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).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY AND NANCY TEVIS,

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No. 2:13-mc-0082 MCE AC PS

Appellants,
v.

ORDER

MICHAEL F. BURKART, et al.,
Appellees.

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Appellants are proceeding or are seeking to proceed with a bankruptcy appeal, which has

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been referred to the Bankruptcy Appellate Panel of the Ninth Circuit, and which bears BAP No.

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EC-13-1211 and Bk. Case No. 04-26357.

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Pending before this court is the appellants’ application to proceed in forma pauperis,

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which has been referred to this court by order of Bankruptcy Judges Dunn and Kirscher, filed

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August 7, 2013 with the bankruptcy appellate panel and filed in this court on the same day. The

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matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules

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72-302 and 72-303.

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Appellants’ initial application to proceed in forma pauperis was referred to the bankruptcy

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court, giving that court the opportunity to make a certification under 28 U.S.C. § 1915(a)(3)

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regarding whether the appellants’ appeal was frivolous. On July 31, 2013, a certification was

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made by the bankruptcy court declining to certify that the appeal is “not taken in good faith”
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within the meaning of 28 U.S.C. § 1915(a)(3), determining that the appeal “is not frivolous” for

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purposes of 28 U.S.C. § 753(f), and determining that the appeal does not present a “substantial

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question” within the meaning of the penultimate sentence of 28 U.S.C. § 753(f).

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Pursuant to the holding of Perroton v. Gray (In re Perroton), 958 F.2d 889 (9th Cir. 1992)

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and Determan v. Sandoval (In re Sandoval), 186 B.R. 490, 496 (9th Cir. BAP 1995), it was

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determined that the Bankruptcy Appellate Panel has no authority to grant or deny in forma

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pauperis motions under 28 U.S.C. § 1915(a) because bankruptcy courts are not “court[s] of the

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United States” as defined in 28 U.S.C. § 451. This matter was therefore transferred to this court

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for the limited purpose of ruling on the appellants’ in forma pauperis motion.

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The court has reviewed the application submitted by appellants. Appellants have made

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the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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Further, because this matter was transferred to this court for the sole and limited purpose

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of ruling on the motion to proceed in forma pauperis, and because this court has performed the

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purpose of the transfer, the court will order the matter transferred to the Bankruptcy Appellate

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Panel.

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Accordingly, it IS ORDERED that

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1. Appellants’ application to proceed in forma pauperis is granted, and

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2. This matter is transferred back to the United States Bankruptcy Appellate Panel of the

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Ninth Circuit; and

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3. The Clerk of Court is directed to serve this order by mail upon appellants Larry and

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Nancy Tevis at P.O. Box 156, Rescue, California 95672, and to make appropriate

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service upon the other parties and the United States Bankruptcy Appellate Panel of the

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Ninth Circuit; and

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4. This district court case, No. 2:13-mc-0082 MCE AC, shall be administratively closed.
DATED: August 8, 2013

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