United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
March 23, 2018, Bank of America moved for a stay pending its
appeal of the bankruptcy court's order of February 9,
2018 (the "Order") in In re McCowan. case
number 09-10347 [D.E. 14]. On March 29, 2018, Rodney A.
McCowan and Gregory Crampton ("Appellees")
responded in opposition [D.E. 17]. On April 4, 2018, Bank of
America replied [D.E. 19].
this court must determine whether the bankruptcy court's
February 9, 2018 order is a final appealable order
("Order"). The Order granted the trustee's
motion to revoke abandonment of real property. See [D.E. 1-1]
1. In granting the motion, the bankruptcy court cited Federal
Rule of Bankruptcy Procedure 9024 and Federal Rule of Civil
Procedure 60(b)(6). See Id. at 3. The
bankruptcy court held that the trustee justifiably relied on
misrepresentations by both Bank of America and the debtor in
abandoning the property during the original bankruptcy
proceedings and that Bank of America should have provided the
trustee with the erroneously cancelled deed of trust. See
id. at 4. The bankruptcy court also held that Bank of
America's misrepresentation warrants relief under Rule
28 U.S.C. § 158(a)(1) the district courts have
jurisdiction to hear appeals from "final judgments,
orders, and decrees." In bankruptcy proceedings,
"the concept of finality is more flexibly applied than
with regard to district court judgments." Brandt v.
Wand Partners. 242 F.3d 6, 13 (1st Cir. 2001). No.
bright-line or uniform rule, however, has been developed to
determine when an order or judgment is final. See
Id. "[A]n Order which ends a discrete judicial
unit in the larger case concludes a bankruptcy proceeding and
is a final judgment for the purposes of 28 U.S.C. §
158." In re Kitty Hawk. Inc.. 204 Fed.Appx.
341, 343 (5th Cir. 2006) (per curiam) (unpublished);
see In re Computer Learning Centers, Inc.
407 F.3d 656, 660 (4th Cir. 2005); W.S. Badcoc Corp. v.
Beaman. No.4:14-CV-169-BO, 2015 WL 575422, at * 1 (E.D.
N.C. Feb. 11, 2015) (unpublished). The Order is a final order
because it ends a discrete unit of the larger case. See
In re Miller. No. AZ-13-1307-JuKiD, 2014 WL 6883074,
at * 1-2 (B.A.P. 9th Cir. 2014) (allowing appeal of order
granting motion to revoke abandonment); In re
DeGroot. 484 B.R. 311, 313 (B.A.P. 6th Cir. 2012)
("An order to abandon property of the estate is a final
order for purposes of appeal.").
Rule of Bankruptcy Procedure 8007 provides that a party may
seek a stay of a judgment, order, or decree of the bankruptcy
court pending appeal." Bate Land Co.. L.P. v. Bate
Land & Timber LLC. No. 7:16-CV-23-BO, 2016 WL
3582038, at *1 (E.D. N.C. June 27, 2016) (unpublished); see
Fed. R. Bank. P. 8007(a)(1)(A). The standard of review for a
motion to stay is the same standard of review for a
preliminary injunction. See, e.g.. CWCapital Asset Mgmt..
LLC v. Burcam Capital H LLC. Nos. 5:13-CV-278-F,
5:13-CV-279-F, 2013 WL 3288092, at *2 (E.D. N.C. June 28,
2013) (unpublished). Thus, Bank of America must show that
"that [it] is likely to succeed on the merits, that [it]
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in
[its] favor, and that an injunction is in the public
interest." Winter v. Nat. Res. Def. Council.
Inc.. 555 U.S. 7, 20 (2008). The moving party must
satisfy all four requirements for a preliminary injunction.
See Real Truth About Obama. Inc. v. FEC. 575 F.3d
342, 346 (4th Cir. 2009) (quotation omitted),
vacated on other grounds. 559 U.S. 1089
(2010), reissued in relevant part. 607 F.3d
355 (4th Cir. 2010) (per curiam).
likelihood of irreparable harm absent the requested stay,
Bank of America argues that it will suffer irreparable harm
because its appeal could be rendered moot if the trustee
moves forward with the sale and disposes of the property.
See[D, E. 14] 13. Bank of America's alleged harm is not
irreparable. First, the potential sale of the property does
not by itself establish irreparable harm. See. e.g..
Rose v. Logan. No. RDB-13-3592, 2014 WL 3616380, at
*3 (D. Md. July 21, 2014) (unpublished) (quotation omitted);
In re Edwards. 228 B.R. 573, 580 (Bankr. E.D. Pa.
1999) ("[S]omething more than preservation of the status
quo is necessary to show irreparable harm."). Moreover,
"injuries that are fully remedied by monetary damages do
not constitute irreparable harm." In re Am. Land
Acquisition Corp.. No. 12-76440-ast, 2013 WL 2481534, at
*7 (Bankr. E.D.N.Y. June 10, 2013) (unpublished); see In
re Baker. No. 17-12870, 2017 WL 6015380, at *5 (E.D.
Mich. Dec. 5, 2017) (unpublished) ("Because [claimant]
does not explain why an eventual award of monetary damages
would fail to make her whole-or even why a foreclosure sale
many months away in March 2018 constitutes imminent harm-she
cannot show irreparable harm"); White v.
Gordon. No. 15-cv-523-JL, 2016 WL 8674632, at *3 (D.N.H.
Jan. 29, 2016) (unpublished), report and
recommendation adopted 2016 WL 2637812 (D.N.H. May
9, 2016) (unpublished); BDC Capital. Inc. v. Thoburn Ltd.
P'ship. 508 B.R. 633, 639 (E.D. Va. 2014); In re
Forest Grove. LLC. 448 B.R. 729, 744 (Bankr. D.S.C.
2011). Bank of America has not explained why it cannot be
adequately compensated with money damages if the sale occurs
before the decision on appeal.
several steps apparently need to occur before the property
may be sold. First, the bankruptcy court must disallow Bank
of America's proof of claim. See[D.E. 16]
Then, the bankruptcy court must enter an order authorizing
the sale of property. See id.; 11 U.S.C. § 363. Bank of
America has not explained why it cannot seek relief by filing
a motion to stay if the bankruptcy court disallows its proof
of claim and orders a sale of the property. See,
e.g.. In re Baker. 2017 WL 6015380, at *5
(harm not imminent when foreclosure sale months
away). Given that Bank of America has failed to
show a likelihood of irreparable harm absent the stay, the
court need not analyze the other factors. Thus, Bank of
America's motion to stay is denied. See hire
Culp. 550 B.R. 683, 691-92 (D. Del. 2015).
the court DENIES Bank of America's motion to stay [D.E.
 Ordinarily, a party must first seek
relief in the bankruptcy court. See Fed. R. Bank. P.
8007(a)(1)(A). Bank of America complied with this
 If the bankruptcy court allows Bank of
America's proof of claim, it may enter an order directing
the trustee to abandon the property to Bank of America.
See [D.E. 16] 11 n.7.
 Bank of America asserts that the
bankruptcy judge has already ruled that it is an unsecured
creditor and that the property should be sold. See
[D.E. 18] 4-5; see also [D.E. 1-1] 5 ("Upon the
sale of the Property, BOA shall be reimbursed its proven
reasonable maintenance expenses from the net proceeds of the
sale of the Property."). The court rejects this
argument, however, because the trustee still needs to move
the court under 11 U.S.C. § 363 ...