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Terry v. Midland Mortgage Co.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 28, 2009

DONALD TERRY
v.
MIDLAND MORTGAGE COMPANY

The opinion of the court was delivered by: Ludwig, J.

MEMORANDUM

This action involved a real property dispute.*fn1 Jurisdiction is federal question. 28 U.S.C. § 1332. On June 27, 2008, plaintiff Donald Terry filed a pro se "Motion to Proceed in Forma Pauperis" supported by a "Statement in Support of Request to Proceed in Forma Pauperis" (docket no. 1). The statement averred that plaintiff was not employed, had received no money from a business, profession or self-employment in the preceding 12 months, owned a savings account with a balance of $150, and owned no real estate. Statement, docket no. 1. On June 30, 2008, on the basis of his statement, plaintiff's motion was granted.

Defendant now moves for dismissal on the ground that assertions made in support of the request for in forma pauperis status were false.*fn2 These assertions are contradicted as follows:

1. During the period of approximately one year prior to the filing of this action, April 22, 2007 through May 6, 2008, plaintiff received 16 checks for photographic services, in amounts ranging from $75 to $400. Defendant's motion, Exhibit "A." Plaintiff's in forma pauperis statement did not disclose this purported income or its source.

2. On May 12, 2008, plaintiff deposited a check in the amount of $36,215.66 into his Beneficial Savings Bank checking account, and on June 2, 2008, transferred $35,000 to the savings account. Defendant's motion, Exhibit "B." Plaintiff's in forma pauperis statement values his savings account at $150.

3. At deposition, plaintiff admitted owning two parcels of real property in Philadelphia, 1913 S. Norwood Street and 1843 Gerritt Street. Defendant's motion, Exhibit "D" at 54, 68. Plaintiff's statement denies ownership of any real property.*fn3

On March 22, 2009, plaintiff submitted a letter in response to defendant's motion.*fn4 The letter denies he is self-employed, and claims he volunteered his services to various community and non-profit associations from whom he received the checks attached to defendant's motion - but it does not deny receiving the payments. His letter does not refer to the large deposit in his checking account except to state that he does not currently have a lump sum in his account, but rather, has set aside funds in a trust for his disabled granddaughter. Here again, he does not deny receipt of the payment. Also, plaintiff's letter response does not speak to his failure to identify his real property on the statement. March 22, 2009 letter, docket no. 17).

On April 8, 2009, plaintiff's newly retained counsel filed a second response to the motion.*fn5 With respect to the payments received for photography services, the response states that plaintiff "did not intentionally and knowingly conceal such payments," and that the payments are not income, but "payments for the benefit of a certain charitable organization." Response, ¶ 2 (docket no. 18). The May 12, 2008 lump sum payment is identified as a settlement of a Worker's Compensation matter. Response, ¶ 3. The failure to identify real estate is described as unintentional. Response, ¶ 5.

The ownership of real property, the possession of a sizable sum of money, and the apparent steady stream of payments for services render plaintiff's claim of poverty false, and, therefore, his case must be dismissed. 28 U.S.C. § 1915(e)(2)(A). Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002).*fn6

An order accompanies this memorandum.

Edmund V. Ludwig, J.


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