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Shareef v. Secretary of Veterans Affairs

United States District Court, M.D. Georgia, Macon Division

December 17, 2019

KHALILAH A. SHAREEF, heir apparent for deceased WILLIAM LINDYREID, Plaintiff,
v.
SECRETARY OF VETERANS AFFAIRS, et al., Defendants.

          ORDER

          TILMAN E. SELF, III, JUDGE.

         Proceeding pro se, Plaintiff Khalilah A. Shareef filed this lawsuit alleging, inter alia, violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). See, e.g., [Doc. 4 at p. 2]. Before the Court is Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs [Doc. 2] in which she seeks leave to file the above-captioned lawsuit in forma pauperis. As discussed in greater detail below, the Court GRANTS her request to proceed in forma pauperis but DISMISSES her Amended Complaint [Doc. 4] without prejudice as frivolous because as a Chapter 7 debtor, she does not have standing to bring this lawsuit.

         Federal law allows the Court to waive payment of a filing fee if a plaintiff's application indicates an inability to pay. 28 U.S.C. § 1915. A plaintiff's application is sufficient to warrant a waiver of the filing fee if it "represents that the litigant, because of [her] poverty, is unable to pay for the court fees and costs, and to support and provide necessities for [herself] and [her] dependents." Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).

         Upon review of Plaintiff's Application, her form indicates that her monthly expenses consist of utility bills in the amount of $240, that she has no rent or mortgage obligation, and that she owns a home valued at $91, 800. [Doc. 2 at pp. 3-4]. However, the Court also notes that Plaintiff "filed bankruptcy [on November 4, 2019, ] because of hardship." [Id. at p. 5]. Although she fails to indicate "how" as instructed on the Court's form, Plaintiff represents that she expects a major change to her monthly income or expenses within the next 12 months. [Id.]. She also states that she does not expect to spend any money for expenses or attorney fees in conjunction with this lawsuit. [Id.]. Based on her Application, the Court finds that Plaintiff is nonetheless unable to pay the costs of commencing this action in her current financial state. Therefore, the Court GRANTS Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs [Doc. 2]

         If a district court allows a plaintiff to proceed in forma vaurperis, it is obligated to proceed with a screening of that plaintiff's complaint to ensure that it states a claim for which relief may be granted. Pursuant to 28 U.S.C. § 1915, "the court shall dismiss the case at any time if the court determines that" a plaintiff's allegation of poverty is untrue, the action is frivolous or malicious or fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

         Pertinent to this case, the Court verified that Plaintiff did, in fact, file a voluntary bankruptcy petition under Chapter 7 on November 4, 2019. In re Khalilah An-Nura Shareef, Ch. 7 No. 19-52084 (Bankr. M.D. Ga. Nov. 4, 2019), ECF No. 1. When a debtor files a Chapter 7 petition, her assets (subject to certain exemptions) are immediately transferred to a bankruptcy estate, and the Chapter 7 trustee is responsible for selling the property in the estate and distributing the proceeds to creditors. 11 U.S.C. §§ 541(a)(1), 704(a)(1), 726; see also Slater v. United States Steel Corp., 871 F.3d 1174, 1179-80 (11th Cir. 2017).

         Irrespective of the fact that Plaintiff does not state in her Amended Complaint when the named-Defendants violated the relevant portions of the FDCPA, whatever violations they committed, if any, ostensibly occurred prior to the filing of her Chapter 7 bankruptcy petition. Thus, any potential recovery from those claims would be deemed prepetition assets that would go to pay her creditors from the underlying Chapter 7 case. Cf. In re Lauer, No. 3:17-bk-1199-JAF, 2018 WL 7017734, at *2 (Bankr. M.D. Fla. Jan. 12, 2018) (finding that recovery on purely state common law tort claims would be a prepetition asset). And finally, because these claims are considered prepetition assets, Plaintiff forfeits whatever recovery she may receive from them to the bankruptcy estate, and only the Chapter 7 trustee has standing to pursue this civil legal claim unless the trustee abandons the asset and returns the claim to the possession and control of Plaintiff. Slater, 871 F.3d at 1179 (citing Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir. 2004)). Accordingly, Plaintiff has no standing to bring this suit, and the Court DISMISSES it as frivolous. Plaintiff's Motion for Preliminary Injunction [Doc. 1] and her Amended Motion for Preliminary Injunction [Doc. 4] are DENIED as moot.

         SO ...


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