In re DDJ, LLC and DDJ, Inc.

Filing 6

ORDER GRANTING Appellants' Applications to Proceed Without Prepayment of Fees; ORDER TRANSFERRING The Matter to The United States Bankruptcy Appellate Panel on The Ninth Circuit; ORDER DIRECTING The Clerk of Court to Serve This Order on The Parties and The Bankruptcy Appellate Panel 1 , 2 , 4 , 5 , signed by Magistrate Judge Sheila K. Oberto on 10/17/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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In re DDJ, LLC; and DDJ, INC.,

CASE NO. 1:11-mc-00027-AWI-SKO

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ORDER GRANTING APPELLANTS'
APPLICATIONS TO PROCEED
WITHOUT PREPAYMENT OF FEES

Debtors.

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____________________________________

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JOE FLORES; CONNIE FLORES,

ORDER TRANSFERRING THE
MATTER TO THE UNITED STATES
BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT

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Appellants,

ORDER DIRECTING THE CLERK
OF COURT TO SERVE THIS ORDER
ON THE PARTIES AND THE
BANKRUPTCY APPELLATE PANEL

v.

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JAMES E. SALVEN, Trustee; et al.,
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(Docket Nos. 1, 2, 4, 5)
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Appellees.
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I.

INTRODUCTION

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Appellants Joe Flores and Connie Flores ("Appellants") are seeking to proceed with a

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bankruptcy appeal, which has been referred to the Bankruptcy Appellate Panel of the Ninth Circuit

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("BAP") bearing BAP Nos. EC-11-1318, EC-11-1319, and EC-11-1368. (Doc. 1.)

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Appellants filed a request with the BAP panel for a waiver of the appeal filing fee. (Doc. 1.)

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However, Judges Markell and Jury determined that, under the holding of Perroton v. Gray (In re

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Perroton), 958 F.2d 889 (9th Cir. 1992) and Determan v. Sandoval (In re Sandoval), 186 B.R. 490,

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496 (9th Cir. BAP 1995), the BAP has no authority to grant in forma pauperis motions under

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28 U.S.C. § 1915(a) because bankruptcy courts are not "court[s] of the United States" as defined in

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28 U.S.C. § 451. The district court, however, has the authority to allow a person to file an appeal

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without prepayment of the filing fee. See 28 U.S.C. § 1915(a). Therefore, the BAP transferred

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appellants' request for a fee waiver to this Court for the limited purpose of ruling on appellants' fee-

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waiver request.

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On October 6, 2011, the Court ordered Appellants to provide further information by

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completing and submitting applications to proceed without the prepayment of fees. (Doc. 3.) On

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October 7, 2011, Appellants each filed applications to proceed without the prepayment of fees.

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(Docs. 4, 5.) Currently pending before the Court are Appellants' motions to proceed in forma

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pauperis and without the prepayment of fees.

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II. DISCUSSION

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The bankruptcy judges referred the matter to this Court because a bankruptcy court is not a

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"court of the United States" within the meaning of 28 U.S.C. § 1915(a), and thus it lacks authority

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to waive payment of the statutorily required filing fees. See In re Perroton, 958 F.2d 889 (9th Cir.

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1992).

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Tile 28 U.S.C. § 1915(a) provides in pertinent part that "any court of the United States may

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authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or

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criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits

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an affidavit that includes a statement of all assets [the person] possesses," and that the person is

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unable to pay such fees.

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Appellants have submitted a request for a fee waiver and have certified that they are unable

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to pay the required filing fee at this time. (See Doc. 2.) On October 6, 2011, the Court found that

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Appellants had not provided the Court with sufficient information to determine whether they should

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be permitted to proceed without the prepayment of fees. (Doc. 3.) Pursuant to the Court's order,
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Appellants filed additional applications to proceed without prepayment of fees. (Docs. 4, 5.) The

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Court has reviewed the applications submitted by Appellants as well as the supporting information

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contained in documents filed on September 27, 2011, and October 7, 2011, and finds that Appellants

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have made the showing required by 28 U.S.C. § 1915(a) to proceed in forma pauperis and without

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the prepayment of fees. Accordingly, the Appellants' motions to proceed without the prepayment

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of fees are granted.

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Further, as this matter was transferred to this Court for the sole and limited purpose of ruling

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on Appellants' motions to proceed without the prepayment of fees, the Court orders the matter

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transferred to the United States Bankruptcy Appellate Panel of the Ninth Circuit.

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Appellants' applications to proceed in forma pauperis and without the prepayment of
fees are GRANTED;

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2.

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This matter is TRANSFERRED to the United States Bankruptcy Appellate Panel of
the Ninth Circuit;

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3.

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The Clerk of Court is DIRECTED to serve this order by mail as follows:
a.

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Upon Appellants Joe and Connie Flores at P.O. Box 3086, Visalia,
California, 93278;

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b.

Upon the other parties; and

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c.

Upon the United States Bankruptcy Appellate Panel of the Ninth Circuit; and

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4.

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This district court case, No. 1:11-mc-00027-AWI-SKO, shall be administratively
closed.

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IT IS SO ORDERED.

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Dated:
ie14hj

October 17, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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