KONCAK v. DEUTSCHE BANK NATION TRUST COMPANY

Civil Action No. 3:16-CV-1507-L.

JAMES D. KONCAK and JUDI K. KONCAK, Plaintiffs, v. DEUTSCHE BANK NATION TRUST COMPANY, as Trustee for GSAMP Trust 2006-FM2, Mortgage Pass-Through Certificates, Series 2006-FM2 and OCWEN LOAN SERVICING, LLC, Defendants.

United States District Court, N.D. Texas, Dallas Division.

Editors Note
Applicable Law: 28 U.S.C. § 1332
Cause: 28 U.S.C. § 1332 Diversity - Breach of Contract
Nature of Suit: 190 Contract: Other Contract
Source: PACER


Attorney(s) appearing for the Case

James D. Koncak, Plaintiff, Pro Se.

Judi K. Koncak, Plaintiff, Pro Se.

Deutsche Bank National Trust, Defendant, represented by J. Garth Fennegan , SettlePou & Charles Royal Curran , SettlePou.

Ocwen Loan Servicing LLC, Defendant, represented by J. Garth Fennegan , SettlePou & Charles Royal Curran , SettlePou.


ORDER

SAM A. LINDSAY, District Judge.

Before the court is Plaintiffs' Motion for Extension of Time to File Plaintiffs' Notice of Appeal Pursuant to Federal Rule 4(a)(5) (Doc. 26), filed March 16, 2017. On March 22, 2017, Defendants filed a response in opposition to the motion (Doc. 27). On May 24, 2017, United States Magistrate Judge Renée Harris Toliver entered the Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Report"), recommending that the court grant Plaintiffs' motion. No objections to the Report were filed within the time allowed.

Having reviewed the motion, response, and Report, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. The court, therefore, grants Plaintiffs' Motion for Extension of Time to File Plaintiffs' Notice of Appeal Pursuant to Federal Rule 4(a)(5) (Doc. 26). Before the court could rule on Plaintiffs' motion and the Report, Plaintiffs filed a Notice of Appeal on June 6, 2017, after the magistrate judge recommended that their motion be granted. Accordingly, in light of the court's ruling on Plaintiffs' motion, it extends Plaintiffs' deadline to appeal under Fed. R. App. 4(b)(5) to June 6, 2017, such that their Notice of Appeal filed June 6, 2017, is deemed timely.

Notwithstanding the court's decision to grant the requested extension, it prospectively certifies that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this certification, the court incorporates by reference the magistrate judge's prior Report (Doc. 21) and this court's order (Doc. 24). See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). For the reasons set forth in the magistrate judge's prior Report (Doc. 21) and this court's order (Doc. 24), the court finds that any appeal of this action would present no legal point of arguable merit and would, therefore, be frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the clerk of the United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5).

It is os ordered.


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