Free Motion to Stay - District Court of Colorado - Colorado

Case 1:04-cv-01258-LTB-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. ______________________________________________________________________________ FORTHWITH MOTION TO SET AMOUNT OF SUPERSEDEAS BOND AND TO STAY ENFORCEMENT OF JUDGMENT ______________________________________________________________________________ Defendant College Partnership, Inc. ("College Partnership"), by and through its counsel, Rosemary Orsini and Brian K. Matise of Burg Simpson Eldredge Hersh & Jardine, P.C., pursuant to Fed. R. Civ. P. 62(d), hereby moves the Court to set the amount of a supersedeas bond and to stay proceedings to enforce judgment pending appeal. As grounds therefore, Defendant states as follows: CERTIFICATE OF COMPLIANCE Pursuant to D.C.COLO.LCivR. 7.1, undersigned counsel for Defendant conferred with Dianna Karg, counsel for Plaintiff regarding this request. Plaintiff opposes this motion. MOTION 1. College Partnership has filed a Notice of Appeal in this matter.

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2.

Following this Court's denial of its Forthwith Motion for Approval of

Supersedeas Bond and To Stay Proceedings, College Partnership commenced efforts to utilize its alternate real estate collateral to obtain secured loans, the proceeds of which could then be used as collateral for a supersedeas bond that would be issued by a bonding company. This was the exact process suggested by the Court in its order denying the Motion. Because this procedure involves multiple steps including obtaining a commercial real estate loan, the multiple-step process recommended by the Court using intermediate secured loans to provide cash that in turn would be used as collateral for a bond took considerably longer than the normal supersedeas bond process where ready cash was available. 3. On October 5, 2005, College Partnership completed the requirements of the

bonding company necessary to obtain a commitment for a supersedeas bond. Attached as Exhibit 1 is the Affidavit of James R. Misken confirming that College Partnership has obtained a supersedeas bond commitment in the amount of $135,000. 4. In the interim, Plaintiff has obtained at least three Writs of Garnishment from the

Clerk and is proceeding to take action on the Writs. College Partnership has received notice from its current Lenders that they have been threatened with garnishment proceedings to be served shortley. Copies of the Writs of Garnishment served are attached as Exhibits 2, 3 and 4. 5. The Writs of Garnishment issued by the Clerk contain an incorrect date of entry of

judgment. Judgment was entered in this matter on August 25, 2005, not August 22, 2005 as listed in the Writs of Garnishment. See Exhibit 5, attached. As a result, there is a minor error in the computation of interest on the Writs of Garnishment. -2-

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6.

College Partnership seeks a stay of execution on further proceedings to enforce

the judgment, so that College Partnership can post a supersedeas bond in an amount determined by this Court. Posting a supersedeas bond will fully protect the Plaintiff, while minimizing the expenses of all parties associated with garnishment actions pending. 7. College Partnership's surety has indicated that all paperwork associated with

obtaining the bond, and issuance of the bond should be completed by October 18, 2005. See Affidavit of James R. Misken (Exhibit 1) at ¶ 4. 8. The garnishment proceedings have resulted in bank accounts being "frozen" and

the distribution of funds from College Partnership's accounts based on the 10 day garnishment is scheduled for this Monday, October 10, 2005. A stay of the proceedings is necessary to allow College Partnership access to its bank accounts. A stay of all garnishments in process is also needed. College Partnership has obtained a commitment for a supersedeas bond; accordingly, all that remains is for the Court to set the amount of the bond, approve the bond, and the paperwork necessary to complete issuance of the bond. College Partnership requests a stay of execution proceedings through October 18, 2005 to allow completion of paperwork and issuance of the bond. 9. College Partnership also requests that the Court quash the Writs of Garnishment

already issued, as the Writs were based on an application with an incorrect date of judgment. Accordingly, the interest calculations will be incorrect in any proceedings based on the Writs of Garnishment that have been issued.

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WHEREFORE, College Partnership respectfully requests that the Court enter Orders as follows: A. Staying enforcement of the judgment in this matter through October 18, 2005 to allow College Partnership to post a supersedeas bond in an amount to be set by the Court; B. Setting the amount of a supersedeas bond in this matter at $133,405.22, which amount consists of $127,462.59 original amount of the judgment entered August 25, 2005 (Exhibit 5) plus $5,169.32 costs taxed by the Clerk on September 28, 2005 (Exhibit 6) plus $774.31 interest from August 25, 2005 through October 18, 2005; C. Approving a supersedeas bond to be issued by American Contractors Indemnity Company through Signature Underwriters, Inc. and authorizing the Clerk of the Court to accept the supersedeas bond in the amount set by the Court; D. Staying enforcement of the judgment in this matter pending appeal for the period after October 18, 2005, to become effective upon filing a supersedeas bond in an amount set by the Court; E. Quashing the Writs of Garnishment issued by the Clerk on September 29, 2005 based on an application with an incorrect date of judgment; and F. Granting Defendant such other and further relief as the Court deems just under the circumstances.

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G.

College Partnership also requests that the Court issue a stay on the garnishment to be executed with the Colorado State Bank & Trust and unfreeze the $72,000 at Colorado State Bank & Trust.

DATED this 6th day of October, 2005. Respectfully submitted, BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C.

/s Rosemary Orsini Rosemary Orsini 40 Inverness Drive East Englewood, Colorado 80112 Telephone: (303) 792-5595 Facsimile: (303) 708-0527 ATTORNEYS FOR DEFENDANT COLLEGE PARTNERSHIP, INC.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 6th day of October, 2005, I electronically filed the foregoing FORTHWITH MOTION TO SET AMOUNT OF SUPERSEDEAS BOND AND TO STAY ENFORCEMENT OF JUDGMENT with the Clerk of Court using the CM/ECF System which will send notification of such filing to the following at their email address on file with the Court: Gary Parish, Esq. R. Daniel Scheid, Esq. Sander, Scheid, Ingebretsen, Miller & Parish P.C. 700 17th St., Suite 2200 Denver, CO 80202 [email protected] Patrick J. McElhinny, Esq. Dianna S. Karg, Esq. Kirkpatrick & Lockhart LLP 535 Smithfield St. Henry W. Oliver Building Pittsburgh, PA 15222 [email protected]

/s Sharla Sheeks Sharla Sheeks, Legal Assistant

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