Filed: Nov. 08, 2019
Latest Update: Nov. 08, 2019
Summary: MEMORANDUM DECISION AND ORDER DENYING MOTION TO WAIVE TRANSCRIPT FEE S. MARTIN TEEL, JR. , Bankruptcy Judge . The debtor has filed a notice of appeal regarding this court's order granting relief from the automatic stay. The debtor's Motion to Waive Transcript Fees (Dkt. No. 106) seeks pursuant to 28 U.S.C. 1930(f)(3) a waiver of the fee for a transcript of the hearing that led to that order. The Motion to Waive Transcript Fees will be denied because the appeal is frivolous (such that
Summary: MEMORANDUM DECISION AND ORDER DENYING MOTION TO WAIVE TRANSCRIPT FEE S. MARTIN TEEL, JR. , Bankruptcy Judge . The debtor has filed a notice of appeal regarding this court's order granting relief from the automatic stay. The debtor's Motion to Waive Transcript Fees (Dkt. No. 106) seeks pursuant to 28 U.S.C. 1930(f)(3) a waiver of the fee for a transcript of the hearing that led to that order. The Motion to Waive Transcript Fees will be denied because the appeal is frivolous (such that i..
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MEMORANDUM DECISION AND ORDER DENYING MOTION TO WAIVE TRANSCRIPT FEE
S. MARTIN TEEL, JR., Bankruptcy Judge.
The debtor has filed a notice of appeal regarding this court's order granting relief from the automatic stay. The debtor's Motion to Waive Transcript Fees (Dkt. No. 106) seeks pursuant to 28 U.S.C. § 1930(f)(3) a waiver of the fee for a transcript of the hearing that led to that order. The Motion to Waive Transcript Fees will be denied because the appeal is frivolous (such that it is not pursued in good faith) and because the evidence was largely documentary and the debtor has not pointed to any testimony that is pertinent to the appeal.
I
Section 1930(f)(3) provides: "This subsection does not restrict the district court or the bankruptcy court from waiving, in accordance with Judicial Conference policy, fees prescribed under this section for other debtors and creditors." The transcript fee is not prescribed under § 1930. Accordingly, § 1930(f)(3) (the provision the debtor invokes) is not a basis for waiving a transcript fee.
II
However, under 28 U.S.C. § 753:
Fees for transcripts furnished in other proceedings [meaning other than in criminal or habeas corpus proceedings] to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question).
The debtor has not paid the fee for filing the notice of appeal, and has not obtained leave to proceed in forma pauperis, and such leave (if it were sought) must be denied for reasons discussed below. It follows that the court cannot waive the fee for a transcript for the appeal.
III
The debtor is not entitled to leave to proceed in forma pauperis,1 whether under 28 U.S.C. § 1915(a)(1) or 28 U.S.C. § 1930(f)(3).
A.
In relevant part, 28 U.S.C. § 1915(a)(1) provides that "any court of the United States may authorize the . . . defense of any . . . proceeding . . . or appeal therein, without prepayment of fees" if the party is indigent.2 However, under 28 U.S.C. § 1915(a)(3), an appeal "may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." Pursuant to § 1915(a)(3), the court must deny any application to pursue an appeal in forma pauperis if the appellant identifies no issue the appellant would pursue on appeal that has an arguable basis in law and fact (the test for ascertaining whether the appeal is pursued in good faith). See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Cortorreal v. United States, 486 F.3d 742, 743 (2d Cir. 2007); Sills v. Bureau of Prisons, 761 F.2d 792, 794-95 (D.C. Cir. 1985). The debtor has failed under Fed. R. Bankr. P. 8009(a)(1) to file a statement of the issues to be presented on appeal. Similarly, the debtor's Motion to Waive Transcript Fees does not identify an issue she is pursuing on appeal that has an arguable basis in law and fact. In her Motion to Stay Pending Appeal she did identify issues she will be pursuing on appeal. However, for all the reasons stated in the Memorandum Decision and Order Denying Motion to Stay Pending Appeal signed today, none of those issues has an arguable basis in law and fact. The appeal is frivolous as it does not present a substantial question, and no transcript is needed to pursue those issues on appeal:
(1) The bankruptcy court correctly determined that Capital Ventures has a colorable claim that it is the entity entitled to pursue enforcement of the Note and Mortgage at issue, such that it has standing to seek relief from the automatic stay to pursue in a state court foreclosure proceeding a determination of its right to seek to enforce the Note and Mortgage: the debtor relied on documents received into evidence in contending that Capital Ventures lacks standing, and no transcript is needed to rely on those documents on appeal. The debtor's motion fails to explain how she can show that the bankruptcy court's findings of fact were clearly erroneous or that the bankruptcy court erred in its conclusions of law;
(2) The debtor points to no error in the bankruptcy court's determination that if Capital Ventures had standing to pursue relief from the automatic stay, such relief was appropriate under 11 U.S.C. §§ 362(d)(1) and 362(d)(2). For example, the debtor does not dispute that there is no equity in the subject property and that her plan does not attempt to deal with the secured claim at issue, both matters that are supported by documentary evidence for which no transcript is required.
(3) The debtor made a frivolous argument that the creditor's failure to file a timely proof of claim bars pursuit of stay relief, and that argument does not depend on having a transcript.
(4) The debtor made a frivolous argument that the co-owner of the property did not agree to the loan modification agreement upon which Capital Ventures relied but that is irrelevant to whether Capital Ventures was entitled to relief from the stay to pursue foreclosure to collect the debtor's debt and to enforce its lien against the debtor's interest in the property. No transcript is needed to pursue that issue.
Accordingly, I certify that the appeal is not being pursued in good faith. It follows that § 1915(a)(3) bars her from obtaining leave under § 1915(a)(1) to pursue her appeal in forma pauperis.3
B.
Nor is the debtor entitled to pursue her appeal in forma pauperis under 28 U.S.C. § 1930(f)(3). Section 1930(f)(3) provides authorization for a bankruptcy judge's "waiving, in accordance with Judicial Conference policy" the fees for filing a notice of appeal.4 Under the Judicial Conference policy regarding fee waivers, 4 Guide to Judiciary Policy § 820 (Apr. 10, 2018),5 such fees "may be waived, in the discretion of the court, for an individual debtor whose filing fee has been waived, or for whom the totality of circumstances during the pendency of the case and appeal warrant such waiver upon request." The debtor is not an individual debtor whose filing fee has been waived. Nor is a waiver of the transcript fee warranted based on the totality of the circumstances. It obviously would be inconsistent with § 1915(a)(3) for the Judicial Conference to authorize under § 1930(f)(3) a waiver of appeal fees when the appeal is not taken in good faith. In any event, it would be an abuse of discretion for a bankruptcy judge to grant a waiver pursuant to § 1930(f)(3) of appeal fees when the bankruptcy judge concludes that the appeal is not pursued in good faith.
C.
For the foregoing reasons, under both 28 U.S.C. § 1915(a)(1) and 28 U.S.C. § 1930(f)(3) leave to proceed in forma pauperis cannot be granted. It follows that the court cannot grant a waiver of the transcript fee under 28 U.S.C. § 753.
IV
Moreover, the exhibits received into evidence, without objection, at the hearing on the motion for relief from the automatic stay sufficed to fully support the determinations in the court's oral decision granting relief from the automatic stay, a decision recited in the court's Memorandum Decision and Order Denying Motion to Stay Pending Appeal which elaborates on why stay relief was appropriate. In pursuing her appeal, the debtor has no need for a transcript to address whether the exhibits failed, as a matter of fact or law, to support the court's granting relief from the automatic stay.
V
For all of these reasons, it is
ORDERED that the debtor's Motion to Waive Transcript Fees (Dkt. No. 106) is DENIED.
