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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Honorable Marcia S. Krieger 

Civil Action No. 11-cv-02343-MSK-MEH 

CHERYL ARABALO, 

 Plaintiff, 

v. 

CITY OF DENVER, COUNTY OF DENVER, 

 Defendants. 

______________________________________________________________________________ 

OPINION AND ORDER GRANTING, IN PART, MOTION FOR ATTORNEY FEES 

______________________________________________________________________________ 

THIS MATTER comes before the Court pursuant to Ms. Arabalo’s Motion to Stay 

Execution of Judgment and Request for Waiver of Bond Requirement (# 205), Denver’s 

response (# 223), and Ms. Arabalo’s reply (# 224); and Ms. Arabalo’s Motion to Expedite (# 

237) consideration of that motion. 

 After Ms. Arabalo failed to prevail in her lawsuit, the Court taxed costs against her (in 

favor of two Defendants) in the approximate amount of $ 3,900 (# 200, 201), and directed the 

entry of a judgment1

 against her (# 195) for attorney fees in favor of a Defendant in the 

approximate amount of $ 19,700. 

 In the instant motion, Ms. Arabalo states her intention to appeal various rulings in this 

action, notes that she has been unsuccessful in her efforts to secure a supersedeas bond under 

Fed. R. Civ. P. 62(d), and requests that the Court grant her a stay against execution of the costs 

 

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 Although the Court’s Order directs that “Judgment . . . against Ms. Arabalo” in that sum 

“shall enter contemporaneously with this Order,” the Docket does not reflect that a separate 

judgment in that amount has been filed, nor has Former Defendant Gutierrez, the beneficiary of 

that Order, requested the entry of the judgment. 

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order or putative judgment under Rule 62(d) while simultaneously waiving that rule’s 

requirement of a bond. Ms. Arabalo states that such relief is appropriate where imposition of a 

bond obligation would “place [her] in insolvency.” Citing Miami Int’l Realty Co. v. Paynter, 

807 F.2d 871, 873-74 (10th Cir. 1986). She also contends that “requiring [her] to post a cost 

bond on appeal will essentially deny [her] access to the Tenth Circuit Court of Appeal.” The 

Court notes that Ms. Arabalo has already sought (# 206) and obtained (# 225) leave to proceed 

on appeal in forma pauperis. 

 Fed. R. Civ. P. 62(d) provides that “[i]f an appeal is taken, the appellant may obtain a 

stay [of proceedings to enforce a judgment] by supersedeas bond. . . . The stay takes effect when 

the court approves the bond.” Notably, the grant or denial of a stay affects only the judgment 

creditor’s ability to enforce the judgment during the pending appeal, not the ability of the debtor 

to take the appeal; a debtor who is unable or unwilling to post a bond retains the right to pursue 

the appeal. Strong v. Laubach, 443 F.3d 1297, 1299 (10th Cir. 2006). In circumstances where no 

bond is posted, the judgment creditor executes the judgment in part or whole during the 

pendency of the appeal, and the judgment is reversed on appeal, the Court has the power to order 

the judgment creditor to restore the benefits obtained.2

 Id. The Court may permit the posting of 

a reduced bond, or, at least in theory, waive the bond requirement altogether, although the Court 

may require that waiver of a bond in part or whole be conditioned on the debtor “propos[ing] a 

plan that will provide adequate (or as adequate as possible) security for the appellee.” Miami, 

807 F.2d at 873-74. 

 

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 The judgment debtor does run the risk that, in the interim, the judgment creditor has 

become insolvent, making it impossible for him or her to repay those benefits. Strong, 443 F.3d 

at 1299. This may or may not be a risk as it relates to the attorney fee award in favor of Former 

Defendant Gutierrez, but there is relatively little reason for concern that Ms. Arabalo, should she 

succeed on appeal, would be unable to recover from Denver any amount that it manages to 

obtain pursuant to the costs award. 

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 As reflected in Strong, the Court reflexively rejects the most significant argument made 

by Ms. Arabalo: that absent a Rule 62(d) stay, she will be unable to pursue the merits of her 

pending appeal. Strong makes clear that the grant or denial of a stay of judgment execution 

pending appeal under Rule 62(d) has no relation to the ability of a litigant to pursue the appeal 

itself. 

 As to the question of whether, as an equitable matter, the Court should nevertheless stay 

the Defendants from executing any judgment while that appeal is pending, the Court has several 

doubts. First, it is not entirely clear that there is an extent judgment whose execution may be 

stayed: the orders granting costs to both Denver and Mr. Gutierrez are not judgments, and it does 

not appear that a formal judgment, capable of registration and execution, has been entered on Mr. 

Gutierrez’s request for attorney fees. 

 Second, assuming the various orders can be treated as judgments, it does not appear that 

the Defendants have attempted or intend to attempt to execute on the judgment and cost orders. 

Indeed, it appears from the financial affidavit provided by Ms. Arabalo that she has no asserts 

whatsoever to execute any judgment against. As of July 1, 2014, Ms. Arabalo reported that she 

is not currently employed (and although she claims to be searching for work, she indicates that 

she does not expect her monthly income to change in the next 12 months); she reports cash on 

hand of approximately $ 2,200; she reports having received no income from any source 

whatsoever in the past twelve months (including from self-employment, investments, gifts, 

unemployment benefits of any type, or any form of public assistance benefits) and does not 

expect to earn any in the coming month; she reports only two meaningful assets, a home valued 

at $ 270,000, of which Ms. Arabalo has approximately $ 28,000 in equity, and a 2008 auto 

valued at approximately $ 6,000. Ms. Arabalo reports that she provides for two dependent 

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children; that her monthly mortgage expense is $ 1,768 (and that the loan is currently in default); 

that her utility expenses for electricity/fuel and telephone are $ 300 each per month (but that her 

water is “shut off”), along with other miscellaneous expenses (covering food, transportation, auto 

insurance, medical expenses, etc.) of approximately $ 1,000 per month. Thus, taking the 

affidavit at face value, Ms. Arabalo exhausted whatever cash reserves she had by August 1, 

2014, leaving the vehicle and the approximately $ 28,000 in equity as her only assets. Of these, 

the equity in Ms. Arabalo’s home would seem to be exempt from judgment execution3 by 

operation of C.R.S. § 38-41-201(1)(a) (exempting up to $ 60,000 in equity on a piece of real 

property constituting a homestead), and the question of whether a judgment creditor could reach 

Ms. Arabalo’s vehicle is a close question of valuation, see C.R.S. § 13-54-102(1)(j)(I) (motor 

vehicle of up to $ 5,000 in value exempt from judgment execution). In short, if her financial 

affidavit is taken at face value, Ms. Arabalo is already utterly insolvent and thus, it is highly 

unlikely that the Defendants will undertake any efforts to enforce a judgment against her in her 

current financial condition. 

 Third, even the cases Ms. Arabalo relies upon, such as Miami, recognize the need for a 

judgment debtor seeking to avoid posting a bond to offer some other form of security. For 

example, in Miami, the 10th Circuit affirmed a District Court order waiving the debtor’s posting 

of a supersedeas bond, subject to the debtor undergoing a deposition by the creditor to identify 

the nature of the debtor’s financial position and the debtor being enjoined from transferring any 

assets he subsequently obtained, others than those “necessary for living and engaging in his 

business.” 807 F.2d at 874. Ms. Arabalo has not proposed or agreed to undergo such 

 

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 Moreover, even assuming that the Defendants desired to execute their judgments against 

the equity in Ms. Arabalo’s home, they would be limited to recording the judgments as a lien 

against the property, to be recovered if and when the property were to be sold. 

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depositions or asset freezes as an alternative to her posting a supersedeas bond. Indeed, she 

offers no alternative form of security, no matter how meager or symbolic, to the Defendants in 

exchange for relief from the bond requirement of Rule 62(d). 

 Accordingly, the Court sees no grounds, or even need, to grant Ms. Arabalo’s request for 

a stay of execution of judgment by the Defendants. Her Motion to Stay Execution of Judgment 

and Request for Waiver of Bond Requirement (# 205) is DENIED, and her Motion to Expedite 

(# 237) is DENIED AS MOOT. 

 Dated this 6th day of October, 2014. 

BY THE COURT: 

 

 Marcia S. Krieger 

 Chief United States District Judge 

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