Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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A _I Case 3:03-cv-O1043_;SFlU Document 29 Filed O3/25/2004 Paget of 4 IOLF5 Oli} I
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UNITED STATES DISTRICT COURT
DISTRICT oI= CONNECTICUT gggjjf
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I<.I..C., INC., KEYSTONE LEASINO { I
Plaintiff 1 ,
— against- I CIVIL NO. 303CV1043¢ SRU
CYNTHIA TRAYNER I I
I Defendant : |
I ; MARCI-I 19, 2004 I
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OBJECTION TO MOTION FOR STAY AND REPLY TO y ’
DEI=ENDANT’S OBJECTION TO MOTION TO wAIvE BOND REQUIREMENTS I
The Plaintiff, K.l..C., INC., KEYSTONE LEASING, previously moved that the
Q Defendant post a bond pending appeal under F.R.A.P. 7. On March 17, 2004, the
I Defendant moved to waive the bond requirements and for a stay pending appeal. Both \
I requests are objectionable to the Plaintiff. I
I BOND I
F.R.A.P. 7 allows the district courtto order an appealing party to post a bond as
. security for costs. Ms. Trayne_r asserts in her request to waive that bond since the .
Plaintiff has no equity in the property being foreclosed, she should not have to post a
bond (E par. 8 of App. for Stay). it/Is. Trayner ignores the purpose of the bond: it is
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t. . Case 3:03-cv-010455SRU Document 29 Filed 03/2`6§0O4 Page 2 of 4
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to secure appellate costs and has nothing to do with the substance ofthe judgment
being appealed. The onlyjustification for a waiver would be the demonstrated solvency
of the appealing party, i.e. there is no question they could pay the costs. This is plainly
not the case here. See, e.g. Dillon v. Chicago, 866 F.2d 902, 904-05 (7"` Cir. 1988). L
EXF1 1
F.R.A.P. 8(a)(1)(/-\) requires that the appellant to move for stay (at least initially)
in the district court. Ms. Trayner relies on F.R.C.P. 62 (apparently subsection (f)) as
authority for a stay. That section provides:
"In any state in which a judgment is a lien upon the property of the
judgment debtor and in which the judgment debtor is entitled to a stay of
y execution, a judgment debtor is entitled, inthe district court held therein, \
to such stay as would be accorded the judgment debtor had the action `
been maintained in the courts of that state."
Ms. Trayner is appealing from a judgment of strict foreclosure. Her property was
"Iiened" long ago. The judgment of strict foreclosure is not a "llen upon the property of
the judgment debtor" but rather an order setting a redemption date. This section of
F.R.C.P. 62 simply does not apply.
The appropriate section for Ms. Traynerto invoke to see a stay is F.R.C.P. 62(d).
That section requires her to post a supersedas bond. Once the bond is approved by
the court, the stay is effective. F.R.C.P. 62(d). No supersedes bond has been posted
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l by the Defendant.
l K.L.C., Inc. has no objection to an appellate stay under the Rule 62(d) \
l supersedes bond procedures. lt objects, however, to Mrs. Trayner attempting to utilize l
l a rule that is not applicable to the factual situation at bar.
X THE PLAlNTlFF l
l By .. 4; .
l Christopher G. Winans, Esquire ,
, F’.O. Box 2809
Danbury, CT 06813-2809 l
l Tel: 203.748.4888 ‘
l Juris No. 306545 l
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. CERTIFICATION
I certify that a copy of the above was mailed March 19, 2004, to all counsel and
pro se parties of record:
Cynthia Trayner ‘ I
13 Westside Drive, Unit #94 I
North Grosvenordale, CT 06255 _
Lloyd L. Langhammer, Esquire
Mark E. Block, Esquire
O’Brien, Shatner, Stuart, Kelly & Morris, P.C.
138 Main Street
P.O. Box 310 _
Norwich, CT 06360
By
C istopher G. Winans
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