54 F.3d 787
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Michael R. CUENCA, Plaintiff-Appellant,
v.
DEPARTMENT OF EDUCATION, Defendant-Appellee.
No. 94-2277.
United States Court of Appeals, Tenth Circuit.
May 15, 1995.
Before ANDERSON, BALDOCK and BRORBY, Circuit Judges.
ORDER AND JUDGMENT1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Michael R. Cuenca, a bankruptcy debtor and pro se litigant, initiated an adversary action in bankruptcy court to discharge his student loans. The bankruptcy court determined the student loans were not dischargeable. Mr. Cuenca appealed to the district court, which affirmed the bankruptcy court. Mr. Cuenca now appeals to this court.
Mr. Cuenca filed for bankruptcy in July 1991, and through this bankruptcy action, Mr. Cuenca was given a fresh start. However, the bankruptcy court did not discharge Mr. Cuenca's student loans. The bankruptcy court recognized Mr. Cuenca had budgetary constraints; however the bankruptcy court found Mr. Cuenca lacked the financial hardship necessary to discharge his student loans. See 11 U.S.C. 523(a)(8)(B). Mr. Cuenca argues this was an error.
Mr. Cuenca now comes to the court of appeals asking to proceed in forma pauperis. The district court denied his motion to proceed on appeal in forma pauperis because Mr. Cuenca failed to demonstrate his inability to pay fees and costs. To succeed on a motion to proceed in forma pauperis, the appellant must first demonstrate an inability to pay the required filing fees. 28 U.S.C.1915(a); DeBardeleben v. Quinlan, 937 F.2d 502, 502, 505 (10th Cir.1991). This economic criterion is a threshold consideration before considering the existence of a reasoned, non-frivolous argument on the law and facts in support of the issue raised on appeal. See LaFevers v. Saffle, 936 F.2d 1117, 1120 (10th Cir.1991).
Mr. Cuenca currently earns an annual salary between $30,000 and $37,000 with which he supports himself, a spouse, and a child. He rents his home and owes payments on a new vehicle. From this information and the rest of Mr. Cuenca's financial affidavit, it is clear he has the financial ability to pay the required filing fees. Therefore, we deny his motion to proceed in forma pauperis.
Motion DENIED.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
