- Category: Judge Karlin
- Published: 12 May 2011
- Written by Judge Karlin
In Re Koslover and Mzhickteno, 10-40682 (Bankr. D. Kan. Apr. 28, 2011) Doc. # 104
SIGNED this 27 day of April, 2011.
JANICE MILLER KARLIN
UNITED STATES BANKRUPTCY JUDGE
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
ELDON L. MZHICKTENO, Case No. 10-40682
ORDER DENYING MOTION TO PROCEED WITHOUT PAYMENT OF FILING FEES
This matter comes before the Court on the Debtor Catherine Koslover’s Motion to Proceed
Without Prepayment of Fees1 to prosecute an appeal. The subject appeal concerns an order dated
March 7, 2011, in which this Court denied her motion to appoint bankruptcy counsel to assist her
in prosecuting her bankruptcy case.2 Although, as fully discussed in In re Graves,3 there is some
2The Court now finds that the same motion was filed in an Adversary Proceeding, Case No. 10-7043, Doc. 32,
filed January 18, 2011. No order on that motion has been entered. In addition, the bases for denying this motion were
fully set out on the record on January 26, 2011. See also Docket entry No. 85. To the extent the Court has any discretion
to appoint counsel, even though there is no constitutional right to appointed counsel in civil actions such as this
bankruptcy (see Johnson v. Johnson, 466 F.3d 1213 (2006)), the Court finds that with Debtor’s extensive paralegal
experience, she is able to present her case without counsel.
32010 WL 1856053 (Bankr. D. Colo. 2010).
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concern whether this Court has the authority to consider this motion because of the language in In
re Satterfield,4 the Court finds that it does have the authority and jurisdiction to rule on the Motion
pursuant to 28 U.S.C. § 1930(f)(2) or (3).
In order to succeed on a motion to waive filing fees, the appellant must show both a financial
inability to pay the required filing fees, and the existence of a reasoned, nonfrivolous argument on
the law and facts in support of the issues raised on appeal.5
ABILITY TO PAY
The Motion states that “[b]ecause of my financial status, I am unable to pay the fees and costs
of this case. I have completed and am filing an Affidavit of Financial Status with this Motion.” That
Affidavit provides that she receives only $674/month for SSI, her son receives the same amount, and
that they receive around $60 in other assistance, not counting approximately $1,200-$1,500 in tribal
per capita payments her incarcerated husband is entitled to receive on a quarterly basis. The motion
also states that her expenses exceed her income or support, that she has health problems, that she is
unemployed, and that her husband is incarcerated. The information provided does suggest that she
does not have adequate funds to pay the filing fee, and the Court finds that she meets the first test
for being allowed to proceed without payment of fees.
MERITS OF APPEAL
The appeal concerns an order denying appointment of counsel entered on March 7, 2011.
Pursuant to Fed. R. Bankr. P. 8002(a), the appeal from that order was due no later than 14 days after
4337 Fed. Appx. 739, 740 (10th Cir. 2009) (holding that although Tenth Circuit precedent restricts bankruptcy
courts and the bankruptcy appellate panel from granting relief under 28 U.S.C. § 1915, bankruptcy courts (not
Bankruptcy Appellate Panels) do have authority to decide this issue under 28 U.S.C. § 1930), and relying on Wallin v.
Martel (In re Martel), 328 Fed. Appx. 584, 585-86 (10th Cir. 2009)).
5In re Musil, 1991 WL 202858, 1 (10th Cir. 1991).
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its entry, or by March 21, 2011. This appeal was filed April 26, 2011, well over a month after the
time for appeal had expired. Because the Court does not believe the appellate court even has
jurisdiction to consider this appeal, because it was untimely filed, it cannot find that there is a
nonfrivolous basis for pursuing this appeal.
The Tenth Circuit Court of Appeals was faced with a similar issue in In re Bush.6 The Court
noted that because the motion to proceed in forma pauperis had been filed in a case where the order
to be appealed from was not appealable, it would dismiss the case, rather than considering the
motion to proceed in forma pauperis, since “[t]he denial of leave to appeal in forma pauperis cannot
transform an otherwise nonappealable order into an appealable one.”7 Similarly, because Debtor
failed to appeal the order within 14 days, the order she has attempted to appeal is a final, non-
appealable order, and thus she cannot prevail on the appeal. For that reason, the Court cannot find
there is a nonfrivolous basis for this appeal, and must deny the motion to proceed without payment
of the filing fee.
IT IS, THEREFORE, ORDERED that Debtor/Appellant’s motion to proceed without
payment of filing or other fees is denied.
# # #
61994 WL 596762, 1 (10th Cir. 1994).
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