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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/DEFENDANTS MOTION FOR STAY
PENDING APPEAL

Phyllis Ershowsky (Ershowsky), by and through undersigned counsel, respectfully
responds in opposition to the Debtor/Defendant Seth Freedmans (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 Courts decision in Field v. Mans, 516 U.S. 59, 116 S. Ct. 437, 133
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SLATKIN & REYNOLDS, P.A.
One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 Telephone 954.745.5880
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 Courts 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)
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.
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 memorandumsomething 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 Ershowskys 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 Courts decision was subsequently
reversed. However, the Supreme Court has made it unmistakably clear that monetary injuries do
not constitute irreparable harm:

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Ershowsky also takes issue with the Debtors representation that he never received a copy of
Ershowskys 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.
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SLATKIN & REYNOLDS, P.A.
One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 Telephone 954.745.5880
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 creditors interest are
available. Id. (citations omitted).
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SLATKIN & REYNOLDS, P.A.
One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 Telephone 954.745.5880
9. Because Freedman has failed to demonstrate extraordinary circumstances and has
otherwise failed to demonstrate what other means for securing Ershowskys judgment are
available, Freedmans motion is due to be denied.
WHEREFORE, for the reasons stated herein, Ershowsky requests the Court deny
Freedmans Motion for Stay Pending Appeal, as well as grant any further relief the Court deems
proper under the circumstances.
Dated this 31
st
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
rreynolds@slatkinreynolds.com
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
seth.freedman@gpsindustries.com and U.S. mail to Seth Freedman, 4651 Higel Ave., Sarasota,
Florida 34242 on this 31
st
day of August, 2010.
/s/ Robert F. Reynolds__
ROBERT F. REYNOLDS






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