Opinion
Bankruptcy No. 11-20288-JAD, Doc. No. 81.
July 15, 2011
MEMORANDUM OPINION
The matter before the Court is the Rule to Show Cause to Determine Why Case Should Not Be Dismissed For Debtor's Failure To Pay Required Bankruptcy Filing Fee (the " Rule"). For the following reasons, this Court will sustain the Rule and dismiss the above-captioned bankruptcy case.
The instant bankruptcy case was filed by Gerald S. Lepre, Jr. ("Lepre") under chapter 7 of the Bankruptcy Code on January 19, 2011. Lepre contemporaneously filed an Application for Waiver of the Chapter 7 Filing Fee (the "Fee Waiver Application") pursuant to 28 U.S.C. § 1930(f)(1). After a hearing on the matter, the Honorable Bernard Markovitz entered an order that denied the Fee Waiver Application but allowed Lepre an additional sixty days to pay the filing fee. The following day, Lepre appealed Judge Markovitz's order and filed a motion to proceed in forma pauperis with his appeal.
In an order dated May 18, 2011, the Honorable Gary L. Lancaster, Chief Judge of the United States District Court for the Western District of Pennsylvania, affirmed the order denying the Fee Waiver Application and denied Lepre's motion to proceed with his appeal in forma pauperis (the "District Court Order"). In the Memorandum Opinion accompanying the District Court Order, Chief Judge Lancaster found that Lepre was unable to meet the first requirement for relief under 28 U.S.C. § 1930(f)(1) because his total combined monthly income exceeds 150% of the poverty line.
Lepre immediately appealed the District Court Order to the United States Court of Appeals for the Third Circuit, which remains pending.
On May 23, 2011, the Clerk of Court of the United States Bankruptcy Court for the Western District of Pennsylvania entered a Request for Filing Fee seeking payment of the past due chapter 7 filing fee and the Notice of Appeal fee within seven days. Lepre failed to submit the required fees. Subsequently, this Court issued its Rule to determine why Lepre's case should not be dismissed for failure to pay the filing fee. Lepre appeared at the hearing on the Rule held July 12, 2011, and simply reiterated his alleged inability to pay the filing fee.
An Order was entered April 26, 2011 which transferred Lepre's bankruptcy case to this Judge.
Although Lepre's appeal of the District Court Order is currently pending before the United States Court of Appeals for the Third Circuit, no stay of the District Court Order (or the order of Judge Markovitz) has been sought by Lepre, nor has a stay been granted by the District Court or the Court of Appeals pursuant to Fed.R.Bankr.P. 8017. Additionally, this Court may not stay the District Court Order. Nor has any justification for a stay been asserted.
This Court may properly take judicial notice of the Court of Appeals and District Court dockets. See Allegheny, Inc. v. Basic Packaging Systems, Inc. (In re Allegheny, Inc.), 86 B.R. 466, 469 (Bankr. W.D. Pa. 1988) ("[F]ederal courts have the authority to take judicial notice of proceedings in other courts, either within or without the federal system, provided those proceedings are directly related to the matters presently at issue.") (citing cases); see also In re Indian Palms Assoc., Ltd., 61 F.3d 197, 205 (3d Cir. 1995) (holding that courts may take judicial notice of adjudicative facts "not subject to reasonable dispute . . . as long as it is not unfair to a party to do so . . .") (citing Fed.R.Evid. 201(f) advisory committee note (1972 proposed rules)).
As a result, this Court may treat the District Court Order as final and proceed with adjudication of the Rule. See 28 U.S.C. § 158(d)(1)(D) ("An appeal under this paragraph does not stay any proceeding of the bankruptcy court, the district court, or the bankruptcy appellate panel from which the appeal is taken . . ."); see also In re Anthanassious, Case Nos. 09-4594, 10-2285, 2011 WL 944421, at *5 (3d Cir. March 21, 2011) (holding that in the absence of a stay pending appeal of a district court order, the bankruptcy court may treat the district court order as final and proceed with the management of the debtor's estate) (citing 28 U.S.C. § 158(d)(1)(D)).
Despite a pending appeal, courts may dismiss a case for failure to pay any filing fees required under chapter 123 of title 28.See 11 U.S.C. § 707(a)(2); see also In re Grannis, Case No. 02-33321-K, 2003 WL 25949300 (Bankr. W.D. Tenn. Feb. 12, 2003) (dismissing a bankruptcy case for failure to pay filing fee when an appeal of the order denying the debtor in forma pauperis relief was pending before the Bankruptcy Appellate Panel).
Lepre does not dispute that he has failed to pay the filing fee. In fact, Lepre's only response to the Rule requests that this Court grant the Fee Waiver Application previously denied by both Judge Markovitz and Chief Judge Lancaster of the District Court. As a final determination has been made in this case with regard to whether Lepre is entitled to a waiver of the filing fee, Lepre is barred from relitigating this issue under the law of the case doctrine.
This Court also finds that relitigation of the fee waiver issue may be barred pursuant to the doctrine of collateral estoppel.See Kaiser Group Int'l, Inc. v. Nova Hut a.s. (In re Kaiser Group Int'l, Inc.), 375 B.R. 120, 127 (Bankr. D. Del. 2007) ("A court will bar re-litigation of an issue on collateral estoppel grounds when `(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action.'") (quoting Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir. 1995)).
The law of the case doctrine posits that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." N. Apparels, Inc. v. PNC Bank, Nat'l Ass'n (In re Forman Enterprises, Inc.), 271 B.R. 483, 486-487 (Bankr. W.D. Pa. 2002) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391, 75 L. Ed. 2d 318 (1983)). However, the United States Court of Appeals for the Third Circuit has recognized several "extraordinary circumstances" that may allow for reconsideration of a previously decided issue, such as: 1) new evidence; (2) a supervening new law; or (3) an earlier decision that was "clearly erroneous" and would create a manifest injustice. Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116-17 (3d Cir. 1997)).
Lepre has failed to assert any "extraordinary circumstances" that would justify reconsideration of the fee waiver issue. The only "new evidence" introduced by Lepre are his current bills, which are irrelevant. Additionally, Lepre has not suggested that any new supervening law exists. Finally, far from finding the earlier decisions were "erroneous", this Court would concur with Judge Markovitz and Chief Judge Lancaster in denying the Fee Waiver Application. Lepre does not contest that his total combined monthly income ($1,567.44) exceeds 150% of the poverty line established for a family of one ($1,361.25). Therefore, Lepre's Fee Waiver Application was properly denied as Lepre does not meet the first prong of the conjunctive two-prong requirement for waiver of the filing fee pursuant to 28 U.S.C. § 1930(f)(1).See In re Machia, 360 B.R. 416, 418 (Bankr. D. Vt. 2007) ("The Debtor bears the burden of proving by a preponderance of the evidence that his circumstances satisfy both requirements of the fee waiver provision.") (emphasis added) (citing cases). As a result, this Court will not consider Lepre's request to waive the filing fee an appropriate defense to the Rule.
See In re Eadie, No. 07-51799-C, 2007 WL 2154242, at *2 (Bankr. W.D. Tex. July 24, 2007) [holding that where the debtor's income is greater than the 150% guideline, it does not matter whether the debtor's monthly expenses exceed that income).
In closing, Lepre should not be entitled to the continued benefit of the automatic stay (or ultimately the receipt of a discharge) without paying the required filing fee. Such fees help to effectuate the goal of making the bankruptcy system self-sufficient. United States v. Kras, 409 U.S. 434, 449 (1973). Filing fees also ensure some amount of compensation for the chapter 7 Panel trustees. In re Stickney, 370 B.R. 31, 38 (Bankr. D. N.H. 2007). While the BAPCPA amendments now allow courts to waive the filing fee, a debtor does not have any constitutional right to such a waiver. See In re Burr, 344 B.R. 234, 236 (Bankr. W.D. N.Y. 2006) ("[T]he statute [ 28 U.S.C. § 1930(f)(1)] establishes no absolute entitlement to a waiver of filing fees."); see also Kras, 409 U.S. at 446 (1973) (holding "[t]here is no constitutional right to obtain a discharge of one's debts in bankruptcy" without payment of the filing fee required by statute).
As no stay pending appeal has been sought or granted, this Court may treat the District Court Order denying the Fee Waiver Application as final. Lepre has admittedly failed to pay the filing fee. Further, Lepre's request that this Court consider the merits of his Fee Waiver Application as a defense to the Rule is barred by the law of the case doctrine. As a result, this Court will dismiss Lepre's bankruptcy case for failure to pay the chapter 7 filing fee pursuant to 11 U.S.C. § 707(a)(2) and Fed.R.Bankr.P. 1017(b)(1). An appropriate Order will follow.
ORDER
AND NOW, this 15th day of July , 2011 , for the reasons set forth in the Court's Memorandum Opinion of the date even herewith, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
(1) The Rule to Show Cause to Determine Why Case Should Not Be Dismissed For Debtor's Failure To Pay Required Bankruptcy Filing Fee is SUSTAINED.
(2) The above-captioned case is DISMISSED WITHOUT PREJUDICE and Gerald S. Lepre, Jr. remains legally liable for all of his debts as if the bankruptcy petition had not been filed. Creditor collection remedies are reinstated pursuant to 11 U.S.C. § 349, and creditors are directed to 11 U.S.C. § 108(c) for time limits on filing a lawsuit to collect; generally, a creditor's lawsuit must be filed by the later of (1) the time deadline prescribed by state law, or (2) thirty days after the date of this Order.
(3) The Clerk of Court of the United States Bankruptcy Court for the Western District of Pennsylvania shall give notice to all creditors of this dismissal.
(4) The Clerk of Court of the United States Bankruptcy Court for the Western District of Pennsylvania is directed to notify the Clerk of the United States Court of Appeals for the Third Circuit that this chapter 7 case has been dismissed by sending a copy of this Order to the Clerk of the United States Court of Appeals for the Third Circuit.
Notice Recipients
Recipients submitted to the BNC (Bankruptcy Noticing Center) without an address: Recipients of Notice of Electronic Filing: Recipients submitted to the BNC (Bankruptcy Noticing Center):
District/Off: 0315-2 User: ddoy Date Created: 7/15/2011 Case: 11-20288-JAD Form ID: pdf900 Total: 91 cr Duquesne Light Company TOTAL: 1 ust Office of the United States Trustee ustpregion03.pi.ecf@usdoj.gov tr Rosemary C. Crawford crawfordmcdonald@aol.com aty Peter J. Ashcroft pashcroft@bernsteinlaw.com aty S. James Wallace TOTAL: 4 db Gerald S. Lepre, Jr. 3623 California Avenue #2 Pittsburgh, PA 15212 cr Recovery Management Systems Corporation 25 S.E. Second Avenue Suite 1120 Miami, FL 33131-1605 cr Equitable Gas Bankruptcy Department Attn: Judy Gawlowski 225 North Shore Drive 2nd Floor Pittsburgh, PA 15212 12969912 AAS Debt Recovery for Dr Dennis Alberts PO Box 129 Monroeville PA 15146 12966668 ACS Department of Education PO Box 7051 Utica NY 13504 12966689 AES PO Box 2461 Harrisburg PA 17105 12969913 AFNI For Verizon Inc PO Box 3097 Bloomington IL 61702 12966709 AR ECMC 3300 Zinfandel Dr Rancho Cordova CA 95670 12966705 AR Incharge Debt Solutions 2101 Park Center Dr Ste 320 Orlando FL 32803 12966700 Accounts Recovery Bureau 555 Van Reed Rd Wyomissing PA 19610 12966654 Allegheny General Hospital 4800 Friendship Ave Pittsburgh PA 15224 12969914 Alternative Revenue Systems for ACE Cash 9250 E Costilla Ave Greenwood Vill CO 80112 12969915 Amercredit Charge Off PO Box 181145 Arlington TX 76096 12966669 American Education Keystone Best 1200 N 7th St Harrisburg PA 17102 12966670 American Education Service PHEAA Student Loan SVC CTR Harrisburg PA 17105 12966671 Arrow Financial Services 5996 Touhy Ave Niles IL 60714 12966672 Asset Acceptance LLC PO Box 1630 Warren MI 48090 12966699 Associated Credit Servic 105B South St Hopkinton MA 01748 12966663 BMG Music Service PO Box 1958 Indianapolis IN 46291 12966648 Brenda M Kobal Esq Kobal and Frederickson 435 Main St Mossic PA 18507 12966656 CMC Hospital 1800 Mulberry St Scranton PA 18510 12966673 Capital One PO Box 30281 Salt Lake City UT 84130 12969923 Cardiovascular Care 321 Main St Johnstown PA 15901 12966696 Central Credit Services Inc 9550 Regency Sq Blvd Jacksonville FL 32225 12966690 Citi Cards Citibank PO Box 6500 Sioux Falls SD 57117 12966674 CitiBank 701 E 60th St N Sioux Falls SD 57104 12966710 Citizens Bank 480 Jefferson Blvd Warwick RI 02886 12966697 Collection Company of America 700 Longwater Dr Norwell MA 02061 12966664 Columbia House 1400 North Fruitridge Ave Terre Haute IN 47811 12966662 Community Bank And Trust 37 Dundaff St Carbondale PA 18407 12966660 Comprehensive Physical Therapy David F Bianco Esq 707 Main St Forest City PA 18421 12966675 Credit Management Company 2121 Noblestown RD Pittsburgh PA 15205 12966701 Credit Management Company 681 Anderson Dr Plaza 6 Pittsburgh PA 15220 12966708 DTC Comcast Pittsburgh 300 Corliss St Pittsburgh PA 15220 12966707 Directv 2230 E Imperial Hwy Mail Station LA1 N36 El Segundo CA 90245 12966691 Diversified Collection Services 333 N Canyon Pkwy Livermore CA 94551 12969911 Duquense Light Pittsburgh PA 12966694 EDFUND 3300 Zinfandel Dr Rancho Cordova CA 95670 12966711 Ebay 2145 Hamilton Ave San Jose CA 95125 12966704 Equifax 1550 Peachtree St NE Mail Drop H 30 Atlanta GA 21126 12969910 Equitable Gas Pittsburgh PA 12966693 Experian 360 E 22nd St Lombard IL 60148 12966652 Express Scripts PO Box 66850 St Louis MO 63166 12966676 First Premier Bank 601 South Minnesota Ave Sioux Falls SD 57104 12966695 G C Services 4777 Hilton Corp Dr Columbus OH 43147 12969916 GEMB Sams Club PO Box 981400 El Paso TX 76096 12966677 HSBC Bank Po Box 5253 Carol Stream IL 60197 12969921 Highmark Medical Pittsburgh PA 12969908 IRS Philadelphia PA 12969920 Imperial Recovery Partners for Fifth Third Bank 7720 119th Street Overland Park KS 66213 12966647 Jennifer Slick Joseph F. Gaughan Esq. 300 Mulberry Street Suite 300 Scranton, PA 18503 12966678 LVNV Funding PO Box 10497 Greenville SC 29603 12966649 Lawrence A Durkin Esq 538 Spruce St Suite 800 Scranton PA 18503 12966667 Liberty Mutual Group Inc 175 Berkeley St Boston MA 02116 12966680 MRS BPO LLC 1930 Olney Ave Cherry Hill NJ 08003 12966659 Machek Fuel 412 Main St Forest City PA 18421 12966655 Marion Community Hospital 100 Lincoln Ave Carbondale PA 18407 12966658 Mercy Hosptial 746 Jefferson Ave Scranton PA 18510 12966679 Midland Credit Management 8875 Aero Dr San Diego CA 92133 12966682 NCO Financial Services 507 Prudential RD Horsham PA 19044 12969917 National Commercial Services for Rewards Network 6644 Valjean Ave Van Nuys CA 91406 12966681 National Recorvery Agency 2491 Paxton St Harrisburg PA 17111 12966698 OSI Collection Services 200 Executive Dr Brookfield WI 53005 12966706 PRM Sprint Nextel CPS 6480 Pkwy Purchase Order Overland Pakr KS 66251 12966657 Pacer Service Center Po Box 70951 Charlotte NC 28272 12966683 Penn Credit Corporation 916 S 14th St Harrisburg PA 17104 12969918 Powell Rogers Assoc for UPMC Presbyterian PO Box 61107 Harrisburg PA 17106 12966653 Quest Diagnostics PO Box 71313 Philadelphia PA 19176 12983116 Recovery Management Systems Corporation 25 S.E. 2nd Avenue, Suite 1120 Miami, FL 33131-1605 12966684 Revenue Recovery Corporation 612 Gay St Knoxville TN 37902 12969907 SN Service Corporation 323 Fifth Street Eureka CA 99501 12966685 Sallie Mae 11100 USA Pkwy Fishers IN 46037 12966650 Sallie Mae PO Box 9500 Wilkes Batrre PA 18773 12966703 Sears Cbsd 133200 Smith Rd Cleveland OH 44130 12966686 Sears CitiBank PO Box 6241 Sioux Falls SD 57117 12966651 T G Masonry Inc Edward Krowiak Esq 700 Vine St Scranton PA 18510 12966666 The Progressive Corporation 6300 Wilson Mills Rd Mayfield Village OH 44143 12966665 UPMC Health Plan One Chatham Center 112 Washington Pl Pittsburgh PA 15219 12969919 UPMC Hospital Centre AVe Pittsburgh PA 12966687 US Dept Education GSC Chi PO Box 4222 Iowa City IA 52244 12966702 US Dept of Education 830 1st St NE Rm 11G5 Washington DC 20002 12966692 United Garanty RES INS Po Box 20327 Greensboro NC 27420 12966661 Verizon Wireless 180 Washington Valley Rd Bedminster NJ 07921 12966688 WFNNB Abercrombie Fitch PO Box 18279 Columbus OH 43218 12969909 Whitaker Roads Johnstown PA 15904 12969922 Windber Hospital Somerset Ave Windber PA 15963 TOTAL: 86