Burch v. Freedom Mortgage ( 2021 )

Case: 19-11197 Document: 00515902237 Page: 1 Date Filed: 06/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 16, 2021
No. 19-11197 Lyle W. Cayce
Summary Calendar Clerk
William Paul Burch,
Plaintiff—Appellant,
versus
Freedom Mortgage Corporation,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CV-629
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
William Paul Burch moves for leave to appeal in forma pauperis (IFP)
from the district court’s dismissal, under Federal Rule of Civil
Procedure 12(b)(6), of his removed state court action against Freedom
Mortgage Corporation (Freedom). That court held that Burch’s action
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-11197
based on an allegedly fraudulent lien under Texas Civil Practice and
Remedies Code § 12.003 was untimely under the four-year limitation period
of Texas Civil Practice and Remedies Code § 16.004(a) because Burch knew
or believed that Freedom had breached a Chapter 11 bankruptcy plan when
Freedom foreclosed on Burch’s property in January 2011. The court
accordingly denied Burch’s contemporaneous motion for summary
judgment.
To proceed IFP on appeal, a movant must demonstrate both financial
eligibility and the existence of a nonfrivolous appellate issue. 28 U.S.C.
§ 1915(a)(1); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). A movant
does not need to be absolutely destitute to obtain IFP status. Adkins v. E.I.
DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). But there is no “bright
line” test for determining when a court should grant IFP status, and the
court’s decision is reviewed for abuse of discretion. Green v. Estelle, 649 F.2d
298, 302 (5th Cir. 1981). We may dismiss an appeal sua sponte if it “is
frivolous and entirely without merit.” 5th Cir. R. 42.2.
The district court did not abuse its discretion by denying IFP status
based on Burch and his wife having sufficient income to pay the filing fees.
We also take judicial notice of records indicating that Burch and his wife own
at least one home, although Burch listed the value of his home and other real
estate as zero on the affidavit accompanying his IFP application.
Burch’s contention that the four year limitation period does not apply
because Freedom’s lien was void from its inception lacks arguable merit.
Burch’s fundamental contention here and in the district court has been that
Freedom’s lien became void when Freedom allegedly breached the
bankruptcy plan. Burch’s various contentions that the limitation period was
tolled by an unrelated 2012 bankruptcy are based on his misunderstanding or
misapplication of law and are devoid of merit.
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Because Burch is financially ineligible to proceed IFP and identifies no
non-frivolous issue for appeal his IFP motion is denied and the appeal is
dismissed as frivolous.
This court has already issued Burch a sanction warning and noted that
the bankruptcy court has “deemed Burch a vexatious litigant.” Burch v.
Freedom Mtg. Corp. (Matter of Burch), 835 F. App’x 741, 749 (5th Cir. 2021).
His arguments reflect little concern for actually understanding of the law and
are fairly characterized as careless enough to be vexatious. Moreover, as of
this writing Burch has initiated at least 34 appeals in this court since 2019. So
far, none have been found to have merit, and several have been terminated
without an opinion. Burch also has several more IFP motions pending in
other cases.
Burch’s attempt to litigate multiple frivolous actions and appeals
while proceeding IFP is troublesome in light of our recent sanction warning
and the possibility that he has not been wholly forthcoming about his financial
status. He is therefore warned again that additional frivolous or abusive
filings in this court, the district court, or the bankruptcy court will result in
the imposition of sanctions, including dismissal, monetary sanctions, and
restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction. He is admonished to review any pending appeals
and to withdraw any appeals that are frivolous. He is further warned that
false statements in IFP applications can invite additional sanctions, including
dismissal, monetary penalties under Federal Rule of Civil Procedure 11,
payment of his opponents’ costs and attorneys’ fees, and revocation of
pauper status even if he might still qualify as a pauper. See Nottingham
v. Warden, Bill Clements Unit, 837 F.3d 438, 441 & n.7 (5th Cir. 2016); Lay
v. Justices-Middle Dist. Court, 811 F.2d 285, 286 (5th Cir. 1987).
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Case: 19-11197 Document: 00515902237 Page: 4 Date Filed: 06/16/2021
No. 19-11197
IFP MOTION DENIED; APPEAL DISMISSED AS
FRIVOLOUS; SANCTION WARNINGS ISSUED.
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