Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 06-1091

IN RE: JACQUES DIMITRI ELIAS,

Debtor.

____________________

JACQUES DIMITRI ELIAS,

Appellant,

v.

LAWRENCE P. SUMSKI, TRUSTEE, ET AL.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

 Selya, Lynch and Howard,

Circuit Judges.

Leonard G. Deming, II and Deming Law Office, on brief for

appellant.

June 2, 2006
According to the bankruptcy court docket, the bank has a 1

secured claim of $257,458.43, and the pre-petition arrearage on its

mortgage note was $45,144.34. 

-2-

Per Curiam. This is an interlocutory appeal from the

district court's denial of (1) a motion to stay a bankruptcy court

order pending appeal of that order to the district court and (2) a

motion for reconsideration of the denial of the motion to stay.

Although the appellant has not filed a motion for a stay pending

appeal in this court, his brief seeks such relief and alleges that

he will be irreparably harmed without it. Because we find that

this appeal presents no substantial question, see 1st Cir. R.

27(c), we proceed to the merits.

The underlying bankruptcy court order, which the debtor

seeks to stay pending his appeal to the district court, granted a

creditor, Wachovia Bank ("the bank"), relief from the automatic

stay to enable it to foreclose on its mortgage loan to the debtor,

which was secured by the debtor's home. That order was based on

the debtor's pre-petition arrearages and his subsequent failure to 1

comply with an "adequate protection" order requiring him to make

timely monthly payments to the bank in specified amounts. 

As the debtor acknowledges, the courts below properly

applied the traditional four-part standard applicable to

preliminary injunctions in determining whether to grant a stay

pending appeal, Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 16

(1st Cir. 2002), namely, "(1) whether the applicant has made a
-3-

strong showing of success on the merits; (2) whether the applicant

will be irreparably harmed absent injunctive relief; (3) whether

issuance of the stay will injure other parties; and (4) where the

public interest lies," id. at 16 n.3. We review the lower courts'

denial of such relief for abuse of discretion or error of law.

Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 110-11 (1st Cir. 1994).

The debtor's argument that the lower courts should have

given greater weight to the balance of harms--as opposed to the

debtor's likelihood of success on appeal--is foreclosed by our

decisions emphasizing that "'[t]he sine qua non [of the stay

pending appeal standard] is whether the [movants] are likely to

succeed on the merits,'" Acevedo-Garcia, 296 F.3d at 16 (quoting

Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993)), and that,

accordingly, "'[w]hat matters . . . is not the raw amount of

irreparable harm [a] party might conceivably suffer, but rather the

risk of such harm in light of the party's chance of success on the

merits,'" P.R. Hosp. Supply, Inc. v. Boston Scientific Corp., 426

F.3d 503, 507 n.1 (1st Cir. 2005) (quoting the Massachusetts

standard, which "closely tracks the federal standard").

The debtor's chances of success on the merits of his

appeal to the district court do appear slim. The debtor does not

allege that the bankruptcy court committed any factual errors in

finding that, at the time that the bank filed its affidavit of

noncompliance with the adequate protection order, the debtor's
-4-

payments were short $2,782, approximately one and a half regular

monthly payments, and that some of those payments were late. Nor

could such a claim reasonably be made since, in making those

findings, the bankruptcy court relied on the evidence produced by

the debtor himself, rather than that originally produced by the

bank, which the debtor claims was inaccurate and incomplete. 

Nor does the debtor argue that his original delinquency,

coupled with his failure to comply with the adequate protection

order, did not constitute "cause" for granting relief from the

automatic stay under 11 U.S.C. § 362(d). Any such argument would

be unavailing, given the statute's definition of "cause" as

"including the lack of adequate protection of an interest in

property of [a] party in interest." Id. § 362(d)(1).

Rather, the debtor premises his likelihood of success on

the allegedly confusing nature of the adequate protection order,

his good faith, and his substantial compliance with the order. We

see nothing confusing about the adequate protection order, which

specified precisely when and in what amounts the payments were to

be made. And the debtor has cited no authority for the proposition

that his alleged good faith and substantial compliance with the

adequate protection order are legally relevant to whether to grant

relief from the automatic stay to a creditor whose interests are

otherwise inadequately protected. In any event, we see no abuse of
-5-

discretion in refusing to stay an order relieving the bank from the

automatic stay under the circumstances presented here.

Furthermore, we agree with the bankruptcy court that "the

Debtor's demonstrated inability to make timely adequate protection

payments over a period of time renders his contention that the

interests of [the bank] can be protected by the Debtor's ability to

continue making adequate protection payments unpersuasive."

Therefore, even the balance of harms is not clearly in the debtor's

favor. 

Because the debtor has not shown that the district court

either abused its discretion or erred as a matter of law in denying

his motions for a stay and for reconsideration, the district

court's orders are affirmed.