Emergency Motion for Reconderation for Relief

 
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CIVIL ACTION NO. 3:13-cv-03461-O 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
Dallas Division 
 
 
JEFFREY BARON, 
Appellant 
 
v. 
ELIZABETH SHURIG, et. al. 
Appellees 
ON APPEAL FROM THE UNITED STATES BANKRUPTCY COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
 
 
EMERGENCY MOTION FOR RECONSIDERATION OF APPELLANT’S MOTION 
FOR STAY PENDING APPEAL OF ORDER OF RELIEF AND BRIEF IN SUPPORT  
 
Comes  now Appellant  Jeffrey  Baron  (“Baron”)  and, pursuant to Federal Rule  of Civil 
Procedure 54(b), files this Emergency Motion for Reconsideration  of  Baron’s  Motion for Stay 
Pending Appeal of the Order of  Relief  in Involuntary Case and Brief in Support.  In support 
hereof, Baron would respectfully show as follows:  
 
1.  Even though the attorney fee order (the “Fee Order”), which serves the sole basis 
for  the Petitioning Creditors’ standing  and the determination that Baron is  insolvent, has never 
been  enforced  and  was  permanently  stayed  by  the  issuing  court  (Judge  Ferguson),  the 
Bankruptcy  Court  has  decided  to  essentially  unstay  the  Fee  Order  and  enforce  it  in  an 
involuntary  bankruptcy  case.    Indeed,  the  Fee  Order  was  entered  over  2  years  ago,  and  no 
Petitioning  Creditor  has  ever  been  paid  a  nickel  under  such  Order  in  any  court  or  in  any 
proceeding.   
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2.  Why  not?  Because  the  Fifth  Circuit  unequivocally  ruled  that  the  Petitioning 
Creditors  held  merely  unresolved  claims  against  Baron  and  therefore  could  not  seek  the 
imposition  of  an  extreme  equitable  remedy,  like  the  freezing  of  assets  or  the  imposition  of 
receivership, and the Fee Order arose from  an  illegal receivership.  The Petitioning Creditors 
have  taken  the  illogical  position  that  the  Fifth  Circuit  never  considered  the  Fee  Order  in 
reversing  the receivership,  but they  know  full  and well  that the appeal  of  the  Fee Order  was 
consolidated with the appeal of the receivership order and both sides spent over 50 pages fully 
briefing  the  Fifth  Circuit  on  the  merits  of  the  fee  award.   Thus,  the Fifth  Circuit  necessarily 
considered  the  merits  of  the  Fee  Order  and  still  found  that  the  Petitioning  Creditors  held 
unresolved claims. 
3.  The fact that the Fifth Circuit did not specifically  vacate the Fee Order—along 
with  60+  other  interlocutory  orders  that  were  involved  in  the  consolidated  appeal—is  of  no 
event, because the reversal of the receivership had the effect of vacating the Fee Order and any 
other interlocutory order entered pursuant to the illegal receivership (unless otherwise directed 
by  the  Fifth  Circuit).    That  is  precisely  why,  after  the  Fifth  Circuit  mandate  issued,  Judge 
Furgeson denied the renewed request by the Petitioning Creditors to enforce the Fee Order.  As a 
result of losing before the Fifth Circuit and Judge Furgeson on their fee requests, the Petitioning 
creditors forum shopped the Fee Order in a more friendly forum, the Bankruptcy Court. 
4.  Ignoring  entirely  that  the  Petitioning  Creditors  had  previously  lost,  the 
Bankruptcy Court took the position that a clarification order entered by the Fifth Circuit thirteen 
days after it entered  its opinion  reversing the receivership (the “Reversal Opinion”)  somehow 
proved that the Fifth Circuit wanted the Fee Order to remain effective and in place.  Contrary to 
the Bankruptcy Court’s misunderstanding, the clarification order was only entered to remind the 
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parties of Federal Rule of Appellate Procedure 41 and prevent the irreparable harm caused by the 
Petitioning Creditors’ commencement of the involuntary case.  If anything the clarification order 
enforced  the  original  receivership  order  by  Judge  Furgeson,  which  clearly  enjoined  the 
Petitioning Creditors from filing the involuntary case. 
5.  The stay pending appeal is certainly warranted in this case, as Baron has already 
suffered an enormous injury at the request of the Petitioning Creditors.  He has already incurred 
over $5 million in damages paying for the costs of an illegal receivership and paying a trustee in 
Ondova Limited Company’s bankruptcy case (the “Ondova Trustee”) to satisfy creditor claims.  
His assets have dwindled to virtually nothing.  But that is not the full extent of his loss, as the 
Receiver and current chapter  7 trustee in his Involuntary Case (the “Involuntary Case”)  have, 
and continue, to  use  Baron’s  remaining assets and, more  importantly,  waive  Baron’s  valuable 
constitutional  rights  in  connection  with  challenging  the  Petitioning  Creditors’  claims.    In fact, 
while this appeal is pending and no stay is in effect, the Receiver has recently requested to be 
paid approximately $1.3 million from Baron’s remaining assets.   
6.  On the other hand, the Petitioning Creditors—who have already been paid over $3 
million  in  fees  by  Baron,  who  seek  to  satisfy  their  claims  in  Ondova  Limited  Company’s 
bankruptcy, who have  never posted a bond for  anything and who have relied  on trustees and 
receivers to make their arguments for them—have suffered little or no harm in fighting against 
Baron.    Indeed,  the  Petitioning  Creditors  have  never  gone  to  trial  on  their  claims  and  have 
manipulated the civil process to ensure that Baron has no rights or assets to dispute their claims.  
7.  Even  though  Baron  has  already  lost  way  more  than  any  other  party,  he 
understands the real danger of exhausting his remaining assets by the litigation tactics employed 
by the Petitioning Creditors, with the aid of others.  Baron therefore requests a modified stay 
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pending appeal, where he will agree to deposit most of his assets with this Court, provided he be 
allowed  access  to,  sufficient  funds  to  properly  prosecute  this  Appeal  and  address  other 
proceedings affecting his substantive rights.  
8.  Federal  Rule  of  Civil  Procedure  54(b)  allows  the  Court  to  reconsider  prior 
interlocutory orders that it has entered.  This Court previously based its denial of Baron’s motion 
for  stay  pending  appeal  on  (a)  technical  noncompliance  with  Bankruptcy  Rule  8005  and  (b) 
many of the factual and legal findings previously made by the Bankruptcy Court in issuing her 
order for relief.  In the Memorandum in Support of Emergency Motion for Reconsideration of 
Appellant’s Motion for Stay Pending Appeal of Order of Relief and Brief in Support (“Brief in 
Support”),  Baron  corrected  the  technical  non-compliance  with  Bankruptcy  Rule  8005  and 
demonstrated how the Bankruptcy Court’s prior findings resulted in manifest errors of law and 
facts and therefore should not be relied on by this Court.  Accordingly, pursuant to Federal Rule 
54(b), this Court has sufficient cause to reconsider its prior denial of Baron’s request for a stay 
pending  appeal.  The  irreparable  harm that Baron stands  to  suffer  in the  near  future  certainly 
warrants such reconsideration.  
9.  For  all  the  foregoing  reasons,  as  well  as  the  reasons  set  forth  in  his  Brief  in 
Support, Appellant Jeffrey Baron requests this Court reconsider its Stay Order and grant a stay of 
the Order of Relief pending an appeal. 
 
 
 
 
 
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Dated:  November 22, 2013              Very respectfully, 
 
 
Tayari Law PLLC 
 
By:  /s/ M. Tayari Garrett ______                  
Mpatanishi S. Tayari Garrett 
100 Crescent Court, Ste. 700 
Dallas, Texas 75201 
Tel: (214) 459.8266  
Fax: (214) 764.7289 
m.tayari@tayarilaw.com 
 
 
Acosta & Associates P.C. 
 
/s/ H. Joseph Acosta______ 
H. Joseph Acosta 
619 E. 2
nd
 Street 
Irving, Texas 75060 
Tel: (214) 614.8939 
Fax: (214) 614.8992 
jacosta@acosta-law.com 
 
 
 
 
The Cochell Law Firm, P.C.  
 
/s/ Stephen R. Cochell___________  
Stephen R. Cochell  
Texas Bar No. 24044255  
7026 Old Katy Rd., Ste 259  
Houston, Texas 77096  
(713)980-8796 (phone)  
(713)980-1179 (facsimile)  
srcochell@cochellfirm.com 
 
 
Attorneys for Appellant Jeffrey Baron 
 
CERTIFICATE OF SERVICE 
 
  On this date, I electronically submitted the foregoing document with the U.S. District 
Court, Northern District of Texas, using the electronic case filing system of the court. I hereby 
certify that I have served all parties who receive notification through the electronic filing system. 
 
     /s/ H. Joseph Acosta                   
     H. Joseph Acosta 
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