In Re Mamady B. Cisse

Opinion

4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 8 In re MAMADY B. CISSE, Case No. 20-cv-01694-BAS-WVG 9 Bankruptcy No. 17-04821-LT13 Debtor. 10 ORDER: 11 MAMADY B. CISSE, (1) DENYING APPELLANT’S MOTION FOR RULING ON 12 Appellant, MOTION FOR FEE WAIVER REQUEST (ECF No. 8); 13 v. AND 14 WELLS FARGO BANK N.A., as servicing agent for U.S. Bank National (2) GRANTING APPELLANT’S 15 Association, as Indenture Trustee for MOTION FOR LEAVE TO FILE Citigroup Mortgage, ELECTRONICALLY (ECF No. 9) 16 Appellee. 17 18 On August 31, 2020, Appellant Mamady B. Cisse, proceeding pro se, appealed from 19 the United States Bankruptcy Court’s decision and elected to proceed in this Court. (ECF 20 No. 1.) Appellant has also filed a motion requesting a ruling on a fee waiver request and 21 moved to file documents in this case using the Court’s electronic filing system (CM/ECF). 22 (ECF Nos. 8, 9.) 23 First, regarding the fee waiver request, the Bankruptcy Court has certified that this 24 appeal of the court’s orders denying a motion to reopen and motion for reconsideration is 25 not taken in good faith and is frivolous for the reasons stated on the record.1 (ECF No. 2.)

26 1 The fee waiver itself also suffers from other deficiencies. It states only that Appellant is experiencing 27 “financial hardship and unemployment” due to the COVID-19 pandemic. (ECF No. 5.) However, Appellant was required to submit an affidavit detailing Appellant’s financial circumstances, at the time 28 1 Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the 2 trial court certifies in writing that it is not taken in good faith.” See In re Kocak, No. 1:20- 3 mc-00026-AWI-SKO, 2020 WL 3344182, at *2 (E.D. Cal. May 29, 2020) (conducting an 4 independent review of bankruptcy court’s certification in denying IFP); see also In re 5 Price, 410 B.R. 51, 58 (Bankr. E.D. Cal. 2009) (citing Perroton v. Gray (In re Perroton), 6 958 F.2d 889, 896 (9th Cir. 1992)) (finding that although the Ninth Circuit has held that 7 bankruptcy courts cannot authorize in forma pauperis status, “the bankruptcy judge still 8 has an assigned role to play” through the certification process in § 1915(a)(3)); In re Minh 9 Vu Hoang, No. CIV.A. DKC 11-2641, 2011 WL 10583556, at *4 (D. Md. Dec. 13, 2011), 10 aff’d, 473 F. App’x 201 (4th Cir. 2012) (under § 1915(a)(3), bankruptcy courts “play an 11 important role in the determination of a motion for leave to appeal in forma pauperis”). 12 Here, Appellant does not state with specificity the basis for his appeal; he only 13 indicates that the appeal is from the Bankruptcy Court’s order on Appellant’s Motion to 14 Reopen. (ECF No. 1.) In the underlying proceedings, the Bankruptcy Court denied that 15 the motion to reopen Appellant’s bankruptcy proceeding as futile because dismissal of that 16 case was based on Appellant’s failure to timely “fulfill the fundamental duty to provide tax 17 information and to make plan payments.” (In re Mamady B. Cisse, No. 17-04821-LT13 18 (Bankr. S.D. Cal.) (Dkt. Nos. 81, 84).) Appellant provided no way to cure these defects 19 such that a motion to reopen could afford him even the possibility of relief. (Id. (citing 11 20 U.S.C. § 350(b)).) After Appellant moved for reconsideration of this order, the court held 21 that there was no fraud, mistake, or extraordinary circumstances to support reconsideration. 22 (Id. (Dkt. Nos. 89, 91).) 23 Thus, even if Appellant had the opportunity to furnish this Court with the necessary 24 financial information, the Court finds Appellant is not entitled to proceed IFP in this Court 25 26 to provide himself and dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339–40 (1948) (citing 28 U.S.C. § 1915(a)); see also CivLR 3.2(a). The fee waiver request 27 transmitted to this Court does not contain the necessary financial information to constitute an adequate fee waiver. Because the Court finds above that Appellant is foreclosed from proceeding in forma pauperis 28 1 based on the certification of the Bankruptcy Court. The Court agrees that reopening 2 || Appellant’s bankruptcy case would have been futile because the same reasons supporting 3 mandatory dismissal of the lawsuit in 2018 still exist at present. See Kocak, 2020 WL 4 33344182, at *2 (citing In re Beezley, 994 F.2d 1433 (9th Cir. 1993)) (adopting findings of 5 bankruptcy court that appeal was frivolous because reopening case to amend the schedules 6 || was a “pointless exercise” under which not relief could be granted). Thus, the Court finds 7 Appellant’s appeal is not taken in good faith and there is no basis to afford IFP status, 8 if Appellant could make the necessary showing of financial need. See Hobby v. 9 || Beneficial Mortg. Co. of Virginia, No. CIV.A. 2:05-cv-110, 2005 WL 5409003, at *1 (E.D. 10 |} Va. June 3, 2005) (independently relying on bankruptcy court’s “knowledge of the record 11 the underlying bankruptcy case” to affirm that appeal was taken in bad faith under 12 1915(a)(3) and deny IFP motion). 13 Accordingly, the Court DENIES Appellant’s Motion regarding his fee waiver 14 request (ECF No. 8). Appellant must pay the filing fee by November 16, 2020. The Court 15 || will only proceed to issue a briefing schedule in this case after Appellant pays the filing 16 ||fee. If Applicant fails to timely do _so, the Court will dismiss the case □□□□□□□ 17 || prejudice. 18 Second, Appellant has requested permission to use the CM/ECF filing system in 19 || accordance with ECF Administrative Policies and Procedures. Appellant has sufficiently 20 ||stated that Appellant has access to the necessary equipment and software capabilities to 21 |{electronically file documents. The Court therefore GRANTS Appellant’s motion for leave 22 ||to do so (ECF No. 9). Appellant must register as a user with the Clerk’s Office and as a 23 || subscriber to PACER within five days of this Order. 24 IT IS SO ORDERED. 25 26 || DATED: November 9, 2020 Cif wu li q | Hohe tu 27 United States District Judge 28