Koncak et al v. Deutsche Bank National Trust et al

Filing 32

Order: re: 30 Findings and Recommendations on Motion re: 26 Motion for Extension of Time to File filed by James D Koncak. The court, therefore, grants Plaintiffs' Motion for Extension of Time to File Plaintiffs' Notice of Appeal Pursuant to Federal Rule 4(a)(5) (Doc. 26). Before the court could rule on Plaintiffs' motion and the Report, Plaintiffs filed a Notice of Appeal on June 6, 2017, after the magistrate judge recommended that their motion be granted. Accordingl y, in light of the courts ruling on Plaintiffs' motion, it extends Plaintiffs' deadline to appeal under Fed. R. App. 4(b)(5) to June 6, 2017, such that their Notice of Appeal filed June 6, 2017, is deemed timely. (Ordered by Judge Sam A Lindsay on 6/9/2017) (ndt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES D. KONCAK and
JUDI K. KONCAK,
Plaintiffs,
v.
DEUTSCHE BANK NATION TRUST
COMPANY, as Trustee for GSAMP
Trust 2006-FM2, Mortgage Pass-Through
Certificates, Series 2006-FM2 and
OCWEN LOAN SERVICING, LLC,
Defendants.

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Civil Action No. 3:16-CV-1507-L

ORDER
Before the court is Plaintiffs’ Motion for Extension of Time to File Plaintiffs’ Notice of
Appeal Pursuant to Federal Rule 4(a)(5) (Doc. 26), filed March 16, 2017. On March 22, 2017,
Defendants filed a response in opposition to the motion (Doc. 27). On May 24, 2017, United States
Magistrate Judge Renée Harris Toliver entered the Findings, Conclusions and Recommendation of
the United States Magistrate Judge (“Report”), recommending that the court grant Plaintiffs’ motion.
No objections to the Report were filed within the time allowed.
Having reviewed the motion, response, and Report, the court determines that the findings
and conclusions of the magistrate judge are correct, and accepts them as those of the court. The
court, therefore, grants Plaintiffs’ Motion for Extension of Time to File Plaintiffs’ Notice of Appeal
Pursuant to Federal Rule 4(a)(5) (Doc. 26). Before the court could rule on Plaintiffs’ motion and the
Report, Plaintiffs filed a Notice of Appeal on June 6, 2017, after the magistrate judge recommended
that their motion be granted. Accordingly, in light of the court’s ruling on Plaintiffs’ motion, it

Order – Page 1

extends Plaintiffs’ deadline to appeal under Fed. R. App. 4(b)(5) to June 6, 2017, such that their
Notice of Appeal filed June 6, 2017, is deemed timely.
Notwithstanding the court’s decision to grant the requested extension, it prospectively
certifies that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Fed. R. App. P. 24(a)(3). In support of this certification, the court incorporates by reference the
magistrate judge’s prior Report (Doc. 21) and this court’s order (Doc. 24). See Baugh v. Taylor, 117
F.3d 197, 202 and n.21 (5th Cir. 1997). For the reasons set forth in the magistrate judge’s prior
Report (Doc. 21) and this court’s order (Doc. 24), the court finds that any appeal of this action would
present no legal point of arguable merit and would, therefore, be frivolous. See Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this certification
by filing a separate motion to proceed in forma pauperis on appeal with the clerk of the United States
Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5).
It is so ordered this 9th day of June, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 2