G. Thomas v. Carl Mathenia, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [09-11053 Dismissed as Frivolous]Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 10/05/2010; denying motion to proceed IFP filed by Appellant Mr. G. Von Thomas [6419683-2] [09-11053]

G. Thomas v. Carl Mathenia, et al

Doc. 0

Case: 09-11053

Document: 00511232750

Page: 1

Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11053 S u m m a r y Calendar September 14, 2010 Lyle W. Cayce Clerk

I n the Matter of: MUT A. ASHERU, DEBTOR ----------------------G . VON THOMAS, Appellant, v. C A R L MATHENIA; PAUL A. SCOTT, A p p e lle e s .

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:09-CV-978

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* G . Von Thomas, proceeding pro se, moves to proceed in forma pauperis (I F P ) on appeal from the district court's dismissal of his appeal from the b a n k r u p t c y court's order denying his motion to strike the pleadings filed by Carl M a t h e n ia and Paul A. Scott seeking to lift the automatic stay issued in the

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 09-11053

Document: 00511232750 Page: 2 No. 09-11053

Date Filed: 09/14/2010

b a n k r u p t c y proceedings of Mut A. Asheru. As a result of the stay being lifted, T h o m a s was evicted from property in Oklahoma. T h e district court adopted the finding of the bankruptcy court that T h o m a s 's motion to strike filed in the bankruptcy proceeding was frivolous and t h a t his appeal was not taken in good faith because the Debtor had no interest in the property in which Thomas claimed a possessory interest and because T h o m a s was using the bankruptcy proceeding to thwart a state court proceeding. Further, the record reflects that the bankruptcy court had authorized Scott, an O k la h o m a attorney, to represent Mathenia in the bankruptcy proceeding on a lim it e d basis. See 11 U.S.C. § 105(a). The bankruptcy court's denial of Thomas's m o t io n to strike does not raise an issue of arguable merit. T h o m a s has not briefed his claim that the district court erred in referring t h e IFP motion to the bankruptcy court for the preparation of a report and r e c o m m e n d a t io n and, thus, it is abandoned. See Yohey v. Collins, 985 F.2d 222, 2 2 4 -2 5 (5th Cir. 1993). Thomas's complaints about the bankruptcy court's clerk d o c k e t in g pleadings several days after they were filed or ruled upon does not r a is e a nonfrivolous issue on appeal. T h o m a s had no standing to complain about the lack of notice of the motion t o lift the automatic stay because he did not demonstrate that he had an interest in any property involved in the bankruptcy proceeding, and he did not make an a p p e a r a n c e in the proceeding prior to the stay being lifted. See N.D. TEX. L.B.R. 4 0 0 1 -1 (a )(1 ). B e c a u s e the district court did not err in determining that the appeal was n o t taken in good faith, the motion to proceed IFP on appeal is denied, and the a p p e a l is dismissed as frivolous. See 5TH CIR. R. 42.2; Baugh v. Taylor, 117 F.3d 1 9 7 , 202 n.24 (5th Cir. 1997). I F P MOTION DENIED; APPEAL DISMISSED.

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