Akers v. Windward Capital Corporation et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARTHA A AKERS,
Debtor.
____________________________
MARTHA A AKERS,
Plaintiff,
v.
WINDWARD CAPITAL
CORPORATION, et al.,
Defendants.
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Case No. 07-00662
(Chapter 13)
Adversary Proceeding No.
10-10006
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER
DENYING MOTION TO PROCEED IN FORMA PAUPERIS
The plaintiff, Martha Akers, has filed a notice of appeal
(Dkt. No. 47) and a related Application for Waiver of Motion of
Appeal Filing Fee (Dkt. No. 53). 	The court will deny the
plaintiff’s motion without prejudice to the plaintiff’s right to
file a renewed request that includes the appropriate affidavit
regarding her assets and ability to pay the fee.
As this court has previously observed, courts are divided
The document below is hereby signed.
Signed: July 25, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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regarding whether a bankruptcy court has the power to grant a
motion to proceed in forma pauperis under 28 U.S.C. § 1915. 1 	See
In re Richmond, 247 Fed. Appx. 831, at *1-2 (7th Cir. 2007).
Even if the court does generally have the power to grant such
motions, however, § 1915(a)(1) requires any party seeking to
proceed without prepayment of fees to “submit an affidavit that
includes a statement of all assets [she] possesses [and] that
[she] is unable to pay such fees or give security therefor.”
Although the plaintiff represents that she is “is unable to pay
the filing fee without falling behind in plan payments,” that is
not sufficient to establish financial eligibility to proceed in
forma pauperis under § 1915(a). 2 	It is thus
ORDERED that the plaintiff’s Application for Waiver of
Motion of Appeal Filing Fee (Dkt. No. 53) is DENIED without
prejudice to the filing of a renewed request that includes an
affidavit that satisfies the requirements of 28 U.S.C.
§ 1915(a)(1). 	It is further
1 	Section 1915 of 28 U.S.C. authorizes the waiver of fees
by “any court of the United States.” 	Courts disagree over
whether a bankruptcy court is a “court of the United States”
within the meaning of that statute.
2 	Under 28 U.S.C. § 1930(f), the court has additional
authority to waive fees in the case of a chapter 7 debtor whose
income is less than 150 percent of the income official poverty
line, and who is unable to pay the fee in installments. 	Msr.
Akers’s main bankruptcy case, however, was a case under chapter
13 of the Bankruptcy Code (11 U.S.C.), and the court thus lacks
the authority to waive the notice of appeal fee under 28 U.S.C.
§ 1930(f).
2
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ORDERED that if the debtor fails, within 14 days after entry
of this order, to file a renewed request that properly includes a
28 U.S.C. § 1915(a)(1) affidavit, the court shall direct the
clerk to transmit a copy of this order to the clerk of the
district court so that the district court is aware of the
debtor’s failure to comply with Rule 8001(a), which requires that
a notice of appeal be accompanied by the prescribed fee.
[Signed and dated above.]
Copies to: All parties and counsel of record.
3	O:\TEEL\Garrett\Orders\Appeals\Order_deny waiver of fee (Akers).wpd
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