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In Re Jose Sandy Buco

                                                     USDC SDNY 
                                                     DOCUMENT 
UNITED STATES DISTRICT COURT                       ELECTRONICALL 
SOUTHERN DISTRICT OF NEW YORK                                   an)  □□□□ 
                                                     DOC #: 
Inte                                                  DATE FILED:   7/23/2025 
JOSE SANDY BUCO 
                       Debtor. 

JOSE SANDY BUCO, 
                       Appellant, 
                  -against-                         25-CV-05496 (MMG) 
THOMAS C. FROST,                                ORDER 
                       Appellee. 

MARGARET M. GARNETT, United States District Judge: 
                              INTRODUCTION 
     Before the Court is a motion for emergency relief filed by pro se Debtor-Appellant Jose 
Sandy Buco (“Appellant”), who seeks to stay the dismissal of his Chapter 13 petition pending his 
appeal before this Court.  For the reasons that follow, the motion is DENIED. 
                              BACKGROUND 
     Appellant filed a Notice of Appeal on July 2, 2025, seeking review of an order denying 
Appellant’s Motion to Vacate the Order Dismissing the Case and the Order Discharging the 
Trustee (the “Order’”), which was announced by the Bankruptcy Court at a hearing on June 12, 
2025, and entered on the docket on July 15, 2025.!  See Dkt. No. 1; Bankr. S.D.N.Y. Case No. 

     ' “A notice of appeal filed after the bankruptcy court announces a decision or order—but before 
entry of the judgment, order, or decree—is treated as filed on the date of and after the entry.”  Fed. R. 
Bankr. P. 8002.

24-10598, Dkt. No. 124.  The Order upheld the Bankruptcy Court’s prior order dismissing 
Appellant’s Chapter 13 petition (the “Dismissal Order”), which was entered on September 23, 
2024.  Bankr. Dkt. No. 91.  The Bankruptcy Court had previously denied a motion to reconsider 
the same Dismissal Order on November 8, 2024.  Bankr. Dkt. No. 102.  On July 18, 2025, 

Appellant filed a Motion for Emergency Injunction Pending Appeal (the “Motion”), seeking to 
stay a foreclosure sale of Appellant’s property, which is scheduled to take place on July 23, 
2025.  Dkt. No. 4 at 1–2.  The Court construes that motion to be requesting a stay of the 
dismissal of Appellant’s Chapter 13 petition.                             
                          DISCUSSION                                     
    There is no basis for the Court to grant a stay pending appeal.  Appellant’s motion is 
procedurally improper, and, in any event, he has not made the necessary showing required to 
obtain a stay.                                                            
    Ordinarily, “a party must move first in the bankruptcy court” in order to seek “a stay of 
the bankruptcy court's judgment, order, or decree pending appeal.”  Fed. R. Bankr. P. 

8007(a)(1)(A).  However, a motion to stay an order of the bankruptcy court pending appeal “may 
be filed in the court where the appeal is pending,” subject to the requirement that the movant 
either “show that moving first in the bankruptcy court would be impracticable” or “if a motion 
has already been made in the bankruptcy court, state whether the court has ruled on it, and if so, 
state any reasons given for the ruling.”  Id. § 8007(b)(1)–(2).           
     Appellant has not moved for a stay in the Bankruptcy Court, according to the docket in 
that Court, and has not explained, or even attempted to show, how doing so would be 
impracticable.  “[D]istrict courts routinely dismiss motions for a stay pending appeal when, as 
here, relief is not first requested from the bankruptcy judge and the failure to do so is not 
adequately explained.”  In re Carrington, 698 F. Supp. 3d 659, 661 (S.D.N.Y. 2023) (quotations 
omitted).  Even considering that Appellant is a pro se litigant who is entitled to a liberal reading 
of his pleadings, his “failure to comply with Bankruptcy Rule 8007 is reason alone to deny the 
Stay Motion.”  Id. at 660-61.                                             

    Even if this Court were to entertain the Motion, Appellant has not shown that a stay is 
warranted.  To determine whether a stay pending appeal is appropriate, courts consider four well-
established factors: “(1) whether the movant will suffer irreparable injury absent a stay, 
(2) whether a party will suffer substantial injury if a stay is issued, (3) whether the movant has 
demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and 
(4) the public interests that may be affected.”  In re BGI, Inc., 504 B.R. 754, 762 (S.D.N.Y. 
2014) (quoting Hirschfeld v. Bd. of Elecs., 984 F.2d 35, 39 (2d Cir. 1993)).  “A number of lower 
courts within the Second Circuit have concluded that the failure of the movant to satisfy any one 
of the four factors on a motion for a stay pending appeal of a bankruptcy court order ‘dooms the 
motion.’”  In re Adelphia Comm’ns Corp., 361 B.R. 337, 347 (S.D.N.Y. 2007) (citation omitted).  

However, the Second Circuit “has never articulated such a rigid rule of law.”  Id.  In any case, a 
“stay pending appeal under Rule 8007 is the exception, not the rule,” and the party seeking a stay 
pending appeal “carries a heavy burden.”  In re Carrington, 698 F. Supp. 3d at 661.  Considering 
the available record and Appellant’s submissions, and balancing the four factors, a stay is not 
warranted here.                                                           
    A.  Irreparable Harm                                                 
    Appellant argues that if the foreclosure sale is permitted to proceed, he will face 
irreparable harm by suffering the “permanent loss of his primary residence.”  However, the “‘fact 
that [a] property will be sold absent a stay does not automatically constitute irreparable harm’ 
because, in certain circumstances, harm from the sale of a property ‘may be fully remedied by 
monetary damages.’”  In re Mongiello, No. 24-CV-00694 (CS), 2024 WL 729865, at *2 
(S.D.N.Y. Feb. 22, 2024) (quoting In re Giambrone, 600 B.R. 207, 213 (Bankr. E.D.N.Y. 
2019)).  “To be sure, courts in this circuit have held that eviction can be an irreparable injury.”  
Greer v. Mehiel, No. 15-CV-06119, 2016 WL 828128 (AJN), at *9 (S.D.N.Y. Feb. 24, 2016).  

“Yet in every such case the Court has found, the party facing eviction also faced the real threat of 
homelessness.”  Id.  Appellant has not shown irreparable harm in this way.  He may lose his 
“primary” residence, but he does not contend that the foreclosure sale will leave him without a 
place to live.                                                            
    B.  Substantial Possibility of Success on Appeal                     
    Appellant cannot—and does not even attempt to—show likelihood of success on appeal.  
The Bankruptcy Court dismissed Appellant’s Chapter 13 petition because Appellant does not 
qualify as a Chapter 13 debtor under § 109(e) of the Bankruptcy Code.  See Dismissal Order at 1.  
At a hearing held on September 16, 2024, the Bankruptcy Court found that Appellant had a total 
of $6,395,647.89 in noncontingent, liquidated debts as of the date his petition was filed, which 
far exceeds § 109(e)’s eligibility limits on noncontingent, liquidated debts.  See Order at 1.  

Appellant argues that his total debts have been inflated by fraudulent proofs of claim, but as the 
Bankruptcy Court has correctly noted, “the fact that a debt is disputed does not make it 
‘contingent’ or ‘unliquidated.’”  Order Denying Debtor’s Motion for Reconsideration at 2, 
Bankr. Dkt. No. 102 (citing In re Mazzeo, 131 F.3d 295, 303–05 (2d Cir. 1997)).  The 
Bankruptcy Court has already revisited and upheld the Dismissal Order on both a motion for 
reconsideration and a subsequent motion for vacatur, and Appellant has failed to offer any 
argument that the Bankruptcy Court’s sound reasoning will not be upheld yet again on appeal. 
     C.  Substantial Injury to Other Parties 
     Appellant has offered no arguments as to why the creditors would not incur substantial 
injury if a stay were to issue.  Moreover, as Appellant “is unlikely to succeed on the merits, 
granting a stay would prolong the bankruptcy proceeding with no foreseeable offsetting gain and 
thus injure creditors.”  Jn re Carrington, 698 F. Supp. 3d at 662. 
     D.  Public Interest 
     Finally, a stay pending appeal would be contrary to the public interest, which “favors the 
expedient administration of the bankruptcy proceedings.” Jn re Adelphia, 361 B.R. at 349. 
Where, as here, the “high standards” for relief have not been demonstrated, “a stay pending 
appeal would injure the interests of sound case management in the bankruptcy process, and as a 
consequence, would also injure the public interest.”  In re 473 W. End Realty Corp., 507 B.R. 
496, 508 (Bankr. S.D.N.Y. 2014). 
                               CONCLUSION 
     For the foregoing reasons, Appellant’s motion for a stay pending appeal is DENIED. 
     Given the Court’s conclusion that Appellant’s allegations of fraud do not render his debts 
contingent or unliquidated—such that those allegations do not change the determination that he 
is ineligible as  a Chapter 13 debtor—Appellant is ordered to show cause by August 6, 2025, why 
his appeal should not be dismissed in its entirety. 

Dated: July 23, 2025 
    New York, New York 
                                            SO ORDERED. 

                                               United  States District Judge