that pursuant to the four factors balanced in analyzing a motion for stay pending appeal under Rule 8005 of the Federal Rules of Bankruptcy Procedure: (i) creditor failed to establish a likelihood of success on the merits by not raising a new issue or case law supporting its position not already addressed in the court’s previous opinion; (ii) creditor showed irreparable injury absent a stay due to lack of clarity as to the value of debtor’s assets and possibility that creditor might not be able to recover the full value of its judgment; (iii) substantial harm to other parties in the litigation existed where debtor’s pending motion to convert from chapter 7 to chapter 11 would not be possible without access to the retirement accounts in question; and (iv) harm to the public interest existed where prolonged litigation goes against the bankruptcy public policy of distribution to creditors within a reasonable time. Pursuant to its discretion to fashion an equitable remedy under Rule 8005 for the benefit of all parties in interest, the court granted the motion with instruction to debtor that the stay would be lifted upon its specific request to the court to use the exempt funds, as, until the court’s previous order became final, the funds were still property of the bankruptcy estate.