currently resides has been found to constitute irreparable harm. See In re Skinner, 202 B.R. 867, 869
(W.D. Vir. 1996); Jn re Barnes, 119 B.R. 552, 558 (S.D. Ohio 1989). Furthermore, Taisa has no
independent means of support, making alternate housing more difficult to obtain. Accordingly, Taisa
has demonstrated irreparable harm if the stay is not granted.

Balancing the relative harms in light of the four factors weighs in favor of issuing the stay.
Ifthe stay is denied, Taisa and her minor son bear the risk of being forced out of their home and must
seek alternative housing. The pending appeal is expected to be fully briefed by June 21, 2001; and
a ruling is expected in early July 2001. Therefore, the delay in selling the home is for a short period
of time and is unlikely to effect the value of the residence should Taisa lose her appeal. In addition,
the short delay is unlikely to decrease Alexander’s estate as he is presently paying for the residence
and has agreed to pay for alternate housing. Furthermore, Alexander’s estate appears to be sufficient
to cover all of his debts, and there is possibility the estate will have an excess over the total debts.
As such, the risk to Alexander’s creditors is minimal. Such a low risk is demonstrated by the fact
that Alexander, not a creditor, requested the home be sold. Accordingly, the relative harms weigh
in favor of granting the stay.

Taisa seeks the stay without filing ofa bond. Ordinarily, a party is entitled to a stay pending
an appeal only by posting an appropriate bond. Fed. R. Civ. P. 62(d); Fed. R. Bank. P. 7062; In re
Carlson, 224 F.3d 716, 719 (7" Cir. 2000). However, posting of a bond is not mandatory to a stay
under 62(d), especially where the district court is satisfied that the bond expenditure is unnecessary
to protect the appellee during the pendency of the appeal. Northern Indiana Pub. Serv. Co. v.
Carbon County Coal Co., 799 F.2d 265, 281 (7" Cir. 1986); Olympia Equip. Leasing Co., 786 F.2d

794, 796 (7" Cir. 1986). In the alternative, the appellant may request that the district court employ


If the movant makes these threshold showings, the Court balances the relative harms considering all
four factors using a “sliding scale” approach. Forty-Eight, 115 F.3d at 1300-01.

On appeal, Taisa alleges that the Bankruptcy Court erred in finding that she did not have an
interest in the residence prior to Alexander filing for bankruptcy and that such error deprived her of
the adversary hearing required by Fed. R. Bank. P. 7001. Taisa’s appeal is presently in the briefing
stage but has not been fully briefed. Therefore, the merits of her case are determined from the
parties’ briefs in conjunction with the present motion.

The Bankruptcy Court found, in part, that Taisa’s interest in the residence was that of a
secured creditor because she had not obtained an interest in the residence prior to the bankruptcy
filing. Taisa alleges that, pursuant to 5/503 of the Illinois Marriage & Dissolution of Marriage Act
(750 ILCS 5/503), she obtained a vested interest in the residence upon the filing of her petition for
divorce before Alexander filed for bankruptcy.

Section 503 provides that property acquired by either spouse after the marriage and before
a judgment of dissolution of marriage is presumed to be marital property subject to certain
exceptions. 750 ILCS 5/503(b)(1). In addition, “[e]Jach spouse has a species of common ownership
in the marital property which vests at the time dissolution proceedings are commenced....” 750 ILCS
5/503(e). The Circuit Court’s finding that Taisa is Alexander’s punitive spouse and the statute cited
above support Taisa’s claim that she had a vested interest in the residence and that such interest
required an adversary hearing under Rule 7001. Accordingly, Taisa has demonstrated a sufficient
likelihood of success on the merits.

Ifa stay is not issued, the Trustee may sell the residence in which Taisa and her minor child

reside and have resided in for several years. The loss of the residence in which an individual


its discretion and waive the bond requirement. See Dillion v. City of Chicago, 866 F.2d 902, 904
(7" Cir. 1988) (Dillion). Factors considered in determining whether to waive the bond requirement
include: (1) the complexity of the collection process; (2) the amount of time required to execute
judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the
availability of funds to pay the judgment; (4) whether the defendant’s ability to pay the judgment is
so plain that the cost of the bond would be a waste of money; and (5) whether the defendant is in
such a precarious financial situation that the requirement to post bond would place other creditors
of the defendant in an unsecured position. Dillion, 866 F.2d at 904-05.

In the present case, Taisa is not seeking to stay the payment of a monetary award. Instead,
she seeks a stay of the sale of her residence to maintain the status quo while the appeal is pending.
Therefore, the first, third, and fifth factors are not applicable. As to the second factor, the amount
of time it would take to place the residence for sale should Taisa lose her appeal would be very short.
There is also no evidence that staying the sale of the home would place Alexander or any of his
creditors in an unsecured position. Furthermore, Alexander does not argue, and the Court is unable
to ascertain, how the posting ofa monetary bond protects Alexander’s interests should Taisa’s appeal
fail. If the appeal fails, the residence may be sold without an adversary hearing because Taisa would
not have a vested interest in the home. Alexander nor his creditors have the risk of not receiving
money “awarded” to Alexander because no money has been awarded. Accordingly, Taisa is not
required to post a bond. However, as a condition of the stay, Taisa is required to reasonably maintain

the property and may not engage in conduct that could decrease the value of the property.


Minute Order Forma (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W, Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 2417 DATE 6/11/2001
CASE TAISA SZYSZKO vs. ALEXANDER SZYSZKO
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.)

MOTION:

DOCKET ENTRY:

a) ia Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) ao Answer brief to motion due___. Reply to answer brief due___.

(4) o Ruling/Hearing on eset for____at

(5) QO Status hearing{held/continued to] [set for/re-set for]on__setfor____at. _

(6) oO Pretrial conference{held/continued to] [set for/re-set for]on__setfor__— ss at__
(7) a Trial[sct for/re-set for]on__at

(8) imi (Bench/Jury trial] [Hearing] held/continuedto___at__

(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COERCP4(m) General Rule21 GFRCP41(a\(1) OFRCP41(a)(2).

a0) «x [Other docket entry] Enter Memorandum Opinion and Order. The Bankruptcy Court’s February
13, 2001 order granting the sale of the real estate located at 153 Founders Point, South Bloomingdale,
Illinois, is stayed pending the present appeal. Status hearing held and continued to July 5, 2001 at 9:30
a.m.
dl [For further detail see order (on reverse side of/attached to) the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge’s staff. me a
“nN 19
Notified counsel by telephone. fUN dee each NN . |
JY | Docketing to mail notices. \

Mail AO 450 form. ®
Copy to judge/magistrate judge.

date mailed notice
courtroom

LG deputy's Cl JUN TL PH Se
initials

Date/time received in

central Clerk's Office mailing deputy initials



For the reasons state above, the Bankruptcy Court’s February 13, 2001 Order granting the
sale of the real estate located at 153 Founders Pointe, South Bloomingdale, Illinois, is stayed pending

the present appeal.

~ 4

{ fo

\ f /] ,
ee 11,2001 4 Dh

JOHN W. DARRAH
United States District Judge



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION My
My MER
TAISA SZYSZKO, ) le
) <lgy
Appellant, )
) No. 01 C 2417
v. )
)
ALEXANDER SZYSZKO, ) Judge John W. Darrah
)
Appellee. )

MEMORANDUM OPINION AND ORDER

Appellant, Taisa Szyszko (Taisa), appealed the Bankruptcy Court’s grant of appellee,
Alexander Szyszko’s (Alexander) motion to compel the sale of the family’s residence. Taisa alleges
that the Bankruptcy Court erred in not having an adversary proceeding prior to authorizing the sale
of the residence and erred under the totality of the circumstances in authorizing the sale of the
residence. Presently before the Court is Taisa’s Motion to Stay Pending Appeal.

Taisa and Alexander were married in 1997 in Poland. In March 1978, Radoslaw, the
Szyszko’s first son, was born. In August 1980, Alexander left Poland to come to the United States.
Taisa and Radoslaw stayed in Poland.

In 1986, Alexander filed for divorce in the United States by publication. In September 1986,
the Circuit Court of Cook County, Illinois, found Taisa in default and granted Alexander a judgment
for dissolution of marriage.

In September 1988, Taisa and Radoslaw came to the United States and lived with Alexander.
Taisa testified that, throughout this time, she was unaware that Alexander filed and was granted a

divorce and that she and Alexander lived as husband and wife when she came to the United States.

Ly


In September 1991, Tomasz, Szyszko’s second son, was born.

In 1996, Alexander moved out of the family’s residence, and Taisa subsequently filed for
divorce. In December 1997, the 1986 divorce decree was vacated based on the court’s ruling that
Taisa’s due process rights were violated by the publication divorce. In January 1999, Alexander
filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code. The Chapter 11 case was
converted to one under Chapter 7 in September 1999. In June 2000, the Illinois Appellate Court
reversed the court’s order vacating the 1986 decree, finding the lower court erred in its conclusion
that Taisa’s constitutional rights had been violated. The Appellate Court remanded for a
determination whether Taisa was a putative spouse pursuant to Illinois law. On remand, the Circuit
Court found that Taisa was a punative spouse.

In July 2000, Alexander filed his first motion to compel the sale of the family’s residence.
In December 2000, Alexander filed his last amended motion to compel the sale of the family’s
residence. In January 2001, the Circuit Court found that Taisa was the putative spouse of Alexander.
In February 2001, the Bankruptcy Court granted Alexander’s motion and “authorized, empowered
and directed [the Trustee] to offer for [sale]” the family’s house. Taisa has appealed this order and
seeks a stay on the sale of the residence.

A four-part analysis is conducted to determine whether a stay pending an appeal is
appropriate. The Court considers: (1) the likelihood of success on the merits of the appeal; (2)
whether the movant will suffer irreparable injury if the stay is not granted; (3) whether the other
parties will suffer substantial harm by the granting of the stay; and (4) whether the public interest
will be served by granting a stay. Jn re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7" Cir.

1997) (Forty-Eight). The movant has the threshold burden of demonstrating the first two factors.