Opinion
BAP No. EC-13-1211 Bk. No. 04-26357 Case # 2:13-mc-0082 MCE AC (PS)
08-07-2013
In re: LARRY TEVIS; NANCY TEVIS; Debtors. LARRY TEVIS; NANCY TEVIS, Appellants, v. MICHAEL F. BURKART, Trustee; HOSEIT & KOELEWYN; MAX HOSEIT; HERMAN L. KOELEWYN, Appellees.
Peter A. Galgani Law Offices of Peter A. Galgani Hoseit & Koelewyn Max Hoseit Herman Koelewyn Attorneys for Hoseit& Koelewyn Andrew E. Lewis Brisbois Bisgaard & Smith LLP
ORDER TRANSFERRING IFP
MOTION
(Response Required)
Before: DUNN and KIRSCHER, Bankruptcy Judges.
Appellants filed a motion for leave to proceed in forma pauperis with respect to this appeal ("IFP Motion"). A Clerk's Notice to the bankruptcy court was issued, giving the bankruptcy court the opportunity to make a certification under 28 U.S.C. § 1915(a)(3) regarding whether the appeal is frivolous. A certification was made by the bankruptcy court on July 31, 2013. The bankruptcy court declined to certify that the appeal is "not taken in good faith" within the meaning of 28 U.S.C. § 1915(a)(3), determined that the appeal "is not frivolous" for purposes of 28 U.S.C. § 753(f), and determined that the appeal does not present a "substantial question" within the meaning of the penultimate sentence of 28 U.S.C. § 753(f).
Under the holding of Perroton v. Gray (In re Perroton), 958 F.2d 889 (9th Cir. 1992) and Determan v. Sandoval (In re Sandoval), 186 B.R. 490, 496 (9th Cir. BAP 1995), the Bankruptcy Appellate Panel has no authority to grant or deny in forma pauperis motions under 28 U.S.C. § 1915(a) because bankruptcy courts are not "court[s] of the United States" as defined in 28 U.S.C. § 451.
Therefore, appellants' IFP Motion is hereby TRANSFERRED to the United States District Court for the Eastern District of California for the limited purpose of ruling on the IFP Motion.
It is appellants' responsibility to take all necessary steps to have the IFP Motion considered by the district court within a reasonable period of time.
No later than Friday, September 6, 2013, appellants must file with the Panel and serve on opposing counsel a written response which includes as an exhibit a copy of the district court's order on the IFP Motion or an explanation of the steps appellants have taken to have the IFP Motion considered by the district court. For the convenience of the district court, copies of the notice of appeal, the IFP Motion, the bankruptcy court's certification, and the order on appeal are attached to this order.
Failure to comply with the requirements of this order may result in dismissal of this appeal for lack of prosecution without further notice to the parties. 9th Cir. BAP R. 8070-1. Larry Tevis and Nancy Tevis
P.O. Box 156
Rescue, CA 95672
In re: LARRY TEVIS & NANCY TEVIS Debtors
Case Number: 04-26357-B13
NOTICE OF APPEAL
Debtors Larry and Nancy Tevis appeal under 28 U.S.C. section 158(a) or (b) from the judgement, order, or decree of Bankruptcy Judge Christopher M. Klein's order Debtors Motion For Relief Under Federal Rule Of Civil Procedure 60(d)(3) Fraud On The Court filed on April 25, 2013. The names and addresses of all parties and respective attorneys to the order appealed from, as follows: Michael F. Burkart
Trustee Michael F, Burkart
5150 Fair Oaks Blvd. # 101-185
Carmichael, CA 95608
Paul L. Cass
Law Offices of Paul L. Cass
7803 Madison Ave. Ste. 610
Citrus Heights, CA 95610
Peter A. Galgani
Law Offices of Peter A. Galgani
Hoseit & Koelewyn
Max Hoseit
Herman Koelewyn
Attorneys for Hoseit& Koelewyn
Andrew E. Benizinger
Lewis Brisbois Bisgaard & Smith LLP
Respectfully submitted,
____________
Larry Tevis
____________
Nancy Tevis
In re: LARRY TEVIS and NANCY TEVIS, Debtor(s).
Case No. 04-26357-B-13J
ORDER ON MOTION FOR RELIEF UNDER FEDERAL RULE OF CIVIL
PROCEDURE 60(d)(3) FRAUD ON THE COURT
The debtors contend that a fraud was committed upon the court in connection with an order entered November 12, 2004, based on certain statements made by attorney Daniel Egan.
This pending motion was directed to the undersigned as the judge who conducted the subject hearing and issued the order that is said to be eligible to be set aside as a fraud on the court pursuant to Federal Rule of Civil Procedure 60(d)(3).
After reviewing the record carefully, the undersigned concludes that there was not a fraud on the court. As Mr. Egan points out correctly, the offending statements regarding whether CalVet was party to the settlement were accurate when made. Even if CalVet had been part of the compromise, as the movant contends, the undersigned would not have made a different ruling. Since the ruling by the undersigned judge would not have been different, relief on the asserted basis is not warranted.
IT IS ORDERED that the motion is DANIED.
____________
UNITED STATE BANKRUPTCY JUDGE
Larry and Nancy Tevis Plainliff/Petitioner
v. Michael Burkart,Paul Cass,Galgani,Hoseit & koelewyn Defendant/Respondent
Civil Action No. BAP No. EC-13-1211
APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
(Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested.
In support of this application, 1 answer the following questions under penalty of perjury:
1. If incarcerated. I am being held at: NA. If employed there, or have an account in the institution, I have attached to this document a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in my name, I am also submitting a simitar statement from any other institution where I was incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer's name and address are: NA My gross pay or wages are: $ ____________, and my take-home pay or wages are: $ ____________ per (specify pay period) ____________.
3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):
+-------------------------------------------------------------------+ ¦(a) Business, profession, or other self-employment¦[ ] Yes¦[ ] No ¦ +--------------------------------------------------+-------+--------¦ ¦(b) Rent payments, interest, or dividends ¦[ ] Yes¦[ ] No ¦ +--------------------------------------------------+-------+--------¦ ¦(c) Pension, annuity, or life insurance payments ¦[ ] Yes¦[ ] No ¦ +--------------------------------------------------+-------+--------¦ ¦(d) Disability, or worker's compensation payments ¦[v] Yes¦[ ] No ¦ +--------------------------------------------------+-------+--------¦ ¦(e) Gifts, or inheritances ¦[ ] Yes¦[ ] No ¦ +--------------------------------------------------+-------+--------¦ ¦(f) Any other sources ¦[ ] Yes¦[ ] No¦ +-------------------------------------------------------------------+
If you answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
+--------------------------------------------------------------------------+ ¦Larry Tevis- United States Treasury; Social Security Disability -¦$1341.00¦ +-----------------------------------------------------------------+--------¦ ¦Nancy Tevis- United States Treasury; Social Security Disability -¦$ 619.00¦ +-----------------------------------------------------------------+--------¦ ¦Total- ¦S1960.00¦ +--------------------------------------------------------------------------+ Larry and Nancy Tevis expect to receive S1960.00 a month in the future.
4. Amount of money that I have in cash or in a checking or savings account: $ 150.00.
5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe the property and its approximate value); None
6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide the amount of the monthly expense); Eiectric Bill- $300.0 Food-$800.00 Total Monthly Expenses $1775.00
Propane----- $175.00
Transportation $400.00
Loan Payments-$100.00
7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support: None
8. Any debts or financial obligations (describe the amounts owed and to whom they are payable): We are in Bankruptcy since 2004, the financial obligations are undetermined as we are in a Adversary Proceeding.
Declaration: I declare under penalty of perjury that the above information is true and understand that a false statment may result in a dismissal of my claims.
____________
Applicant's signature
____________
Printed name
In re: Larry TEVIS; NANCY TEVIS Debtors.
Case No. 04-26357-C-7
MEMORANDUM DECISION ON BANKRUPTCY APPELLATE PANEL
CLERK'S NOTICE IN BAP APPEAL NO. EC-13-1211
The trial court is authorized to make certain certifications under 28 U.S.C. §§ 753(f) and 1915(a)(3) regarding appeals when in forma pauperis status is requested. The pending appeal of Larry Tevis & Nancy Tevis v. Michael F. Burkart, Trustee, Hoseit & Koelewyn, Max Hoseit, & Herman L. Koelewyn (In re Tevis), BAP No. EC-13-1211, is such an appeal and triggered a BAP Clerk's Notice to this court of the opportunity to consider the certification questions.
The appeal is from an this court's order in the case of In re Tevis, No. 04-26357, denying the debtors' motion to set aside an order entered November 12, 2004, on a theory of fraud on the court pursuant to Federal Rule of Civil Procedure 60(d)(3).
Rule 60(d)(3) provides:
(d) Other Powers to Grant Relief. This rule does not limit a court's power to: ... (3) set aside a judgment for fraud on the court.Fed. R. Civ. P. 60(d)(3), incorporated by Fed. R. Bankr. P. 9024.
Upon receiving from the debtors a request to proceed in forma pauperis, the Bankruptcy Appellate Panel invited the views of this trial court under 28 U.S.C. §§ 753(f) and 1915(a)(3) pursuant to the procedure outline in Knutson v. Price (In re Price), 410 B.R. 51, 55-60 (Bankr. E.D. Cal. 2009).
I
An appeal may not be taken in forma pauperis if the trial court, which is this bankruptcy court in this instance, certifies in writing that the appeal is not taken in good faith:
(a)(3) An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.28 U.S.C. § 1915(a)(3).
When a person is permitted to appeal in forma pauperis, the United States will not pay any fees for transcripts if there is not a certification "that the appeal is not frivolous (but presents a substantial question) . ..." 28 U.S.C. § 753(f).
II
The debtors believe they became ensnared a "Catch-22" situation involving their residence that was acquired with a so-called "CalVet" loan. Loans made under the CalVet program are structured such that title nominally remains in CalVet until such time as the purchasing veteran extinguishes the loan.
They contend that there was a fraud on the court committed by the trustee's counsel in representations made to the court regarding the relationship of CalVet to the settlement, which representations are not consistent with the final form of the settlement.
This court determined that the original ruling would not have been different if the debtors' version of the role of CalVet had been made explicit at the time of the original order. Accordingly, an order was entered declining to afford relief under a Rule 60(d)(3) fraud-on-the-court theory. That order is the subject of this appeal.
III
As to the § 1915(a)(3) question of whether the appeal is taken in good faith, this court is persuaded that these self-represented debtors believe in good faith that they have been treated badly and believe that they ought to be entitled to relief.
The frivolity analysis might be different if the debtors were represented by counsel.
There is no apparent purpose of delay or other motive inconsistent with seeking judicial relief for a harm that they believe has been visited upon them.
Accordingly, this court is persuaded that there is not a lack of good faith in taking this appeal as of right pursuant to 28 O.S.C. § 158(a)(1). Hence, there will be no certification by this trial court that the appeal "is not taken in good faith" within the meaning of § 1915(a)(3).
IV
As to the § 753(f) question, there are two separate essential elements: that the appeal "is not frivolous" and that it "presents a substantial question." 28 U.S.C. § 753(f). Each of these elements must be satisfied before the United States will pay for transcripts for a person permitted to appeal in forma pauperis. Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984); Price, 410 B.R. at 59.
The determinations are made as a matter of "judicial discretion." Thomas v. Computax Corp., 631 F.2d 139, 143 (9th Cir. 1980); Price, 410 B.R. at 59.
When a bankruptcy judge is the trial judge, the determination is made by the bankruptcy judge. Price, 410 B.R. at 59; Allen v. W. Sierra Bank (In re Allen), 2009 WL 1187957, at *1 (Bankr. D. Idaho 2009).
Although the trial judge makes an independent determination in the exercise of judicial discretion, the § 753(f) burden ultimately is on the appellants to persuade the trial judge and, if necessary, a circuit judge. Jaffe v. United States, 246 F.2d 760, 761-62 (2d Cir. 1957); Sharpe v. Ogar, 2008 WL 5000155, at *1 (D. Ariz. 2008); Price, 410 B.R. at 59.
A
This court assumes for purposes of analysis that § 753(f) frivolity is the same as § 1915(a)(3) frivolity even though there may be technical differences regarding burdens of proof. Hence, having declined to make a § 1915(a)(3) certification of frivolity on the part of these self-represented debtors, this appeal "is not frivolous."
B
The second requirement - that the appeal presents a "substantial question" — is more of a problem.
In assessing whether a "substantial question" is presented by the appeal, the trial judge may evaluate the statement of issues and related material. Gonzales v. Riddle, 2008 WL 4723779, at *1 (E.D. Cal. 2008); Price, 410 B.R. 59. There is a "substantial question" when the issue before the appellate court is reasonably debatable. Washburn v. Faqan, 2007 WL 2043854, at *2 (N.D. Cal. 2007), citing with approval, Ortiz v. Greyhound Corp., 192 F.Supp. 903, 905 (D. Md. 1959); Price, 410 B.R. at 59.
As this trial court understands the appeal (and recollects the proceedings in 2004 and in 2013), no specific legal issue is presented as to which reasonable minds could differ. Nor is there any contention that binding precedent was not followed. As explained in the questioned ruling, the purported inaccuracy, if known, would not have affected the order from which relief is sought. This is not, in the view of the trial judge, a case that presents a "substantial question" because this court does not believe that the alleged inaccuracy was material and does not believe a fraud was commit tod upon it. Rather, the chances of success on appeal being essentially nil, this appeal does not present a "substantial question."
CONCLUSION
This trial court declines to certify that this appeal is "not taken in good faith" within the meaning of 28 U.S.C. § 1915(a)3).
This trial court determines that, although this appeal "is not frivolous" for purposes of 28 U.S.C. § 753(f), this appeal does not present a "substantial question" within the meaning of the penultimate sentence of 28 U.S.C. § 753(f). Hence, even if the debtors are allowed to appeal in forma pauperis, no transcript will be prepared at public expense.
____________
UNITED STATES BANKRUPTCY JUDGE
CERTIFICATE OF
ELECTRONIC
TRANSMISSION
The undersigned deputy clerk in the office of the United States Bankruptcy Court for the Eastern District of California hereby certifies that a copy of the document to which this certificate is attached was transmitted electronically today to the Bankruptcy Appellate Panel at the email address(es) shown below or on the attached list.
BAPCA0 9Filings/CA09/09/USCOURTS
By: ____________
Deputy Clerk
BANKRUPTCY APPEAL TRANSMITTAL FORM
TO: Bankruptcy Appellate Panel of the Ninth Circuit
125 S. Grand Avenue
Pasadena, CA 91105
FROM: U.S. Bankruptcy Court
Eastern District of California
District Office No. 0972
Debtor(s) Name: Larry Tevis and Nancy Tevis Bankruptcy Case No. 04-26357-B-13 Adversary Proceeding No. ____________ Docket Control No. ____________ Bankruptcy Judge (who signed the order): Klein Date Notice of Appeal Filed: 4/30/13 Date of Entry of Order Appealed From: 4/26/13 Date Bankruptcy Case Filed: 6/21 /04 Date Notice of Appeal and
Notice of Referral of Appeal Mailed to Parties: 5/2/13
Filing Fee Paid? (Check One) [ ] Yes [√] No
____________
Deputy Clerk
U.S. Bankruptcy Court
EDC 2-850 (Rev. 8/10/10) Larry Tevis and Nancy Tevis
P.O. Box 156
Rescue, CA 95672
In re: LARRY TEVIS & NANCY TEVIS Debtors
Case Number: 04-26357-B13
NOTICE OF APPEAL
Debtors Larry and Nancy Tevis appeal under 28 U.S.C. section 158(a) or (b) from the judgement, order, or decree of Bankruptcy Judge Christopher M. Klein's order Debtors Motion For Relief Under Federal Rule Of Civil Procedure 60(d)(3) Fraud On The Court filed on April 25, 2013. The names and addresses of all parties and respective attorneys to the order appealed from, as follows: Michael F. Burkart
Trustee Michael F. Burkart
5150 Fair Oaks Blvd. #101-185
Carmichael, CA 95608
Paul L. Cass
Law Offices of Paul L. Cass
7803 Madison Ave. Ste. 610
Citrus Heights, CA 95610
Peter A. Galgani
Law Offices of Peter A. Galgani
1120 "D" St. Ste. 100
Sacramento, CA95814
Hoseit & Koelewyn
Max Hoseit
Herman Koelewyn
700 University Ave. #140
Sacramento, CA 95825
Attorneys for Hoseit& Koelewyn
Andrew E. Benizinger
Lewis Brisbois Bisgaard & Smith LLP
2850 GatewayOaks Drive, Suite 450
Sacramento, California 95833
Respectfully submitted,
____________
Larry Tevis
____________
Nancy Tevis
In re: LARRY TEVIS and NANCY TEVIS, Debtor(s).
ORDER ON MOTION FOR RELIEF UNDER FEDERAL RULE OF CIVIL
PROCEDURE 60(d)(3) FRAUD ON THE COURT
The debtors contend that a fraud was committed upon the court in connection with an order entered November 12, 2004, based on certain statements made by attorney Daniel Egan.
This pending motion was directed to the undersigned as the judge who conducted the subject hearing and issued the order that is said to be eligible to be set aside as a fraud on the court pursuant to Federal Rule of Civil Procedure 60(d)(3).
After reviewing the record carefully, the undersigned concludes that there was not a fraud on the court. As Mr. Egan points out correctly, the offending statements regarding whether CalVet was party to the settlement were accurate when made. Even if CalVet had been part of the compromise, as the movant contends, the undersigned would not have made a different ruling. Since the ruling by the undersigned judge would not have been different, relief on the asserted basis is not warranted.
IT IS ORDERED that the motion is DENIED.
ENIED.
____________
UNITED STATED BANKRUPTCY JUDGE
CERTIFICATE OF SERVICE
On the date indicated below, I served a true and correct copy(ies) of the attached document by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed and by depositing said envelope in the United States mail or by placing said copy(ies) into an interoffice delivery receptacle located in the Clerk's Office. Larry Tevis
PO BOX 156
RESCUE CA 95672
H. L. Koelewyn
700 University Ave #140
Sacramento CA 95825-6703
Daniel L. Egan
400 Capitol Mall 22nd Fl
Sacramento CA 95814
____________
DEPUTY CLERK
In re Larry Tevis and Nancy Tevis Debtor(s)
Bankruptcy Case No. 04-26357-B13
Adversary Proceeding No.
Docket Control No.
CERTIFICATE OF MAILING
The undersigned clerk in the Office of the United States Bankruptcy Court for this district hereby certifies that copies of the Notice of Appeal and Notice of Referral of Appeal to the Bankruptcy Appellate Panel of the Ninth Circuit were mailed today to the following parties at their respective addresses as shown in the Court's records:
Larry and Nancy Tevis
PO BOX 156
RESCUE CA 95672
Jan P. Johnson
PO Box 1708
Sacramento CA 95812
Michael F. Burkart
5150 Fair Oaks Blvd.
#101-185
Carmichael CA 95608
Paul L. Cass
7803 Madison Ave #610
Citrus Heights, CA 95610
Peter A. Galgani
1120 D St #100
Sacramento CA 95814
Max Hoseit
700 University Ave #140
Sacramento CA 95825
Andrew E. Benizinger
2850 Gateway Oaks Dr
#450
Sacramento, CA 95833
U.S. Trustee
501 I St #7-500
Sacramento, CA 95814
BY: ____________
Deputy Clerk
EDC 3-071 (Rev. 8/10/10)
General Docket
U. S. Bankruptcy Appellate Panel for the Ninth Circuit
Bankruptcy Appellate Panel Docket #: 13-1211
Larry Tevis, et al v. Michael Burkart, et al
Appeal From: California Eastern - Sacramento
Fee Status: fee due
Docketed: 05/02/2013 Case Type Information:
1) Bankruptcy
2) Chapter 7 Non-Business
3) null
Originating Court Information:
District: 0972-2 : 04-26357-B13
Presiding Judge: Christopher M. Klein, U.S. Bankruptcy Judge
Date Filed: 06/21/2004
Date NOA Filed:
04/30/2013
Date Rec'd BAP:
05/02/2013
Prior Cases:
05-1131 Date Filed: 04/08/2005 Date Disposed: 06/29/2006 Disposition: Affirmed in part, Reversed; Opinion
Current Cases:
None
Panel Assignment: Not available In re: LARRY TEVIS Debtor NANCY TEVIS Debtor LARRY TEVIS Appellant NANCY TEVIS Appellant
v. MICHAEL F. BURKART, Trustee Appellee HOSEIT & KOELEWYN Appellee
Larry Tevis
[COR LD NTC Pro Se]
Firm: 530/676-2757
P.O. Box 156
Rescue, CA 95672
Nancy Tevis
[COR LD NTC Pro Se]
Firm: 530/676-2757
P.O. Box 156
Rescue, CA 95672
Paul Cass, Attorney
[COR LD NTC Retained]
LAW OFFICE OF PAUL L. CASS
#610
7803 Madison Ave.
Citrus Heights, CA 95610-0000
Peter A. Galgani, Esquire
[COR LD NTC Retained]
Law Offices of Peter A. Galgani
Suite 100
1120 "D" Street
Sacramento, CA 95814
Andrew Edward Benzinger, Esquire, Attorney
Direct: 916-564-5400
[COR LD NTC Retained]
LEWIS, BRIBOIS, BISGAARD & SMITH LLP
Suite 450
Firm: 916/ 564-5400
2850 Gateway Oaks Drive
Sacramento, CA 95833
MAX HOSEIT Appellee HERMAN L. KOELEWYN Appellee
Andrew Edward Benzinger, Esquire, Attorney
Direct: 916-564-5400
[COR LD NTC Retained]
(see above)
Andrew Edward Benzinger, Esquire, Attorney
Direct: 916-564-5400
[COR LD NTC Retained]
(see above)
In re: LARRY TEVIS; NANCY TEVIS Debtors LARRY TEVIS; NANCY TEVIS Appellants v. MICHAEL F. BURKART, Trustee; HOSEIT & KOELEWYN; MAX HOSEIT; HERMAN L. KOELEWYN Appellees
+-----------------------------------------------------------------------------+ ¦ ¦[ ] 1 ¦ ¦ ¦05/02¦ ¦Received notice of appeal filed in Bankruptcy Court on 04/30/¦ ¦/2013¦6 pg, ¦2013, transmittal form, and copy of order. (PI) ¦ ¦ ¦177.85 KB¦ ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦[ ] 2 ¦Notice to all parties and Bankruptcy Court RE: BAP Case ¦ ¦05/16¦ ¦number assigned: EC-13-1211. Sent Bankruptcy ¦ ¦/2013¦3 pg, ¦ ¦ ¦ ¦77.69 KB ¦Record Request Form to Bankruptcy Court. (PI) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦[ ] 3 ¦Sent BRIEFING ORDER to appellant Larry Tevis and Nancy Tevis.¦ ¦05/16¦ ¦Copies to all parties. Appellant Larry ¦ ¦/2013¦3 pg, ¦ ¦ ¦ ¦42.15 KB ¦Tevis and Nancy Tevis's opening brief due 07/01/2013 (PI) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦[ ] 4 ¦Notice of Deficiency sent to Appellant RE: lack of ¦ ¦05/16¦ ¦prosecution for filing fee due. Response Due: ¦ ¦/2013¦2 pg, ¦ ¦ ¦ ¦42.59 KB ¦05/30/2013. cc: All parties. (PI) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦ ¦Sent Notice of Mandatory Attorney Electronic Filing form to ¦ ¦ ¦ ¦Andrew E. Benizinger, Esquire for Appellees ¦ ¦ ¦ ¦ ¦ ¦ ¦[ ] 5 ¦Herman L. Koelewyn, Max Hoseit and HOSEIT & KOELEWYN, Paul ¦ ¦05/16¦ ¦Cass for Appellee Michael F. Burkart ¦ ¦/2013¦2 pg, ¦ ¦ ¦ ¦39.77 KB ¦and Peter A. Galgani, Esquire for Appellee Michael F. Burkart¦ ¦ ¦ ¦with note that no further paper filings will be ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦accepted. (PI) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦[ ] 6 ¦Notice of Deficiency sent to Appellant RE: Record on appeal ¦ ¦05/21¦ ¦not filed (for lack of prosecution). Re: ¦ ¦/2013¦2 pg, ¦ ¦ ¦ ¦43.02 KB ¦Response Due: 06/04/2013. cc: All parties. (VJ) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦[ ] 7 ¦Filed original and copies of Larry Tevis and Nancy Tevis's ¦ ¦06/05¦ ¦motion to proceed in forma pauperis; served on ¦ ¦/2013¦2 pg, ¦ ¦ ¦ ¦93.19 KB ¦05/31/2012. (VJ) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦[ ] 8 ¦Filed original and copies of Larry Tevis and Nancy Tevis's ¦ ¦07/02¦ ¦motion extending time to file appellant's opening ¦ ¦/2013¦2 pg, ¦ ¦ ¦ ¦25.48 KB ¦brief until 07/09/2013; served on 6/27/13. (VJ) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦ ¦Filed order (Deputy Clerk: vjw) Motion to extend time to file¦ ¦ ¦[ ] 9 ¦appellant's opening brief filed by Nancy Tevis ¦ ¦07/02¦ ¦ ¦ ¦/2013¦1 pg, ¦and Larry Tevis is GRANTED Appellant Larry Tevis and Nancy ¦ ¦ ¦33.61 KB ¦Tevis's opening brief due 07/09/2013.; ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦dated: 07/02/2013. (VJ) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦ ¦Filed original and 3 copies, opening brief with 4 copies ¦ ¦ ¦[ ] 10 ¦excerpts of record, served on 07/09/2013 ; Appellee ¦ ¦07/11¦ ¦ ¦ ¦/2013¦28 pg, ¦Michael F. Burkart, HOSEIT & KOELEWYN, Max Hoseit and Herman ¦ ¦ ¦566.49 KB¦L. Koelewyn's opening brief due ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦07/30/2013. (VJ) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦ ¦Filed order (Clerk: sms) On 7/31/13, the Panel will forward ¦ ¦ ¦ ¦the request for leave to proceed IFP to the U.S. ¦ ¦ ¦ ¦ ¦ ¦ ¦[ ] 11 ¦District Court for its consideration. An appeal may not be ¦ ¦07/24¦ ¦taken IFP if the trial court certifies in writing that it ¦ ¦/2013¦3 pg, ¦ ¦ ¦ ¦14.84 KB ¦is not taken in good faith. This Clerk's Order is being ¦ ¦ ¦ ¦issued to allow the trial court the oppertunity to "certify ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦in writing that the appeals is not taken in good faith". ; ¦ ¦ ¦ ¦dated: 07/24/2013. (PI) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦ ¦Filed (ECF) Attorney Mr. Andrew Edward Benzinger, Esquire for¦ ¦ ¦ ¦Appellees Herman L. Koelewyn, Max ¦ ¦ ¦ ¦ ¦ ¦ ¦[ ] 12 ¦Hoseit and HOSEIT & KOELEWYN's brief on appeal; served on 07/¦ ¦07/24¦ ¦24/2013 US mail - Appellants Tevis, ¦ ¦/2013¦12 pg, ¦ ¦ ¦ ¦310.01 KB¦Tevis; Attorney for Appellees: Cass, Galgani; email - ¦ ¦ ¦ ¦Appellants Tevis, Tevis; Attorney for Appellees: ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Benzinger, Cass, Galgani. (AEB) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦[ ] 13 ¦Received from Bankruptcy Court copy of Bk.Ct. Judge's ¦ ¦07/31¦ ¦response to BAP Clerk's Notice re: Certification - ¦ ¦/2013¦7 pg, ¦ ¦ ¦ ¦218.83 KB¦Appeal is not Frivolous (see attached order) filed in Bk. Ct.¦ ¦ ¦ ¦07/31/2013. (VJ) ¦ +-----+---------+-------------------------------------------------------------¦ ¦ ¦ ¦Filed order (DUNN and KIRSCHER); appellants' IFP Motion is ¦ ¦ ¦ ¦hereby TRANSFERRED to the United ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦States District Court for the Eastern District of California ¦ ¦ ¦[ ] 14 ¦for the limited purpose of ruling on the IFP Motion. ¦ ¦08/07¦ ¦ ¦ ¦/2013¦15 pg, ¦No later than Friday, September 6, 2013, appellants must file¦ ¦ ¦1.52 MB ¦with the Panel and serve on opposing ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦counsel a written response of the steps appellants have taken¦ ¦ ¦ ¦to have the IFP Motion considered (see ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦attached order);. (VJ) ¦ +-----------------------------------------------------------------------------+