National Collegiate Loan Trust 2006-3, 2007-4, a Delaware Statutory Trust et al v. Union Federal Savings Bank et al

Filing 4

OPINION and ORDER re 2 Application to Proceed Without Prepaying Fees or Costs. Signed by District Judge Lawrence P. Zatkoff. (DWor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NATIONAL COLLEGIATE LOAN TRUST
2006-3, 2007-4, a Delaware Statutory Trust,
Plaintiff,

Case No. 14-13638
Hon. Lawrence P. Zatkoff

v.
MARC D. SMITH, and CAROLYN U. SMITH,
Defendants.
/
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on September 30, 2014
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Defendants Marc Smith and Carolyn Smith filed a Notice of Removal [dkt 1] on
September 19, 2014. Defendant Marc Smith filed an application to proceed in forma pauperis
[dkt 2] the same day. For the following reasons, Defendant Marc Smith’s request to proceed in
forma pauperis is DENIED.
II. ANALYSIS
Defendant Marc Smith has filed an application to proceed without prepayment of fees.
Under 28 U.S.C. § 1915(a), “any court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or
security therefor, by a person who submits an affidavit that includes a statement of all assets such
prisoner possesses that the person is unable to pay such fees or give security therefor.” The

reference to assets of “such prisoner” is likely a typographical error; thus, § 1915(a) applies to all
natural persons. See Floyd v. U.S. Postal Serv., 105 F.3d 274 (6th Cir. 1997). If a motion to
proceed without prepayment of fees is filed and accompanied by a facially-sufficient affidavit,
the Court should allow the complaint to be filed. See Gibson v. R.G. Smith Co., 915 F.2d 260,
261 (6th Cir. 1990) (citing Phillips v. Carey, 638 F.2d 207, 208 (10th Cir. 1981)). Only after the
complaint is filed is it tested to determine whether it is frivolous or fails to state a claim. See id.
at 261.
The Court, having reviewed Defendant Marc Smith’s application, has determined that he
is not entitled to proceed in forma pauperis. The financial information in the application does
not indicate whether Defendant Carolyn Smith is unable to pay the filing fee; thus, the
application is facially-insufficient. Accordingly, the Court DENIES Defendant Marc Smith’s
application to proceed in forma pauperis.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant Marc Smith’s request to
proceed in forma pauperis [dkt 2] is DENIED without prejudice.
IT IS SO ORDERED.
Date: September 30, 2014

s/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
U.S. District Court

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