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Wells Fargo Bank, N.A. v. Uribe

United States District Court, M.D. Florida, Orlando Division

May 3, 2017

WELLS FARGO BANK, N.A., Plaintiff,
v.
IVAN URIBE, CLARISA BENLOLO, STATE OF FLORIDA, OSAMA ELGENDY, ANY AND ALL UNKNOWN PARTIES, JOHN DOE, JANE DOE and FABIOLA R. GILLIS, Defendants.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK UNITES STATES MAGISTRATE JUDGE

         This cause comes before the Court for consideration without oral argument on the following motion:

         MOTION: MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS (Doc. 25)

         FILED: April 28, 2017

         THEREON it is RECOMMENDED that the motion be DENIED.

         I. BACKGROUND

         On January 5, 2017, Defendant Ivan Uribe (Uribe), proceeding pro se, Filed a Notice of Removal to this Court, seeking to remove a foreclosure action filed in the Ninth Circuit Court in and for Orange County, Florida. Doc. 1. In filing the Notice of Removal, Uribe paid the appropriate filing fee. Id. The action removed was originally filed in state court on April 9, 2012, (Doc. 2) and, according to counsel for Plaintiff, the Notice of Removal was filed one day before the state court trial in this matter was set to begin. Doc. 10 at 1.

         Following removal, Plaintiff had not filed any of the documents required by this Court and, as such, the Court entered an Order to Show Cause (Doc. 8) directed to Plaintiff. Shortly thereafter, Plaintiff filed an objection to the removal, explained that Plaintiff did not receive notice of the removal from the Uribe, and requested remand. Doc. 10.

         On February 9, 2017, the Court entered an Order (Doc. 11) in which it stated that it construed Plaintiffs objection as a motion to remand, and directed any Defendant (including Uribe) to file a response thereto within fourteen days of the date of that Order. Neither Uribe, nor any other Defendant filed a response to the motion to remand.

         On February 15, 2017, Plaintiff filed a response to the Order to Show Cause, wherein Plaintiff reiterated that it had not received from Uribe appropriate notice of the removal, and urged the Court to remand this action because the Court lacked subject matter jurisdiction and, even if the Court had subject matter jurisdiction, because removal was defective. Doc. 21.

         On March 18, 2017, the Court remanded this case. Doc. 22.

         On April 7, 2017, Uribe file a "Notice of Appeal" in which he stated that he appealed an order of a bankruptcy judge under 28 U.S.C. § 158(a) and (b) and specifically identified the Order of Remand (Doc. 22). Doc. 23. The Notice of Appeal contained no additional information concerning the basis of the appeal. Id. On April 28, 2017, Uribe filed an "Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis, " (the Motion) in which he set forth his assets and liabilities. Doc. 25.

         II. DISCUSSION

         "An appeal may not be taken in forma pauperis if the trial court certified in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3) (italics added); see also Fed. R. App. P. 24(a)(3). Whether an appeal is taken in good faith is a matter within the discretion of the trial court. See Busch v. Cty. of Volusia, 189 F.R.D. 687, 692 (M.D. Fla. 1999) (citing Adkins v. E.I. DuPont de Nemours & Co.,335 U.S. 331 (1948)). Good faith in this context must be judged by an objective standard. Busch, 189 F.R.D. at 691. A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States,369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. See Neitzke v. Williams,490 U.S. 319, 327 (1989); Carroll v. Gross,984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action is frivolous and, thus, not brought in good faith, ...


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