In re: Philip O. Emiabata

Filing 48

ORDER granting Appellant's 46 Second Amended Motion for Leave to Proceed in forma pauperis. However, to the extent the Court considers reopeningthis dismissed matter, the undersigned recommends review under 28 U.S.C. § 1915(e)(2)(B). Signed by Hon. Mary Alice Theiler. (PM) cc: appellant via certified mail (Tracking #7004 2510 0004 3279 8279)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

PHILIP O. EMIABATA,
Appellant,

10
11
12

CASE NO. C17-1752-MJP

v.
SPECIALIZED LOAN SERVING LLC, and
AVAIL 1 LLC,

13

ORDER RE: APPLICATION TO
PROCEED IN FORMA PAUPERIS

Appellees.

14
15

This matter was dismissed without prejudice for appellant’s failure to pay a filing fee or

16

file a Statement of Issues on Appeal as directed by the Court. (Dkt. 35.) Appellant subsequently

17

submitted a motion to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915. (Dkt. 36.)

18

The IFP motion was referred to the undersigned for consideration.

19

Having now considered appellant’s second amended IFP application and attachments

20

(Dkt. 46), the Court finds appellant does not appear to have funds available to afford the filing

21

fee. Appellant therefore financially qualifies for IFP status pursuant to 28 U.S.C. § 1915(a)(1).1

22
Appellant did not request consideration under 28 U.S.C. § 1930(f), a statutory provision devoted
to fee waivers in bankruptcy matters. Section 1930(f)(1) allows for a waiver of filing fees for financially
eligible Chapter 7 debtors, but is inapplicable to appellant’s Chapter 13 bankruptcy case. Section
1930(f)(3) reflects that the fee waiver subsection does not restrict district or bankruptcy courts “from
1

23

ORDER
PAGE - 1

1

Considered solely on the basis of financial eligibility, appellant’s second amended IFP

2

application (Dkt. 46) should be granted. However, to the extent the Court considers reopening

3

this dismissed matter, the undersigned recommends review under 28 U.S.C. § 1915(e)(2)(B).

4

DATED this 18th day of September, 2018.

5

A

6

Mary Alice Theiler
United States Magistrate Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

waiving, in accordance with Judicial Conference policy, [bankruptcy fees] for other debtors and
creditors.” There is, however, an absence of Ninth Circuit authority supporting the proposition §
1930(f)(3) could or should provide for a waiver of the filing fee for appellant debtor’s appeal. See, e.g.,
Ramono v. Stumpf, No. C-11-3479, 2011 U.S. Dist. LEXIS 122796 at *2-3 & n.1 (N.D. Cal. Oct. 24,
2011) (applying § 1915(a) to a creditor’s motion to appeal in bankruptcy proceeding; noting that, “unlike
the Seventh Circuit, the Ninth Circuit has not held that § 1930(f)(3) should apply to creditor [IFP]
motions, and there is at least a fair argument that the statute should not apply.”) (citing In re Richmond,
247 Fed. Appx. 831, 832 (7th Cir. 2007) (finding, under § 1930(f)(3), “the bankruptcy and district courts
clearly have the authority to allow creditors to proceed [IFP]”); and Allen v. Stewart (In re Allen), Nos.
07-20389, 08-07014, 2009 Bankr. LEXIS 2122 at *9 (Bankr. D. Idaho Apr. 28, 2009) (observing that
“subsection (f)(3)’s language does not itself provide the ability or authority to waive fees, nor does it
explicitly reference where such authority or ability is provided.”))

ORDER
PAGE - 2