In Re. Ezekoye v., (3rd Cir. 2006)

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NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N O . 04-3921

IN RE: ANDREW EZEKOYE,

Debtor

A N D R E W EZEYOKE,

Appellant

vs.

* O C W E N LOAN SERVICING, LLC, successor

to Ocwen Federal Bank FSB

* (A m e n d e d pursuant to Clerk's Order dated 8/18/05)

O n Appeal From the United States District Court

F o r the Western District of Pennsylvania

(W .D . Pa. Civ. No. 04-cv-01315)

D is tric t Judge: Honorable Arthur J. Schwab

N O . 04-3972

IN RE: ANDREW EZEKOYE,

Debtor

A N D R E W EZEYOKE,

Appellant

vs. F o r the Western District of Pennsylvania (W .D . Pa. Civ. No. 04-cv-01316) D is tric t Judge: Honorable Arthur J. Schwab N O . 04-3973 IN RE: ANDREW EZEKOYE, Debtor A N D R E W EZEYOKE, Appellant vs.

* O C W E N LOAN SERVICING, LLC, successor to Ocwen Federal Bank FSB * (A m e n d e d pursuant to Clerk's Order dated 8/18/05) O n Appeal From the United States District Court F o r the Western District of Pennsylvania (W .D . Pa. Civ. No. 04-cv-01317) D is tric t Judge: Honorable Arthur J. Schwab N O . 04-3974 IN RE: ANDREW EZEKOYE, Debtor A N D R E W EZEYOKE, Appellant vs.

* O C W E N LOAN SERVICING, LLC, successor to Ocwen Federal Bank FSB; LONG BEACH MORTGAGE COMPANY * (A m e n d e d pursuant to Clerk's Order dated 8/18/05) O n Appeal From the United States District Court F o r the Western District of Pennsylvania (W .D . Pa. Civ. No. 04-cv-01318) D is tric t Judge: Honorable Arthur J. Schwab S u b m itte d Under Third Circuit LAR 34.1(a) J u n e 1, 2006 B E F O R E : FISHER, ALDISERT and WEIS, CIRCUIT JUDGES (F ile d : June 20, 2006) OPINION P E R CURIAM.

A n d re w Ezekoye, proceeding pro se, has filed four appeals from orders of th e United States District Court for the Western District of Pennsylvania denying his a p p lic a tio n s to proceed in forma pauperis ("IFP") in four appeals from orders of the U n ite d States Bankruptcy Court. For the reasons discussed below, we conclude that the D istric t Court erred in denying Ezekoye IFP status. However, because Ezekoye's appeals to the District Court had no arguable merit, we will dismiss these appeals under 28U.S.C.

§ 1915(e)(2)(B).

In 1996, Ezekoye executed a mortgage with Long Beach Mortgage C o m p a n y. Long Beach assigned the mortgage to Ocwen Federal Bank FSB. After E z e k o ye defaulted on the mortgage, Ocwen brought a mortgage foreclosure action in P e n n s ylv a n ia state court and obtained a judgment in its favor. In 2001, Ezekoye filed a c o m p lain t against Ocwen in state court alleging conspiracy and fraud in connection with th e mortgage assignment, and fraud related to Ocwen's affidavits in the mortgage f o re c lo s u re action. Ezekoye obtained a default judgment against Ocwen.

When Ocwen learned of the default judgment, it filed a motion to strike a n d /o r open the default judgment in state court. Ezekoye and Ocwen consented to the re m o v a l of the action to Bankruptcy Court, where Ezekoye had filed a bankruptcy petition.

Ocwen also filed a proof of claim in the bankruptcy case. The Bankruptcy Court granted O c w e n 's motion for relief from the default judgment, and dismissed Ezekoye's complaint a g a in st Ocwen for fraud, finding it barred by res judicata based upon the judgment in O c w e n 's favor in the mortgage foreclosure action. The Bankruptcy Court later dismissed E z e k o ye 's bankruptcy case, and granted Ocwen relief from the automatic stay.

Ezekoye filed numerous appeals from the Bankruptcy Court's rulings in D is tric t Court. He filed a motion to proceed IFP in District Court in each appeal. The D is tric t Court denied Ezekoye IFP status and required prepayment of the filing fee for e a c h of the appeals that are now before this Court. The District Court stated that Ezekoye re p re se n te d to the Bankruptcy Court that he had sufficient income to remain in a Chapter 1 3 bankruptcy. Assuming for the sake of argument that Ezekoke was financially qualified to proceed IFP, the District Court found his piecemeal approach to appealing the B a n k ru p tc y Court's orders frivolous, unnecessarily litigious, and a waste of judicial and le g a l resources. The District Court also denied Ezekoye's motions for reconsideration.

W e have jurisdiction to review the District Court's order denying IFP status p u rsua n t to 28U.S.C. § 1291. Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1 9 9 5 ). Our standard of review is abuse of discretion. Id.

The decision whether to grant leave to file an action or appeal IFP depends s o le ly on whether the applicant is economically eligible. Sinwell v. Shapp, 536 F.2d 15, 1 9 (3d Cir. 1976). A plaintiff need not be absolutely destitute to be afforded IFP status.

Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Rather, the plaintiff m u s t show that he is unable to pay the costs of his suit. Walker v. People Express A irlin e s , Inc., 886 F.2d 598, 601 (3d Cir. 1989).

In his IFP affidavits, Ezekoye states that he is unemployed, and that he re c e iv e s $399.00 in unemployment benefits each week. Although he did not provide his e x p e n s e s , he states he has $65 in his checking account, and his home has been foreclosed.

Ezekoye states that his wife and five children are dependent upon him for support. Based u p o n these facts, we conclude that the District Court erred in denying Ezekoye IFP status.1 In the interest of judicial economy, however, we will not remand these appeals to the D is tric t Court because Ezekoye's appeals to the District Court were legally frivolous, and th u s would properly have been dismissed under 28U.S.C. § 1915(e)(2)(B).

In C.A. No. 04-3921, Ezekoye appeals the Bankruptcy Court's order g ra n tin g Ocwen relief from the automatic stay. This order was a consequence of the d ism iss a l of Ezekoye's bankruptcy case. The dismissal of the bankruptcy was due to E z e k o ye 's failure to make plan payments and the lack of feasibility of the plan. Ezekoye d o e s not contend that the Bankruptcy Court's findings in this regard were erroneous.

Rather, he argues that the Bankruptcy Court erred in lifting the stay without addressing his alleg atio n s of fraud in the mortgage foreclosure proceeding. At the hearing on Ocwen's m o tio n for relief from the stay, however, the Bankruptcy Judge explained to Ezekoye that s h e previously ruled that the mortgage foreclosure action was appropriate and held, under re s judicata principles, that Ezekoye could not set aside the state court judgment.2 E z e k o ye 's appeal to the District Court had no arguable merit. Thus, we will dismiss this a p p e a l pursuant to 28U.S.C. § 1915(e)(2)(B).

In C.A. No. 04-3972, Ezekoye appeals an order denying his motion for re c u sa l of the Bankruptcy Judge. Ezekoye's motion was based on several of the B a n k ru p tc y Judge's rulings and the fact that the Bankruptcy Judge had yet to rule on a p e n d in g motion. In denying the recusal motion, the Bankruptcy Judge noted that E z e k o ye 's creditor also had matters pending before the court, and correctly ruled that E z e k o ye 's disagreement with her rulings is not a basis for recusal. See Selkridge v. United o f Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (stating that beliefs or opinions th a t merit recusal must involve an extrajudicial factor). Because Ezekoye's appeal to the D is tric t Court had no arguable merit, we will dismiss this appeal pursuant to 28U.S.C. § 1 9 1 5 (e )( 2 )( B ).

In C.A. No. 04-3973, Ezekoye appeals the Bankruptcy Court's order d is m is s in g as moot his objection to Ocwen Federal Bank's claim against him in the b a n k ru p tc y proceeding. In his objection, Ezekoye asserted that the mortgage transaction w a s fraudulent because Long Beach Mortgage Company failed to notify him of the m o r tg a g e assignment to Ocwen. Ezekoye's objection is moot because his bankruptcy case w a s dismissed. Moreover, the Bankruptcy Court previously rejected Ezekoye's objection o n the merits. As noted above, the Bankruptcy Court ruled that Ezekoye's claims of fraud a re barred by res judicata due to the state court decision in Ocwen's favor in the mortgage f o re c lo s u re action. Thus, we will dismiss this appeal as well pursuant to 28U.S.C.

§ 1915(e)(2)(B).

F in a lly, in C.A. No. 04-3974, Ezekoye appeals the Bankruptcy Court's order d e n yin g his motion to reinstate a state court action. In 2001, Ezekoye filed a complaint a g a in s t Ocwen and Long Beach in state court alleging statutory violations in connection w ith the mortgage assignment, which the Trustee removed to Bankruptcy Court. Through c o u n se l, Ezekoye entered into a joint stipulation of dismissal in this action. The B a n k ru p tc y Court approved the stipulation and dismissed the action with prejudice.

Through counsel, Ezekoye also filed a Praecipe to Settle and Discontinue Action in state c o u rt, asking the Prothonotary to dismiss his state court action with prejudice.

In 2004, almost two years later, Ezekoye filed a motion in Bankruptcy Court to reinstate the state court action, asserting that the Bankruptcy Court lacked jurisdiction to d is m is s his complaint, and that its judgment is void due to collusion between Ocwen and L o n g Beach. The Bankruptcy Court denied the motion, noting that the parties consented to the dismissal, and that the action has been closed since 2002.

Ezekoye's jurisdictional argument lacks arguable merit. The Bankruptcy C o u rt has jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. See 28U.S.C. § 1334(b); 28U.S.C. 157. Ezekoye's state court a c tio n is related to his bankruptcy case as his challenge to the mortgage companies' c o n d u c t could have an effect on the estate being administered in the bankruptcy. See B e lc u f in e v. Aloe, 112 F.3d 633, 636 (3d Cir. 1997) (discussing test to determine whether a civil proceeding is related to a bankruptcy case).3 Ezekoye's collusion argument, based u p o n his alleged misunderstanding of Long Beach's corporate history, is also meritless.4 E z e k o ye fails to explain how his alleged lack of knowledge affected his decision to v o lu n tar ily dismiss his state court action. We therefore will dismiss this appeal pursuant to 2 8U.S.C. § 1915(e)(2)(B).5

* O C W E N LOAN SERVICING, LLC, successor to Ocwen Federal Bank FSB * (A m e n d e d pursuant to Clerk's Order dated 8/18/05) O n Appeal From the United States District Court 1 We note that the District Court granted IFP in yet another appeal Ezekoye filed b a se d upon a similar IFP application. See W.D. Pa. Civ. No. 04-cv-01047. Thus, it a p p e ars the District Court's denial of IFP status in these appeals was based upon E z e k o ye 's litigiousness rather than a financial determination. See Sinwell, 536 F.2d at 19 (f in d in g abuse of discretion where district court based its IFP decision on factor other than economic status).

2 The District Court affirmed this ruling in Ezekoye's appeal of the Bankruptcy C o u rt's order granting Ocwen's motion for relief from the default judgment. In another o p inion filed today, we dismissed Ezekoye's untimely appeal of the District Court's o rd e r. See Ezekoye v. Ocwen Loan Servicing, C.A. No. 04-4017.

3 Long Beach argues that the Bankruptcy Court's jurisdiction is irrelevant because the sta te court action was dismissed as a result of the praecipe to discontinue filed in state c o u rt. The Trustee, however, removed the state court action to Bankruptcy Court.

4 Long Beach states that it changed its name to Ameriquest Mortgage Company. A lth o u g h Ezekoye's argument is unclear, he appears to dispute a legal relationship b e t w e e n these two entities.

5 Ezekoye's motion to supplement the record is denied. The documents Ezekoye s e e k s to submit are either not part of the District Court records or are duplicative of d o c u m e n ts already submitted to the Court.

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