In re: Philip O. Emiabata

Filing 49

ORDER REOPENING CASE AND DIRECTING APPELLANT TO FILE STATEMENT OF ISSUES ON APPEAL signed by Judge Marsha J. Pechman. IT IS ORDERED that the dismissal entered on July 9, 2018 is VACATED 34 35 and this matter is re-opened. The Appellant will fil e a Statement of Issues on Appeal with this Court by 10/22/2018. Any pleadings currently on the docket which are designated as motions by Appellant are stricken; the Court believes it has addressed all matters raised by Appellant in the wake of the July dismissal. (Attachments: # 1 Exhibit A - Statement of Issues on Appeal Form)(PM) cc: Appellant via certified mail (Tracking #7004 2510 0004 3279 8286)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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In re PHILLIP O. EMIABATA,

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Appellant,
v.

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CASE NO. C17-1752MJP
ORDER REOPENING CASE AND
DIRECTING APPELLANT TO
FILE STATEMENT OF ISSUES
ON APPEAL

SPECIALIZED LOAN SERVICING,
LLC, and AVAIL 1 LLC,

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Appellees.
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On July 9, 2018, this Court, believing that Appellant had failed to respond to an Order to
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Show Cause, dismissed this matter without prejudice. (Dkt. No. 34.) It later became apparent
that Appellant had indeed responded to the Order to Show Cause and, through no fault of

19 Appellant’s, his response had not been docketed.
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In the period since that oversight, Appellant has filed a series of motions; to wit:
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Motion for Leave to Proceed In Forma Pauperis (Dkt. No. 46)

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A Motion for Leave to Proceed In Forma Pauperis (Dkt. No. 43) and a Second Amended

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A Motion to Vacate Order (Dkt. No. 37)

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A Motion to Show Cause (Dkt. No. 38)

ORDER REOPENING CASE AND DIRECTING
APPELLANT TO FILE STATEMENT OF ISSUES
ON APPEAL- 1

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A Motion of Statement of Issues on Appeal (Dkt. No. 39) with an accompanying

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Declaration of Appellant (Dkt. No. 40)

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Appellant’s Motion for Leave to Proceed in Forma Pauperis was granted by Magistrate

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Judge Theiler on September 18, 2018. (Dkt. No. 48.) With the granting of that motion, this
Court is prepared to reopen Appellant’s litigation and hopefully see it through to its conclusion.
However, there is one more procedural requirement that must be met in order for Appellant’s

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matter to proceed.
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Appellant is required to file, pursuant to Federal Bankruptcy Rule 8009(a)(1), a
“statement of issues on appeal.” A statement of issues on appeal is exactly what it sounds like: a

9 summary of the issues which form the basis of the appeal from the Bankruptcy Court; put
10 another way, it is a statement of what the appellant thinks the Bankruptcy Court did wrong.
11 Such a statement must be filed with this Court before this case can move forward.
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In the packet of motions Appellant filed in the wake of the July 2018 dismissal of his
matter was one entitled “Appellant Motion for Its Statement of Issue in Its Appeal.” (Dkt. No.
39.) It appears to be a summary of the various cases Appellant has filed in both the Western
District of Washington and the Western District of Texas; it is not a “statement of issues on

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appeal” and it will not satisfy the requirement which Appellant must meet in order for his case to
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proceed.
To assist the Appellant in filing a proper statement of issues on appeal, the Court is

18 attaching a form for the filing of a statement of issues on appeal. (See Attachment A.) It is
19 hoped that this will make clearer to the Appellant what he needs to include in his statement of
20 issues on appeal. If he will fill out that document properly and file it with the Court, then this
21 matter can proceed forward to resolution. The Court is giving Appellant 28 days from the date
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of this order to file the statement of issues on appeal.
The Court wishes to address one other point on which Appellant appears to be confused.
Prior to the referral of his appeal from the Bankruptcy Court to this Court, Appellant had filed a

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ORDER REOPENING CASE AND DIRECTING
APPELLANT TO FILE STATEMENT OF ISSUES
ON APPEAL- 2

1 “Complaint and Request for Injunction” which was assigned to the Honorable James L. Robart
2 of this district. (See C17-1302JLR.) That matter was dismissed on October 3, 2017. (Id., Dkt.
3 No. 7.) Appellant did not appeal the dismissal. It appears from some of Appellant’s pleadings in
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this matter as though he believes either (1) he can consolidate his dismissed matter (C171302JLR) with the case pending before this Court or (2) he can re-file the complaint from C17-

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1302JLR in this case. He needs to understand that he can do neither.
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The only issues before this Court are those arising out of the Bankruptcy Court
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proceedings from which Appellant appealed (involving the lifting of an automatic stay of lien

8 enforcement awarded to moving party Specialized Loan Servicing by Bankruptcy Judge Dore on
9 October 20, 2017). Appellant’s case before Judge Robart has been dismissed and (no appeal to
10 the Ninth Circuit having been taken) is completely concluded.
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The Court hopes this clears up any remaining questions and that, once Appellant files his

12 Statement of Issues on Appeal, this matter can move forward to a resolution on its merits.
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Therefore,
IT IS ORDERED that the dismissal entered on July 9, 2018 is VACATED and this matter

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is re-opened.
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IT IS FURTHER ORDERED that Appellant will file a Statement of Issues with this
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Court by no later than October 22, 2018; Appellant is directed to Attachment “A” of this order

17 for a suggested format for that statement.
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IT IS FURTHER ORDERED that any pleadings currently on the docket which are

19 designated as “motions” by Appellant are stricken; the Court believes it has addressed all matters
20 raised by Appellant in the wake of the July dismissal.
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ORDER REOPENING CASE AND DIRECTING
APPELLANT TO FILE STATEMENT OF ISSUES
ON APPEAL- 3

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The clerk is ordered to provide copies of this order to Appellant and to all counsel.

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Dated this __24th___ day of September, 2018.

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A

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The Honorable Marsha J. Pechman
United States Senior District Court Judge

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ORDER REOPENING CASE AND DIRECTING
APPELLANT TO FILE STATEMENT OF ISSUES
ON APPEAL- 4