United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon pro se Defendant
Monica L. Wellington's Motion for Stay of Execution of
Judgment Pending Appeal (Motion for Stay), filed October 7,
2019. (Doc. 189). Plaintiff MTGLQ Investors, LP filed a
response on October 21, 2019, and Defendant filed a reply on
November 1, 2019. (Docs. 191 and 195). Having considered the
Motion for Stay and the accompanying briefing, the Court
grants the Motion for Stay as described below.
September 23, 2019, the Court entered summary judgment in
favor of Plaintiff and against Defendant. (Doc. 179). On that
same day, the Court ordered Plaintiff to file a proposed
judgment of foreclosure and sale within 21 days of the entry
of the Memorandum Opinion and Order granting Plaintiff's
Motion for Summary Judgment (Doc. 123). (Doc. 178) at 16. The
Court, then, provided Defendant 14 days to file any
objections to the proposed judgment of foreclosure and sale,
and provided Plaintiff 14 days to respond to objections.
Id. On October 1, 2019, Defendant filed a notice of
appeal. (Doc. 184). On October 14, 2019, Plaintiff filed its
proposed judgment of foreclosure and sale, and the Court
extended Defendant's time to object to the proposed
judgment of foreclosure and sale until November 7, 2019.
(Docs. 192 and 194).
now moves under Fed.R.Civ.P. 62(a) for an automatic 30-day
stay of the execution of the judgment and the proceedings to
enforce it. The automatic 30-day stay provided for in Rule
62(a) began after the entry of summary judgment on September
23, 2019, and has now expired. Accordingly, a Rule 62(a) stay
also moves under Rule 62(b), as amended in 2018, for a stay
of the execution of the judgment and the proceedings to
enforce it pending resolution of the appeal. Rule 62(b)
states that “[a]t any time after judgment is entered, a
party may obtain a stay by providing a bond or other
does not object to a Rule 62(b) stay if Defendant posts a
supersedeas bond in the amount of the proposed judgment,
$214, 405.40, plus interest from November 1, 2018, at 5.750%,
or in the alternative, in the amount of the estimated value
of the property as listed on Zillow.com, $210, 084.00. (Doc.
191) at 1. Plaintiff further seeks an award of attorney's
fees it incurred in responding to the Motion for Stay.
other hand, Defendant argues that a supersedeas bond is not
necessary because Plaintiff's lien on the property at
issue in this foreclosure action fully secures the judgment.
Defendant also declares under penalty of perjury that the
property is fully insured and not rented. (Doc. 189-1).
Seventh Circuit recently explained how it views the 2018
version of Rule 62(b) in the context of a foreclosure action.
Deutsche Bank Nat'l Tr. Co. as Tr. for GSAA Home
Equity Tr. 2006-18 v. Cornish, 759 Fed.Appx.
503 (7th Cir. 2019). The Seventh Circuit observed that
[u]nder the new version of Rule 62, the newly expressed
flexibility for the form of security to protect the appellee
gives more explicit support for treating the property in a
mortgage foreclosure appeal as sufficient security, at least
as long as the property is occupied and cared for.
Id. at 510. The majority of the Seventh Circuit then
concluded “that the norm should be a stay pending
appeal, absent unusual circumstances showing that the
security interest in the underlying property does not provide
sufficient protection for the
the Seventh Circuit's rationale to this case, the Court
does not find any unusual circumstances that would prevent
the Court from staying the execution of the judgment and the
proceedings to enforce it without Defendant posting a bond.
The property that is the subject of this foreclosure action
provides sufficient security for the stay. Consequently, the
Court grants the Motion for Stay pursuant to Rule 62(b), as
the Court's determination, the Court declines to award
Plaintiff any attorney's fees it incurred in responding
to the Motion for Stay.
Motion for Stay of Execution of Judgment Pending Appeal (Doc.
189) is granted;
execution of the summary judgment is stayed pending