Filed: Oct. 29, 2015
Latest Update: Oct. 29, 2015
Summary: NOT FOR PUBLICATION MEMORANDUM DECISION AND ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS S. MARTIN TEEL, Jr. , Bankruptcy Judge . The debtor, Stephen Thomas Yelverton, filed a Notice of Appeal, taking an appeal from this court's: (1) Memorandum Decision and Order Denying Debtor's Motion for Reconsideration Per FRBP Rule 9014(c) and FRCP Rule 54(b) for Avoidance of Judicial Lien Pursuant to 11 U.S.C. 522 (f)(1)(A) and (i), entered September 22, 2015 (Dkt. No. 921); (2)
Summary: NOT FOR PUBLICATION MEMORANDUM DECISION AND ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS S. MARTIN TEEL, Jr. , Bankruptcy Judge . The debtor, Stephen Thomas Yelverton, filed a Notice of Appeal, taking an appeal from this court's: (1) Memorandum Decision and Order Denying Debtor's Motion for Reconsideration Per FRBP Rule 9014(c) and FRCP Rule 54(b) for Avoidance of Judicial Lien Pursuant to 11 U.S.C. 522 (f)(1)(A) and (i), entered September 22, 2015 (Dkt. No. 921); (2) ..
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NOT FOR PUBLICATION
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
S. MARTIN TEEL, Jr., Bankruptcy Judge.
The debtor, Stephen Thomas Yelverton, filed a Notice of Appeal, taking an appeal from this court's:
(1) Memorandum Decision and Order Denying Debtor's Motion for Reconsideration Per FRBP Rule 9014(c) and FRCP Rule 54(b) for Avoidance of Judicial Lien Pursuant to 11 U.S.C. 522 (f)(1)(A) and (i), entered September 22, 2015 (Dkt. No. 921);
(2) Order Re Debtor's Motion for Avoidance of Judicial Lien pursuant to 11 U.S.C. 522(f)(1)(A) and (i)(1), entered September 11, 2015 (Dkt. No. 909); and
(3) Memorandum Decision re Debtor's Motion for Avoidance of Judicial Lien Pursuant to 11 U.S. 522(f)(1)(A) and (i)(1) entered September 11, 2015 (Dkt. No. 908).
He has filed a Motion for Leave to Proceed In Forma Pauperis with respect to that appeal.
I
Appeals from the bankruptcy court to the district court "shall be taken in the same manner as appeals in civil proceedings generally are taken to the court of appeals from the district courts. . . ." 28 U.S.C. § 158(c)(2). To the extent that an appellant from a bankruptcy court decree seeks an order pursuant to 28 U.S.C. § 1915 to permit the appeal without prepayment of the filing fee, it is appropriate to follow the procedures that apply when an appellant from a district court decree seeks a § 1915 order authorizing pursuit of the appeal without prepayment of the filing fee.1 Specifically, such an appellant should file in the bankruptcy court a motion that comports with the motion that the appellant would be required to file under Fed. R. App. P. 24 if the appeal were an appeal from the district court to the court of appeals.
Such a motion, comparable to a Fed. R. App. P. 24 motion, cannot succeed unless it states issues the appellant intends to pursue on appeal that have at least an arguable basis in law and fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Cortorreal v. United States, 486 F.3d 742, (2d Cir. 2007); Sills v. Bureau of Prisons, 761 F.2d 792, 794 (D.C. Cir. 1985).2
II
The appeal here is frivolous. Yelverton sought to obtain relief from the Bankruptcy Court in a procedurally improper fashion. Even if Yelverton had pursued the relief via an adversary proceeding and made proper service, there was no arguable basis in law and fact for obtaining the relief he sought (avoidance of a lien on property he had claimed exempt). The property at issue is not property of the estate and thus the claim of exemption was a nullity, no more effective than would have been a claim of exemption of the Washington Monument. Unless property is property of the estate, the property is not subject to being exempted from the estate. End of story.
In any event, Judge Cooper of the District Court has held that leave must be obtained from the District Court before Yelverton is allowed to pursue an appeal from this court resulting in the opening of the appeal as a civil action in the District Court, and he has already indicated he will deny leave to pursue the appeal.
III
In light of the foregoing, it is
ORDERED that Yelverton's Motion for Leave to Proceed In Forma Pauperis (Dkt. No. 933) is DENIED.
