Duroser v. Unknown
Filing
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OPINION AND ORDER GRANTING In Forma Pauperis solely for the purpose of dismissal, DISMISSING APPEAL AS FRIVOLOUS. Signed by Judge William S. Duffey, Jr on 7/2/2015. (adg)
I.
BACKGROUND
Debtor has a lengthy litigation history in this Court and the Bankruptcy
Court. In addition to her current appeal in this bankruptcy action, Debtor, pro se
and seeking to proceed in forma pauperis (“IFP”), has initiated no fewer than nine
(9) cases in this Court, all of which have been dismissed as frivolous or for failure
to comply with a court order.2 Debtor has also filed at least five (5) previous
petitions for relief under the United States Bankruptcy Code:
2
See Durosier v. Equity One Mortg. Inc., No. 1:08-mi-335-BBM (filed
Sept. 24, 2008; IFP application denied Oct. 1, 2008; motion for reconsideration of
IFP status denied for failure to complete IFP form and because action appeared
frivolous, Nov. 4, 2008; dismissed for failure to pay filing fee Feb. 18, 2009);
In seven (7) cases, Debtor removed to this Court state court dispossessory
actions, all of which the Court remanded for lack of subject matter jurisdiction.
Four (4) of the cases involved possession of real property located at 1560
Heatherglade Lane, Lawrenceville, Georgia. See Bank of New York v. Durosier,
No. 1:08-cv-3831-RWS (removed Dec. 9, 2008; remanded Jan. 14, 2009; motion
to appeal IFP denied Feb. 6, 2009; appeal dismissed by 11th Cir. Mar. 31, 2009);
No. 1:09-cv-554-RWS (removed Feb. 12, 2009; remanded July 14, 2009;
reconsideration denied Aug. 18, 2009); No. 1:10-cv-3189-ODE (removed Oct. 5,
2010; remanded Nov. 9, 2010; motion to reopen and petition to void order denied
Nov. 30, 2010; fine of $1,000 imposed for failure to appear at hearing to show
cause why she should not be sanctioned for filing frivolous cases; appeal dismissed
by 11th Cir. Mar. 10, 2011); No. 1:10-cv-3961-ODE (removed to M.D. Ga. Dec. 3,
2010; transferred to this Court Dec. 6, 2010; remanded Dec. 8, 2010; second IFP
application and leave to amend notice of removal denied Dec. 14, 2010).
Two (2) of the dispossessory cases improperly removed sought possession
of property located at 60 Camerons Way, Covington, Georgia, see Midfirst Bank
v. Chambers, et al., No. 1:10-cv-1942-ODE (removed June 23, 2010; remanded
July 20, 2010); No. 1:10-cv-3654-ODE (removed Nov. 9, 2010; remanded Dec. 1,
2010). In Citibank, N.A. v. Johnson, Debtor removed to this Court a dispossessory
2
On November 23, 2009, Debtor filed a Chapter 13 bankruptcy petition and
the Bankruptcy Court permitted Debtor to pay the filing fee in installments. On
January 14, 2010, Debtor’s petition was dismissed for failure to timely pay the
second installment payment. In re Durosier, No. 09-90959 (Bankr. N.D. Ga.).
On October 28, 2010, Debtor filed a Chapter 7 bankruptcy petition. On
November 3, 2010, before her motion to waive the filing fee was decided, Debtor
action regarding property located at 430 Chandler Bluff Court, Georgia. See
No. 1:14-cv-1784-WSD (removed June 9, 2014; remanded Oct. 7, 2014).
Debtor also removed to this Court a state court criminal action charging
Debtor with driving with a suspended registration and failure to register a vehicle,
which the Court remanded for lack of jurisdiction. See State of Georgia v. Barbara
Durosier, a.k.a. Estelle Durosier, No. 1:11-cv-1953-ODE (removed June 13, 2011;
remanded July 22, 2011).
Although the Court has determined that she may not proceed IFP and
admonished her for filing meritless actions solely to cause unnecessary delay,
Durosier has never paid a filing fee or posted a bond, as required by the Court in at
least two orders. See No. 1:08-cv-3831 (“Defendant is advised that her attempted
removal appears to be meritless and to have been filed solely to cause unnecessary
delay in the state court proceeding. If [she] files further pleadings in this case or in
other matters solely for purposes of delay monetary sanctions may be imposed.”);
No. 1:09-cv-554 (ordering that Durosier “not file further actions in this Court
involving [the Heatherglade Lane property] without posting a $10,000 bond);
No. 1:10-cv-3189 (ordering Durosier to show cause why she should not be held in
contempt and sanctioned because of her “failure to comply with repeated, clear
instructions as to her dispossessory proceedings;” finding her in contempt for
failure to appear at hearing and imposing $1,000 fine); No. 1:10-cv-3654-ODE
(directing clerk not to accept new filings concerning Camerons Way property
unless accompanied by full filing fee and bond). To avoid these filing restrictions,
Durosier has used the names “Barbara Durosier,” “Estelle Durosier,” and “Barbara
Duroser,” and she attempted to remove an action from the Magistrate Court of
Gwinnett County to the Middle District of Georgia, which was transferred to this
Court where venue was proper.
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voluntarily dismissed her case. In re Durosier, No. 10-92028 (Bankr. N.D. Ga.).3
On April 14, 2011, Debtor filed a Chapter 13 bankruptcy petition. On
April 18, 2011, the Bankruptcy Court denied Debtor’s application to pay the filing
fee in installments, based on Debtor’s failure to pay the filing fees in her prior
cases. On April 26, 2011, Debtor’s case was converted to Chapter 7 and on
June 1, 2011, the Court granted Debtor’s application to waive the filing fee. On
June 24, 2011, Debtor’s case was dismissed for twice failing to appear for the
meeting of creditors. In re Durosier, No. 11-61625 (Bankr. N.D. Ga.).
On October 3, 2013, Debtor filed a Chapter 13 bankruptcy petition. On
October 7, 2013, the Bankruptcy Court denied her application to pay the filing fee
in installments, again based on Debtor’s failure to pay the filing fees in her prior
cases. On October 15, 2013, Debtor paid the filing fee in full. On October 25,
2013, she voluntarily dismissed her case. In re Durosier, No. 13-71795
(Bankr. N.D. Ga.).
On January 21, 2015, Debtor filed a Chapter 7 petition. On January 26,
2015, the Bankruptcy Court denied her application to waive the filing fee, finding
that Debtor did not qualify for waiver of the filing fee and that she owes
outstanding filing fees from her several previous cases, and ordered Debtor to pay
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Because no order was entered waiving the filing fee, the Bankruptcy Court’s
records show that there is an outstanding filing fee for this action.
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the filing fee within ten (10) days. Debtor did not pay the filing fee and, instead,
filed two (2) motions for reconsideration. On February 16, 2015, the Bankruptcy
Court, having found that Debtor still owes outstanding filing fees from at least two
earlier cases, Nos. 09-90959 and 10-92028, denied Debtor’s motions for
reconsideration. In re Duroser, No. 15-51210 (Bankr. N.D. Ga.). On April 15,
2015, the Bankruptcy Court sent Debtor a letter, which states:
A review of the Court’s financial records disclosed that there is an
outstanding filing fee of $335.00 for the bankruptcy case filed by you
on January 21, 2015. Upon the filing of a bankruptcy case, the debtor
is responsible for the entire filing fee, regardless of the disposition of
the case. Pursuant to Federal Rules of Bankruptcy Procedure, Rule
1006, the outstanding balance on the filing fee remains payable to the
Clerk of Court.
Id. at Doc. 26.
On April 22, 2015, Debtor filed her Chapter 7 bankruptcy petition in this
action. On April 28, 2015, the Bankruptcy Court entered its order denying
Debtor’s Application for Waiver of the Chapter 7 Filing Fee. The Bankruptcy
Court found that “Debtor does not qualify for a waiver of the filing fee” because
“Debtor previously filed case nos. 15-51210-CRM, 10-92028-MHM, and
09-90959-MHM,” and “Debtor owes outstanding filing fees from those cases.”
(April 28th Order [Bankr. 9] at 1). The Bankruptcy Court ordered Debtor to pay
the Chapter 7 filing fee in full within ten (10) days, and advised that “[i]f Debtor
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fails to timely pay the filing fee . . . this case may be dismissed without opportunity
for hearing.” (Id. at 2).
Debtor failed to pay the filing fee or otherwise respond to the Bankruptcy
Court’s April 28th Order, and on May 19, 2015, the Bankruptcy Court dismissed
Debtor’s bankruptcy petition for failure to pay the filing fee. (May 19th Order
[Bankr. 12]).
On May 19, 2015, Debtor filed her Notice of Appeal, in which she states that
she is appealing “the judgment denying fee waiver request on April 28, 2014
[sic].” (Notice of Appeal [1]).
On June 1, 2015, Debtor her IFP Application and her “Amended Notice of
Appeal,” in which she states that she is appealing “the judgment denying fee
waiver request on April 28, 2014 [sic] and case dismissal due to nonpayment of
chapter 7 fee on May, 19 2015 [sic].” (Am. Notice of Appeal [2.3]).
II.
DISCUSSION
A.
IFP Application
The Court “may authorize the commencement . . . of any suit, action, or
proceeding . . . or appeal therein, without payment of fees or security therefor, by a
person who submits an affidavit that includes a statement of all assets such
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prisoner[4] possesses that the person is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). The purpose is to provide indigent litigants
with equal access to the judicial system. Attwood v. Singletary, 105 F.3d 610, 612
(11th Cir. 1997). A party seeking to proceed in forma pauperis must therefore
show an inability to prepay fees and costs without foregoing the basic necessities
of life. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342-43 (1948).
Having reviewed Debtor’s IFP Application, the Court finds that Debtor
meets the financial requirements for IFP status.
B.
Frivolity Review
1.
Legal Standard
A court must dismiss an action filed in forma pauperis if at any time the
court determines that the action or appeal is frivolous or malicious or that it fails to
state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). An
issue is frivolous when it appears that the legal theories are “indisputably
meritless.” See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross,
984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous if it
is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d
4
The word “prisoner” is a typographical error, and the affidavit requirement
applies to all individuals seeking to proceed in forma pauperis. Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004).
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528, 531 (11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
“Arguable means capable of being convincingly argued.” Sun v. Forrester, 939
F.2d 924, 925 (11th Cir. 1991). Where a claim is arguable, but ultimately will be
unsuccessful, it should be allowed to proceed. See Cofield v. Ala. Pub. Serv.
Comm’n, 936 F.2d 512, 515 (11th Cir. 1991).
2.
Analysis
To the extent Debtor seeks to appeal the Bankruptcy Court’s April 28th
Order, Debtor’s appeal is untimely and the Court lacks jurisdiction to consider it.
For an appeal in a bankruptcy action to be perfected, a “notice of appeal shall be
filed with the clerk within 14 days of the date of the entry of the judgment, order,
or decree appealed from.” Fed. R. Bankr. P. 8002(a); see also 28 U.S.C.
§ 158(c)(2) (appeal from bankruptcy court order must be filed “in the time
provided by Rule 8002 of the Bankruptcy Rules”). When an appeal “has not been
prosecuted in the manner directed, within the time limited by the acts of Congress,
it must be dismissed for want of jurisdiction.” Bowles v. Russell, 551 U.S. 205,
210 (2007) (quoting United States v. Curry, 47 U.S. 106, 113 (1848)). The filing
of an appeal within the prescribed time is “mandatory and jurisdictional.” Bowles,
551 U.S. at 209 (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61
(1982) (per curiam)); Williams v. EMC Mortg. Corp. (In re Williams), 216 F.3d
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1295, 1298 (11th Cir. 2000) (“If the notice [of appeal] is not timely filed, the
appellate court is without jurisdiction to hear the appeal.”).
Here, the fourteen day period within which to appeal the Bankruptcy Court’s
April 28th Order expired, at the latest, on May 12, 2015. See Fed. R. Bankr. P.
8002(a); Fed. R. Bankr. P. 9006(a) (when period is stated in days, count every day,
including intermediate Saturdays, Sundays, and legal holidays); Fed. R. Bankr. P.
9022 (“Lack of notice of the entry [of an order] does not affect the time to appeal
or relieve or authorize the court to relieve a party for failure to appeal within the
time allowed, except as permitted in Rule 8002.”); In re B.J. McAdams, Inc.,
999 F.2d 1221, 1225 (8th Cir. 1993) (“[T]he time to file the motions or notice of
appeal runs from the entry of judgment, not from service of notice of the
judgment.”); In re Reynolds, 215 B.R. 89, 91 (Bankr. N.D. Ga. 1997) (it is
well-established that Rule 9006(f) does not add three days to the period to file a
notice of appeal under Rule 8002(a), despite the fact that notice of the judgment
was mailed) (citing In re Schimmels, 85 F.3d 416, 419-20 & n.4 (9th Cir. 1996)).
Because Debtor filed her Notice of Appeal on May 19, 2015, twenty-one (21) days
after entry of the order from which she appeals, the Court lacks jurisdiction to
consider the appeal. See Bowles, 551 U.S. at 210 (“[W]hen an ‘appeal has not
been prosecuted in the manner directed, within the time limited by the acts of
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Congress, it must be dismissed for want of jurisdiction.’”); Williams, 216
F.3d 1295, 1298. Debtor’s untimely appeal from the Bankruptcy Court’s April
28th Order is required to be dismissed.5
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Even if the Court had jurisdiction to consider it, the Bankruptcy Court did
not abuse its discretion in finding that Debtor does not qualify for waiver of the
filing fee due to her outstanding filing fee obligations and denying Debtor’s
Application to Waive the Filing Fee. See 11 U.S.C. § 105(a) (bankruptcy court
may issue any order, process or judgment necessary or appropriate to prevent
abuse of the bankruptcy system); 11 U.S.C. § 109(g)(1) (debtor is not eligible to
file for bankruptcy relief for 180 days if a prior case was dismissed for failure to
comply with court orders and debtor’s failure was willful); In re Domenico,
364 B.R. 418 (Bankr. D. N.M. 2007) (although debtor paid filing fee for Chapter 7
case, his failure to pay outstanding filing fee in prior Chapter 13 case supports
dismissal of current Chapter 7 case, under 11 U.S.C. § 707(a)(2), for “nonpayment
of any fees and charges required under chapter 123 of title 28”); In re Armwood,
175 B.R. 779, 787-788 (Bankr. N.D. Ga. 1994) (debtor’s conduct was “willful,”
and warranted dismissal where debtor failed to appear at creditor meeting, failed to
make payments, and repeatedly filed “skeletal” Chapter 13 petitions); cf. General
Order 14-2003, Bankr. N.D. Ga. (“In individual Chapter 7 . . . cases, if Debtor files
an application to pay the filing fee in installments and the Court’s records show
that Debtor has been a Debtor in a prior case in which Debtor failed to pay the full
filing fee in installments and then defaulted on that obligation, Debtor will not be
permitted to pay the filing fee in installments” and must pay the filing fee in full.).
To the extent Debtor argues that the Bankruptcy Court improperly denied
her Application because her income does not exceed 150% of the poverty line and
she is unable to pay the filing fee in installments, nothing in 28 U.S.C. § 1930(f)
requires a court to waive the filing fee. 28 U.S.C. § 1930(f) (“bankruptcy court
may waive the filing fee in a case under Chapter 7” under certain circumstances)
(emphasis added). The Eleventh Circuit has consistently held that “the right of
access to the courts is neither absolute nor unconditional. Conditions on access are
necessary to preserve judicial resources for all persons. . . . [F]iling fees in theory
discourage frivolous lawsuits and thus help allocate judicial resources to more
meritorious cases.” See In re Owens, 458 F. App’x 836, 838 (11th Cir. 2012)
(citations and quotations omitted).
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To the extent Debtor seeks to appeal the Bankruptcy Court’s May 19th
Order dismissing her case for failure to pay the filing fee as directed, Debtor’s
appeal is frivolous because it is undisputed that the Court ordered Debtor to pay
the filing fee in full within ten (10) days, that the Court advised Debtor that the
failure to pay the filing fee as directed would result in dismissal of her case without
a hearing, and that Debtor failed to pay the filing fee as directed. Debtor does not
explain why she believes the Bankruptcy Court improperly dismissed her case, and
Debtor cannot challenge the Bankruptcy Court’s April 28th Order directing her to
pay the filing fee because, as discussed above, the Court lacks jurisdiction to
consider her untimely appeal of that order. See 11 U.S.C. § 707(a) (court may
dismiss a case after notice and a hearing and for cause, including nonpayment of
fees); 11 U.S.C. § 105 (bankruptcy court may issue any order, process or judgment
necessary or appropriate to prevent abuse of the bankruptcy system; court may take
any action necessary or appropriate to enforce or implement court orders or to
prevent an abuse of process). The Court cannot identify any legal issue of arguable
merit raised by Debtor. Debtor’s appeal, like her previous filings, constitutes an
abuse of the bankruptcy system, and the court system as a whole. Debtor’s appeal
is frivolous and required to be dismissed.
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Debtor’s Application to Appeal in forma
pauperis [2.5] is GRANTED solely for the purpose of dismissal.
IT IS FURTHER ORDERED that this Appeal is DISMISSED AS
FRIVOLOUS.
SO ORDERED this 2nd day of July, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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