Whiting v. NewRez

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
L ATASHA WHITING,
Plaintiff,
V.
N EW REZ, LLC D/ B/ A PHH
MORTGATE CORPORATION,
Defendant.
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CIVIL ACTION NO. 4:25-CV-5383
MEMORANDUM AND RECOMMENDATION
On 	June 	3, 	2026, 	the 	District 	Judge 	adopted 	the 	Magistrate 	Judge’s
Memorandum and Recommendation (ECF 51) and dismissed Plaintiff’s claims with
prejudice.1 ECF 59. Plaintiff filed a Motion for Leave to Appeal In Forma Pauperis.
ECF 64. 	The Court now RECOMMENDS that Plaintiff’s Motion (ECF 64) be
GRANTED.
Rule 24(a) of the Federal Rules of Appellate Procedure governs Plaintiff’s
Motion for Leave to Proceed In Forma Pauperis (IFP):
(a) Leave to Proceed In Forma Pauperis.
(1) Motion in the District Court. Except as stated in Rule
24(a)(3), a party to a district-court action who desires to appeal
in forma pauperis must file a motion in the district court. The
party must attach an affidavit that:
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 5.
United States District Court
Southern District of Texas
ENTERED
July 20, 2026
Nathan Ochsner, Clerk
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(A) shows in the detail prescribed by Form 4 of the
Appendix of Forms the party's inability to pay or to give
security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on
appeal.
(2) Action on the Motion. If the district court grants the motion,
the party may proceed on appeal without prepaying or giving
security for fees and costs, unless a statute provides otherwise. If
the district court denies the motion, it must state its reasons in
writing.
(3) Prior Approval. A party who was permitted to proceed in
forma pauperis in the district-court action or who was determined
to be financially unable to obtain an adequate defense in a
criminal case, may proceed on appeal in forma pauperis without
further authorization, unless:
(A) the district court—before or after the notice of appeal
is filed—certifies that the appeal is not taken in good faith
or finds that the party is not otherwise entitled to proceed
in forma pauperis and states in writing its reasons for the
certification or finding; or
(B) a statute provides otherwise.
FED. R. A PP. P. 24. 	See also 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken
in forma pauperis if the trial court certifies in writing that it is not taken in good
faith.”).
Plaintiff did not proceed in forma pauperis in the district-court action, so Rule
24(a)(1) applies. 	The Rule requires Plaintiff’s Motion to be accompanied by an
affidavit detailing her inability to pay, claiming an entitlement for redress, and
presenting her issues for appeal. 	F ED. R. A PP. P. 24(a)(1). 	An appeal is taken in
good faith if a party seeks appellate review on a legal point arguable on its merits
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such that it is not frivolous. Howard v. King, 707 F.2d 215, 219–20 (5th Cir. 1983).
Therefore, an investigation into good faith requires “a brief inquiry into the merits
of an appeal” without addressing the probability of success. 	Id. at 220. 	See also
Baugh v. Taylor, 117 F.3d 197, 201–02 (5th Cir. 1997).
Plaintiff’s Motion includes the required affidavit. 	ECF 64; ECF 64-1.
Plaintiff explains that she proceeded IFP in the initial state court proceeding. ECF
64 at 1; ECF 1-1 at 5-6. Plaintiff claims an approximate monthly income of $1,600
from self-employment and child support. 	ECF 64-1 at 2. 	Plaintiff represents she
has no savings and that her only asset of value is a financed vehicle she uses for self-
employment. 	Id. at 3. Plaintiff claims approximately $1,650 in monthly expenses
and represents that she supports her two adult children. Id. at 4-5. Plaintiff’s points
of appeal include whether the Magistrate Judge applied the correct legal standard
and whether denial of joinder was proper. ECF 64 at 1-2.
Based on the representations regarding her economic conditions, Plaintiff
qualifies to proceed IFP on appeal. Further, Plaintiff has identified at least one good
faith basis of appeal: whether the Magistrate Judge applied the correct legal standard
under Federal Rule of Civil Procedure 12(b)(6). 	Therefore, Plaintiff should be
permitted to proceed IFP on appeal.
For these reasons, the Court RECOMMENDS that Plaintiff’s Motion for
Leave to Appeal In Forma Pauperis (ECF 64) be GRANTED.
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The 	Clerk 	of 	the 	Court 	shall 	send 	copies 	of 	the 	memorandum 	and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). 	Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on July 20, 2026, at Houston, Texas.
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