The F/V Pacific Star and the F/V Topaz have filed a motion for stay pending appeal of certain aspects of the February 14, 1992 order for sale of debtor's fish processing plant to ISA for $875,000. The appeal does not contest the sale itself, but only the proposed distribution of a $70,000 brokerage fee to Toby Cook, an associate broker employed at Associated Brokers in Kodiak, and of approximately $14,000 to the Kodiak Island Borough for property taxes.

     Stays pending appeal are governed by BR 7062, incorporating FRCivP 62, and BR 8005. See In re Swift Aire Lines, Inc., 21 BR 12 (9th Cir BAP 1982).

     A hearing on the motion for a stay was held on March 5, 1992. I relied on In re Wymer, 5 BR 802 (9th Cir BAP 1980) to determine if a stay should be granted and on what terms. Wymer describes three     2 ABR 351  types of stays: (a) supersedeas stays as a matter of right; (b) discretionary stays; and, (c) modified supersedeas stays.

     I determined the F/V appellants were not entitled to a stay as a matter of right under FRCivP 62(d). The common situation calling for stay as a matter of right involves a judgment against an appellant. Id at 805-06. But see J. Perez & Cia. Inc. v United State, 578 FSupp 1318, 1320 (DPR 1984) indicating such a stay may also apply to stay non-money judgments upon appeal.

     The F/V appellants agreed that the granting of a stay in this matter is discretionary. The standards for determining whether to grant a discretionary stay are:

1. Appellant is likely to succeed on the merits of the appeal.

2. Appellant will suffer irreparable injury.

3. No substantial harm will come to appellee.

4. The stay will do no harm to the public interest.

In re Wymer at 806.

     The F/V appellants seek a stay to delay the payment of a $70,000 commission to Toby Cook on the grounds that the fee is excessive, not justified under § 506(c) of the Bankruptcy Code, and other reasons. I denied the stay as to payment Toby Cook's fee because the F/V appellants did not have a sufficient likelihood of success, and only had a speculative showing of irreparable harm.

     They also seek to stay the payment of about $14,000 for post-petition taxes to the Kodiak Island Borough on the grounds that the Borough was not entitled to a post-petition tax lien because the automatic stay prevented the attachment of such liens. I denied a     2 ABR 352  stay as to the Borough also because, if the F/V appellants are successful, the Borough will be able to repay the money.

     The F/V appellants have a fair argument against the Borough. The trustee did not seek to advance the argument against the Borough himself because the potential benefit might not outweigh the burden of the litigation costs. A recent bankruptcy court case, In re United Construction and Development Company, _____ BR ______, 22 Bankr Ct Dec 771, 1992 WL 9681 (Bankr D Utah 1992) collects most of the recent cases on the issue of whether a lien for post-petition municipal property taxes attaches without lifting the automatic stay. The majority of cases hold that a post-petition tax lien is automatically stayed. The issue has not yet been decided in the 9th Circuit or by this court.

     Therefore, IT IS ORDERED that the motion for stay pending appeal filed by the F/V Pacific Star and the F/V Topaz is DENIED.