Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-20-2006
In Re: Ezekoye
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3921
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"In Re: Ezekoye " (2006). 2006 Decisions. Paper 876.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/876
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3921
________________
IN RE: ANDREW EZEKOYE,
Debtor
ANDREW EZEYOKE,
Appellant
vs.
*OCWEN LOAN SERVICING, LLC, successor
to Ocwen Federal Bank FSB
*(Amended pursuant to Clerk’s Order dated 8/18/05)
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 04-cv-01315)
District Judge: Honorable Arthur J. Schwab
NO. 04-3972
________________
IN RE: ANDREW EZEKOYE,
Debtor
ANDREW EZEYOKE,
Appellant
vs.
*OCWEN LOAN SERVICING, LLC, successor
to Ocwen Federal Bank FSB
*(Amended pursuant to Clerk’s Order dated 8/18/05)
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 04-cv-01316)
District Judge: Honorable Arthur J. Schwab
_______________________________________
NO. 04-3973
________________
IN RE: ANDREW EZEKOYE,
Debtor
ANDREW EZEYOKE,
Appellant
vs.
*OCWEN LOAN SERVICING, LLC, successor
to Ocwen Federal Bank FSB
*(Amended pursuant to Clerk’s Order dated 8/18/05)
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 04-cv-01317)
District Judge: Honorable Arthur J. Schwab
_________________________________
NO. 04-3974
________________
IN RE: ANDREW EZEKOYE,
Debtor
ANDREW EZEYOKE,
Appellant
vs.
*OCWEN LOAN SERVICING, LLC, successor
to Ocwen Federal Bank FSB; LONG BEACH MORTGAGE COMPANY
*(Amended pursuant to Clerk’s Order dated 8/18/05)
____________________________________
2
On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 04-cv-01318)
District Judge: Honorable Arthur J. Schwab
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 1, 2006
BEFORE: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES
(Filed: June 20, 2006)
_______________________
OPINION
_______________________
PER CURIAM.
Andrew Ezekoye, proceeding pro se, has filed four appeals from orders of
the United States District Court for the Western District of Pennsylvania denying his
applications to proceed in forma pauperis (“IFP”) in four appeals from orders of the
United States Bankruptcy Court. For the reasons discussed below, we conclude that the
District 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 28 U.S.C.
§ 1915(e)(2)(B).
In 1996, Ezekoye executed a mortgage with Long Beach Mortgage
Company. Long Beach assigned the mortgage to Ocwen Federal Bank FSB. After
Ezekoye defaulted on the mortgage, Ocwen brought a mortgage foreclosure action in
Pennsylvania state court and obtained a judgment in its favor. In 2001, Ezekoye filed a
3
complaint against Ocwen in state court alleging conspiracy and fraud in connection with
the mortgage assignment, and fraud related to Ocwen’s affidavits in the mortgage
foreclosure action. Ezekoye obtained a default judgment against Ocwen.
When Ocwen learned of the default judgment, it filed a motion to strike
and/or open the default judgment in state court. Ezekoye and Ocwen consented to the
removal 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
Ocwen’s motion for relief from the default judgment, and dismissed Ezekoye’s complaint
against Ocwen for fraud, finding it barred by res judicata based upon the judgment in
Ocwen’s favor in the mortgage foreclosure action. The Bankruptcy Court later dismissed
Ezekoye’s bankruptcy case, and granted Ocwen relief from the automatic stay.
Ezekoye filed numerous appeals from the Bankruptcy Court’s rulings in
District Court. He filed a motion to proceed IFP in District Court in each appeal. The
District Court denied Ezekoye IFP status and required prepayment of the filing fee for
each of the appeals that are now before this Court. The District Court stated that Ezekoye
represented to the Bankruptcy Court that he had sufficient income to remain in a Chapter
13 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
Bankruptcy Court’s orders frivolous, unnecessarily litigious, and a waste of judicial and
legal resources. The District Court also denied Ezekoye’s motions for reconsideration.
4
We have jurisdiction to review the District Court’s order denying IFP status
pursuant to 28 U.S.C. § 1291. Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.
1995). Our standard of review is abuse of discretion. Id.
The decision whether to grant leave to file an action or appeal IFP depends
solely on whether the applicant is economically eligible. Sinwell v. Shapp, 536 F.2d 15,
19 (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
must show that he is unable to pay the costs of his suit. Walker v. People Express
Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989).
In his IFP affidavits, Ezekoye states that he is unemployed, and that he
receives $399.00 in unemployment benefits each week. Although he did not provide his
expenses, 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
upon 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
District Court because Ezekoye’s appeals to the District Court were legally frivolous, and
1
We note that the District Court granted IFP in yet another appeal Ezekoye filed
based upon a similar IFP application. See W.D. Pa. Civ. No. 04-cv-01047. Thus, it
appears the District Court’s denial of IFP status in these appeals was based upon
Ezekoye’s litigiousness rather than a financial determination. See Sinwell, 536 F.2d at 19
(finding abuse of discretion where district court based its IFP decision on factor other
than economic status).
5
thus would properly have been dismissed under 28 U.S.C. § 1915(e)(2)(B).
In C.A. No. 04-3921, Ezekoye appeals the Bankruptcy Court’s order
granting Ocwen relief from the automatic stay. This order was a consequence of the
dismissal of Ezekoye’s bankruptcy case. The dismissal of the bankruptcy was due to
Ezekoye’s failure to make plan payments and the lack of feasibility of the plan. Ezekoye
does 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
allegations of fraud in the mortgage foreclosure proceeding. At the hearing on Ocwen’s
motion for relief from the stay, however, the Bankruptcy Judge explained to Ezekoye that
she previously ruled that the mortgage foreclosure action was appropriate and held, under
res judicata principles, that Ezekoye could not set aside the state court judgment.2
Ezekoye’s appeal to the District Court had no arguable merit. Thus, we will dismiss this
appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
In C.A. No. 04-3972, Ezekoye appeals an order denying his motion for
recusal of the Bankruptcy Judge. Ezekoye’s motion was based on several of the
Bankruptcy Judge’s rulings and the fact that the Bankruptcy Judge had yet to rule on a
pending motion. In denying the recusal motion, the Bankruptcy Judge noted that
2
The District Court affirmed this ruling in Ezekoye’s appeal of the Bankruptcy
Court’s order granting Ocwen’s motion for relief from the default judgment. In another
opinion filed today, we dismissed Ezekoye’s untimely appeal of the District Court’s
order. See Ezekoye v. Ocwen Loan Servicing, C.A. No. 04-4017.
6
Ezekoye’s creditor also had matters pending before the court, and correctly ruled that
Ezekoye’s disagreement with her rulings is not a basis for recusal. See Selkridge v. United
of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (stating that beliefs or opinions
that merit recusal must involve an extrajudicial factor). Because Ezekoye’s appeal to the
District Court had no arguable merit, we will dismiss this appeal pursuant to 28 U.S.C. §
1915(e)(2)(B).
In C.A. No. 04-3973, Ezekoye appeals the Bankruptcy Court’s order
dismissing as moot his objection to Ocwen Federal Bank’s claim against him in the
bankruptcy proceeding. In his objection, Ezekoye asserted that the mortgage transaction
was fraudulent because Long Beach Mortgage Company failed to notify him of the
mortgage assignment to Ocwen. Ezekoye’s objection is moot because his bankruptcy case
was dismissed. Moreover, the Bankruptcy Court previously rejected Ezekoye’s objection
on the merits. As noted above, the Bankruptcy Court ruled that Ezekoye’s claims of fraud
are barred by res judicata due to the state court decision in Ocwen’s favor in the mortgage
foreclosure action. Thus, we will dismiss this appeal as well pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
Finally, in C.A. No. 04-3974, Ezekoye appeals the Bankruptcy Court’s order
denying his motion to reinstate a state court action. In 2001, Ezekoye filed a complaint
against Ocwen and Long Beach in state court alleging statutory violations in connection
with the mortgage assignment, which the Trustee removed to Bankruptcy Court. Through
7
counsel, Ezekoye entered into a joint stipulation of dismissal in this action. The
Bankruptcy Court approved the stipulation and dismissed the action with prejudice.
Through counsel, Ezekoye also filed a Praecipe to Settle and Discontinue Action in state
court, 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
dismiss his complaint, and that its judgment is void due to collusion between Ocwen and
Long 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
Court has jurisdiction of all civil proceedings arising under title 11, or arising in or related
to cases under title 11. See 28 U.S.C. § 1334(b); 28 U.S.C. 157. Ezekoye’s state court
action is related to his bankruptcy case as his challenge to the mortgage companies’
conduct could have an effect on the estate being administered in the bankruptcy. See
Belcufine 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
3
Long Beach argues that the Bankruptcy Court’s jurisdiction is irrelevant because the
state court action was dismissed as a result of the praecipe to discontinue filed in state
court. The Trustee, however, removed the state court action to Bankruptcy Court.
8
upon his alleged misunderstanding of Long Beach’s corporate history, is also meritless.4
Ezekoye fails to explain how his alleged lack of knowledge affected his decision to
voluntarily dismiss his state court action. We therefore will dismiss this appeal pursuant to
28 U.S.C. § 1915(e)(2)(B).5
4
Long Beach states that it changed its name to Ameriquest Mortgage Company.
Although Ezekoye’s argument is unclear, he appears to dispute a legal relationship
between these two entities.
5
Ezekoye’s motion to supplement the record is denied. The documents Ezekoye
seeks to submit are either not part of the District Court records or are duplicative of
documents already submitted to the Court.
9