Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02504-REB-CBS

Document 183

Filed 07/05/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-CV-02504-REB-CBS PETER HORNICK Plaintiff v. GARY BOYCE and JOANNE BOYCE Defendants

RESPONSE TO MOTION TO QUASH

Plaintiff Peter Hornick, by and through his undersigned attorneys, responds to the Motion to Quash Writs of Execution as follows: 1. The Motion to Quash was rendered moot by the entry of this Court=s Order Concerning Renewed Motion to Stay Pending Appeal (Docket No. 181). It should accordingly be denied. 2. Even if the Motion were not rendered moot by the Order denying the Renewed Motion to Stay, it should be denied. The Motion to Quash is based on the assertion of the existence of an automatic stay pursuant to Fed. R. Civ. P. 62(f). There is no such stay. 3. The Saguache County District Court has entered various interim stays in the foreign judgment enforcement proceeding Hornick has filed therein. Each stay was entered in the spirit of comity, to allow this Court time to determine

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the various issues raised. Thus the stay entered September 27, 2006, extended to 30 days after this Court=s determination of the Motion to Amend Judgment. The stay entered February 2, 2007 extended to such time as this Court determined the Boyces Motion for Stay of Execution and for Approval of Real Property as Alternative Security. When this Court denied that motion, the stay, by its terms, expired. The stay entered May 21 2007 extended to such time as this Court determined Boyces= Renewed Motion for Stay. In each instance, the State Court was deferring to this Court=s determination of underlying law, and staying execution to let that happen. This is not a stay to which the Boyces are Aentitled to a stay of execution@ as a matter of state law under Rule 62(f). Rather it is a stay the Boyces have obtained, granted in the discretion of the State Court, and pursuant to considerations individual to the case. In any event, the State Court stay has now expired by its own terms. 4. Boyces argue that they are entitled to a stay under Colorado law pursuant to Colo. Rev. Stat. ' 13-53-105 upon the filing of an appeal. However, the Boyces neglect to consider the end of the sentence of the provision cited. Section 13-53-105 provides for a stay if an appeal has been filed Aupon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.@ There has never

Case 1:03-cv-02504-REB-CBS

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been any showing by Boyces that they have furnished security for the satisfaction of the judgment required by this Court. In fact, the Boyces have NEVER furnished security for the satisfaction of judgment. This Court entered an order denying the Boyces proposed alternative security on two separate occasions now. The writs are valid, and should be executed. CONCLUSION Because there is currently no stay of execution in any Court, the Motion to Quash is moot. Even were it not, the issuance of a stay in State Court in order to allow the Federal Court system to determine the adequacy of a stay request made in Federal Court does not operate as an automatic Rule 62(f) stay in Federal Court, and the writs are valid and should not be quashed. Respectfully Submitted this 5th day of July, 2007.

s/ Erich Schwiesow Erich Schwiesow Lester, Sigmond, Rooney & Schwiesow P.O. Box 1270 Alamosa, Colorado 81101 Telephone: (719) 589-6626 FAX (719) 589-5555 Email: [email protected] Attorney for Plaintiff, Peter Hornick

Case 1:03-cv-02504-REB-CBS

Document 183

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CERTIFICATE OF SERVICE I hereby certify that on the 5 th day of July, 2007, I electronically filed the foregoing Plaintiff Hornick's RESPONSE TO MOTION TO QUASH with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected]

s/ Erich Schwiesow