Jan Marasek v. , 532 F. App'x 118 ( 2013 )

CLD-388 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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13-1279
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In re: JAN MARASEK; JOAN BYRON-MARASEK,
Appellants
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On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civ. Nos. 11-cv-03869, 11-cv-04396, 11-cv-04397, 11-cv-04398,
11-cv-04400, 11-cv-04738, 11-cv-05026, 11-cv-05027, 11-cv-05028,
11-cv-05029, 11-cv-05030, 11-cv-05569, 11-cv-05570, 11-cv-05571,
11-cv-05572, 11-cv-05573, 11-cv-05574, 11-cv-06489, 11-cv-07143, & 12-cv-00125)
District Judge: Honorable Peter G. Sheridan
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 15, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion filed: August 29, 2013)
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OPINION
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PER CURIAM
In 2008, Jan Marasek and Joan Byron-Marasek, husband and wife, filed a
voluntary petition for bankruptcy under Chapter 13. Initially, the Bankruptcy Court
confirmed a plan, which provided that the Maraseks would sell or refinance their 12-acre
property in Jackson, New Jersey, and use a portion of the proceeds to satisfy all allowed
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claims. In 2009, a realtor valued the property, which is commercially zoned, at $3.4
million to $3.8 million. After the Maraseks did not sell or refinance the property
pursuant to the terms of the plan, one of the creditors moved to convert the case to a
Chapter 7 bankruptcy. The Bankruptcy Court granted the motion in July 2011. The
Maraseks appealed that order to the District Court. Previously, the Maraseks had
appealed an order denying a stay; these and various other appeals were consolidated in
the District Court. The Maraseks separately appealed the District Court’s decision on
those matters. In part, we dismissed that appeal for lack of jurisdiction; we otherwise
summarily affirmed the District Court’s judgment. See In re Marasek, C.A. No. 12-1234
(order entered July 30, 2013).
The District Court also denied the Maraseks’ applications to waive the filing fees
for the appeals to the District Court, noting that they are owners of valuable property in
New Jersey and not entitled to in forma pauperis (“ifp”) status. The Maraseks filed a
motion for reconsideration, which the District Court denied, rejecting their argument that
they did not have a beneficial interest in the property because it was subject to an inter
vivos trust created in 1982. The District Court agreed with the Bankruptcy Court that the
trust was severable and the Maraseks could alienate the property if required and use the
funds to pay the fees (and any other obligations). The Maraseks now appeal that
decision.1
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They previously filed a motion to proceed ifp in this appeal, which we denied. See
Order of June 11, 2013.
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We have jurisdiction pursuant to 28 U.S.C. § 1291. See Abdul-Akbar v.
McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). We review the District Court’s ruling for
abuse of discretion. See Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985).
Regardless of the truth or merit in the Maraseks’ arguments about the amount of
their income (or the obligations on it) and about any expenses or liabilities to bankruptcy
creditors, we agree with the District Court that their equity interest in a 12-acre property
worth at least $3.4 million precluded a grant of ifp status or a waiver of the fees in the
appeals to the District Court. Even assuming they hold the property “in trust” as they
claim (and putting aside arguments, raised in the Bankruptcy Court, that they fraudulently
conveyed the property to avoid creditors), the terms of the trust give them a way to fund
the cost of their appeal. By the terms of the declaration of trust (which the Maraseks
provided to us in C.A. No. 12-1234), they are free to mortgage the property or collect
income from it. They also have the power and right to amend or revoke the trust; within
this power is the power to sell or dispose of part or all of the property. For these reasons,
we do not see an abuse of discretion in the District Court’s requiring the Maraseks to pay
the fees for their appeals. Because no substantial issue is presented on appeal, we will
summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
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