MOYES SELLERS &

HENDRICKS

PHOENIX, AZ

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

00134706

MOYES SELLERS & HENDRICKS

Stephen Brower (No. 024908)

1850 North Central Avenue, Suite 1100

Phoenix, Arizona 85004

Telephone: (602) 604-2120

sbrower@law-msh.com

Attorneys for Appellee MR Capital, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

In re

Donita Cole,

Debtor.

Case No. 2:15-cv-02105-SRB

Case No. 2:15-bk-07045-EPB

RESPONSE TO EXIGENT EMERGENCY 

PETITION

Donita Cole,

Appellant,

v.

MR Capital, LLC,

Appellee.

Rule 8007, Federal Rules of Bankruptcy Procedure, contains a presentation 

requirement. “Ordinarily, a party must move first in the bankruptcy court for the 

following relief...a stay of a judgment, order, or decree of the bankruptcy court pending 

appeal.” Fed. R. Bankr. P. 8007(a)(1)(A). If the request is instead made directly to the 

court where the appeal is pending, the moving party must show “that moving first in the 

bankruptcy court would be impracticable.” Fed. R. Bankr. P. 8007(b)(2).

A failure to seek emergency relief in the bankruptcy court is a critical defect. “The 

reason for requiring that the initial application be made to the bankruptcy court is obvious,

Case 2:15-cv-02105-SRB Document 9 Filed 01/02/16 Page 1 of 4
MOYES SELLERS &

HENDRICKS

PHOENIX, AZ

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

00134706

- 2 -

the reviewing court should have the benefit of the learning of the lower court, which is 

more familiar with the parties, facts and legal issues.” In re Rivera, 2015 WL 6847973 at 

*2 (N.D. Cal. Nov. 9, 2015) (internal marks omitted) (quoting In re MSR Resort Golf 

Course, LLC, 2013 WL 766166 (S.D.N.Y 2013); see also In re Zahn Farms, 206 B.R. 

643, 645 (B.A.P. 2nd Cir. 1997) (“Having elected not to present this Motion to the trial 

court, the Debtors have denied this Panel the benefit of the views of the Judge who is 

familiar with the issues pertaining to any purported emergency.”). “If the party 

improperly bypasses the bankruptcy court and seeks a stay first from the district court, the 

district court lacks the jurisdiction to hear the matter.” In re Rivera, 2015 WL 6847973 at 

*2 (quoting In re Taub, 470 B.R. 273, 276 (E.D.N.Y. 2012)). “Thus, district courts 

routinely dismiss motions for a stay pending appeal when stay relief is not first sought 

from the bankruptcy judge and the failure to do so is not adequately explained.” Id.

(quoting In re BGI, Inc., 504 B.R. 754, 761 (S.D.N.Y. 2014)).

Appellant has not and cannot claim that she filed a stay motion with the bankruptcy 

court and she has wholly failed to explain why she has not. Appellant has not alleged that 

seeking a ruling from the bankruptcy court on the requested injunction would have been 

impracticable. Even if she had, Appellant has no support for an argument of 

impracticability. It is no reason for Appellant to bypass the bankruptcy court merely 

because the court entered an adverse ruling against her lifting the automatic stay. It is 

likewise insufficient for Appellant to cite to an exigency in December to excuse her 

failure to seek relief from the bankruptcy court in October (i.e., when she filed her Notice 

of Appeal). 

It is evident from the record that the bankruptcy court was not permitted to 

determine whether the requested injunction was appropriate in the first instance.1 Rule 

 

1 Appellee respectfully requests the Court take judicial notice of the bankruptcy court 

docket that clearly shows that no motion for stay was filed.

Case 2:15-cv-02105-SRB Document 9 Filed 01/02/16 Page 2 of 4
MOYES SELLERS &

HENDRICKS

PHOENIX, AZ

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

00134706

- 3 -

8007(a) requires the bankruptcy court be given that opportunity when doing so is not 

impracticable. Appellant has not even alleged, much less shown, that it was impracticable

here. Accordingly, Apellant’s motion must be denied for failure to comply with the 

presentation requirement.

This failure to comply with the presentation requirement is reason alone to 

summarily deny the Appellant’s motion. The motion must also be denied, however, for 

Appellant’s failure to show “(1) whether the stay applicant has made a strong showing 

that [s]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.” Leiva-Perez v. 

Holder, 640 F.3d 962, 964 (9th Cir. 2011). 

The Appellant has not made a substantial case for reversal of the lift stay order. 

“The decision to grant or deny relief from the automatic stay is committed to the sound 

discretion of the bankruptcy court, and [appellate courts] review such decision under the 

abuse of discretion standard.” In re Conejo Enterprises, Inc., 96 F.3d 346, 351 (9th Cir. 

1996). Appellant’s argument on appeal hinges on the curious notion that MR Capital,

LLC does not own the property in question. Appellant admits that MR Capital, LLC 

purchased the property at a trustee sale but contests that the trustee sale was invalid under 

a novel theory that she had rescinded her mortgage prior to the sale. Appellant does not

allege that she moved for an injunction prior to the trustee sale or that she gave the loan 

proceeds back to her lender to accomplish her alleged rescission. The tenuous nature of 

Appellant’s arguments are facially obvious are reason alone to deny the motion.

Further, Appellant cannot claim to be irreparably injured. Appellant has already 

been evicted and a Writ of Restitution executed upon her. The constable that served the 

Writ of Restitution changed the locks of the property. Appellant will claim that some of 

her personal property has been left in the property, however, Appellant and her mother 

Case 2:15-cv-02105-SRB Document 9 Filed 01/02/16 Page 3 of 4
MOYES SELLERS &

HENDRICKS

PHOENIX, AZ

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

00134706

- 4 -

have already moved to a new residence. Appellant can hardly show irreparable injury.

Appellant’s motion must be denied for failure to abide by the presentation 

requirement. The motion must also be denied on its merits for failure to show the 

elements required for an injunction.2 

DATED: January 2, 2016

MOYES SELLERS & HENDRICKS

By /s/ Stephen Brower

Stephen Brower

Attorneys for MR Capital, LLC

CERTIFCIATE OF SERVICE

I hereby certify that on January 2, 2016, I electronically transmitted the attached 

document to the Clerk of the Court using the CM/ECF System which will send 

notification of such filing and transmittal of a Notice of Electronic Filing to all CM/ECF 

registrants. I further certify that a copy of the attached document was delivered via email 

to:

Donita Cole

d.cole@cox.net

/s/ Stephen Brower

 

2 Moreover, Appellant has not and cannot show that the injunction would have no effect 

on Appellee, which has been damaged by its failure to receive possession of the property. 

Appellant also cannot successfully argue that it is in the public interest to disregard 

property rights.

Case 2:15-cv-02105-SRB Document 9 Filed 01/02/16 Page 4 of 4