11 U.S.C. §362; 28 U.S.C. §1915; Reimposition of Automatic Stay; Good Faith Appeal; In Forma Pauperis.
In re Isaac, 2005 Bankr. LEXIS 2691 (Bankr. N.D. Ga. November 17, 2005) (Bihary).
Prior to filing of debtor’s pro se Chapter 7 petition, the landlord obtained a writ of possession in state court. After the petition was filed, the landlord obtained relief from the automatic stay. Debtor appealed this order and requested authority to pursue the appeal in forma pauperis.
The debtor’s request to proceed in forma pauperis was governed by 28 U.S.C. § 1915(a), which provides that an appeal cannot be taken in forma pauperis if the trial court certifies that it is not taken in good faith. In this case, the debtor’s lease had expired, she had not paid rent for three months prior to her bankruptcy and had not paid any rent post-petition. Under these circumstances there was no basis on which to overturn the state court writ of possession or deny the landlord’s motion for relief. Therefore, the court held that the appeal was not taken in good faith. Additionally, the debtor’s request to proceed with her Chapter 7 case in forma pauperis was denied since there was no authority for such a request for cases filed prior to October 17, 2005.
Note: For a recent case applying 28 U.S.C. §1915 to an appeal by a non-debtor, see In re CK Liquidation Corp., 2006 Bankr. LEXIS 387 (Bankr. D. Mass. 2006).