THOMAS v. ALLY FINANCIAL

Filing 7

ORDER replacing 6 Order on Motion for Leave to Proceed in forma pauperis and correcting date error. Filing fee is to be paid by 1/14/2015. Ordered by U.S. District Judge HUGH LAWSON on 12/17/2014. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

TERRANCE TORREL THOMAS,
Appellant,
v.

Civil Action No. 7:14-cv-186 (HL)

ALLY FINANCIAL,
Appellee.

ORDER
Appellant, Terrance Torrel Thomas, filed a pro se Notice of Appeal from
the United States Bankruptcy Court on October 10, 2014. His appeal was
docketed with this Court on November 13, 2014. (Doc. 1). After being notified of
his failure to pay the mandatory $298.00 filing fee, Defendant filed a Motion for
Leave to Proceed In Forma Pauperis (“IFP”). (Doc. 3). The Court requested that
Appellant provide additional information regarding his financial circumstances.
Appellant complied by filing a second Motion for Leave to Proceed IFP. (Doc. 5).
Pursuant to 28 U.S.C. § 1915(a), a district court must determine whether
the statements contained in an IFP affidavit satisfy the requirement of poverty.
Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). Although
a litigant does not have to prove he is “absolutely destitute” to qualify under
§ 1915(a), he must show that “because of his poverty, [he] is unable to pay for

the court fees and costs, and to support and provide necessities for himself and
his dependents.” Id. (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 338-40 (1948)). “The court, however, may deny an IFP motion if it finds that
the action is not taken in good faith. In re Arnold, 166 Fed.App’x 424, 425 (11th
Cir. 2006); see 28 U.S.C. § 1915(a)(3). An IFP action is frivolous, and thus not
brought in good faith, where it is “without arguable merit either in law or fact.”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Ghee v.
Retailers Nat. Bank, 271 Fed.App’x 858, 859 (11th Cir. 2008). “Arguable means
capable of being convincingly argued.” Sun v. Forrester, 939 F.3d 924, 925 (11th
Cir. 1991) (per curiam). A claim should be permitted to proceed where it is
arguable but may ultimately be unsuccessful. See Cofield v. Ala. Pub. Serv.
Comm’n., 936 F.2d 512, 515 (11th Cir. 1991).
On September 29, 2014, the bankruptcy court entered an order dismissing
Appellant’s case and imposing sanctions. (Doc. 1, pp. 40-41). That order, in
pertinent part, reveals that Appellant failed to pay the $310.00 filing fee required
to initiate Chapter 13 proceedings. Appellant filed a petition for relief under
Chapter 13 of the Bankruptcy Code on June 18, 2014. He later filed a motion
requesting the bankruptcy court waive the filing fee. However, there is no
provision under Chapter 13 that permits a debtor to proceed IFP. The court
granted Appellant an extension of time to pay the fee, but Appellant did not

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comply. Appellant further made no effort to file a viable plan and made no
payments to the Trustee throughout the duration of his case.
Taking into account Appellant’s overwhelming inaction in furthering the
ends of his case and complying with the bankruptcy court’s order to pay the filing
fee, the court ultimately concluded that “[t]he evidence shows the Debtor filed the
case in order to obtain possession of the automobile financed with the moving
creditor. . . The Court finds that both the case and the plan were filed in bad faith
and represent an abuse of the bankruptcy process.” As a sanction for the bad
faith filing, the bankruptcy court dismissed Appellant’s case with prejudice and
prohibited him from filing for bankruptcy for 180 days.
Appellant filed his Notice of Appeal on October 9, 2014. (Doc. 1, pp. 4345). He alleges as a basis for his appeal that “[s]ignificant evidence was ignored
by the court. This appeal is being filed so the court may look at crucial evidence
that was submitted into the court record prior to the ruling.” However, it is clear
from the bankruptcy court’s order that Appellant’s case ultimately was dismissed
for failing to abide by the court’s orders and abusing the bankruptcy process. The
evidence is clear that Appellant neglected to pay the filing fee, which in and of
itself presented a procedural bar to Appellant’s case. Any appeal from the
bankruptcy court’s order thus is frivolous and without merit.
Accordingly, Appellant’s Motion to Proceed IFP is denied. If Appellant
wishes to pursue this appeal further, he must pay the $298.00 filing fee by no
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later than January 14, 2015. The Court will afford Appellant no additional
extensions to pay the filing fee. Failure to comply with this order will result in
immediate dismissal.
SO ORDERED, this 17th day of December, 2014.

s/ Hugh Lawson______________
HUGH LAWSON, SENIOR JUDGE
aks

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