Irwin Jacobowitz and Pearl H Jacobowitz

The motion by debtors’ counsel to withdraw was itself withdrawn, and the1
debtors were represented by this attorney during the lift-stay hearing.
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re 	: 	Chapter 13
IRWIN JACOBOWITZ
PEARL H. JACOBOWITZ 	:
Debtors 	: 	Bankruptcy No. 05-15009F
.................................................
ORDER
.................................................
AND NOW, this 14th day of July, 2005, upon the letter request of these
chapter 13 debtors for leave to appeal in forma pauperis from this court’s order dated
June 24, 2005, which order granted Mr. Amrit Lal relief from the automatic stay,
And the debtors further request that this court authorize, without payment
by the debtors, the reproduction of a transcript of the hearing on the lift stay motion as
well as a transcript of an earlier motion of debtors’ counsel to withdraw, 1
And the debtors cite no authority for the relief they seek, nor do they attach
any verified statement of their financial circumstances. See In re Dawley, 2005 WL
67078, at *3 (E.D. Pa. 2005) (discussing the requirement of a specific verified statement
concerning the appellant’s financial status)
And 28 U.S.C. § 1915(a) may allows for in forma pauperis relief,
And courts are divided whether a bankruptcy court has the power to grant in
forma pauperis status. Compare, e.g., In re Perroton, 958 F.2d 889 (9th Cir. 1992) (no
such power exists); In re Bauckey, 82 B.R. 13 (Bankr. D.N.J. 1988) (same) with, e.g., In
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This “flow down” jurisdictional scheme has been applied in another context.2
It is accepted that a bankruptcy court has no authority to render an advisory opinion. See, e.g.,
Coffin v. Malvern Federal Sav. Bank, 90 F.3d 851 (3d Cir. 1996). Since the “case or
controversy” clause of the Constitution is found in Article III, but as bankruptcy judges are not
Article III judges, it has been held that this jurisdictional constraint flows from the bankruptcy
court being a unit of the district court. In re Kilen, 129 B.R. 538, 542 (Bankr. N.D. Ill. 1991).
2
re Stansbury, 226 B.R. 360 (Bankr. E.D. Pa. 1998) (bankruptcy courts have such power);
In re Brooks, 175 B.R. 409 (Bankr. S.D. Ala. 1994) (same); In re Shumate, 91 B.R. 23
(Bankr. W.D. Va. 1988) (same),
And I shall accept the debtors’ implicit assertion that such relief under
section 1915(a) may be granted because this court is a unit of the district court, who has
referred this case for resolution pursuant to 28 U.S.C. § 157. “As ‘units of the district
court’ pursuant to 28 U.S.C. § 151, authority flows to the bankruptcy courts from the
district courts through the order of reference. Bankruptcy judges' authority to deal with
IFP motions is derived from this ‘flow down’ jurisdictional scheme.” In re Brooks, 175
B.R. at 412; see In re Lassina, 261 B.R. 614 (Bankr. E.D. Pa. 2001), 2
And, in applying section 1915(a), courts have generally held that an
appellant must be financially eligible for in forma pauperis relief. See, e.g., In re Brooks,
175 B.R. at 413; In re Lassina, 261 B.R. at 618-19. I note that the debtors’ bankruptcy
schedules disclose that they own real property worth $245,000.00 secured by liens
totaling only $126,776.79. 	Their schedules also disclose monthly income exceeding
expenses by $255.00. Thus, it would appear that the debtors have financial resources that
they can use to prosecute their appeal,
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And, in addition, the appellants must demonstrate a possibility for success
on appeal— that is, that their appeal is not frivolous—for a motion under section 1915(a)
to be granted. See Jackson v. Dallas Police Dept., 811 F.2d 260 (5th Cir. 1986):
To proceed on appeal in forma pauperis, a litigant must be
economically eligible, and his appeal must not be frivolous. . .
. Probable success on the merits need not be shown. The
court only examines whether the appeal involves "legal points
arguable on their merits (and therefore not frivolous)."
Id., at 261 (citations omitted); see, e.g., In re Winslow, 133 B.R. 532 (D. Colo. 1991);
United States v. Slater, 96 F.R.D. 53 (D. Del. 1982); In re Burrell, 150 B.R. 369 (Bankr.
E.D. Va. 1992); see generally Coppedge v. United States, 369 U.S. 438, 444 (1962)
(discussing section 1915(a) in the context of a criminal appeal),
And for reasons discussed in the order of June 24th, a month-to-month
tenant, such as these debtors, cannot prevent the termination of the bankruptcy stay in
favor of the lessor. See, e.g., Floyd v. Clark, 266 B.R. 61 (E.D. Pa. 2001). Furthermore,
there was a prepetition state court eviction order that is presently on appeal. The state
court system is the appropriate forum to resolve the parties’ dispute. Thus, I cannot
conclude that this appeal serves any purpose other than to further delay the state court
eviction process,
And not only have these debtors not demonstrated their entitlement to in
forma pauperis status, but such status would not, by itself, entitle the debtors to receive a
transcript at the expense of the government. See Denmon v. Runyon, 1994 WL 590906, at
*1 (D. Kan. 1994),
And such relief is governed by 28 U.S.C. § 753(f), which provides in a civil
matter such as this, in relevant part:
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It is not readily apparent to me that the transcript of the hearing on debtors’3
counsel’s withdrawn motion to withdraw would be germane to their appeal. Moreover, the
hearing on the motion to terminate the stay contains mostly testimony offered by both the lessor
and lessee more relevant to their contentions in state court than to the bankruptcy issues involved
under section 362(d).
4
Fees for transcripts furnished in other proceedings to persons
permitted to appeal in forma pauperis shall also be paid by the
United States if the trial judge or a circuit judge certifies that
the appeal is not frivolous (but presents a substantial
question).
Accord Walker v. People Exp. Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989); In re
Dawley, 2005 WL 67078, at *3,
Thus, for the debtors here to obtain such a transcript at government
expense, not only must the issue on appeal not be frivolous, but it must also “present a
substantial question.” See, e.g., In re Dawley, 2005 WL 67078, at *3; Denmon v.
Runyon, 1994 WL 590906, at *1; Tryon v. Baldridge, 1989 WL 13354, at *1 (D.D.C.
1989),
And the order from which these debtors have appealed granted relief from
the automatic stay to the lessor based upon the documents offered in evidence, the entry
of a state court judgment in eviction that was on appeal at the time the bankruptcy case
commenced, and my legal conclusion that an individual lessee cannot use chapter 13 to
extend the term of their lease,
And I cannot fairly certify that the issue on this appeal “presents a
substantial question.” 	Therefore, it is hereby ordered the debtors are not entitled to
receive free transcripts under 28 U.S.C. § 753(f). 3
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Accordingly, the debtors’ letter request for in forma pauperis status and for
copies of free transcripts is denied.
____________________
BRUCE FOX
United States Bankruptcy Judge
copies to:
Mr. Irwin Jacobowitz
Mrs. Pearl H. Jacobowitz
P.O. Box 175
Exton, PA 19341
Lawrence S. Rubin, Esq.
337 West State Street
Media, PA 19063-2615
Mr. Amrit Lal
P.O. Box 1944
West Chester, PA 19380
William C. Miller, Esq.
Chapter 13 Trustee
111 S. Independence Mall
Suite 583
Philadelphia, PA 19106
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