In Re: Larry and Nancy Tevis

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 8/8/13 GRANTING 2 Motion to Proceed IFP. This matter is TRANSFERRED back to the United States Bankruptcy Appellate Panel of the Ninth Circuit; and the Clerk of Court is DIRECTED to serve this order by mail upon appellants Larry and Nancy Tevis and this district court case shall be administratively CLOSED. (cc: BAP). (Meuleman, A) Modified on 8/9/2013 (Meuleman, A).

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY AND NANCY TEVIS, 12 13 14 15 No. 2:13-mc-0082 MCE AC PS Appellants, v. ORDER MICHAEL F. BURKART, et al., Appellees. 16 17 Appellants are proceeding or are seeking to proceed with a bankruptcy appeal, which has 18 been referred to the Bankruptcy Appellate Panel of the Ninth Circuit, and which bears BAP No. 19 EC-13-1211 and Bk. Case No. 04-26357. 20 Pending before this court is the appellants’ application to proceed in forma pauperis, 21 which has been referred to this court by order of Bankruptcy Judges Dunn and Kirscher, filed 22 August 7, 2013 with the bankruptcy appellate panel and filed in this court on the same day. The 23 matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 24 72-302 and 72-303. 25 Appellants’ initial application to proceed in forma pauperis was referred to the bankruptcy 26 court, giving that court the opportunity to make a certification under 28 U.S.C. § 1915(a)(3) 27 regarding whether the appellants’ appeal was frivolous. On July 31, 2013, a certification was 28 made by the bankruptcy court declining to certify that the appeal is “not taken in good faith” 1 1 within the meaning of 28 U.S.C. § 1915(a)(3), determining that the appeal “is not frivolous” for 2 purposes of 28 U.S.C. § 753(f), and determining that the appeal does not present a “substantial 3 question” within the meaning of the penultimate sentence of 28 U.S.C. § 753(f). 4 Pursuant to the holding of Perroton v. Gray (In re Perroton), 958 F.2d 889 (9th Cir. 1992) 5 and Determan v. Sandoval (In re Sandoval), 186 B.R. 490, 496 (9th Cir. BAP 1995), it was 6 determined that the Bankruptcy Appellate Panel has no authority to grant or deny in forma 7 pauperis motions under 28 U.S.C. § 1915(a) because bankruptcy courts are not “court[s] of the 8 United States” as defined in 28 U.S.C. § 451. This matter was therefore transferred to this court 9 for the limited purpose of ruling on the appellants’ in forma pauperis motion. 10 The court has reviewed the application submitted by appellants. Appellants have made 11 the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma 12 pauperis will be granted. 28 U.S.C. § 1915(a). 13 Further, because this matter was transferred to this court for the sole and limited purpose 14 of ruling on the motion to proceed in forma pauperis, and because this court has performed the 15 purpose of the transfer, the court will order the matter transferred to the Bankruptcy Appellate 16 Panel. 17 Accordingly, it IS ORDERED that 18 1. Appellants’ application to proceed in forma pauperis is granted, and 19 2. This matter is transferred back to the United States Bankruptcy Appellate Panel of the 20 Ninth Circuit; and 21 3. The Clerk of Court is directed to serve this order by mail upon appellants Larry and 22 Nancy Tevis at P.O. Box 156, Rescue, California 95672, and to make appropriate 23 service upon the other parties and the United States Bankruptcy Appellate Panel of the 24 Ninth Circuit; and 25 //// 26 //// 27 //// 28 //// 2 1 2 4. This district court case, No. 2:13-mc-0082 MCE AC, shall be administratively closed. DATED: August 8, 2013 3 4 5 6 7 8 /mb;tevi0082.ifp 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?