# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 6, 2019

Before

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 18

‐ 2429

DEUTSCHE BANK NATIONAL

TRUST COMPANY, as Trustee for

GSAA Home Equity Trust 2006

‐ 18,

Asset

‐ Backed Certificates, Series 2006

‐

18,

Plaintiff

‐ Appellee

,

v.

TRACY CORNISH,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District

of Illinois, Eastern Division.

No. 13

‐ CV

‐ 2599

Virginia M. Kendall

, J udge

.

O R D E R

This is an appeal from a judgment foreclosing the mortgage on defendant Tracy

Cornish’s home and con fi rming the sale of that home in a court

‐ ordered auction. On

July 16, 2018, this court granted Cornish’s motion to stay the district court’s judgment

and thus delayed the turnover of the residence to the buyer, which was plainti ff

Deutsche Bank itself. That order said an explanation would follow. This is the

explanation, though our thinking has evolved based on amendments to Federal Rule of

Civil Procedure 62 and Federal Rule of Appellate Procedure 8 that took e ff ect on

December 1, 2018. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 18

‐ 2429 Page 2

At issue is how we should apply those rules to appeals of mortgage foreclosure

judgments in the wake of a recent change in our circuit’s law a ff ecting those appeals. In

HSBC Bank, U.S.A., N.A. v. Townsend

, 793 F.3d 771 (7th Cir. 2015), we held that in

mortgage foreclosures in federal courts in Illinois, there is no fi nal appealable judgment

until the district court has not only foreclosed the mortgage but also ordered a judicial

sale of the property and later con fi rmed the results of the sale and ordered turnover of

the property. See also Bank of America, N.A. v. Martinson

, 828 F.3d 532 (7th Cir. 2016)

(extending Townsend to mortgage foreclosures under Wisconsin law). Townsend means

that the borrower’s fi rst opportunity to appeal the merits of the underlying debt and

any a ffi rmative defenses comes only after the district court has con fi rmed the sale. At

that point, eviction is imminent.

The practical question we address here is whether a stay should depend on a

quick evaluation of the likely merits of the appeal, where the parties, lawyers, and

judges must act under the time pressure of a 30

‐ day eviction deadline, or whether we

should allow normal appellate processes to work as they would in most other cases to

enforce debts where the lender’s interest is protected by security. We recognize as a

practical ma tt er that most mortgage foreclosures are likely to be a ffi rmed. But that is

also true of most commercial debt judgments, and of most civil judgments generally, for

that ma tt er. That practical reality does not mean that courts need to change the process

to force at the outset a rushed evaluation of the likely merits of the appeal. There is still

plenty of room for human and legal error in mortgage foreclosures, especially in this

age of high

‐ volume securitized mortgages that may have changed hands many times,

for servicing and ownership, before foreclosure. A majority of this panel believes the

norm should be a stay pending appeal, absent unusual circumstances. 1

We issued the stay under the relevant rules in e ff ect in July 2018, but we address

here also the new 2018 versions of Federal Rule of Civil Procedure 62(b) and Federal

Rule of Appellate Procedure 8(a) that took e ff ect on December 1, 2018. Under the new

versions of those rules, we conclude, at least provisionally, that stays pending appeal

should be the norm in mortgage foreclosure appeals. 2

1 See, e.g., Catalan v. GMAC Mortgage Corp.

, 629 F.3d 676, 681–84 (7th Cir. 2011) (describing “maddening”

problems borrowers experienced as mortgage servicers made mistakes in transferring borrowers’

account); Sundquist v. Bank of America, N.A

., 566 B.R. 563, 570 (Bankr. E.D. Calif. 2017) (recounting

nightmarish experience of homeowners and awarding damages for foreclosure actions taken in violation

of bankruptcy stay: “Franz Kafka lives. This automatic stay violation case reveals that he works at Bank

of America.”), damage award vacated as part of settlement, 580 B.R. 536 (Bankr. E.D. Calif. 2018); Fresh

Outrage for Wells Fargo After Mortgage Error Led to Hundreds of Foreclosures

, Chicago Tribune (Aug. 7, 2018);

Flawed Paperwork Aggravates a Foreclosure Crisis

, New York Times (Oct. 3, 2010).

2 We say “provisionally” because these issues have not yet been the subject of full adversarialNo. 18

‐ 2429 Page 3

The lender has the security it bargained for—its interest in the property—to

protect its interests during the appeal. Without a stay, on the other hand, the typical

residential borrower will su ff er irreparable damage (eviction from the home) during the

appeal. As noted by the advisory commi tt ee on the new Rule 62 amendments, however,

a district court or appellate court has su ffi cient power to protect appellees, as well. The

advisory note explains that a court may dissolve a stay in unusual circumstances, such

as “a risk that the judgment debtor’s assets will be dissipated.” The lender in this case

has not shown, at least not yet, that there is such a risk here, as might be the case if

insurance or property taxes were not paid or if the property were abandoned or being

neglected. The lender

‐ appellee has the security it bargained for, and the appeal should

proceed in the ordinary course.

I. Factual and Procedural Background

To explain the background of this case, the district court’s judgment came after a

long series of judicial proceedings involving plainti ff Cornish’s home and mortgage. In

May 2006, Cornish obtained a mortgage to buy a home in Flossmoor, Illinois. In 2007,

the mortgage was assigned to Avelo Mortgage, which fi led a foreclosure action in state

court. In August 2008, that case was dismissed by agreement of the parties. In October

2008, Avelo again sought foreclosure. The state court dismissed the case for want of

prosecution in September 2010.

In January 2013, Avelo assigned Cornish’s mortgage to Deutsche Bank, the

plainti ff and appellee in this case. In April 2013, Deutsche Bank fi led this case in federal

court to foreclose on the mortgage. Cornish moved to dismiss the case because she

thought the state foreclosure suit was still pending. The district court instead held that

the federal suit was barred by res judicata, holding that the dismissal of Avelo’s 2008

foreclosure action constituted a fi nal judgment under state law because the lender did

not re fi le its suit within one year or the remaining period allowed by the statute of

limitations.

Deutsche Bank moved for reconsideration, arguing that the statute of limitations

had not yet run. The district court agreed and reinstated the case. In April 2016, the

district court granted Deutsche Bank’s motion for summary judgment on the merits and

held that the bank was entitled to foreclosure.

Cornish appealed from the summary judgment order. We dismissed the appeal

because the district court’s order was not a fi nal appealable order under HSBC Bank,

U.S.A., N.A. v. Townsend

, 793 F.3d 771 (7th Cir. 2015) (dismissing appeal of district court

presentation. That situation is not unusual with motions we must decide, and yet we must decide them as

best we can. We signal here our willingness to reconsider our thinking, particularly if and when we have

the benefit of briefing by counsel on both sides.No. 18

‐ 2429 Page 4

order foreclosing Illinois mortgage and ordering the United States Marshal to sell

property at auction; no fi nal judgment until sale had been conducted and district court

had con fi rmed sale).

In December 2017, the district court entered a judgment foreclosing the mortgage

on Cornish’s home and ordering a special commissioner to conduct a public sale of

property. Cornish appealed again. Again we dismissed, holding under Townsend that

the order of foreclosure and judicial sale was still not a fi nal appealable judgment. A

sale was conducted, and on June 29, 2018, the district court entered an order approving

the sale to Deutsche Bank itself. Under Townsend

, that order was the appealable fi nal

judgment in this case, and Cornish fi led this appeal. Her appeal of that fi nal judgment

allows her to raise any issues in the case, including the validity and amount of her debt,

her theories of defense based on the earlier state

‐ court litigation, the relative priorities of

the claims against her and the property, and the propriety of the sale. 3

Cornish asked the district court to stay its judgment requiring her to give up

possession of the property pending her appeal. The district court denied the motion.

Cornish renewed her motion for stay in this court. She argued that she is likely to

succeed on appeal because the fi nal judgment in the state court foreclosure action

deprived the district court of jurisdiction. She also argued she will su ff er irreparable

harm without a stay because her family will be homeless.

II. Analysis

Stays pending appeal are governed by Federal Rule of Civil Procedure 62, which

works in coordination with Federal Rule of Appellate Procedure 8(a). Material

amendments to Rule 62, and conforming amendments to Rule 8(a), took e ff ect on

3 By contrast, in jurisdictions where the judgment of foreclosure is immediately appealable as the final

judgment on the merits (D owes P the sum of X dollars, and the property is available to execute the

judgment), an appellate court hearing a later challenge to the order confirming the post

‐ judgment sale

should demand much more to justify a stay pending appeal of that order. In such processes, the post

‐ judgment appeal is usually limited to the manner of execution; the merits of the underlying judgment are

deemed to have been finally resolved. See, e.g., Citibank, N.A. v. Data Lease Financial Corp

., 645 F.2d 333,

337–38 (5th Cir. 1981) (failure to appeal foreclosure order bars ability to challenge merits of that order in

appeal of later order confirming sale); Central Trust Co. of New York v. Peoria, Decatur & Evansville Ry. Co.

,

118 F. 30, 32 (7th Cir. 1902) (appeal from order confirming sale could not challenge merits of underlying

foreclosure); see also Leadville Coal Co. v. McCreery

, 141 U.S. 475, 478–79 (1891) (“[W]e cannot fail to

observe that the main scope and purpose of this appeal seem to be to relitigate questions fully determined

by the final decree appealed from and affirmed.”); Whiting v. Bank of United States

, 38 U.S. (13 Pet.) 6, 14–

15 (1839) (holding that decree ordering foreclosure and sale was “final decree,” that later sale and

confirmation were “a mere mode of enforcing the rights of the creditor,” and that appeal from later sale

and confirmation was too late to challenge underlying foreclosure).No. 18

‐ 2429 Page 5

December 1, 2018. The amendments have clari fi ed the law for purposes of this case and

made its application simpler and more fl exible. We explain our thinking fi rst under the

2017 versions and then under the 2018 versions.

A. The 2017 Versions of Rules 62 and 8

The judgment foreclosing the mortgage, approving the sale, and ordering

Cornish to give up possession of the property has several injunctive elements. Rule 62(c)

(2017) provided that a district court “may suspend, modify, restore, or grant an

injunction on terms for bond or other terms that secure the opposing party’s rights.”

Rule 62(g) (2017) made clear that the rule did not limit the power of an appellate court

to suspend, modify, restore, or grant an injunction pending appeal or to preserve the

status quo pending appeal.

The injunctive aspects of a full, fi nal foreclosure judgment under Townsend

, ordering immediate turnover of the property, can support an argument for applying the

general equitable balancing test used for stays of injunctions pending appeal as stated

in Hilton v. Braunskill

, 481 U.S. 770 (1987). The issue in Hilton was the release, pending a

warden’s appeal, of a state prisoner who had won a writ of habeas corpus. The Supreme

Court drew on the general standards for stays of injunctions pending appeal: “(1)

whether the stay applicant has made a strong showing that he is likely to succeed on the

merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.” Id

. at 776; see also Nken v. Holder

, 556

U.S. 418, 425–26 (2009) (discussing Hilton standard as applied to immigration removal

order). Under that standard, a party seeking a stay and a court considering the issue

must dive quickly and deeply into the merits of the appeal.

If that standard applied to a mortgage foreclosure appeal, then appellant

‐ debtors

would face a burden that few other appellants face in appeals over secured loans. After

years of litigation and preliminaries, the appellant

‐ debtors in mortgage foreclosure

appeals would need to make critical choices, under great time pressure, about how to

argue the merits of their appeal. The appellate court would need to make comparable

e ff orts to learn the merits of the case to decide an emergency motion. We make such

e ff orts when we need to, of course, but it is not the most desirable or reliable procedure

for evaluating the merits of an appeal. And stakes can be high.

At the core of a foreclosure judgment is a judgment simply ordering the

borrower to repay a money debt. Stays pending appeal for money judgments were

governed by Rule 62(d) (2017), which provided for an automatic stay pending appeal if

the appellant posted su ffi cient security. “A judgment creditor holds a general,

unsecured debt.” Olympia Equipment Leasing Co. v. Western Union Telegraph Co

., 786 F.2dNo. 18

‐ 2429 Page 6

794, 800 (7th Cir. 1986) (Easterbrook, J., concurring). A party taking an appeal from such

a money judgment was ordinarily entitled to a stay as a ma tt er of right if she posted a

bond to protect the rights of the appellee. Fed. R. Civ. P. 62(d) (2017); American

Manufacturers Mutual Ins. Co. v. American Broadcasting

‐ Paramount Theatres, Inc.

, 87 S. Ct.

1, 3 (1966) (Harlan, J., in chambers, staying enforcement of state

‐ court judgment).

If the bond was posted, then, there was no need for the court to inquire, at the

very outset of the appeal, into its potential merits. Execution was stayed as a ma tt er of

right, not judicial discretion. Id .; Hebert v. Exxon Corp

., 953 F.2d 936, 938 (5th Cir. 1992)

(issuing writ of mandamus to district court to stay execution of declaratory judgment

having e ff ect of money judgment after bond had been posted); Dillon v. City of Chicago

,

866 F.2d 902, 904 (7th Cir. 1988) (“Rule 62(d) of the Federal Rules of Civil Procedure

allows an appellant to obtain an automatic stay of execution of judgment pending

appeal by posting a bond.”); Northern Indiana Public Service Co. v. Carbon County Coal Co

.,

799 F.2d 265, 281 (7th Cir. 1986) (appellant from money judgment must post a bond if it

wants “automatic stay” under Rule 62(d) before 2018 amendment); Olympia Equipment

Leasing Co. v. Western Union Telegraph Co.

, 786 F.2d 794, 796 (7th Cir. 1986) (posting bond

entitles appellant to stay under Rule 62(d) before amendment, but district court also

had discretion to stay execution under other conditions to secure interests of appellee);

Federal Prescription Service, Inc. v. American Pharmaceutical Ass’n

, 636 F.2d 755, 759 (D.C.

Cir. 1980) (“Beyond question, Rule 62(d) [before amendment] entitles the appellant who

fi les a satisfactory supersedeas bond to a stay of money judgment as a ma tt er of right.”);

see also 11 Wright & Miller, Federal Practice and Procedure § 2905 (2012). In such cases,

the stay of execution pending appeal simply did not depend on the district court’s or

the appellate court’s early evaluation of the appellant’s prospects of success in the

appeal.

In the case of a mortgage foreclosure, the execution to put money in the lender’s

pocket should actually be simpler than with a general money judgment. The di ff erence

is that the lender already has its security interest in the mortgaged property. That

security interest should ordinarily su ffi ce to protect the lender’s rights pending appeal

for purposes of Rule 62. That’s what the lender bargained for as its security, after all,

but on the conditions that the interest remains protected by, for example, payment of

insurance and property taxes, and that the property is being cared for. Under the pre

‐

2018 version of Rule 62, we recognized, there might be unusual cases where district

courts or this court should exercise their discretion, as discussed in Olympia Equipment

Leasing

, 786 F.2d at 796, to impose additional conditions on a stay pending appeal, but

this case did not appear unusual in this respect.

In HSBC Bank v. Townsend

, we held that a judgment of foreclosure applying

Illinois law was not a fi nal, appealable judgment. The foreclosure decision left threeNo. 18

‐ 2429 Page 7

factors unresolved there: (1) the owner retained statutory rights to redeem or reinstate

the mortgage before a sale; (2) if a sale occurred, it would still need to be con fi rmed by

the court; and (3) the amount of any de fi ciency judgment could not be determined until

the sale had been held and con fi rmed. The rule of HSBC Bank v. Townsend means an

appeal would have to await a district court order con fi rming the results of a judicially

‐

ordered sale of the property. 793 F.3d at 777. In other words, a property owner facing

foreclosure and unhappy creditors cannot obtain appellate review of the merits of the

underlying judgment until the case has proceeded to a court

‐ ordered auction and the

court has approved the result of the auction. At that late stage, a buyer could be ready to

take possession of the property, though the interests of that buyer may be less pressing

where the buyer is the lender itself (as in this case) or someone acting in concert with

the lender.

Townsend has important practical consequences that show up in cases like this

one, both for the parties and for the courts. Because of Townsend

, debtor

‐ appellant

Cornish could no longer appeal at all, on any issue—including the money judgment on

the underlying debt for which a stay pending appeal should have been automatic—

until after the district court approved the sale of her home. That last order introduced

the injunctive elements into the judgment: it directed the sheri ff to evict Cornish,

perhaps as soon as thirty days after entry of the order. Further, the sale and delivery of

real property to a good

‐ faith purchaser can render moot at least the portion of the

judgment ordering and approving the sale. See Townsend

, 793 F.3d at 780; FDIC v.

Meyer

, 781 F.2d 1260, 1263 (7th Cir. 1986). Without a stay, which would have been

essentially automatic in an appeal of the underlying judgment on the debt before

Townsend

, Cornish would likely have been evicted in a ma tt er of days without any

meaningful opportunity to present her arguments to this court.

In Townsend itself, we acknowledged the obvious: a foreclosure and judicial sale

pose a great potential for irreparable harm to the appellant

‐ debtor. We concluded,

however, that adequate protections, including a stay of a later judgment con fi rming the

sale, would be available so that immediate review of the interlocutory order was not

necessary. 793 F.3d at 779–80. Our opinion in Townsend clearly implied that stays

pending appeals in foreclosure cases should be routine to prevent the irreparable harm

of losing one’s home. That’s why Townsend avoided the doctrine of Forgay v. Conrad

, 47

U.S. (6 How.) 201 (1848), which could otherwise authorize an interlocutory appeal of an

order directing immediate delivery of physical property. 793 F.3d at 779–80 (“a

mortgagor

‐ owner who is residing in the property and taking care of it should not face the

kind of immediate irreparable harm required by Forgay until there is time to fi le an

appeal and to seek a stay of the fi nal order con fi rming the judicial sale”) (emphasis

added). The Townsend dissent made that point explicit, saying that under the majority’sNo. 18

‐ 2429 Page 8

approach, stays pending appeals in mortgage foreclosures should be granted

“routinely.” 793 F.3d at 783 (Hamilton, J., dissenting).

In weighing these competing arguments for the applicable standard on an

emergency basis in July 2018, a majority of this motions panel decided to issue the stay

in this case. We favored the view that stays should be the norm, at least unless the

lender

‐ appellee could show that preserving its interest in the underlying property

would not provide su ffi cient security pending appeal.

B. The 2018 Versions of Rules 62 and 8

The 2018 amendments to Civil Rule 62 and conforming amendments to

Appellate Rule 8 reinforce making a stay pending appeal the norm in mortgage

foreclosure cases. We focus primarily on the amendments to Rule 62, which were

substantive and also reorganized the rule. Here is the new text of Rule 62(a)–(d):

Rule 62. Stay of Proceedings to Enforce a Judgment

(a) A UTOMATIC S TAY

. Exceptions for Injunctions,

Receiverships, and Patent Accountings. Except as provided in

Rule 62(c) and (d), execution on a judgment and proceedings to

enforce it are stayed for 30 days after its entry, unless the court

orders otherwise.

(b) S TAY BY B OND OR O THER S ECURITY

. At any time after

judgment is entered, a party may obtain a stay by providing a

bond or other security. The stay takes e ff ect when the court

approves the bond or other security and remains in e ff ect for the

time speci fi ed in the bond or security.

(c) S TAY OF AN I NJUNCTION

, R ECEIVERSHIP

, OR P ATENT

A CCOUNTING O RDER

. Unless the court orders otherwise, the

following are not stayed after being entered, even if an appeal is

taken:

(1) an interlocutory or fi nal judgment in an action for an

injunction or receivership; or

(2) a judgment or order that directs an accounting in an action

for patent infringement.

(d) I NJUNCTION P ENDING AN A PPEAL

. While an appeal is

pending from an interlocutory order or fi nal judgment that

grants, continues, modi fi es, refuses, dissolves, or refuses to

dissolve or modify an injunction, the court may suspend, modify,No. 18

‐ 2429 Page 9

restore, or grant an injunction on terms for bond or other terms

that secure the opposing party’s rights. If the judgment appealed

from is rendered by a statutory three

‐judge district court, the

order must be made either:

(1) by that court si tt ing in open session; or

(2) by the assent of all its judges, as evidenced by their

signatures.

The advisory commi tt ee notes provide a helpful explanation for the 2018

amendments. The amendments eliminate the somewhat dated reference in former Rule

62(d) to a “supersedeas bond.” The notes also “make clear that a party may obtain a

stay by posting a bond or other security.” Most important for our purposes: “The new

rule’s text makes explicit the opportunity to post security in a form other than a bond.”

Given that explicit fl exibility, continuing an existing security interest in the property

that a lender required as a condition of the loan should provide adequate security in

most cases, at least so long as the property is cared for and protected by insurance and

payment of property taxes.

At the same time, the 2018 amendments also make clearer that courts have the

power to provide su ffi cient security for appellees, along the lines we recognized in

Olympia Leasing Equipment

, if the usual forms of security are not su ffi cient or

appropriate for some reason. See 786 F.2d at 796. The 2018 advisory commi tt ee note

explains that the amended rule “expressly recognizes the court’s authority to dissolve

the automatic stay or supersede it by a court

‐ ordered stay,” including to address “a risk

that the judgment debtor’s assets will be dissipated.”

Under the new version of Rule 62, the newly expressed fl exibility for the form of

security to protect the appellee gives more explicit support for treating the property in a

mortgage foreclosure appeal as su ffi cient security, at least as long as the property is

occupied and cared for. See also HSBC Bank v. Townsend

, 793 F.3d at 780. And since the

amended rule no longer provides completely automatic stays, it allows the courts

fl exibility to protect a lender

‐ appellee who needs protection from risks that would

dissipate the property or otherwise undermine the security it provides. Under the new

rules, courts should be able to balance fairly the appellant

‐ debtor’s appeal rights with

the lender

‐ appellee’s right to security pending appeal.

Conclusion

Under the 2018 amendments to Federal Rule of Civil Procedure 62 and Federal

Rule of Appellate Procedure 8, in appeals from mortgage foreclosure judgments

governed by our rule of fi nality in HSBC Bank USA v. Townsend

, 793 F.3d 771, a majorityNo. 18

‐ 2429 Page 10

of this panel concludes that the norm should be a stay pending appeal, absent unusual

circumstances showing that the security interest in the underlying property does not

provide su ffi cient protection for the lender

‐ appellee.

For these reasons, we granted the stay pending appeal in this case.No. 18

‐ 2429 Page 11

St. Eve, Circuit Judge

, dissenting. I agree with my colleagues that borrowers

appealing from a fi nal foreclosure judgment can face real loss without a stay. But I

disagree about how to resolve Tracy Cornish’s motion. I respectfully dissent.

There are two relevant ways to obtain a stay pending appeal. The most common

is through an exercise of sound judicial discretion, for federal courts generally have the

inherent authority to issue a stay of orders or proceedings. See, e.g.

, Ryan v. Gonzales

, 568

U.S. 57, 73–74 (2013); Nken v. Holder

, 556 U.S. 418, 433–34 (2009); see also Fed. R. Civ. P.

62(g); Fed. R. App. P. 8(a). Rule 62(d) of the pre

‐ 2018 amendments to the Federal Rules

of Civil Procedure, however, also allowed that an “appellant may obtain a stay by

supersedeas bond.” This rule, as the majority explains, generally applied to appeals of

money judgments. Of these two standards—one dependent on judicial discretion, the

other on an appellate bond—the former should have governed Cornish’s motion. That

motion asked for temporary relief from the court order approving sale (to “stay

possession” of the home), not relief from a money judgment (the post

‐ foreclosure

de fi ciency in this case lies in rem). Whatever interest a lender has in a foreclosed piece

of property, it seems a stretch to liken it to a bond.

The general standard for issuing a stay pending appeal is well established.

Courts must consider the likelihood of success, the irreparable harm, the potential

injury, and the public interest. Nken

, 556 U.S. at 434; Hilton v. Braunskill

, 481 U.S. 770,

776 (1987). The likelihood of success is critical. Nken

, 446 U.S. at 434–35; Frank v. Walker

,

769 F.3d 494, 495–96 (7th Cir. 2014) (per curiam). But Cornish’s motion showed no path

to victory, even construing it liberally. She cited the Rooker

‐ Feldman doctrine and res

judicata, yet there was no preclusive state

‐ court decision or judgment: the dismissal was

for want of prosecution, and Deutsche Bank re fi led its claim in federal court within the

applicable statute of limitations. Because Cornish showed no likelihood of success, I

dissented from the majority’s order on July 16, 2018.

Since then, amendments to Rule 62 took e ff ect on December 1, 2018. Former Rule

62(d) became Rule 62(b), and it now states that “a party may obtain a stay by providing

a bond or other security .” Fed. R. Civ. P. 62(b) (emphasis added); see also Fed. R. App. P.

8(a) (corresponding changes included). The Commi tt ee Notes to the 2018 amendments

explain that the “new rule’s text makes explicit the opportunity to post security in a

form other than a bond.” Fed. R. Civ. P. 62, Commi tt ee Notes on Rules—2018

Amendment.

The majority asks whether, under new Rule 62(b), a lender

‐ appellee’s post

‐

foreclosure interest in a property is a su ffi cient “security” to generally warrant a stay,

and it answers in the a ffi rmative. I do not know why we are asking the question at all.

The majority has, after all, already granted Cornish’s motion. Even if the amendmentsNo. 18

‐ 2429 Page 12

have retroactive e ff ect—a likely possibility, as the order issuing the amendments states

that they should govern pending proceedings “insofar as just and practicable”—I fail to

see how we can (or why we should) retroactively apply new rules to an already

‐ granted

and uncontested motion. See Diaz v. Shallbe tt er

, 984 F.2d 850, 853 (7th Cir. 1993)

(“Amendments may or may not govern ‘further proceedings’ in pending cases,” but the

“just and practicable” standard and the Rules Enabling Act “say only that new acts in

cases already on the docket ordinarily should conform to the new rules”). The Supreme

Court has said that the retroactivity of amended rules “ordinarily depends on the

posture of the particular case.” Landgraf v. USI Film Prod.

, 511 U.S. 244, 275 n.29 (1994).

The posture of Cornish’s motion is that it has been decided, with only the promise of a

short order explaining the initial decision to follow. The stay is in place inde fi nitely. No

party has asked us to reconsider it.

I have another discomfort with the majority’s order. It proposes a new standard

for these often

‐ made motions, which, if ever made precedential by our court, would

bind parties’ rights to property and money on appeal. But it does so without the bene fi t

of any argument from the parties. Perhaps that would be palatable if the new Rule 62(b)

clearly dictated the majority’s result, but it does not. Rule 62(b), for example,

contemplates that the party seeking a stay will “provid[e]” a bond or other security.

Fed. R. Civ. P. 62(b). Cornish, on the other hand, simply lost the foreclosure suit below.

The purpose of Rule 62(b), moreover, is to protect the appellee’s rights during appeal.

As the majority recognizes, post

‐ foreclosure interest in a property may well not provide

that protection if taxes go unpaid, upkeep is not met, and the person living in the home

continues not to pay for it—all while the lender’s contractual right to take possession is

put on ice during appeal. Those are some reasons that Rule 62(b) may not be satis fi ed

by a fi nal foreclosure order. There may well be others. The majority, again, strikes new

ground based on a new rule and an unopposed, pro se motion.

I disagreed with the majority’s interpretation under the former Rule 62. I see no

reason to pick a side on its interpretation under the new Rule 62. I therefore dissent.