NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 6, 2019
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐2429
DEUTSCHE BANK NATIONAL Appeal from the United States District
TRUST COMPANY, as Trustee for Court for the Northern District
GSAA Home Equity Trust 2006‐18, of Illinois, Eastern Division.
Asset‐Backed Certificates, Series 2006‐
18, No. 13‐CV‐2599
Plaintiff‐Appellee,
Virginia M. Kendall,
v. Judge.
TRACY CORNISH,
Defendant‐Appellant.
O R D E R
This is an appeal from a judgment foreclosing the mortgage on defendant Tracy
Cornish’s home and confirming the sale of that home in a court‐ordered auction. On
July 16, 2018, this court granted Cornish’s motion to stay the district court’s judgment
and thus delayed the turnover of the residence to the buyer, which was plaintiff
Deutsche Bank itself. That order said an explanation would follow. This is the
explanation, though our thinking has evolved based on amendments to Federal Rule of
Civil Procedure 62 and Federal Rule of Appellate Procedure 8 that took effect on
December 1, 2018.
No. 18‐2429 Page 2
At issue is how we should apply those rules to appeals of mortgage foreclosure
judgments in the wake of a recent change in our circuit’s law affecting those appeals. In
HSBC Bank, U.S.A., N.A. v. Townsend, 793 F.3d 771 (7th Cir. 2015), we held that in
mortgage foreclosures in federal courts in Illinois, there is no final appealable judgment
until the district court has not only foreclosed the mortgage but also ordered a judicial
sale of the property and later confirmed the results of the sale and ordered turnover of
the property. See also Bank of America, N.A. v. Martinson, 828 F.3d 532 (7th Cir. 2016)
(extending Townsend to mortgage foreclosures under Wisconsin law). Townsend means
that the borrower’s first opportunity to appeal the merits of the underlying debt and
any affirmative defenses comes only after the district court has confirmed the sale. At
that point, eviction is imminent.
The practical question we address here is whether a stay should depend on a
quick evaluation of the likely merits of the appeal, where the parties, lawyers, and
judges must act under the time pressure of a 30‐day eviction deadline, or whether we
should allow normal appellate processes to work as they would in most other cases to
enforce debts where the lender’s interest is protected by security. We recognize as a
practical matter that most mortgage foreclosures are likely to be affirmed. But that is
also true of most commercial debt judgments, and of most civil judgments generally, for
that matter. That practical reality does not mean that courts need to change the process
to force at the outset a rushed evaluation of the likely merits of the appeal. There is still
plenty of room for human and legal error in mortgage foreclosures, especially in this
age of high‐volume securitized mortgages that may have changed hands many times,
for servicing and ownership, before foreclosure. A majority of this panel believes the
norm should be a stay pending appeal, absent unusual circumstances.1
We issued the stay under the relevant rules in effect in July 2018, but we address
here also the new 2018 versions of Federal Rule of Civil Procedure 62(b) and Federal
Rule of Appellate Procedure 8(a) that took effect on December 1, 2018. Under the new
versions of those rules, we conclude, at least provisionally, that stays pending appeal
should be the norm in mortgage foreclosure appeals.2
1 See, e.g., Catalan v. GMAC Mortgage Corp., 629 F.3d 676, 681–84 (7th Cir. 2011) (describing “maddening”
problems borrowers experienced as mortgage servicers made mistakes in transferring borrowers’
account); Sundquist v. Bank of America, N.A., 566 B.R. 563, 570 (Bankr. E.D. Calif. 2017) (recounting
nightmarish experience of homeowners and awarding damages for foreclosure actions taken in violation
of bankruptcy stay: “Franz Kafka lives. This automatic stay violation case reveals that he works at Bank
of America.”), damage award vacated as part of settlement, 580 B.R. 536 (Bankr. E.D. Calif. 2018); Fresh
Outrage for Wells Fargo After Mortgage Error Led to Hundreds of Foreclosures, Chicago Tribune (Aug. 7, 2018);
Flawed Paperwork Aggravates a Foreclosure Crisis, New York Times (Oct. 3, 2010).
2 We say “provisionally” because these issues have not yet been the subject of full adversarial
No. 18‐2429 Page 3
The lender has the security it bargained for—its interest in the property—to
protect its interests during the appeal. Without a stay, on the other hand, the typical
residential borrower will suffer irreparable damage (eviction from the home) during the
appeal. As noted by the advisory committee on the new Rule 62 amendments, however,
a district court or appellate court has sufficient power to protect appellees, as well. The
advisory note explains that a court may dissolve a stay in unusual circumstances, such
as “a risk that the judgment debtor’s assets will be dissipated.” The lender in this case
has not shown, at least not yet, that there is such a risk here, as might be the case if
insurance or property taxes were not paid or if the property were abandoned or being
neglected. The lender‐appellee has the security it bargained for, and the appeal should
proceed in the ordinary course.
I. Factual and Procedural Background
To explain the background of this case, the district court’s judgment came after a
long series of judicial proceedings involving plaintiff Cornish’s home and mortgage. In
May 2006, Cornish obtained a mortgage to buy a home in Flossmoor, Illinois. In 2007,
the mortgage was assigned to Avelo Mortgage, which filed a foreclosure action in state
court. In August 2008, that case was dismissed by agreement of the parties. In October
2008, Avelo again sought foreclosure. The state court dismissed the case for want of
prosecution in September 2010.
In January 2013, Avelo assigned Cornish’s mortgage to Deutsche Bank, the
plaintiff and appellee in this case. In April 2013, Deutsche Bank filed this case in federal
court to foreclose on the mortgage. Cornish moved to dismiss the case because she
thought the state foreclosure suit was still pending. The district court instead held that
the federal suit was barred by res judicata, holding that the dismissal of Avelo’s 2008
foreclosure action constituted a final judgment under state law because the lender did
not refile its suit within one year or the remaining period allowed by the statute of
limitations.
Deutsche Bank moved for reconsideration, arguing that the statute of limitations
had not yet run. The district court agreed and reinstated the case. In April 2016, the
district court granted Deutsche Bank’s motion for summary judgment on the merits and
held that the bank was entitled to foreclosure.
Cornish appealed from the summary judgment order. We dismissed the appeal
because the district court’s order was not a final appealable order under HSBC Bank,
U.S.A., N.A. v. Townsend, 793 F.3d 771 (7th Cir. 2015) (dismissing appeal of district court
presentation. That situation is not unusual with motions we must decide, and yet we must decide them as
best we can. We signal here our willingness to reconsider our thinking, particularly if and when we have
the benefit of briefing by counsel on both sides.
No. 18‐2429 Page 4
order foreclosing Illinois mortgage and ordering the United States Marshal to sell
property at auction; no final judgment until sale had been conducted and district court
had confirmed sale).
In December 2017, the district court entered a judgment foreclosing the mortgage
on Cornish’s home and ordering a special commissioner to conduct a public sale of
property. Cornish appealed again. Again we dismissed, holding under Townsend that
the order of foreclosure and judicial sale was still not a final appealable judgment. A
sale was conducted, and on June 29, 2018, the district court entered an order approving
the sale to Deutsche Bank itself. Under Townsend, that order was the appealable final
judgment in this case, and Cornish filed this appeal. Her appeal of that final judgment
allows her to raise any issues in the case, including the validity and amount of her debt,
her theories of defense based on the earlier state‐court litigation, the relative priorities of
the claims against her and the property, and the propriety of the sale.3
Cornish asked the district court to stay its judgment requiring her to give up
possession of the property pending her appeal. The district court denied the motion.
Cornish renewed her motion for stay in this court. She argued that she is likely to
succeed on appeal because the final judgment in the state court foreclosure action
deprived the district court of jurisdiction. She also argued she will suffer irreparable
harm without a stay because her family will be homeless.
II. Analysis
Stays pending appeal are governed by Federal Rule of Civil Procedure 62, which
works in coordination with Federal Rule of Appellate Procedure 8(a). Material
amendments to Rule 62, and conforming amendments to Rule 8(a), took effect on
3 By contrast, in jurisdictions where the judgment of foreclosure is immediately appealable as the final
judgment on the merits (D owes P the sum of X dollars, and the property is available to execute the
judgment), an appellate court hearing a later challenge to the order confirming the post‐judgment sale
should demand much more to justify a stay pending appeal of that order. In such processes, the post‐
judgment appeal is usually limited to the manner of execution; the merits of the underlying judgment are
deemed to have been finally resolved. See, e.g., Citibank, N.A. v. Data Lease Financial Corp., 645 F.2d 333,
337–38 (5th Cir. 1981) (failure to appeal foreclosure order bars ability to challenge merits of that order in
appeal of later order confirming sale); Central Trust Co. of New York v. Peoria, Decatur & Evansville Ry. Co.,
118 F. 30, 32 (7th Cir. 1902) (appeal from order confirming sale could not challenge merits of underlying
foreclosure); see also Leadville Coal Co. v. McCreery, 141 U.S. 475, 478–79 (1891) (“[W]e cannot fail to
observe that the main scope and purpose of this appeal seem to be to relitigate questions fully determined
by the final decree appealed from and affirmed.”); Whiting v. Bank of United States, 38 U.S. (13 Pet.) 6, 14–
15 (1839) (holding that decree ordering foreclosure and sale was “final decree,” that later sale and
confirmation were “a mere mode of enforcing the rights of the creditor,” and that appeal from later sale
and confirmation was too late to challenge underlying foreclosure).
No. 18‐2429 Page 5
December 1, 2018. The amendments have clarified the law for purposes of this case and
made its application simpler and more flexible. We explain our thinking first under the
2017 versions and then under the 2018 versions.
A. The 2017 Versions of Rules 62 and 8
The judgment foreclosing the mortgage, approving the sale, and ordering
Cornish to give up possession of the property has several injunctive elements. Rule 62(c)
(2017) provided that a district court “may suspend, modify, restore, or grant an
injunction on terms for bond or other terms that secure the opposing party’s rights.”
Rule 62(g) (2017) made clear that the rule did not limit the power of an appellate court
to suspend, modify, restore, or grant an injunction pending appeal or to preserve the
status quo pending appeal.
The injunctive aspects of a full, final foreclosure judgment under Townsend,
ordering immediate turnover of the property, can support an argument for applying the
general equitable balancing test used for stays of injunctions pending appeal as stated
in Hilton v. Braunskill, 481 U.S. 770 (1987). The issue in Hilton was the release, pending a
warden’s appeal, of a state prisoner who had won a writ of habeas corpus. The Supreme
Court drew on the general standards for stays of injunctions pending appeal: “(1)
whether the stay applicant has made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Id. at 776; see also Nken v. Holder, 556
U.S. 418, 425–26 (2009) (discussing Hilton standard as applied to immigration removal
order). Under that standard, a party seeking a stay and a court considering the issue
must dive quickly and deeply into the merits of the appeal.
If that standard applied to a mortgage foreclosure appeal, then appellant‐debtors
would face a burden that few other appellants face in appeals over secured loans. After
years of litigation and preliminaries, the appellant‐debtors in mortgage foreclosure
appeals would need to make critical choices, under great time pressure, about how to
argue the merits of their appeal. The appellate court would need to make comparable
efforts to learn the merits of the case to decide an emergency motion. We make such
efforts when we need to, of course, but it is not the most desirable or reliable procedure
for evaluating the merits of an appeal. And stakes can be high.
At the core of a foreclosure judgment is a judgment simply ordering the
borrower to repay a money debt. Stays pending appeal for money judgments were
governed by Rule 62(d) (2017), which provided for an automatic stay pending appeal if
the appellant posted sufficient security. “A judgment creditor holds a general,
unsecured debt.” Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d
No. 18‐2429 Page 6
794, 800 (7th Cir. 1986) (Easterbrook, J., concurring). A party taking an appeal from such
a money judgment was ordinarily entitled to a stay as a matter of right if she posted a
bond to protect the rights of the appellee. Fed. R. Civ. P. 62(d) (2017); American
Manufacturers Mutual Ins. Co. v. American Broadcasting‐Paramount Theatres, Inc., 87 S. Ct.
1, 3 (1966) (Harlan, J., in chambers, staying enforcement of state‐court judgment).
If the bond was posted, then, there was no need for the court to inquire, at the
very outset of the appeal, into its potential merits. Execution was stayed as a matter of
right, not judicial discretion. Id.; Hebert v. Exxon Corp., 953 F.2d 936, 938 (5th Cir. 1992)
(issuing writ of mandamus to district court to stay execution of declaratory judgment
having effect of money judgment after bond had been posted); Dillon v. City of Chicago,
866 F.2d 902, 904 (7th Cir. 1988) (“Rule 62(d) of the Federal Rules of Civil Procedure
allows an appellant to obtain an automatic stay of execution of judgment pending
appeal by posting a bond.”); Northern Indiana Public Service Co. v. Carbon County Coal Co.,
799 F.2d 265, 281 (7th Cir. 1986) (appellant from money judgment must post a bond if it
wants “automatic stay” under Rule 62(d) before 2018 amendment); Olympia Equipment
Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794, 796 (7th Cir. 1986) (posting bond
entitles appellant to stay under Rule 62(d) before amendment, but district court also
had discretion to stay execution under other conditions to secure interests of appellee);
Federal Prescription Service, Inc. v. American Pharmaceutical Ass’n, 636 F.2d 755, 759 (D.C.
Cir. 1980) (“Beyond question, Rule 62(d) [before amendment] entitles the appellant who
files a satisfactory supersedeas bond to a stay of money judgment as a matter of right.”);
see also 11 Wright & Miller, Federal Practice and Procedure § 2905 (2012). In such cases,
the stay of execution pending appeal simply did not depend on the district court’s or
the appellate court’s early evaluation of the appellant’s prospects of success in the
appeal.
In the case of a mortgage foreclosure, the execution to put money in the lender’s
pocket should actually be simpler than with a general money judgment. The difference
is that the lender already has its security interest in the mortgaged property. That
security interest should ordinarily suffice to protect the lender’s rights pending appeal
for purposes of Rule 62. That’s what the lender bargained for as its security, after all,
but on the conditions that the interest remains protected by, for example, payment of
insurance and property taxes, and that the property is being cared for. Under the pre‐
2018 version of Rule 62, we recognized, there might be unusual cases where district
courts or this court should exercise their discretion, as discussed in Olympia Equipment
Leasing, 786 F.2d at 796, to impose additional conditions on a stay pending appeal, but
this case did not appear unusual in this respect.
In HSBC Bank v. Townsend, we held that a judgment of foreclosure applying
Illinois law was not a final, appealable judgment. The foreclosure decision left three
No. 18‐2429 Page 7
factors unresolved there: (1) the owner retained statutory rights to redeem or reinstate
the mortgage before a sale; (2) if a sale occurred, it would still need to be confirmed by
the court; and (3) the amount of any deficiency judgment could not be determined until
the sale had been held and confirmed. The rule of HSBC Bank v. Townsend means an
appeal would have to await a district court order confirming the results of a judicially‐
ordered sale of the property. 793 F.3d at 777. In other words, a property owner facing
foreclosure and unhappy creditors cannot obtain appellate review of the merits of the
underlying judgment until the case has proceeded to a court‐ordered auction and the
court has approved the result of the auction. At that late stage, a buyer could be ready to
take possession of the property, though the interests of that buyer may be less pressing
where the buyer is the lender itself (as in this case) or someone acting in concert with
the lender.
Townsend has important practical consequences that show up in cases like this
one, both for the parties and for the courts. Because of Townsend, debtor‐appellant
Cornish could no longer appeal at all, on any issue—including the money judgment on
the underlying debt for which a stay pending appeal should have been automatic—
until after the district court approved the sale of her home. That last order introduced
the injunctive elements into the judgment: it directed the sheriff to evict Cornish,
perhaps as soon as thirty days after entry of the order. Further, the sale and delivery of
real property to a good‐faith purchaser can render moot at least the portion of the
judgment ordering and approving the sale. See Townsend, 793 F.3d at 780; FDIC v.
Meyer, 781 F.2d 1260, 1263 (7th Cir. 1986). Without a stay, which would have been
essentially automatic in an appeal of the underlying judgment on the debt before
Townsend, Cornish would likely have been evicted in a matter of days without any
meaningful opportunity to present her arguments to this court.
In Townsend itself, we acknowledged the obvious: a foreclosure and judicial sale
pose a great potential for irreparable harm to the appellant‐debtor. We concluded,
however, that adequate protections, including a stay of a later judgment confirming the
sale, would be available so that immediate review of the interlocutory order was not
necessary. 793 F.3d at 779–80. Our opinion in Townsend clearly implied that stays
pending appeals in foreclosure cases should be routine to prevent the irreparable harm
of losing one’s home. That’s why Townsend avoided the doctrine of Forgay v. Conrad, 47
U.S. (6 How.) 201 (1848), which could otherwise authorize an interlocutory appeal of an
order directing immediate delivery of physical property. 793 F.3d at 779–80 (“a
mortgagor‐owner who is residing in the property and taking care of it should not face the
kind of immediate irreparable harm required by Forgay until there is time to file an
appeal and to seek a stay of the final order confirming the judicial sale”) (emphasis
added). The Townsend dissent made that point explicit, saying that under the majority’s
No. 18‐2429 Page 8
approach, stays pending appeals in mortgage foreclosures should be granted
“routinely.” 793 F.3d at 783 (Hamilton, J., dissenting).
In weighing these competing arguments for the applicable standard on an
emergency basis in July 2018, a majority of this motions panel decided to issue the stay
in this case. We favored the view that stays should be the norm, at least unless the
lender‐appellee could show that preserving its interest in the underlying property
would not provide sufficient security pending appeal.
B. The 2018 Versions of Rules 62 and 8
The 2018 amendments to Civil Rule 62 and conforming amendments to
Appellate Rule 8 reinforce making a stay pending appeal the norm in mortgage
foreclosure cases. We focus primarily on the amendments to Rule 62, which were
substantive and also reorganized the rule. Here is the new text of Rule 62(a)–(d):
Rule 62. Stay of Proceedings to Enforce a Judgment
(a) AUTOMATIC STAY. Exceptions for Injunctions,
Receiverships, and Patent Accountings. Except as provided in
Rule 62(c) and (d), execution on a judgment and proceedings to
enforce it are stayed for 30 days after its entry, unless the court
orders otherwise.
(b) STAY BY BOND OR OTHER SECURITY. At any time after
judgment is entered, a party may obtain a stay by providing a
bond or other security. The stay takes effect when the court
approves the bond or other security and remains in effect for the
time specified in the bond or security.
(c) STAY INJUNCTION, RECEIVERSHIP, OR PATENT
OF AN
ACCOUNTING ORDER. Unless the court orders otherwise, the
following are not stayed after being entered, even if an appeal is
taken:
(1) an interlocutory or final judgment in an action for an
injunction or receivership; or
(2) a judgment or order that directs an accounting in an action
for patent infringement.
(d) INJUNCTION PENDING AN APPEAL. While an appeal is
pending from an interlocutory order or final judgment that
grants, continues, modifies, refuses, dissolves, or refuses to
dissolve or modify an injunction, the court may suspend, modify,
No. 18‐2429 Page 9
restore, or grant an injunction on terms for bond or other terms
that secure the opposing party’s rights. If the judgment appealed
from is rendered by a statutory three‐judge district court, the
order must be made either:
(1) by that court sitting in open session; or
(2) by the assent of all its judges, as evidenced by their
signatures.
The advisory committee notes provide a helpful explanation for the 2018
amendments. The amendments eliminate the somewhat dated reference in former Rule
62(d) to a “supersedeas bond.” The notes also “make clear that a party may obtain a
stay by posting a bond or other security.” Most important for our purposes: “The new
rule’s text makes explicit the opportunity to post security in a form other than a bond.”
Given that explicit flexibility, continuing an existing security interest in the property
that a lender required as a condition of the loan should provide adequate security in
most cases, at least so long as the property is cared for and protected by insurance and
payment of property taxes.
At the same time, the 2018 amendments also make clearer that courts have the
power to provide sufficient security for appellees, along the lines we recognized in
Olympia Leasing Equipment, if the usual forms of security are not sufficient or
appropriate for some reason. See 786 F.2d at 796. The 2018 advisory committee note
explains that the amended rule “expressly recognizes the court’s authority to dissolve
the automatic stay or supersede it by a court‐ordered stay,” including to address “a risk
that the judgment debtor’s assets will be dissipated.”
Under the new version of Rule 62, the newly expressed flexibility for the form of
security to protect the appellee gives more explicit support for treating the property in a
mortgage foreclosure appeal as sufficient security, at least as long as the property is
occupied and cared for. See also HSBC Bank v. Townsend, 793 F.3d at 780. And since the
amended rule no longer provides completely automatic stays, it allows the courts
flexibility to protect a lender‐appellee who needs protection from risks that would
dissipate the property or otherwise undermine the security it provides. Under the new
rules, courts should be able to balance fairly the appellant‐debtor’s appeal rights with
the lender‐appellee’s right to security pending appeal.
Conclusion
Under the 2018 amendments to Federal Rule of Civil Procedure 62 and Federal
Rule of Appellate Procedure 8, in appeals from mortgage foreclosure judgments
governed by our rule of finality in HSBC Bank USA v. Townsend, 793 F.3d 771, a majority
No. 18‐2429 Page 10
of this panel concludes that the norm should be a stay pending appeal, absent unusual
circumstances showing that the security interest in the underlying property does not
provide sufficient protection for the lender‐appellee.
For these reasons, we granted the stay pending appeal in this case.
No. 18‐2429 Page 11
St. Eve, Circuit Judge, dissenting. I agree with my colleagues that borrowers
appealing from a final foreclosure judgment can face real loss without a stay. But I
disagree about how to resolve Tracy Cornish’s motion. I respectfully dissent.
There are two relevant ways to obtain a stay pending appeal. The most common
is through an exercise of sound judicial discretion, for federal courts generally have the
inherent authority to issue a stay of orders or proceedings. See, e.g., Ryan v. Gonzales, 568
U.S. 57, 73–74 (2013); Nken v. Holder, 556 U.S. 418, 433–34 (2009); see also Fed. R. Civ. P.
62(g); Fed. R. App. P. 8(a). Rule 62(d) of the pre‐2018 amendments to the Federal Rules
of Civil Procedure, however, also allowed that an “appellant may obtain a stay by
supersedeas bond.” This rule, as the majority explains, generally applied to appeals of
money judgments. Of these two standards—one dependent on judicial discretion, the
other on an appellate bond—the former should have governed Cornish’s motion. That
motion asked for temporary relief from the court order approving sale (to “stay
possession” of the home), not relief from a money judgment (the post‐foreclosure
deficiency in this case lies in rem). Whatever interest a lender has in a foreclosed piece
of property, it seems a stretch to liken it to a bond.
The general standard for issuing a stay pending appeal is well established.
Courts must consider the likelihood of success, the irreparable harm, the potential
injury, and the public interest. Nken, 556 U.S. at 434; Hilton v. Braunskill, 481 U.S. 770,
776 (1987). The likelihood of success is critical. Nken, 446 U.S. at 434–35; Frank v. Walker,
769 F.3d 494, 495–96 (7th Cir. 2014) (per curiam). But Cornish’s motion showed no path
to victory, even construing it liberally. She cited the Rooker‐Feldman doctrine and res
judicata, yet there was no preclusive state‐court decision or judgment: the dismissal was
for want of prosecution, and Deutsche Bank refiled its claim in federal court within the
applicable statute of limitations. Because Cornish showed no likelihood of success, I
dissented from the majority’s order on July 16, 2018.
Since then, amendments to Rule 62 took effect on December 1, 2018. Former Rule
62(d) became Rule 62(b), and it now states that “a party may obtain a stay by providing
a bond or other security.” Fed. R. Civ. P. 62(b) (emphasis added); see also Fed. R. App. P.
8(a) (corresponding changes included). The Committee Notes to the 2018 amendments
explain that the “new rule’s text makes explicit the opportunity to post security in a
form other than a bond.” Fed. R. Civ. P. 62, Committee Notes on Rules—2018
Amendment.
The majority asks whether, under new Rule 62(b), a lender‐appellee’s post‐
foreclosure interest in a property is a sufficient “security” to generally warrant a stay,
and it answers in the affirmative. I do not know why we are asking the question at all.
The majority has, after all, already granted Cornish’s motion. Even if the amendments
No. 18‐2429 Page 12
have retroactive effect—a likely possibility, as the order issuing the amendments states
that they should govern pending proceedings “insofar as just and practicable”—I fail to
see how we can (or why we should) retroactively apply new rules to an already‐granted
and uncontested motion. See Diaz v. Shallbetter, 984 F.2d 850, 853 (7th Cir. 1993)
(“Amendments may or may not govern ‘further proceedings’ in pending cases,” but the
“just and practicable” standard and the Rules Enabling Act “say only that new acts in
cases already on the docket ordinarily should conform to the new rules”). The Supreme
Court has said that the retroactivity of amended rules “ordinarily depends on the
posture of the particular case.” Landgraf v. USI Film Prod., 511 U.S. 244, 275 n.29 (1994).
The posture of Cornish’s motion is that it has been decided, with only the promise of a
short order explaining the initial decision to follow. The stay is in place indefinitely. No
party has asked us to reconsider it.
I have another discomfort with the majority’s order. It proposes a new standard
for these often‐made motions, which, if ever made precedential by our court, would
bind parties’ rights to property and money on appeal. But it does so without the benefit
of any argument from the parties. Perhaps that would be palatable if the new Rule 62(b)
clearly dictated the majority’s result, but it does not. Rule 62(b), for example,
contemplates that the party seeking a stay will “provid[e]” a bond or other security.
Fed. R. Civ. P. 62(b). Cornish, on the other hand, simply lost the foreclosure suit below.
The purpose of Rule 62(b), moreover, is to protect the appellee’s rights during appeal.
As the majority recognizes, post‐foreclosure interest in a property may well not provide
that protection if taxes go unpaid, upkeep is not met, and the person living in the home
continues not to pay for it—all while the lender’s contractual right to take possession is
put on ice during appeal. Those are some reasons that Rule 62(b) may not be satisfied
by a final foreclosure order. There may well be others. The majority, again, strikes new
ground based on a new rule and an unopposed, pro se motion.
I disagreed with the majority’s interpretation under the former Rule 62. I see no
reason to pick a side on its interpretation under the new Rule 62. I therefore dissent.