Burch v. Bank of Amer

Case: 20-10872 Document: 00516285482 Page: 1 Date Filed: 04/19/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10872 April 19, 2022
Summary Calendar
Lyle W. Cayce
Clerk
In the Matter of: William Paul Burch
Debtor,
William Paul Burch,
Appellant,
versus
Bank of America, N.A.,
Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-620
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-10872 Document: 00516285482 Page: 2 Date Filed: 04/19/2022
No. 20-10872
William Paul Burch has appealed from the district court’s 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 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 for remand 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) (per curiam). Burch’s motion to withdraw the motion to
remand is also denied.
Additionally, Burch moves to proceed 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 Burch 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). Furthermore, because Burch
effectively has not identified any error in the district court’s dismissal of his
bankruptcy appeal for failing to pay the filing fee, he has not shown a
nonfrivolous issue on appeal. 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.
In prior instances, we have issued sanction warnings and directed
Burch to review his pending appeals and withdraw any that were frivolous.
Case: 20-10872 Document: 00516285482 Page: 3 Date Filed: 04/19/2022
No. 20-10872
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 Co. (Matter of Burch), No. 20-11074, 2021 WL 5286563, *1 (5th Cir.
Nov. 12, 2021) (unpublished) ($100 sanction).
Burch, who has paid the above-mentioned monetary sanctions, has
repeatedly ignored our admonitions, and we conclude that an additional
monetary sanction is warranted. Burch is hereby ordered to pay $500.00 to
the clerk of this court. The clerk of this court and the clerks of all courts
subject to the jurisdiction of this court are directed to return to Burch unfiled
any submissions he should make until the sanction imposed in this matter is
paid in full.
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; SANCTIONS IMPOSED; ADDITIONAL
SANCTION WARNING ISSUED.
3