                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"In Re: Ezekoye " (2006). 2006 Decisions. Paper 876.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/876


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                                           NOT PRECEDENTIAL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
