Nicole v. T2M Investments, LLC

Filing 20

ORDER DENYING 19 Motion to Appoint Counsel signed by District Judge Jennifer L. Thurston on 3/10/2025. (Deputy Clerk TEL)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SYLVIA NICOLE,
Appellant,

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No. 1:24-cv-00562-JLT
BAP No. EC?24?1032
Bk. No. 21?10679
Adv. No. 21?01015

v.

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T2M INVESTMENTS, LLC,

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Appellee.

ORDER DENYING THIRD MOTION TO
APPOINT COUNSEL
(Doc. 19.)

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Sylvia Nicole appeals a decision entered by the U.S. Bankruptcy Court for the Eastern

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District of California in Case No. 21-10679 - Adversary Case No. 21-01015-A. The appeal,

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initiated May 10, 2024 (see Doc. 1), is not yet ripe for decision.

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Prior to noticing this appeal, Ms. Nicole filed a motion to appoint counsel in the

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underlying adversary proceeding, which the Bankruptcy Court transferred to the undersigned for

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resolution because it is unclear whether the Bankruptcy Court has authority to address such a

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motion. (Doc. 3.) As the Bankruptcy Court indicated in its order transferring the motion (Id. at 1),

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the authority for this Court to appoint counsel for an indigent litigant is set forth in 28 U.S.C.

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§ 1915(e)(1), but the Court may do so only in “exceptional circumstances.” See Palmer v. Valdez,

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560 F.3d 965, 970 (9th Cir. 2009); see also Sariol v. Fitzgerald, No. C16-0835JLR, 2016 WL

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8808819, at *1 (W.D. Wash. June 27, 2016) (applying “exceptional circumstances” standard to

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request for counsel in bankruptcy appeal to district court). “When determining whether
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exceptional circumstances exist, a court must consider the likelihood of success on the merits as

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well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Palmer, 560 F.3d at 970; see also Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986) (explaining that “any difficulty [Appellant] experienced in attempting to

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litigate his case [must be] derived from the complexity of the issues involved”). “Neither of these

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considerations is dispositive and instead must be viewed together.” Id. (internal citation omitted)

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Finding that “Ms. Nicole has made no showing as to the merits of her case or why she is

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unable to articulate her claims pro se,” the undersigned denied her initial motion to appoint

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counsel on June 17, 2024. (Doc. 5.) That same day, Ms. Nicole filed another motion to appoint

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counsel along with what appeared to be a request to waive fees related to this appeal. (Doc. 6.)

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She subsequently filed separate motions for appointment of counsel (Doc. 7) and to proceed in

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forma pauperis in this appeal. (Doc. 8.) The Court denied Ms. Nicole’s section request for

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appointment of counsel as “unsupported by any showing as to why she is likely to succeed on the

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merits of her claims.” (Doc. 10.)

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On March 6, 2025, Ms. Nicole filed a third motion to appoint counsel. (Doc. 19.) Therein,
she argues that she “will win” the appeal for the following reasons:
a. The Appellee and its witnesses committed fraud and perjury
intentionally on the Bankruptcy Court during the 3 days trial.
b. This is an on-going mortgage fraud and abuse case, but the
Bankruptcy Court did ·not address the Appellant’s Mortgage Fraud
Cause of Action in the complaint for the reason stated on the record
that it is for the criminal court to address the issue.
c. As a result, there were 2 completely different and opposite
interpretations of the written Settlement Agreement: one
interpretation by the Appellant and one interpretation by the
Appellee.
d. Many issues were not resolved by the bankruptcy court: total of
23 issues, because the Appellee had 2 attorneys to represent it, and
the Appellant did not have any attorney to represent her.

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e. As a result, the bankruptcy court chose to believe the Appellee’s
testimonies are credible over the Appellant’s testimonies, even
though her testimonies aligned with the written Settlement
Agreement’s terms and requirements.

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f. Such a decision had caused errors in court judgment and order by

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the Bankruptcy Court against the Appellant.

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g. This court is the proper court to address the appeal; and by law
and for justice, the bankruptcy court’s judgment or order for this
case should be reversed.

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h. Furthermore, this case is also about on-going process abuse by
the Appellee’s attorneys, namely story fabrications and
exaggerations under penalty of perjury against the Appellant.

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1. The Appellant is entitled to relief under 42 U.S.C. Section 1983
against the Appellee and its attorneys with respect to her property
ownership rights, right to due process of the law and right to equal
protection under the law which was denied by the Bankruptcy
Court due to the Appellee’s and its attorneys’ illegal conduct.

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J. The existing emails, court documents on file, as well as trial’s
court transcripts listed in the docket contain evidence to support the
Appellant’s above claims.

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(Doc. 19 at 3.) These assertions are entirely conclusory at this stage. The Court has nothing before

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it with which it could possibly determine, even preliminarily, whether Appellees committed fraud

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on the Bankruptcy Court; why the Bankruptcy Court failed to address certain issues raised, let

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alone whether that was improper; how Ms. Nicole’s interpretation of the mentioned Settlement

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Agreement is relevant to this appeal, nor whether her interpretation of it is correct; and so on.

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Even, assuming these assertions demonstrated some likelihood of success, the record still does

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not demonstrate that Ms. Nicole is unable to present her arguments pro se considering the

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complexity of the record. She appears to be able to articulate various theories underpinning her

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appeal. For all these reasons, the Court again declines to exercise its discretion to appoint counsel

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in this case.

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IT IS SO ORDERED.
Dated:

March 10, 2025

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