Opinion
Case No.: 03-40283 (NLW).
January 18, 2008
Mac Truong Maryse MacTruong, New York, NY.
Letter Opinion
Enclosed is the Court's order denying your application to proceed in forma pauperis with respect to a recently filed appeal. (Dkt. # 300).
Your request to proceed in forma pauperis is denied because you have not demonstrated financial need or that your appeal has merit. As observed in In re Heghmann, 324 B.R. 415, 420 (1st Cir. B.A.P. 2005) ". . . a determination as to whether the Debtor's application to proceed in forma pauperis on appeal should be granted turns on two factors: 1) a showing by affidavit that he is unable to pay the filing fees, and 2) a showing that the proposed proceedings are not frivolous or malicious." (citations omitted). The Court denied your September 17, 2008 application to proceed in forma pauperis in part because the application did not demonstrate financial need. Because the current application reveals even more available cash ($1,000) than the last application ($500) there is even less basis for your application.
Equally importantly, there is no factual or legal basis for your appeal. Your Notice of Appeal was filed in response to my January 7, 2008 correspondence advising you that your "Cross-Motion For an Order Denying Former Trustee Steven P. Kartzman's Motion for Permanent Filing Injunction and Scheduling a Hearing to Remove Him for Good Cause Under 11 U.S.C. § 324(a), Due to an Actual Conflict of Interest, and/or In the Alternative, Ordering Him to File a Report of his Administration of the Estate, and Closing this Case," ("Cross-Motion") would only be considered by the Court as opposition to the Trustee's "Motion for an Order Imposing a Filing Injunction against Mac Truong, Maryse MacTruong, And Any Person or Entity Acting on Their Behalf" (Trustee's Motion"). This court's correspondence was issued in furtherance of its "Order Imposing Filing Injunction Against Mac Truong and Maryse MacTruong ("Filing Injunction") dated March 20, 2006 (copy attached). Under the terms of that order the Court performs a gatekeeping function with regard to the pleadings, motions and cross-motions that you file, permitting only those pleadings, motions or cross-motions that contain new claims, issues and/or facts to be scheduled for hearing. It is not necessary for the court to issue any order when it performs this review. The correspondence is prepared merely to indicate whether the Debtors' papers will be considered, and as a courtesy to you and the Trustee so that you know that the court has actually reviewed the submissions and determined whether they raise new facts or issues that warrant consideration.
While entry of the Debtors' pleadings, motions or cross-motions on the docket may appear to constitute "filed" documents, they should not be so construed. That is, the Debtors' submissions should not be considered as requiring a response or action unless the docket likewise contains court correspondence that permits the papers to be considered. Bankruptcy files are now electronic files and it is not possible to maintain the Debtors' submissions without placing them on the docket.
By Notice of Appeal dated May 25, 2006 you appealed the March 20, 2006 Filing Injunction and this court's denial of your motion to vacate the Filing Injunction. That appeal was dismissed by the Hon. Dickinson R. Debevoise on September 26, 2006. Thus, the Filing Injunction is a final order and cannot be collaterally attacked by an appeal from this Court's correspondence advising the parties whether the Debtors' submissions comply with the Filing Injunction. Finally, even if an appeal of this Court's correspondence could be considered appropriate, you were in fact granted permission to have your submissions considered. Accordingly, there is no basis for appeal.