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Centerstate Bank of Florida, N.A. v. Barhatkov

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

February 21, 2018

CENTERSTATE BANK OF FLORIDA, N.A., Plaintiff,
v.
ALEXANDER BARHATKOV, SUKASHA NANKOO, SPRING LAKE ASSOCIATION, INC. and UNKNOWN TENANTS, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

         This cause came on for consideration without oral argument on the following motion:

MOTION: MOTION TO APPEAL IN FORMA PAUPERIS (Doc. No. 13)
FILED: January 10, 2018
THEREON it is RECOMMENDED that the motion be DENIED.

         I. FACTUAL BACKGROUND

         On December 29, 2017, Alexander Barhatkov, proceeding pro se, removed a complaint (the “Complaint”) from Florida state court. Doc. Nos. 1, 2. The Complaint seeks foreclosure on a mortgage securing real property located in Seminole County, Florida. Doc. No. 2 at 1, 5. On January 3, 2018, United States District Judge Paul G. Byron remanded the case to Florida state court because Mr. Barhatkov filed his notice of removal more than six months after the thirty-day removal deadline provided in 28 U.S.C. § 1446(b)(1). Doc. No. 11 at 2.

         On January 10, 2018, Mr. Barhatkov filed a notice of appeal of Judge Byron's order. Doc. No. 12. The notice of appeal states that Plaintiff has violated federal bankruptcy laws, and Mr. Barhatkov has filed a lawsuit in this Court regarding the same. Id. at 1 (citing Barhatkov v. Centerstate Bank of Fla., 6:17-cv-2197-GKS-TBS). Mr. Barhatkov also states that removal was timely because his discovery of Plaintiff's violations were made after consulting with and hiring new counsel. Id.

         On January 10, 2018, Mr. Barhatkov filed an Application to Proceed in District Court without Prepaying Fees or Costs (the “Motion”). Doc. No. 13. The undersigned interprets the Motion as a motion to appeal in forma pauperis under 28 U.S.C. § 1915(a)(3).

         II. APPLICABLE LAW

         An appeal may not be taken in forma pauperis if the Court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). “Whether an appeal is taken in good faith is a matter within the discretion of the trial court.” Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948)). “Good faith” within the meaning of Section 1915 must be judged by an objective standard. Id. A party seeking to appeal in forma pauperis fails to demonstrate good faith when he seeks to advance a frivolous appeal. Id. (citing authority). “In deciding whether an in forma pauperis appeal is frivolous under § 1915(e), the district court determines whether there is ‘a factual and legal basis … for the asserted wrong, however inartfully pleaded.'” Id. (citations omitted).

         III. ANALYSIS

         As noted above, Mr. Barhatkov seeks to appeal Judge Byron's order which remanded this case to Florida state court. Doc. No. 12 at 1-2. Judge Byron's order, however, is not reviewable. 28 U.S.C. § 1447(d) provides:

(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of ...

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