Seth Freedman Litigation Bankruptcy

1 SLATKIN & REYNOLDS, P.A.

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 Telephone 954.745.5880

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA

FT. LAUDERDALE DIVISION www.flsb.uscourts.gov

In re: SETH FREEDMAN and LAURA FREEDMAN, Debtors.

CASE NO.: 08-28599-RBR CHAPTER 7

PHYLLIS ERSHOWSKY, Plaintiff, v. SETH FREEDMAN, Defendant.

ADV. PROC. NO.: 09-01382-RBR-A

RESPONSE IN OPPOSITION TO DEBTOR/DEFENDANT’S MOTION FOR STAY

PENDING APPEAL Phyllis Ershowsky (“Ershowsky”), by and through undersigned counsel, respectfully

responds in opposition to the Debtor/Defendant Seth Freedman’s (“Freedman” of “Debtor” or

“Defendant”) Motion for Stay Pending Appeal and as grounds in support thereof respectfully

states:

1. Although Freedman has identified the proper standard against which a request for

stay is measured, Freedman has failed to set forth sufficient argument or evidence that would

entitle him to a stay pending appeal.

2. First, Freedman has failed, other than making general statements, to explain to the

Court how this Court misapplied the well settled law on the issue of fraud and justifiable reliance

as is set forth in the Supreme Court’s decision in Field v. Mans, 516 U.S. 59, 116 S. Ct. 437, 133

Case 09-01382-RBR Doc 83 Filed 08/31/10 of 4

Case No.: 08-28599-RBR Adv. Proc. No.: 09-01382-RBR-A



L. Ed. 2d 351 (1995). Freedman likewise has cited to no case law or otherwise that supports his

argument.

3. Furthermore, Freedman has failed to explain how the Court’s credibility

determinations – i.e, that the testimony of Ershowsky was more believable than that of the

Debtor – is somehow in error. See Bankr. R. 8013 (“Due regard shall be given to the opportunity

of the bankruptcy court to judge the credibility of the witnesses”)1.

4. Finally, Freedman has attempted to argue that some of the findings were not

based on evidence raised at trial, that certain findings were irrelevant, or has attempted to argue

matters that should have been raised in a post-trial memorandum—something that Freedman, for

whatever reason, chose not to submit. None of the arguments cite any specific testimony or

exhibits, all of which are available since the trial transcript was ordered and Freedman was given

a copy of Ershowsky’s exhibits. Thus, Freedman has failed to demonstrate a likelihood of

success on the merits since he cannot point to anything specific in the record that supports his

arguments.

5. Likewise, Freedman has failed to demonstrate any sort of irreparable harm.

Although it is not entirely clear, Freedman seems to argue that, if Ershowsky obtains a judgment

in the state court case while his appeal is pending and Ershowsky somehow collects money on

that judgment, Freedman would be irreparably harmed if this Court’s decision was subsequently

reversed. However, the Supreme Court has made it unmistakably clear that monetary injuries do

not constitute irreparable harm:

1 Ershowsky also takes issue with the Debtor’s representation that he never received a copy of Ershowsky’s proposed findings and conclusion. Undersigned counsel filed a certificate of service indicating that the proposed findings and conclusions were sent to the Court via email and were sent via U.S. mail to Freedman. See D.E. # 50. Thus, this representation is blatantly inaccurate.





The key word in this consideration is irreparable. Mere injury, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.

Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974) (emphasis in

original).

6. The Debtor has failed to demonstrate what harm he would suffer, other than

perhaps having to pay money that he could demand be returned. This is the exact type of harm

the Supreme Court in Sampson stated was not enough to obtain a stay pending appeal.

Accordingly, the Debtor cannot demonstrate irreparable harm.

7. Finally, the Debtor seeks a stay without the posting of a bond. The only statement

that Freedman makes that appears to be in support of his request for a stay without a bond is that

he has just gone through Chapter 7, could not afford counsel to represent him at trial and cannot

afford to pay a bond. Freedman then somehow equates the inability to pay a bond with

irreparable harm.

8. As noted above and as the Supreme Court stated in Sampson, monetary damages

do not reach the level of irreparable harm. Therefore, the argument is without merit. The

requirement of a bond “[P]rotects the winning party from the possibility of loss resulting from

the delay in execution.” Holland v. Law, 35 F. Supp. 2d 505, 506 (S.D.W.Va. 1999) (citation

omitted), and is not to protect the assets of the defendant. Furthermore, “[T]he power of the

court to waive the supersedeas bond requirement should only be exercised in ‘extraordinary

circumstances’ and only where alternative means of securing the judgment creditor’s interest are

available.” Id. (citations omitted).





9. Because Freedman has failed to demonstrate extraordinary circumstances and has

otherwise failed to demonstrate what other means for securing Ershowsky’s judgment are

available, Freedman’s motion is due to be denied.

WHEREFORE, for the reasons stated herein, Ershowsky requests the Court deny

Freedman’s Motion for Stay Pending Appeal, as well as grant any further relief the Court deems

proper under the circumstances.

Dated this 31st day of August, 2010.

I hereby certify that I am admitted to the Bar of the United States District Court, and that I am in compliance with the additional qualifications to practice in this Court set forth in Local Rule 2090-1(A).

SLATKIN & REYNOLDS, P.A.

Attorneys for Ershowsky One East Broward Boulevard, Suite 609 Fort Lauderdale, Florida 33301 Telephone 954.745.5880 Facsimile 954.745.5890 [email protected] By: /s/ Robert F. Reynolds___ ROBERT F. REYNOLDS Fla. Bar No. 174823

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing has been furnished via email

[email protected] and U.S. mail to Seth Freedman, 4651 Higel Ave., Sarasota,

Florida 34242 on this 31st day of August, 2010.

/s/ Robert F. Reynolds__ ROBERT F. REYNOLDS


Seth Freedman Litigation Bankruptcy

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