Abels v. Bank of America et al

Filing 135

ORDER by Judge Yvonne Gonzalez Rogers denying 131 Motion for Leave to Proceed in forma pauperis on Appeal. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/23/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ALISON M. ABELS, 9 Plaintiff, 10 11 Northern District of California United States District Court 12 13 Case No.: 11-cv-208 YGR ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL vs. BANK OF AMERICA, N.A., et al., Defendants. 14 15 Plaintiff Alison Abels (“Abels”) filed a Motion to Proceed In Forma Pauperis in connection 16 with her Notice of Appeal on January 13, 2013. (See Docket Nos. 131 [“Motion”], 132 [“Notice of 17 Appeal”].) Rule 24 of the Federal Rules of Appellate Procedure provides that a party seeking to 18 appeal in forma pauperis must file a motion in the district court which includes an affidavit that: 19 20 21 (A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal. 22 Fed. R. App. P. 24(a)(1). The district court may deny the motion to proceed in forma pauperis if it 23 finds that the appeal is not take in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(2). 24 First, Plaintiff’s Motion does not comply with the requirements of Rule 24 as it does not state 25 the issues that she intends to present on appeal, but instead simply indicates that she is appealing the 26 Court’s Order of January 3, 2013. 27 28 More significantly, Plaintiff has failed to allege a cognizable claim or to offer any evidence in support of her claims. Plaintiff filed her original complaint January 13, 2011, alleging claims based 1 upon the origination of her home mortgage, including that the loan was improperly securitized, that 2 her income was overstated on her loan application without her knowledge or consent, and that the 3 loan she was actually sold had different terms than what she was led to believe it would have. 4 Despite being given two opportunities to amend, Plaintiff’s complaint was ultimately dismissed 5 against Defendants Bank of America, N.A., Recontrust, and Realtime for failure to state a viable 6 claim. In addition, Plaintiff’s request for a temporary restraining order was denied because she failed 7 to offer any evidence in support of her allegations. (Dkt. No. 77.) Similarly, although Plaintiff took 8 the defaults of Defendants Triton Realty Group, Inc. and Marissa Moran, and was directed to file 9 motions for default judgment, those motions (Dkt. Nos. 114 and 115) were not supported by any 10 11 evidence against these defendants and the Court dismissed them accordingly. In short, Plaintiff has repeatedly shown that her claims are legally defective and factually Northern District of California United States District Court 12 unsupported. Therefore, the Court finds and CERTIFIES that the appeal is frivolous and not taken in 13 good faith, and DENIES the Application to Proceed In Forma Pauperis on that basis. 14 The Clerk shall forthwith notify petitioner and the Court of Appeals of this order. See FRAP 15 24(a)(4). Petitioner may file a motion for leave to proceed in forma pauperis on appeal in the Court 16 of Appeals within thirty days after service of notice of this order. See FRAP 24(a)(5). 17 18 19 20 IT IS SO ORDERED. Date:January 23, 2013 ________________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 21 22 23 24 25 26 27 28 2

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