Opinion
Case No. 13-59407
12-09-2013
In re: TANESIA LASHELLE COPELAND, pro se, Debtor.
Chapter 7
Judge Thomas J. Tucker
OPINION AND ORDER DENYING DEBTOR'S APPLICATIONS TO PROCEED
IN FORMA PAUPERIS (DOCKET ## 30, 31)
This case is before the Court on two applications by Debtor Tanesia Lashelle Copeland to proceed in forma pauperis under 28 U.S.C. § 1915(a) (collectively, the "Applications"), on her appeal to the district court of this Court's order entitled "Order Dismissing Case, and Barring Debtor from Filing Another Bankruptcy Case Unless and until Debtor Pays in Full the Filing Fees Owing for this Case and for Debtor's Prior Case" (Docket # 24, the "Dismissal/Bar Order").
Debtor's "Application to Proceed In Forma Pauperis" (Docket # 30); and Debtor's "Application to Proceed in District Court Without Prepaying Fees or Costs" (Docket # 31).
Docket # 28 (Notice of Appeal).
For purposes of this Order, the Court will assume that a bankruptcy court has authority under 28 U.S.C. § 1915(a)(1) to grant this type of application to proceed in forma pauperis. Even with that assumption, the Court must deny the Applications, because the Court finds and concludes that the Debtor's appeal is not taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
In Michigan First Credit Union v. Smith (In re Smith), 499 B.R. 555, 556 n.5 (Bankr. E.D. Mich. 2013), this Court stated:
There is a split of authority on whether 28 U.S.C. § 1915(a) applies to bankruptcy courts. Compare United States v. Kras, 409 U.S. 434, 440 (1973) (Bankruptcy Act) (stating that "§ 1915(a) is not now available in bankruptcy"); and Perroton v. Gray (In re Perroton), 958 F.2d 889, 893-896 (9th Cir. 1992) (holding that bankruptcy courts do not have authority to act under 28 U.S.C. § 1915(a), because a bankruptcy court is not a "court of the United States" within the meaning of this statute), with In re Meuli, 162 B.R. 327, 328 (Bankr. D. Kan. 1993) ("The United States District Court for the District of Kansas in In re Laurence Lee Keiswetter, Case No. 86-4385-R (D. Kan. Oct. 30, 1987), has held that 28 U.S.C. § 1915 on in forma pauperis proceedings applies to the filing of a bankruptcy appeal."); Nieves v. Melendez (In re Melendez), 153 B.R. 386, 388 (Bankr. D. Conn. 1993) (refusing to interpret 28 U.S.C. § 1915(a) "as prohibiting bankruptcy judges from deciding in forma pauperis motions"); and Shumate v. Signet Bank, NCNB (In re Shumate), 91 B.R. 23, 26 (Bankr. W.D. Va. 1988) (holding that bankruptcy courts have authority to act under 28 U.S.C. § 1915(a), because a bankruptcy court is a "court of the United States" within the meaning of this statute).
In Michigan First Credit Union v. Smith (In re Smith), 499 B.R. 555, 556 (Bankr. E.D. Mich. 2013), this Court explained:
Section 28 U.S.C. § 1915(a)(3) provides: "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." "The good faith standard [under 28 U.S.C. § 1915(a)(3) ] is an objective one." Randolph v. Unnico Integrated Facilities Servs. Cargill, No. 10-2919-STA, 2012 WL 1022264, at *3 (W.D.Tenn.2012) (citing Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)); see also Falkner v. United States Government, No. 13-2299-JDT-cgc, 2013 WL 2422633, at *1 (W.D.Tenn. June 3, 2013) (discussing the good faith standard under Fed. R.App. P. 24(a)(3), which provides that a party may not proceed on appeal in forma pauperis if "the district court—before or after the notice of appeal is filed—certifies that the appeal is not taken in good faith") (citation omitted). The "good faith" standard has been described variously as meaning that the appeal is not frivolous; or that it presents a substantial question. See Falkner, 2013 WL 2422633, at *1 ("The test for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous.") (citation omitted); Knittel v. I.R.S., 795 F.Supp.2d 713, 721 (W.D.Tenn.2010) (same); Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir.1999) ("After [the affidavit with the] required information has been filed, the district court must ascertain both the individual's pauper status and the merits of the appeal."); United States v. Merritt (In re Merritt), 186 B.R.Id. (bold added); see also Smith v. Michigan First Credit Union, Case No. 13-13030 (E.D. Mich. August 13, 2013) (Edmunds, J.)(Docket # 6)(in this context, "good faith means 'not frivolous'").
924, 930 (Bankr.S.D.Ill.1995) ("The 'good faith' requirement is an objective one based on the legal merit of the issues sought to be appealed.") (citations omitted); In re Meuli, 162 B.R. 327, 329 (Bankr.D.Kan.1993) (" '[B]efore permitting an appeal to be brought in forma pauperis, the court shall require a certification by the bankruptcy judge that the appeal is not frivolous and does present a substantial question.' ") (citation omitted).
The Dismissal/Bar Order in this case was not entered in error, and was within the Court's discretion under 11 U.S.C. §§ 707(a)(1), 707(a)(2), and 105(a), the statutes cited in the order at Docket # 16 ("Order Requiring Debtor to Pay Filing Fee for Case No. 13-49919"). This is so because of the facts and circumstances discussed at length in the orders entered in this case at Docket ## 15 ("Order Denying Debtor's Application for Waiver of the Chapter 7 Filing Fee") and 16. (Copies of these orders are attached, for reference.) And the bar to refiling is appropriate under § 105(a), as "necessary or appropriate to carry out the provisions of this title" and "to enforce or implement court orders or rules, or to prevent an abuse of process."
Sections 707(a)(1) and (a)(2) provide:
(a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including--11 U.S.C. §§ 707(a)(1), 707(a)(2).
(1) unreasonable delay by the debtor that is prejudicial to creditors;
(2) nonpayment of any fees or charges required under chapter 123 of title 28[.]
Section 105(a) provides:
(a) The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.11 U.S.C. § 105(a).
For these reasons, the Court concludes that Debtor's appeal is frivolous, and does not present a substantial question. Therefore, the appeal does not meet the good faith standard of 28 U.S.C. § 1915(a)(3).
Accordingly,
IT IS ORDERED that: 1. The Applications (Docket ## 31, 31) are denied. 2. The Court certifies to the district court that under 28 U.S.C. § 1915(a), Debtor's appeal of the Dismissal/Bar Order is not taken in good faith.
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Thomas J. Tucker
United States Bankruptcy Judge
In re: TANESIA LASHELLE COPELAND, pro se, Debtor.
Case No. 13-59407
Chapter 7
Judge Thomas J. Tucker
ORDER DENYING DEBTOR'S APPLICATION FOR WAIVER
OF THE CHAPTER 7 FILING FEE
This case is before the Court on the Debtor's "Application For Waiver of the Chapter 7 Filing Fee for Individuals Who Cannot Pay the Filing Fee In Full Or In Installments," filed October 22, 2013 (Docket # 10). The Court will not grant this Application, because Debtor's Schedules B and C show that on the petition date in this case (October 22, 2013), Debtor had sufficient exempt assets from which to pay the filing fee, namely, a tax refund owing to the Debtor in the amount of $7,400.00.
See Schedule B (Docket # 1), filed in this case on October 22, 2013, at item no. 18, which required Debtor to list "Other liquidated debts owing debtor including tax refunds. Give particulars." In response to this, the Debtor stated "TAX REFUND 7400." And the Debtor declared under penalty of perjury that she had read her schedules and that her schedules, including Schedule B, "are true and correct to the best of my knowledge, information, and belief." (Docket # 1, at pdf p. 24).
The Court has reviewed the letter from the Debtor dated October 21, 2013, addressed "To Whomever This May Concern," which the Debtor filed in this case on October 22, 2013, and its one-page attachment (Docket # 11). The attachment is a copy of a letter from the Debtor dated August 12, 2013, which the Debtor previously filed in her prior case, Case No. 13-49919, on August 12, 2013 (at Docket # 20 in that case). In Debtor's prior case, the Court treated the August 12, 2013 letter as a second motion by Debtor of reconsideration of the Court's June 28, 2013 Order denying Debtor's application to waive the filing fee in the prior case (Docket # 16 in Case No. 13-49919). In denying the Debtor's second motion for reconsideration in the prior case, in its Order filed on August 27, 2013 (Docket # 23 in Case No. 13-49919), this Court stated, among other things, the following:
Second, Debtor alleges in her latest Motion, for the first time, that she received her 2012 tax refund of $7,497.00 in February 2013 and that she spent that refund before she filed bankruptcy. These recent, unsworn statements are inconsistent with Debtor's statement, made under penalty of perjury, in item # 18 of her Schedule B that Debtor filed on May 15, 2013 (Docket # 1), that as of the May 15, 2013 petition date, the Debtor was still owed a tax refund of $7,400.00. Debtor has never amended her Schedule B. The Court concludes, as it did when it initially denied Debtor's application to waive the filing fee in the Court's June 28 Order,
that Debtor could have and should have used some of her exempt $7,400.00 tax refund to pay the $306.00 filing fee for this case.
The Court ultimately dismissed Debtor's prior case, in an Order filed on August 28, 2013 (Docket # 24 in Case No. 13-49919), after Debtor failed to pay the filing fee for that case by the extended deadline set by the Court (August 12, 2013) and the Debtor failed to appear at a show-cause hearing held on August 28, 2013, despite being ordered to appear by the Court's show-cause order filed August 14, 2013 (Docket # 21 in case No. 13-49919).
One of the requirements that must be met before the Court may waive the filing fee in a Chapter 7 case is that the Court must find that the Debtor "is unable to pay [the filing fee] in installments." 28 U.S.C. § 1930(f). If the Court is unable to make such a finding, the Court has no discretion or authority to waive the filing fee under this statute. For the reasons stated in the first paragraph of this Order and in footnote 1 of this Order, above, and based on the Debtor's Schedule B filed on October 22, 2013 in this case, which Debtor verified under penalty of perjury, the Court cannot and will not find that the Debtor is unable to pay the filing fee for this case in installments. As a result, the Court cannot waive the filing fee for this case.
The Court rejects, as simply untrue, the Debtor's insinuations in her October 21, 2013 letter (Docket # 11), that the Court denied Debtor's application to waive the filing fee in the prior case for improper reasons (racism; sexism; and/or in order to give "special treatment for a friend [the Chapter 7 Trustee]." The Court does not give special treatment to Chapter 7 Trustees, or to any other party. And the Court routinely grants applications to waive the filing fee in Chapter 7 cases, whenever the Court finds that the requirements for waiver contained in 28 U.S.C. § 1930(f)(1) are met. The Court has granted many hundreds (in the thousands) of such applications since § 1930 was amended in 2005 to add § 1930(f). (Before such amendment of the statute in 2005, the law did not permit a waiver of the Chapter 7 filing fee under any circumstances). More specifically, for example, statistics from the Clerk's office show that the Court has granted 833 such applications during the period 2011 through October 25, 2013. But the Court does deny such filing-fee waiver applications when it finds that the statutory requirements are not met.
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Accordingly,
IT IS ORDERED that Debtor's "Application For Waiver of the Chapter 7 Filing Fee for Individuals Who Cannot Pay the Filing Fee In Full Or In Installments" (Docket # 10) is DENIED.
IT IS FURTHER ORDERED that the filing fee must be paid in installments by the following dates:
1st installment of $102 due: November 13, 2013
2nd installment of $102 due: December 13, 2013
3rd installment of $102 due: January 13, 2014
IT IS FURTHER ORDERED that if the Debtor does not pay the filing fee for this case in full by the January 13, 2014 deadline stated above, the Court will dismiss this case without further notice or hearing, under 11 U.S.C. §§ 707(a)(1), 707(a)(2), and 105(a).
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Thomas J. Tucker
United States Bankruptcy Judge
In re: TANESIA LASHELLE COPELAND, pro se, Debtor.
Case No. 13-59407
Chapter 7
Judge Thomas J. Tucker
ORDER REQUIRING DEBTOR TO PAY FILING FEE FOR CASE NO. 13-49919
On October 22, 2013, the Debtor filed this Chapter 7 case. Debtor previously filed a Chapter 7 case on May 15, 2013, Case No. 13-49919. In that case, the Court entered an order denying Debtor's Application to Waive the Filing Fee, on June 28, 2013, for the reason stated in the Court's order filed that day (Docket # 16). That Order required the Debtor to pay the $306.00 filing fee in full no later than August 12, 2013.
On July 8, 2013, Debtor filed a motion for reconsideration, which the Court denied by an order filed on July 9, 2013 (Docket # 19). On August 12, 2013, Debtor filed a second motion for reconsideration, which the Court denied in an order filed on August 27, 2013, for the reasons stated in that Order (Docket # 23).
On August 14, 2013, in Debtor's prior case, the Court issued an order entitled "Order to Show Cause on Dismissal of Case for Failure to Pay the Filing Fee" (Docket # 21), which scheduled a show-cause hearing for August 28, 2013 at 9:00 a.m., and which ordered the Debtor to appear at that hearing. The Court held the show cause hearing on August 29, 2013, but the Debtor failed to appear at the hearing, and failed to pay the filing fee prior to the hearing, so the case was dismissed, by the Court's Order filed on August 28, 2013 (Docket # 24).
To date, the filing fee has not been paid, so the Debtor still owes the $306.00 filing fee for Case No. 13-49919. Because the Debtor still owes this overdue filing fee,
IT IS ORDERED that the Debtor, Tanesia Copeland, must pay to the Clerk of this Court the $306.00 filing fee owing for Case No. 13-49919 in full on or before November 15, 2013, or the current case (Case No. 13-59407) will be dismissed, without further notice or hearing, under 11 U.S.C. §§ 707(a)(1), 707(a)(2), and 105(a).
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Thomas J. Tucker
United States Bankruptcy Judge