Burch v. Freedom Mortgage Corporation ( 2022 )

Case: 20-10651 Document: 00516354799 Page: 1 Date Filed: 06/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 13, 2022
No. 20-10651 Lyle W. Cayce
Summary Calendar Clerk
In the Matter of William Paul Burch
Debtor,
William Paul Burch,
Appellant,
versus
Freedom Mortgage Corporation; Federal National
Bank Association; Seretus, Incorporated; Rushmore
Loan Management Services, L.L.C.; Loan Care Servicing
Center; JP Morgan Chase Bank, N.A.,
Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-449
Before Stewart, Haynes, and Ho, Circuit Judges.
Case: 20-10651 Document: 00516354799 Page: 2 Date Filed: 06/13/2022
No. 20-10651
Per Curiam:*
William Paul Burch appeals from the district court’s without-
prejudice dismissal, for failure to pay the filing fee, of his appeal of a judgment
of the bankruptcy court for the Northern District of Texas. Burch has filed a
motion to remand the matter to the district court, stating that he is now able
to pay the filing fee because his financial situation has improved. Because the
record does not establish that the district court issued a statement or
indicative ruling in accordance with Federal Rule of Civil Procedure 62.1 and
Federal Rule of Appellate Procedure 12.1, upon which Burch relies, his
motion to remand so that he can pay the filing fee is denied. See Fed.
R. App. P. 12.1; Fed. R. Civ. P. 62.1; cf. Moore v. Tangipahoa Par. Sch.
Bd., 836 F.3d 503, 504 (5th Cir. 2016). Burch’s motion to withdraw the above
motion is also denied.
Additionally, Burch moves to procced in forma pauperis (IFP) on
appeal. To proceed IFP, a litigant must be economically eligible, and his
appeal must not be frivolous. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). If the appeal is frivolous, this court will dismiss it. See 28 U.S.C.
§ 1915(e)(2)(B)(i); 5th Cir. R. 42.2.
Even before Burch’s concessions regarding his improved financial
situation, we held that he was not financially eligible to proceed IFP on
appeal. See Burch v. Freedom Mortg. Corp. (Matter of Burch), 835 F. App’x
741, 749 (5th Cir.), cert. denied, 142 S. Ct. 253 (2021), rehearing denied, No.
21-5069, 2021 WL 5763451 (U.S. Dec. 6, 2021). Further, Burch’s
conclusional assertions of error, without cogent argument, effectively fail to
identify any error in the dismissal of his bankruptcy appeal for failing to pay
the filing fee, and he has not he has not shown a nonfrivolous issue on appeal.
*
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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Case: 20-10651 Document: 00516354799 Page: 3 Date Filed: 06/13/2022
No. 20-10651
See Carson, 689 F.2d at 586. Accordingly, the motion to proceed IFP is
denied, and the appeal is dismissed as frivolous. See § 1915(e)(2)(B)(i); 5th
Cir. R. 42.2. Because we dismiss the appeal, we deny as unnecessary the
motion for partial dismissal of the appeal filed by Freedom Mortgage
Corporation.
In prior instances, we have issued sanctions warnings and directed
Burch to review his pending appeals and withdraw any that were frivolous.
See, e.g., Burch v. Freedom Mortg. Corp., 850 F. App’x 292, 294 (5th Cir.
2021); Matter of Burch, 835 F. App’x at 749. Because Burch failed to heed
our warnings, we previously imposed monetary sanctions. Burch v. Select
Portfolio Servicing, Inc. (Matter of Burch), No. 20-11171, 2022 WL 212836, *1
(5th Cir. Jan. 24, 2022) (unpublished) ($250 sanction); Burch v. America’s
Servicing Company (Matter of Burch), No. 20-11074, 2021 WL 5286563, *1
(5th Cir. Nov. 12, 2021) (unpublished) ($100 sanction).
Our court recently imposed an additional $500 sanction against
Burch, in In re Burch, No. 20-11132, 2022 WL 1402044 (5th Cir. May 4,
2022). We again warn Burch that additional frivolous or abusive filings in
this court, the district court, or the bankruptcy court will result in the
imposition of further sanctions. Burch is once again admonished to review
any pending appeals and to withdraw any that are frivolous.
MOTIONS DENIED; APPEAL DISMISSED AS
FRIVOLOUS; ADDITIONAL SANCTION WARNING ISSUED.
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