STEPHEN MITCHELL, Bankruptcy Judge
Before the court is the debtor's motion, filed on September 27, 1999, for waiver of the filing fee for filing a notice of appeal. For the reasons stated, the motion will be denied.
Background
Sophia Kiatecki filed a voluntary petition under chapter 13 of the Bankruptcy Code in this court on June 21, 1999. This was her fourth bankruptcy filing in this court in the last three and a half years. The prior cases, and their disposition, are as follows: Case No. Date Filed Chapter Disposition 96-12859 5/29/96 13 dismissed 8/29/96 for failure to attend meeting of creditors 96-12890 5/29/96 11 dismissed 6/6/96 for failure to pay filing fee 97-18415 11/12/97 13 dismissed 2/3/98 with prejudice to refiling for 180 days The filing was in skeletal form, consisting only of the petition and a list of creditors that included a single creditor, her mortgage company. The debtor's application to pay the filing fee of $175.00 in installments was granted by the clerk under delegated authority, and the debtor paid $70.00 toward the filing fee. The balance was due in two $45.00 installments, one on July 21, 1999, and the other on August 21, 1999. Neither has been paid.
Under the Federal Rules of Bankruptcy Procedure, schedules, a statement of financial affairs, and a plan, if not filed with the petition, are due within 15 days thereafter. F.R.Bankr.P. 1007(c) and 3015(b). That time may be enlarged by the court for "cause shown" if the motion to enlarge is filed before the time has run, and for "excuseable neglect" if it is filed after the time has run. F.R.Bankr.P. 9006(b).
The meeting of creditors in the debtor's case was set for July 28, 1999. On June 29, 1999, the chapter 13 trustee, presumably because of the debtor's record of prior filings, filed a motion to examine the debtor under Federal Rule of Bankruptcy Procedure 2004. An order was entered on July 8, 1999, granting the motion and setting the examination for the same date, time, and place as the scheduled meeting of creditors. The clerk's certificate reflects that a copy of that order was mailed to the debtor at her address shown on the petition. On August 12, 1999, the chapter 13 trustee filed an application for an order to show cause why the debtor's case should not be dismissed with prejudice and sanctions awarded. The application represented that the debtor had failed to appear for the meeting of creditors and Rule 2004 examination and had also not filed schedules, a statement of financial affairs, or a plan. An order to show cause was entered on August 17, 1999, requiring the debtor to appear before the court on September 14, 1999. Again, the clerk's certificate reflects that a copy was mailed to the debtor. On September 14, 1999, the debtor failed to appear at the scheduled hearing, and an order was signed in open court dismissing her case with prejudice to refiling under any chapter of the Bankruptcy Code for 180 days and awarding sanctions to the chapter 13 trustee in the amount of $300.00.
Astonishingly, although the debtor did not attend the hearing, she apparently did show up at the clerk's office about a half-hour prior to the hearing and filed a motion for an extension of time to file schedules, a plan, "and related materials" on the ground that she had been ill and under a physician's care throughout the case. There is no indication that the motion was ever served on the chapter 13 trustee or on creditors.
The order dismissing the debtor's case was entered on the docket on September 16, 1999. On September 27, 1999, the debtor filed a timely notice of appeal but did not pay the required $105.00 filing and docketing fee. Instead, the debtor filed the "Motion for Waiver of Filing Fee" that is currently before the court. In the motion, she alleges that she is financially unable at this time to pay the lump sum filing fee for the appeal and requests that the fee be waived, or, in the alternative, that she be permitted to pay in installments.
The time for filing a notice of appeal is ten days. F.R.Bankr.P. 8002(a). Thus, the appeal ordinarily would have been due on September 26, 1999. However, since that date was a Sunday, the time was automatically extended to the next day. F.R.Bankr.P. 9006(a).
Discussion
As I have noted in a prior opinion, there is a split in the reported decisions over a bankruptcy court's authority to waive a filing fee. In re Marston, 1997 WL 812141 (Bankr. E.D. Va. 1997). The Fourth Circuit, while acknowledging the split, has so far declined to decide the issue. Fromal v. Jackson (In re Fromal), 52 F.3d 321 (table), 1995 WL 230253, *1 n. 1 (4th Cir. 1995). I am inclined, however, to agree with Judge Tice's well-reasoned opinion in In re Fitzgerald, 192 B.R. 861 (Bankr. E.D. Va. 1996) that a bankruptcy court has authority under 28 U.S.C. `1915 to waive fees with respect to proceedings within a bankruptcy case, although not with respect to the petition itself.
28 U.S.C. `1915 provides in relevant part:
(a)(1) . . . [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal,
or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such person possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiants belief that the person is entitled to redress.
(emphasis added).
Even though the court concludes, therefore, that it has the power in appropriate circumstances to waive the filing fee for an appeal, the present case does not present such circumstances. First, the motion is not supported by an "affidavit that includes a statement of all assets such person possesses that the person is unable to pay such fees or give security therefor" (emphasis added), as required by 28 U.S.C. § 1915. Since the debtor has never filed schedules, the court has no alternate means of determining whether, as alleged, the debtor is unable to pay the filing fees. Second, even the unverified motion does not state the "nature of the . . . appeal." Id. As noted by the District Court in In re Fromal, 151 B.R. 733 (E.D. Va. 1993) (Payne, J.), in exercising discretion to permit a party to proceed without prepayment of fees and costs, "a court must consider `the poverty and good faith of the applicant and the meritorious character of the cause in which relief was asked." Id. at 734 (emphasis added). Third, the debtor has failed to comply with the order previously entered allowing her to pay the filing fee for her case in installments. And finally, the debtor's record of prior filings, all of which were dismissed for failure to comply with requirements imposed by the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure, casts substantial doubt on her good faith in seeking to appeal the order dismissing her case and imposing sanctions.
With respect to the alternate relief the debtor has requested of payment in installments — and putting aside the lack of any express authority in the Bankruptcy Code or Bankruptcy Rules for such relief-I note simply that the debtor has failed to comply with the installment payment agreement for the filing fees in her bankruptcy case, and that at least one of her prior cases was dismissed for failure to pay filing fee installments.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The motion for waiver of filing fee or payment in installments is denied.
2. The clerk will mail a copy of this order to the debtor and to the chapter 13 trustee.