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In re Porcaro

United States Bankruptcy Appellate Panel of the First Circuit

March 21, 2016

PETER J. PORCARO, Debtor.
v.
PETER J. PORCARO, Defendant-Appellant MICHAEL O'RORKE and BETH O'RORKE, Plaintiffs-Appellees,

          Bankruptcy Case No. 10-45391-CJP. Adversary Proceeding No. 11-04010-CJP.

         For MICHAEL O'RORKE, BETH O'RORKE, Plaintiffs - Appellees: Michael Joseph Heineman, Heinlein Beeler Mingace & Heineman, PC, Framingham, MA; Scott R. Pearl, Attorney, Heinlein Beeler Mingace & Heineman, P.C., Framingham, MA.

         PETER J. PORCARO, Defendant - Appellant, Pro se, Sutton, MA.

         ORDER REGARDING MOTION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

         Deasy, Harwood, and Cary, U.S. Bankruptcy Appellate Panel Judges.

         Before the Panel is the Motion for Leave to Proceed on Appeal In Forma Pauperis (the " IFP Motion" ), filed by Peter J. Porcaro (" Porcaro" ). For the reasons discussed below, the IFP Motion is granted, and the appeal is dismissed, in part.

         BACKGROUND

         On April 27, 2015, Porcaro timely appealed, pro se, an order denying his motion for summary judgment, and another order granting the cross-motion for summary judgment (collectively, the " Orders" ) which Michael O'Rorke and Beth O'Rorke (the " O'Rorkes" ) filed in the adversary proceeding they brought under 11 U.S.C. § 523(a)(6). On that day and the next, Porcaro also filed two Official Forms 17A, Notice of Appeal and Statement of Election. In these three filings, Porcaro did not indicate that he was electing to have the United States District Court consider his appeal.

         On April 30, 2015, Porcaro filed an Amended Official Form 17A, this time indicating that he was electing to have the United States District Court consider his appeal. On May 6, 2015, the Panel entered an order pursuant to 28 U.S.C. § 158(c)(1)(A), denying Porcaro's election as untimely (the " Denial of Election" ). On May 13, 2015, Porcaro filed a Motion to the BAP for Reconsideration and Affidavit (the " Reconsideration Motion" ), asking the Panel to reconsider the Denial of Election. On May 14, 2015, the Panel entered an order denying the Reconsideration Motion.

         The appeal proceeded before the Panel and on February 3, 2016, the Panel entered a Judgment affirming the Orders (the " February 2016 Judgment" ). In the accompanying, 24-page opinion (the " February 2016 Opinion" ), the Panel explained why the bankruptcy court correctly gave preclusive effect to the O'Rorkes' pre-bankruptcy, state court judgment.[1]

         On March 1, 2016, Porcaro filed an appeal of the February 2016 Judgment, the IFP Motion, and his affidavit in support of the IFP Motion (the " Affidavit" ). In the IFP Motion, Porcaro identifies the issues on appeal as: (1) whether the Panel " committed an error of law or an abuse of discretion" when it affirmed the bankruptcy court's grant of summary judgment against him; and (2) whether the Panel " committed an error of law or an abuse of discretion when it denied [his] motion to transfer the appeal to be heard by the United States District Court . . . ."

          Fed. R. App. P. 24(a) requires that a party to a district court action who desires to appeal in forma pauperis must file a motion in the district court. Fed. R. App. P. 24(a)(1). Fed. R. App. P. 6(b)(1)(C) provides that where, as here, an " appeal is from a bankruptcy appellate panel, the term 'district court,' as used in any applicable rule, means 'appellate panel.'" Fed, R, App. P. 6(b)(1)(C). Accordingly, the Panel acts on requests to proceed in forma pauperis before forwarding an appeal to the First Circuit. Heghmann v. Indorf (In re Heghmann), 324 B.R. 415, 416 n.1 (B.A.P. 1st Cir. 2005).

         DISCUSSION

         I. The Standard

         A. 28 U.S.C. ...


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