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In re Duroser

United States District Court, N.D. Georgia, Atlanta Division

July 2, 2015

IN RE: BARBARA DUROSER, a/k/a BARBARA DUROSIER

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Barbara Duroser's ("Appellant" or "Debtor") Appeal [1.3] and Amended Appeal [2.3] from the April 28, and May 19, 2015, Orders of the United States Bankruptcy Court for the Northern District of Georgia. In its April 28th Order [Bankr. 9], [1] the Bankruptcy Court denied Debtor's Application for Waiver of the Chapter 7 Filing Fee and directed her to pay the filing fee, in full, within ten (10) days. In its May 19th Order [Bankr. 12], the Bankruptcy Court dismissed Debtor's bankruptcy petition for failure to pay the filing fee.

Also before the Court is Debtor's "Affidavit of Indigence Pursuant to 28 U.S.C. § 1915, " which the Court construes as an Application to Appeal in forma pauperis ("IFP Application") [2.5].

I. BACKGROUND

Debtor has a lengthy litigation history in this Court and the Bankruptcy Court. In addition to her current appeal in this bankruptcy action, Debtor, pro se and seeking to proceed in forma pauperis ("IFP"), has initiated no fewer than nine (9) cases in this Court, all of which have been dismissed as frivolous or for failure to comply with a court order.[2] Debtor has also filed at least five (5) previous petitions for relief under the United States Bankruptcy Code:

On November 23, 2009, Debtor filed a Chapter 13 bankruptcy petition and the Bankruptcy Court permitted Debtor to pay the filing fee in installments. On January 14, 2010, Debtor's petition was dismissed for failure to timely pay the second installment payment. In re Durosier, No. 09-90959 (Bankr. N.D.Ga.).

On October 28, 2010, Debtor filed a Chapter 7 bankruptcy petition. On November 3, 2010, before her motion to waive the filing fee was decided, Debtor voluntarily dismissed her case. In re Durosier, No. 10-92028 (Bankr. N.D.Ga.).[3]

On April 14, 2011, Debtor filed a Chapter 13 bankruptcy petition. On April 18, 2011, the Bankruptcy Court denied Debtor's application to pay the filing fee in installments, based on Debtor's failure to pay the filing fees in her prior cases. On April 26, 2011, Debtor's case was converted to Chapter 7 and on June 1, 2011, the Court granted Debtor's application to waive the filing fee. On June 24, 2011, Debtor's case was dismissed for twice failing to appear for the meeting of creditors. In re Durosier, No. 11-61625 (Bankr. N.D.Ga.).

On October 3, 2013, Debtor filed a Chapter 13 bankruptcy petition. On October 7, 2013, the Bankruptcy Court denied her application to pay the filing fee in installments, again based on Debtor's failure to pay the filing fees in her prior cases. On October 15, 2013, Debtor paid the filing fee in full. On October 25, 2013, she voluntarily dismissed her case. In re Durosier, No. 13-71795 (Bankr. N.D.Ga.).

On January 21, 2015, Debtor filed a Chapter 7 petition. On January 26, 2015, the Bankruptcy Court denied her application to waive the filing fee, finding that Debtor did not qualify for waiver of the filing fee and that she owes outstanding filing fees from her several previous cases, and ordered Debtor to pay the filing fee within ten (10) days. Debtor did not pay the filing fee and, instead, filed two (2) motions for reconsideration. On February 16, 2015, the Bankruptcy Court, having found that Debtor still owes outstanding filing fees from at least two earlier cases, Nos. 09-90959 and 10-92028, denied Debtor's motions for reconsideration. In re Duroser, No. 15-51210 (Bankr. N.D.Ga.). On April 15, 2015, the Bankruptcy Court sent Debtor a letter, which states:

A review of the Court's financial records disclosed that there is an outstanding filing fee of $335.00 for the bankruptcy case filed by you on January 21, 2015. Upon the filing of a bankruptcy case, the debtor is responsible for the entire filing fee, regardless of the disposition of the case. Pursuant to Federal Rules of Bankruptcy Procedure, Rule 1006, the outstanding balance on the filing fee remains payable to the Clerk of Court.

Id. at Doc. 26.

On April 22, 2015, Debtor filed her Chapter 7 bankruptcy petition in this action. On April 28, 2015, the Bankruptcy Court entered its order denying Debtor's Application for Waiver of the Chapter 7 Filing Fee. The Bankruptcy Court found that "Debtor does not qualify for a waiver of the filing fee" because "Debtor previously filed case nos. 15-51210-CRM, 10-92028-MHM, and 09-90959-MHM, " and "Debtor owes outstanding filing fees from those cases." (April 28th Order [Bankr. 9] at 1). The Bankruptcy Court ordered Debtor to pay the Chapter 7 filing fee in full within ten (10) days, and advised that "[i]f Debtor fails to timely pay the filing fee... this case may be dismissed without opportunity for hearing." (Id. at 2).

Debtor failed to pay the filing fee or otherwise respond to the Bankruptcy Court's April 28th Order, and on May 19, 2015, the Bankruptcy Court dismissed Debtor's bankruptcy petition for failure to pay the filing fee. (May 19th Order [Bankr. 12]).

On May 19, 2015, Debtor filed her Notice of Appeal, in which she states that she is appealing "the judgment denying fee waiver request on April 28, 2014 [sic]." (Notice of Appeal [1]).

On June 1, 2015, Debtor her IFP Application and her "Amended Notice of Appeal, " in which she states that she is appealing "the judgment denying fee waiver request on April 28, 2014 [sic] and case dismissal due to nonpayment of chapter 7 fee on May, 19 2015 [sic]." (Am. Notice of Appeal [2.3]).

II. DISCUSSION

A. IFP Application

The Court "may authorize the commencement... of any suit, action, or proceeding... or appeal therein, without payment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner[4] possesses that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The purpose is to provide indigent litigants with equal access to the judicial system. Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997). A party seeking to proceed in forma pauperis must therefore show an inability to prepay fees and costs without foregoing the basic necessities of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342-43 (1948).

Having reviewed Debtor's IFP Application, the Court finds that Debtor meets the financial requirements for IFP status.

B. Frivolity Review

1. Legal Standard

A court must dismiss an action filed in forma pauperis if at any time the court determines that the action or appeal is frivolous or malicious or that it fails to state an claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). An issue is frivolous when it appears that the legal theories are "indisputably meritless." See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous if it is "without arguable merit either in law or fact." Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). "Arguable means capable of being convincingly argued." Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991). Where a claim is arguable, but ultimately will be unsuccessful, it should be allowed to proceed. See Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 515 (11th Cir. 1991).

2. Analysis

To the extent Debtor seeks to appeal the Bankruptcy Court's April 28th Order, Debtor's appeal is untimely and the Court lacks jurisdiction to consider it. For an appeal in a bankruptcy action to be perfected, a "notice of appeal shall be filed with the clerk within 14 days of the date of the entry of the judgment, order, or decree appealed from." Fed.R.Bankr.P. 8002(a); see also 28 U.S.C. § 158(c)(2) (appeal from bankruptcy court order must be filed "in the time provided by Rule 8002 of the Bankruptcy Rules"). When an appeal "has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction." Bowles v. Russell, 551 U.S. 205, 210 (2007) (quoting United States v. Curry, 47 U.S. 106, 113 (1848)). The filing of an appeal within the prescribed time is "mandatory and jurisdictional." Bowles, 551 U.S. at 209 (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61 (1982) (per curiam)); Williams v. EMC Mortg. Corp. (In re Williams), 216 F.3d 1295, 1298 (11th Cir. 2000) ("If the notice [of appeal] is not timely filed, the appellate court is without jurisdiction to hear the appeal.").

Here, the fourteen day period within which to appeal the Bankruptcy Court's April 28th Order expired, at the latest, on May 12, 2015. See Fed.R.Bankr.P. 8002(a); Fed.R.Bankr.P. 9006(a) (when period is stated in days, count every day, including intermediate Saturdays, Sundays, and legal holidays); Fed.R.Bankr.P. 9022 ("Lack of notice of the entry [of an order] does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 8002."); In re B.J. McAdams, Inc., 999 F.2d 1221, 1225 (8th Cir. 1993) ("[T]he time to file the motions or notice of appeal runs from the entry of judgment, not from service of notice of the judgment."); In re Reynolds, 215 B.R. 89, 91 (Bankr. N.D.Ga. 1997) (it is well-established that Rule 9006(f) does not add three days to the period to file a notice of appeal under Rule 8002(a), despite the fact that notice of the judgment was mailed) (citing In re Schimmels, 85 F.3d 416, 419-20 & n.4 (9th Cir. 1996)). Because Debtor filed her Notice of Appeal on May 19, 2015, twenty-one (21) days after entry of the order from which she appeals, the Court lacks jurisdiction to consider the appeal. See Bowles, 551 U.S. at 210 ("[W]hen an appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.'"); Williams, 216 F.3d 1295, 1298. Debtor's untimely appeal from the Bankruptcy Court's April 28th Order is required to be dismissed.[5]

To the extent Debtor seeks to appeal the Bankruptcy Court's May 19th Order dismissing her case for failure to pay the filing fee as directed, Debtor's appeal is frivolous because it is undisputed that the Court ordered Debtor to pay the filing fee in full within ten (10) days, that the Court advised Debtor that the failure to pay the filing fee as directed would result in dismissal of her case without a hearing, and that Debtor failed to pay the filing fee as directed. Debtor does not explain why she believes the Bankruptcy Court improperly dismissed her case, and Debtor cannot challenge the Bankruptcy Court's April 28th Order directing her to pay the filing fee because, as discussed above, the Court lacks jurisdiction to consider her untimely appeal of that order. See 11 U.S.C. § 707(a) (court may dismiss a case after notice and a hearing and for cause, including nonpayment of fees); 11 U.S.C. § 105 (bankruptcy court may issue any order, process or judgment necessary or appropriate to prevent abuse of the bankruptcy system; court may take any action necessary or appropriate to enforce or implement court orders or to prevent an abuse of process). The Court cannot identify any legal issue of arguable merit raised by Debtor. Debtor's appeal, like her previous filings, constitutes an abuse of the bankruptcy system, and the court system as a whole. Debtor's appeal is frivolous and required to be dismissed.

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Debtor's Application to Appeal in forma pauperis [2.5] is GRANTED solely for the purpose of dismissal.

IT IS FURTHER ORDERED that this Appeal is DISMISSED AS FRIVOLOUS.

SO ORDERED.


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