David Brian Derringer

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
David Brian Derringer
04-17330
Order Denying [150-1] Motion for Stay of All Proceedings Pending Appeal
Concerning Chapels Illegal Liens on the debtor's real property based on the
Order of 2/2/05 and the denial of the debtor's Motion for Retrial of same on
3/2/05. by David Brian Derringer .
Received on: 2005-06-08 11:10:30.000
2005-06-08 00:00:00.000
2005-06-10 00:00:00.000
Patti Hennessy
Case 04-17330-m13 Doc 186 Filed 06/08/05 Entered 06/10/05 09:53:00 Page 1 of 6

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: DAVID DERRINGER, No. 13-04-17330 MA
Debtor.
ORDER DENYING DEBTOR’S MOTION FOR STAY PENDING APPEAL
THIS MATTER is before the Court on the Debtor David Derringer’s Motion for Stay of All
Proceedings Pending Appeal Concerning Chapels Illegal Liens on the Debtor’s Real Property Based
on the Order of February 2, 2005 and the Denial of the Debtor’s Motion for Retrial of Same on March
2, 2005 Pursuant to Fed. R. Bankr.P. Rule 7062 and 8005 (“Motion for Stay Pending Appeal”), filed
March 8, 2005. The Court held a final hearing on the Motion for Stay Pending Appeal on May 23,
2005 and took the matter under advisement.
The Debtor seeks a stay of his bankruptcy proceeding pending the outcome of his appeal of the
Court’s Order Denying Remainder of Debtor’s Motion to Take Judicial Notice and Request for Relief,
and Motion for Permanent Restraining Order Against Mick Chapel, Jennifer Chapel, and Joseph
Manges, entered February 2, 2005 (“February 2 Order”) (Docket # 121), and the Order Denying
Debtor David Derringer’s Timely Motion for New Trial; Amendment of Order; and Relief from Order;
of the February 2, 2005 Order Denying Remainder of Debtor’s Motion to Take Judicial Notice and
Request for Relief and Motion for Permanent Restraining Order Against Mick Chapel, Jennifer Chapel,
and Joseph Manges Pursuant to Bankruptcy Procedure Rule 9023 and 9024 and the F.R.Civ.P. Rules
59 and 60 and Pursuant to the 8th, 13th, and 14th Amendment and Title 11 Section 362(a) in the
“Interest of Justice” with New Evidence to Prove Needed Reversal of Decisions, entered March 2,
2005 (“March 2 Order”) (Docket # 146). Because the Court finds that staying the operation of the
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1Rule 62, Fed.R.Civ.P. applies to stays of proceedings to enforce a judgment. Discretionary
stays pending appeal are governed by Rule 62(c), Fed.R.Civ.P., while stays issued as a matter of right
are usually confined to money judgments and require the posting of a supersedeas bond in accordance
with Rule 62(d), Fed.R.Civ.P. In re Porter, 54 B.R. 81, 82 (Bankr.N.D.Okla. 1985). Rule 62(d),
Fed.R.Civ.P. is inapplicable to the Debtor’s Motion for Stay Pending Appeal.
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February 2 Order and the March 2 Order can have no effect, and because the Debtor has not
otherwise satisfied the requirements for a stay pending appeal, the Court will deny the Motion for Stay
Pending Appeal.
Stays pending appeal are governed by Rule 62, Fed.R.Civ.P.1, made applicable to bankruptcy
proceedings by Rule 7062, Fed.R.Bankr.P., and by Rule 8005, Fed.R.Bankr.P. Rule 8005 provides,
in relevant part:
Notwithstanding Rule 7062 but subject to the power of the district court and the
bankruptcy appellate panel reserved hereinafter, the bankruptcy judge may suspend or
order the continuation of other proceedings in the case under the Code or make any
other appropriate order during the pendency of an appeal on such terms as will protect
the rights of all parties in interest.
Rule 8005, Fed.R.Bankr.P.
The February 2 Order and the March 2 Order from which Debtor appeals concern alleged violations
of the automatic stay by Mick Chapel, Jennifer Chapel and Joseph Manges which the Court found the
Debtor failed to prove were willful within the meaning of 11 U.S.C. §362(h). These orders did not
grant relief to any party to pursue claims against the Debtor or his property. Staying their effect pending
the outcome of Debtor’s appeal, therefore, serves no purpose and is unnecessary to protect the rights
of the Debtor. Moreover, even if it were otherwise appropriate to stay the bankruptcy proceeding
pending the outcome of the appeal, Debtor has failed to meet the standards for obtaining a stay pending
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2Appellant’s Statement of Issues to be Presented on Appeal enumerates several issues,
including the following: that the liens of the Chapels are illegal and unenforceable as they are based on
the “illegal, unconstitutional and the jurisdictionally defective CV 94-10 judgment and Injunction of May
17, 1996 of which Appellant was a NON-PARTY and cannot be bound”; that there has been a
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appeal.
Because a stay pending appeal is similar in nature to a request for a preliminary injunction,
courts consider the same factors used to determine whether to grant a preliminary injunction in
determining whether a stay pending appeal is appropriate. In re Porter, 54 B.R. 81, 82
(Bankr.N.D.Okla. 1985). In order to obtain a stay pending appeal, the requesting party must
demonstrate the following factors: 1) that the requesting party is likely to prevail on the merits of the
appeal; (2) that the requesting party will suffer irreparable harm without a stay; (3) that other interested
persons will not suffer substantial harm if a stay were imposed; and (4) that the public interest will not
be harmed by a stay. Id.; In re Sunflower Racing, Inc., 221 B.R. 940, 941 (D.Kan. 1998) (citations
omitted).
In his Motion for Stay Pending Appeal, Debtor complains of the Court’s findings number 10.
and 11. contained in the February 2 Order which state that the judgments Jennifer Chapel and Mick
Chapel hold against the Debtor are final judgments with res judicata effect and which the Court may
not reconsider or overrule in accordance with the Rooker-Feldman doctrine. Throughout his
bankruptcy proceeding Debtor has consistently urged that the judgments at issue are unenforceable
against him or his property because he was not a party to the initial litigation brought by the Chapels in
state court. His present appeal of the February 2 Order and the March 2 Order raises this same issue,
among others.2 As pointed out by the Chapels in their Response to the Motion for Stay Pending
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violation of Appellant’s constitutional rights of equal protection and private property rights; that the
Chapels continue to violate New Mexico statutes governing dam height; that the Chapels continue to
“enslave and subjugate” Appellant’s upstream property; that the bankruptcy court had no jurisdiction
“to continue proven deprivation of rights, privileges and immunities” against Appellant as guaranteed
under the Constitution, New Mexico statutes and state constitutional law; that the bankruptcy court
lacked jurisdiction to “illegally enforce Chapels’ illegal, jurisdictionally defective and unconstitutional
claims of debt of liens by mis-using the doctrines of res judicata, the law of the case, or Rooker-
Feldman”; lack of due process; domestic terrorism; and violations of judicial oaths.
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Appeal, the Debtor’s arguments concerning the validity of the state court judgments that he has raised
before the New Mexico Court of Appeals, the United States District Court for the District of New
Mexico, and the Tenth Circuit, have been rejected by those courts. Given that Debtor has
unsuccessfully raised this central issue of the validity of the state court judgment on appeal to the New
Mexico state and federal appellate courts, Debtor has failed to show a likelihood of success on appeal
of the February 2 Order and the March 2 Order. Failure to show a probability of success on appeal
bars the imposition of a stay pending appeal. See In re Barnes, 119 B.R. 552, 558 (S.D.Ohio 1989)
(denying plaintiff’s motion for temporary injunction pending appeal, concluding that plaintiff’s failure to
show any probability of success on the merits of the appeal “is dispositive in [the] determination of
Plaintiff’s entitlement to temporary or preliminary injunctive relief.”) (citations omitted).
Debtor has also failed to demonstrate how he will be irreparably harmed if a stay pending
appeal is not granted. Debtor claims that by not staying his bankruptcy proceeding, the Chapels will
be allowed to continue their attempts to enforce their state court judgments against him, and that the
loss of the Debtor’s private property will cause him to suffer irreparable harm. Under the current
posture of this bankruptcy proceeding, the Debtor and the Chapels are subject to the Court’s Order on
Chapels’ Motion for Relief from Stay, entered December 27, 2004 (“December 27 Order”) which
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conditioned the automatic stay on the Debtor complying with the requirements for proceeding under
Chapter 13 of the Bankruptcy Code. The automatic stay imposed under 11 U.S.C. § 362 which
operates to prevent creditors from any attempt to enforce a judgment against the Debtor or property of
the Debtor’s bankruptcy estate remains in effect in this proceeding unless and until relief from the stay is
granted by further order of the Court or the Debtor’s bankruptcy proceeding is dismissed. Because
the automatic stay remains in effect, staying the bankruptcy proceeding pending Debtor’s appeal of the
February 2 Order and the March 2 Order serves no purpose. Finally, although the Debtor appealed
the December 27 Order, the Bankruptcy Appellate Panel dismissed that appeal as interlocutory.
WHEREFORE, IT IS HEREBY ORDERED, that the Motion for Stay Pending Appeal is
DENIED.
_________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
David Derringer
Debtor, pro se
PO Box 157
Quemado, NM 87829
Joseph Manges, pro se and as
Attorney for Mick and Jennifer Chapel
PO Box 669
Santa Fe, NM 87504-0669
________________________________
Patti G. Hennessy
Law Clerk (505) 348-2545
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