BAC Home Loans Servicing, LP v. Fulwiler et al
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 12 , Motion for leave to proceed in forma pauperis 2 is DENIED; Defendant shall pay the $350.00 filing fee within 28 days of entry of this Order, or risk having her federal case remanded without prejudice; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
BAC HOME LOANS SERVICING, LP,
Case No. 1:11-cv-1049
HON. JANET T. NEFF
SUSAN FULWILER, et al.,
OPINION AND ORDER
This is a state-law foreclosure case that Defendant Fulwiler removed to this Court.
Defendant also filed a motion to proceed in forma pauperis. The matter was referred to the
Magistrate Judge, who issued a Report and Recommendation (R & R), recommending that this Court
deny Defendant’s motion because Defendant failed to submit an affidavit of assets sufficient to
determine if she qualifies for in forma pauperis status. The matter is presently before the Court on
Defendant’s objections to the Report and Recommendation. In accordance with 28 U.S.C.
§ 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objections have been made. The Court denies
the objections, adopts the Report and Recommendation, and issues this Opinion and Order.
Defendant first states that she “voluntarily submitted an affidavit . . . to advise and invoke
the court’s ability to proceed without fees” and that her “unrebutted affidavit clearly illustrates
[Defendant’s] inability to pay $350 to the court” (Def. Obj., Dkt 14). While Defendant’s affidavit
(Def. Aff., Dkt 2) presents facts that demonstrate some level of financial hardship, the affidavit does
not provide the level of detail required for the Court to determine if in forma pauperis is appropriate.
Defendant’s objection is therefore denied.
Defendant next objects to what she characterizes as implications of the Report and
Recommendation that “access to the court is a privilege when it is a right” and that “access to the
court is fiscal and not lawful” (Def. Obj., Dkt 14). Further, Defendant requests clarification as to
the legal basis of the requirement that she pay a fee or submit a specific affidavit and objects to “the
court’s attempt to deny due process claiming that I must pay for a privilege when I am actually
exercising a right under the Constitution . . .” (id.).
Under 28 U.S.C. § 1914(a) a party “instituting any civil action . . . whether by original
process, removal or otherwise . . .” must pay a fee of $350.00. While access to the courts is a right,
it is a right that comes with responsibilities, one of which is paying a fee unless the inability to pay
can be clearly established. Because Defendant has neither paid the filing fee nor submitted an
affidavit sufficient to determine her inability to pay, her objection is without merit.
Finally, Defendant objects to the “conversion” of the following designations of parties
contained in her complaint:
(1) “Third Party Plaintiff/Defendant Susan-Ann: Fulwiler” to
“Defendant” (Def. Obj., Dkt 14); and (2) “Third Party Defendant/Respondent BAC Home Loans
Servicing, LP” to “Plaintiff” (id.). Defendant also objects to “the court’s removal of Third Party
Defendant/Respondents: Donald J King . . .; Trott & Trott, P.C.; 62A District Court” (id.).
Plaintiff’s Notice of Removal is an attempt to remove from state court a case BAC Home
Loans Servicing, LP (BAC) initiated against Susan Fulwiler (Dkt 1). The Notice of Removal does
not contain any third-party claims against Donald J. King, Trott & Trott, P.C., or the 62-A District
Court of Michigan; therefore, these entities are not properly joined as parties to this case.
Defendant’s argument is without merit, and her objection is therefore denied.
For the foregoing reasons, this Court adopts the Magistrate Judge’s Report and
Recommendation to deny Defendant’s motion. Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 14) are DENIED, and the Report and
Recommendation (Dkt 12) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Motion for Leave to Proceed in forma pauperis (Dkt
2) is DENIED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that Defendant shall pay the $350.00 filing fee within 28
days of entry of this Order, or risk having her federal case remanded without prejudice.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Date: March ___, 2012
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