Thelma Owens v. GMAC Mortgage, LLC ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12061 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 22, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:11-cv-01217-TCB
Bkcy. No. BKC 10-92864-MGD
THELMA OWENS,
llllllllllllllllllllllllllllllllllllllll Debtor.
__________________________________________________________________
THELMA OWENS,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
GMAC MORTGAGE, LLC,
MCCURDY CANDLER, LLC,
CHASE MORTGAGE,
CLAYTON COUNTY TAX COMMISSIONER,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 22, 2012)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Thelma Owens, a debtor proceeding pro se, appeals the dismissal of her
bankruptcy appeal for failure to pay the filing fee or to seek leave to proceed in
forma pauperis. Owens argues that she never received a bill and that her calls to
the bankruptcy court regarding the fee were never returned. We affirm.
In November 2010, Owens filed a petition for bankruptcy under Chapter 13
of the Bankruptcy Code. According to the petition, schedules, and creditor filings,
Owens’s outstanding debts included a real estate loan secured by a home in
Fayetteville, Georgia, and held by GMAC Mortgage, LLC. After receiving a
deficiency notice, Owens applied to pay her filing fee in installments, which the
bankruptcy court granted, and she eventually paid the fee in full.
After Owens filed a proposed repayment plan, GMAC and the Trustee
objected to the confirmation of her proposed plan. GMAC argued that the plan
was not feasible. The Trustee contended that Owens’s schedules were inaccurate
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or incomplete, her plan payments were delinquent, the proposed period for the
plan was too long, 11 U.S.C. § 1322(d), and Owens had failed to disclose her
bankruptcy petitions filed in 2007, 2008, and 2010, all of which were dismissed.
The bankruptcy court dismissed Owens’s petition and refused to confirm
her proposed plan. Owens filed motions for reconsideration and reimposition of
the automatic stay. The bankruptcy court denied both motions, and Owens filed
an appeal to the district court.
Owens failed to pay the filing fees for her appeal in either the bankruptcy
court or the district court. After Owens filed her notice of appeal, the bankruptcy
court sent her a document entitled “Notification of Appeal Requirements,” which
described those parts of the record that had to be sent to the district court. The
docket sheet of the bankruptcy court, which Owens sent to the district court as part
of the record on appeal, stated in several places that Owens had not paid the
required fees for her appeal.
The district court dismissed Owens’s appeal on the ground that she had
failed either to pay the required filing fee or to file an application to proceed in
forma pauperis. Owens later moved the district court to reconsider the dismissal
and allow her to pay the fees, but Owens still failed to tender the fees. The district
court denied Owens’s motion, and she filed a notice of appeal pro se to this Court
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and paid the required filing fee.
We review a dismissal for failure to comply with the rules of the court for
abuse of discretion. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337
(11th Cir. 2005). District courts have jurisdiction to hear appeals from final
judgments and orders of a bankruptcy court. 28 U.S.C. § 158(a). To appeal an
order of the bankruptcy court, the debtor must pay a filing fee of $298 to the
bankruptcy court. Id. § 1930; 2011 Bankruptcy Court Misc. Fee Schedule,
provision 14. The debtor must also pay a filing fee of $350 to the district court.
28 U.S.C. § 1914(a). As an alternative to paying the filing fee, the debtor may file
an affidavit establishing that she is unable to pay. Id. § 1915(a); Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004).
“The right of access to the courts ‘is neither absolute nor unconditional.’”
Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008) (quoting Cofield v. Ala.
Pub. Serv. Comm’n, 936 F.2d 512, 516 (11th Cir. 1991)). Conditions on access
are necessary to preserve judicial resources for all persons. Id. at 1096. “As the
Supreme Court has noted, filing fees in theory discourage frivolous law suits and
thus help allocate judicial resources to more meritorious cases.” Id.
The district court did not abuse its discretion when it dismissed Owens’s
appeal. The record supports the finding that Owens failed to pay the filing fees or
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submit an application to proceed in forma pauperis. Owens was repeatedly
warned about the insufficiency of her petition and her proposed repayment plan,
neither of which she corrected. Owens paid the initial filing fee only after the
bankruptcy court sent her a deficiency notice that her case would be dismissed if
she failed to pay the fee. After the district court dismissed Owens’s appeal, she
failed to tender the fees for her appeal either before or after filing a motion for
reconsideration, and she failed to file an application to proceed in forma pauperis.
We affirm the dismissal of Owens’s appeal to the district court.
AFFIRMED.
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