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800 S. Wells Commercial, LLC v. WRT Marc RC

July 23, 2007

800 S. WELLS COMMERCIAL, LLC, APPELLANT,
v.
WRT MARC RC, LLC, ET AL., APPELLEES.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

800 S. Wells Commercial, LLC ("Debtor") moves for a stay pending appeal pursuant to Federal Rule of Bankruptcy Procedure 8005. For the reasons that follow, Debtor's motion is denied.

I. BACKGROUND

Debtor is a single asset real estate entity. See Bankruptcy Court's May 2, 2007 decision (Docket 141). Its sole asset is the long-term leasehold interest in certain real property located at 800 South Wells Street, Chicago, Illinois ("Property"). On June 1, 2007, the Bankruptcy Court entered an order lifting the automatic stay and permitting WRT Marc ("WRT")-the holder of a leasehold mortgage against the ground lease-to proceed with a foreclosure and sale of the Property ("Lift Stay Order"). Debtor appeals this order and two others: (1) the Bankruptcy Court's June 1, 2007 order granting the motion for a more definite statement ("Clarification Order"); and (2) the Bankruptcy Court's June 19, 2007 order denying the Debtor's motion for reconsideration ("Reconsideration Order").

II. DISCUSSION

A. Standard of Review

I review the Bankruptcy Court's findings of fact for clear error and review its conclusions of law de novo. In re Midway Airlines, Inc., 383 F.3d 663, 668 (7th Cir. 2004); see also FED. R. BANKR. P. 8013.

B. Stays Pending Appeal

The Seventh Circuit has set forth the four factors courts are to consider when assessing a motion for stay pending appeal. See In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir. 1997). The four factors are: "1) whether the appellant is likely to succeed on the merits of the appeal; 2) whether the appellant will suffer irreparable injury absent a stay; 3) whether a stay would substantially harm other parties in the litigation; and 4) whether a stay is in the public interest." Id. (citations omitted).

1. Debtor is Unlikely to Succeed on the Merits

Debtor fails to make a strong showing that it is likely to succeed on the merits. As noted above, Debtor is a single asset real estate entity. As a result, Debtor is subject to the requirements of 11 U.S.C. § 362(d)(3). That section states that:

(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay-

(3) with respect to a stay of an act against single asset real estate under subsection (a), by a creditor whose claim is secured by an interest in such real estate, unless, not later than the date that is 90 days after the entry of the order for relief (or such later date as the court may determine for cause by order entered within that 90-day period) or 30 days after the court determines that the debtor is subject to this paragraph, whichever is later-

(A) the debtor has filed a plan of reorganization that has a reasonable possibility of being confirmed ...


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