Lawrence Perry v. Secretary of Housing ( 1998 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 98-6053EM
In re: *
*
LAWRENCE PERRY, *
*
Debtor. *
*
LAWRENCE PERRY, * Appeal from the United States
* Bankruptcy Court for the
Appellant, * Eastern District of Missouri
*
-v.- *
*
SECRETARY OF HOUSING AND *
URBAN DEVELOPMENT, *
*
Appellee. *
Submitted: July 8, 1998
Filed: August 6, 1998
PER CURIAM.
The matter presently before the court arises in an appeal from the bankruptcy court's
order terminating the automatic stay and barring Debtor from filing another bankruptcy case
for 180 days. By order dated June 1, 1998, the bankruptcy court terminated the automatic
stay under 11 U.S.C. § 362 to allow the Secretary of Housing and Urban Development,
Appellee, to foreclose on the Appellant’s real property. In his notice of appeal filed with the
bankruptcy court, the Appellant requested a stay of the foreclosure sale, waiver of costs,
appointment of counsel, and reconsideration of the bankruptcy court’s order. By order dated
June 16, 1998, the bankruptcy court denied each of these motions. The Appellant has now
filed an “emergency motion” with this court, requesting that we enter an order staying the
sale of his property and/or staying his eviction from the property pending appeal; granting
him leave to proceed in forma pauperis on appeal; and, appointing counsel to represent him
throughout the appeal.
We first consider appellant's request for leave to proceed in forma pauperis and for
the appointment of counsel. Appellant has filed two separate unsworn affidavits in which
he avers generally that he is without funds to pay or assets to secure the filing fee or to obtain
counsel on appeal. He cites to no statute or precept of constitutional law which would
provide him such relief. Section 1915(a) of Title 28 permits, but does not require, a court
of the United States1 to waive a filing fee and to request that an attorney represent any person
who is actually impoverished and indigent. This statute applies to nonprisoner2 and to civil
cases, although its most common use has been by prisoners who claim indigence and prison
abuse. See Lefkowitz v. Citi-Equity Group, Inc., -- F.3d --, 1998 WL 32775, *2 (8th Cir.
1998); Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997). Indeed, it was the abuse by
prisoners who flooded the courts with prisoners’ rights litigation that caused Congress to
pass the Prison Litigation Reform Act, thereby amending § 1915 so as to require prisoners
to pay
1
In Adams v. Inman, 218 B.R. 458, 459 (B.A.P. 8th Cir. 1998) we recognized the split of
authority on the question of whether 28 U.S.C. § 1915 applies in bankruptcy proceedings at all.
As we did in Adams, however, because of our disposition on this case, we also decline to resolve
the issue in this case.
2
In spite of its rather awkward wording, "any court of the United States may authorize the
commencement, prosecution, or defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses . . .," § 1915(a) is not
limited to prisoner cases. See Floyd v. U.S. Postal Service, 105 F.3d 274, 275-77 (6th Cir.
1997); Kane v. Lancaster County Dep't of Corrections, 960 F. Supp. 219, 220 n.1 (D. Neb. 1997)
("[T]o the extent this language literally means that in forma pauperis status can be granted only to
prisoners, I reject that interpretation as absurd"); In re Woodman, 213 B.R. 53, 54 n.5 (Bankr. D.
Conn. 1997) ("[I]t is apparent that the term 'prisoner' in section 1915(a)(1) is a typographical
error and that Congress actually intended the term to be 'person.'")
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some portion of the costs of pursuit of these appeals. Lefkowitz, 1998 WL 327750 at *2;
Roller, 107 F.3d at 230-31.
Ordinarily, however, a request for leave to proceed in forma pauperis must first be
made to the trial court and an appeal may not be taken if the trial court certifies in writing
that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Adams v. Inman, 218 B.R.
458, 459 (B.A.P. 8th Cir. 1998). Further, § 1915(e)(2) allows the court to dismiss the case
at any time, sua sponte and notwithstanding the payment of fees or portions thereof, if the
court determines that the allegation of poverty is untrue or that an appeal is frivolous. 28
U.S.C. § 1915(e)(2); Williams v. Willits, 853 F.2d 586, 588 (8th Cir. 1988). In this case, the
bankruptcy court was not asked to and did not certify that the Debtor’s appeal was taken in
bad faith under 28 U.S.C. § 1915(a)(3). In the order granting relief from stay upon which
this appeal is based, however, the bankruptcy court did find that Appellant's Chapter 13 case
was filed "solely to hinder, delay, and facilitate [the appellant] creditors in bad faith." This
finding was based on the fact that Appellant has filed seven bankruptcy cases since March
17, 1994; one Chapter 7 and six Chapter 13 cases. Five of the seven cases were dismissed
by the bankruptcy court within six months of their inception. During that time, the Appellee
has had three foreclosure attempts against the Appellant's property. The Appellant's fourth
case was filed two days before the Appellee's first scheduled foreclosure sale. His fifth case
was filed twenty-one days prior to the second scheduled foreclosure sale. This current case
was filed one day before the Appellee's third scheduled foreclosure sale.
We conclude, therefore, that if § 1915(a) applies at all, this appeal is taken in bad faith
and the request for leave to proceed in forma pauperis and for the appointment of counsel
should be denied. Because the record in this case demonstrates that the appeal is frivolous,
we need not remand to allow the bankruptcy court to make such a finding. See Boatmen’s
First Nat’l Bank v. Kansas Pub. Employees Retirement Sys., 57 F.3d 638, 640 n.5 (8th Cir.
1995); Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 212 n.15 (8th Cir. 1974) (stating
that appellate review absent specific findings and conclusions from the trial court may
proceed when the record itself sufficiently informs the court of the basis for the trial court’s
decision on the material issues).
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Finally, Appellant's motion for a stay pending appeal should be denied. A party
seeking a stay pending appeal must demonstrate that it is likely to succeed on the merits, that
it will suffer irreparable injury unless the stay is granted, that no substantive harm will come
to other interested parties, and that the stay will do no harm to the public interest. Fargo
Women's Health Organization, et al., v. Schafer, 18 F.3d 526, 538 (8th Cir. 1994); James
River Flood Control Assoc. v. Watt, 680 F.2d 543, 544 (8th Cir. 1982). As previously noted,
the appeal has little likelihood of success on the merits. Moreover, the record indicates that
the sale may already have occurred, in which case the appeal would be moot, as we would
be unable to grant effective relief. United States v. Fitzgerald, 109 F.3d 1339, 1341 (8th Cir.
1997); Van Iperen v. Production Credit Assoc., 819 F.2d 189, 190 (8th Cir. 1987). Finally,
in a case such as this where the debtor has used the bankruptcy court to repeatedly frustrate
a creditor's foreclosure remedies through serial filings which were not pursued, any harm to
the debtor is outweighed by the harm from granting such stay to the creditor, and public
policy weighs against a grant of such stay.
Accordingly, it is hereby ordered that the motion is in all respects DENIED.
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL
FOR THE EIGHTH CIRCUIT
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