Free Motion to Stay - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 221-4

Filed 01/12/2007

Page 1 of 2 Page 2 of 3

Westlaw
Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2000 WL 1224757 (D.Me.) (Cite as: Not Reported in F.Supp.2d) Page 1

H Cote Corp. v. Thom's Transport Co., Inc.D.Me.,2000.Only the Westlaw citation is currently available. United States District Court, D. Maine. THE COTE CORPORATION, Plaintiff v. THOM'S TRANSPORT COMPANY, INC., Defendant No. Civ. 99-169-P. Aug. 24, 2000. Peter M. Garcia, James E. Belleau, Skelton, Taintor & Abbott, Auburn, ME, for Cote Corporation, plaintiff. William C. Nugent, Attorney at Law, Portland, ME, for Thoms Transport Company Inc., defendant. MEMORANDUM OF DECISION FNI FN1. Pursuant to Federal Rule of Civil the parties have Procedure 73(b), consented to allow the United States Magistrate Judge to conduct any and all proceedings in this matter.KRAVCHUK, Magistrate J. *1 This matter is before the Court on the Plaintiff's Request for Issuance of Execution or, in the Alternative Motion For Order to Show Cause. On February 28, 2000, Plaintiff was awarded a judgment in the amount of $127,621.77. Defendant filed an appeal of that matter, and on July 14, 2000, some five months after the entry of judgment, the Plaintiff filed a motion contesting Defendant's stay upon appeal because Defendant has never given a supersedeas bond pursuant to Rule 62(d) of the Federal Rules of Civil Procedure. Plaintiff requests that an immediate execution issue on the judgment, or in the alternative, that Defendant post a supersedeas bond in the amount of the judgment.

Defendant, on the other hand, argues that pursuant to Rule 62(f) of the Federal Rules of Civil Procedure it is entitled to a stay without the necessity of furnishing a bond. That rule provides that in any state where the judgment debtor is entitled to a stay of execution and where the judgment is itself a lien upon the property of the judgment debtor, the debtor is accorded the stay which would be available in state court. Neither party disputes that pursuant to Rule 62(e) of the Maine Rules of Civil Procedure Defendant, as the judgment debtor, would be entitled to a stay in state court. The dispute in this case centers upon whether Maine treats the judgment as a lien upon the property of the judgment debtor. Plaintiff argues that the judgment is not a lien because an execution must issue and be recorded in order to obtain a lien on the property of the debtor pursuant to 14 M.R.S.A. § 4651-A. However, Defendant notes that prior to issuance of a writ of execution the judgment debtor need only file an attested copy of the judgment in the registry of deeds or the proper place pursuant to the U.C.C., Title 11, section 9-401 in order to "attach" the property of the judgment debtor. The filing constitutes "perfection of the attachment." See 14 M.R.S.A. § 4151. FN2 Pursuant to 14 M.R.S.A. § 4651-A (6) once an execution is issued in state court it is filed in the same manner as the judgment was filed and the effective date of the lien on the property relates back to the date of perfection of the attachment. Pursuant to Section 4151 it is the "attested copy of the court order awarding judgment" which created the lien. FN2. Section 4151 specifically notes that the attachment is perfected [n]otwithstanding section 4454" which requires the additional step of an attaching officer's return being filed in order to create a lien on property. The elimination of the additional step and the relation back

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Case 1:04-cv-01067-MSK-CBS
Not Reported in F.Supp.2d

Document 221-4

Filed 01/12/2007

Page 2 of 2 Page 3 of 3
Page 2

Not Reported in F.Supp.2d, 2000 WL 1224757 (D.Me.) (Cite as: Not Reported in F.Supp.2d) provision in Section 4651-A discussed herein operate together to create the functional equivalent of the judgment itself being a lien upon the property of the debtor, although the statute speaks in term of "attachment." The procedures attendant to perfecting an attachment are not required. The cases interpreting Fed.R.Civ.P. 62(d) and (f) turn upon whether the attested copy of the judgment creates the original lien or whether some other document or process is required. In Ivlarandino v, D'Elia, 151 F.R.D. 227, 228 (D.Conn.1993), the Court noted that in Connecticut steps beyond mere ministerial acts must be taken to transform the judgment into a lien. The creditor must prepare a second document identified as a judgment lien certificate. In Illinois a certified copy of the judgment need only be filed in the registry to create a lien. Smith v. Village of Maywood, No. 84 2269, 1991 WL 277629 (N.D.Ill., Dec. 20, 1991). The Federal Court in Connecticut required a bond, the Illinois Court did not. As Maine only requires an attested copy of the Courts order awarding judgment to create a lien, Plaintiffs Motion requesting the issuance of an execution or in the alternative the posting of a supersedeas bond is DENIED. *2SO ORDERED. D.Me.,2000. Cote Corp. v. Thom's Transport Co., Inc. Not Reported in F.Supp.2d, 2000 WL 1224757 (D.Me.) END OF DOCUMENT

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