answer brief by timothy w. weber

8/14/2019 Answer Brief by Timothy W. Weber

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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARK A. ADAMS,

Appellant,Case No. 8:08-cv-1570-RAL

vs.

CORPORATE SPORTS MARKETINGGROUP, et al.

Appellees.

/

_________________________________________________________________

ANSWER BRIEF OF APPELLEESON APPEAL FROM THE UNITED STATES BANKRUPTCY COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

THE HONORABLE PAUL M. GLENN, PRESIDING_________________________________________________________________

Timothy W. Weber, EsquireFlorida Bar No.: 86789BATTAGLIA, ROSS, DICUS & WEIN, P.A.

Wachovia Bank Building980 Tyrone Boulevard (33710)Post Office Box 41100St. Petersburg, Florida 33743(727) 381-2300(727) 343-4059 (fax)Attorneys for Appellees


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. IV

PREFACE ............................................................................................................... VI

STATEMENT OF THE FACTS AND CASE...........................................................1

ARGUMENT...........................................................................................................12

I. WHETHER THE BANKRUPTCY COURT ABUSEDITS DISCRETION IN GRANTING A MOTION FOREXTENSION OF TIME TO OBJECT TO DISCHARGEOR DISCHARGEABILITY UNDER FED.R.BANK.P.4004(B) WITHOUT A HEARING WHERE THE

DEBTOR DID NOT TIMELY OBJECT TO THEMOTION, NEVER REQUESTED A HEARING ONTHE MOTION, AND FAILED TO TIMELY SEEKRECONSIDERATION BEFORE APPELLEES RELIEDUPON THE EXTENSION [RESTATED]..........................................12

II. WHETHER THE BANKRUPTCY COURT ABUSEDITS DISCRETION IN EXTENDING, BY 13 DAYS,THE TIME FOR SERVICE OF PROCESS UNDERFED.R.CIV.P. 4(M), MADE APPLICABLE TO

BANKRUPTCY ADVERSARY PROCEEDINGS,WHERE THE DEBTOR EVADED SERVICE OFPROCESS AND WHERE A REFUSAL TO GRANTTHE BRIEF EXTENSION WOULD HAVERESULTED IN APPELLEES CLAIMS BEING TIME-BARRED [RESTATED].....................................................................20

III. WHETHER THE BANKRUPTCY COURT ERRED INENTERING A JUDGMENT DENYING THEDEBTORS DISCHARGE AND THE

DISCHARGEABILITY OF THE SANCTIONSJUDGMENT IN FAVOR OF APPELLEES ANDAGAINST THE DEBTOR WITHOUT AN AFFIDAVIT[RESTATED]......................................................................................24


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IV. WHETHER THE DEBTOR MAY PROSECUTE ANUNTIMELY APPEAL FROM ORDERS ANDJUDGMENTS ENTERED AGAINST LISA ADAMSAND LAW OFFICES OF MARK A. ADAMS, P.A.WHERE THE DEBTOR, A DISBARRED ATTORNEY,WAS PERMANENTLY ENJOINED FROMENGAGING IN THE UNAUTHORIZED PRACTICEOF LAW AND WAS WARNED NOT TO REPRESENTTHE INTERESTS OF THESE PARTIES IN THEBANKRUPTCY COURT [RESTATED] ...........................................26

CONCLUSION........................................................................................................27

CERTIFICATE OF SERVICE ................................................................................28


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TABLE OF AUTHORITIES

PAGE

CASES

Coggin v. Coggin,30 F.3d 1443 (11th Cir. 1994) .......................................................... 18, 19, 20

Colonial Daytona Ltd. Partnership v. American Sav. of Florida,152 B.R. 996 (M.D. Fla. 1993)......................................................................14

Hornekamp v. Van Winkle and Co., Inc.,402 F.3d 1129 (11th Cir. 2005) .............................................................. 21, 22

In re Amezaga,192 B.R. 37 (Bank. D. P.R. 1996).......................................................... 12, 17

In re Teligent Serv., Inc.,324 B.R. 467 (Bankr. S.D.N.Y. 2005)...........................................................23

In re: Black,180 B.R. 534 (S.D. Ind. 1995).......................................................................20

In re: Datson,

197 B.R. 1 (D. Me. 1996) ..............................................................................16In re: Grunau,

376 B.R. 322 (M.D. Fla. 2007)............................................................... 13, 14

In re: Themy,6 F.3d 688 (10th Cir. 1993) ...........................................................................20

In re: Tully,818 F.2d 106 (1st Cir. 1987) .........................................................................17

In re: Wade,948 F.2d 1122 (9th Cir. 1991) .......................................................................15

Lepone-Dempsy v. Carroll County Comm.,476 F. 3d 1277 (11th Cir. 2007) ....................................................................24


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STATUTES

11 U.S.C. 102(1) ...................................................................................................13

RULES

Bankr.L.R.M.D.Fla. 7055-2.............................................................................. 25, 26

Fed.R.Bank.P. 4004(b)..................................................................................... passim

Fed.R.Bank.P. 7004 .................................................................................................24

Fed.R.Bank.P. 7055 .................................................................................................25

Fed.R.Bank.P. 9006 .................................................................................................24

Fed.R.Civ.P. 4(m) ....................................................................................................21

Fed.R.Civ.P. 55................................................................................................. 25, 26


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PREFACE

For purposes of this appeal, Appellees will use the following method of

designating the record:

(Doc. #-#, at page)

The Debtor, MARK A. ADAMS, will hereinafter be referred to as "the Debtor."


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STATEMENT OF THE FACTS AND CASE

This is an appeal from a Default Final Judgment (Doc. 1-2) entered against the

Debtor in a bankruptcy adversary proceeding after the Debtor intentionally refused to

file an answer after being given at least four opportunities and two court orders to do

so. The Debtor also appeals an Order entered in the main bankruptcy case revoking

the Debtors discharge based on the Default Final Judgment. (Doc. 9-21)

The history of the parties dispute is quite lengthy and is characterized by seven

years of abuse of the courts by the Debtor resulting in hefty sanctions judgments

against the Debtor and in favor of Appellees, criminal contempt proceedings against

the Debtor for refusing to cooperate with discovery in aid of execution to collect those

sanctions judgments, the Debtors permanent disbarment from the practice of law by

The Florida Supreme Court, the Debtors bankruptcy, and ultimately, the revocation

of the Debtors discharge by the Bankruptcy Court. (Doc. 11-13, generally)

Appellees have been the victim of the Debtors conduct and, as found by The Florida

Bar referee presiding over the Debtors disbarment, have suffered hundreds of

thousands of dollars in damages due to the vexatious and frivolous litigation conduct

of the Debtor. (Doc. 11-13, at 21) (The unrebutted evidence proves beyond any

reasonable doubt that the Respondent engaged in deliberate conduct resulting in

financial damages of over $150,000 to Attorney Timothy Weber and his law firm as


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well as additional financial damages to Mr. Webers former clients in the underlying

litigation.); (Doc. 11-13, at 24) (the misconduct has caused significant financial and

emotional damage to other members of The Florida Bar and the Respondents clients

and adversaries.)

This conduct included, among other things, knowing violation of court orders

and rules to gain an improper benefit or cause serious interference with a legal

proceeding; engaging in protracted intentional conduct involving dishonesty, fraud,

deceit or misrepresentation to opposing counsel and the court, including intentionally

making numerous false statements of fact to the court with the intent to deceive the

court; knowingly violating court orders; knowingly communicating with represented

persons; knowingly asserting frivolous arguments; and purposefully obstructing

access to evidence. (Doc. 11-13, generally) In addition, counsel for Appellees, and

his law firm, have been the target of frivolous lawsuits, criminal complaints, bar

grievances, and a massive amount of false and defamatory statements spread on the

internet by the Debtor. (Doc. 22-1) Not surprisingly, this conduct continued in the

Debtors voluntary bankruptcy proceeding as well.

The Debtor filed a voluntary petition on October 14, 2005, the day before the

Bankruptcy Reform Act took effect. A notice of commencement was sent to creditors

scheduling a 341 hearing for 12/13/05 and setting the deadline for objections to

discharge and dischargeability for 2/6/06. (Doc. 9-8) The Debtor did not timely file


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15 days after Appellees request for the extension of time, the Bankruptcy Court,

without a hearing, granted Appellees motion to extend the time to object to discharge

and dischargeability, extending the period to April 7, 2006. (Doc. 9-10) In reliance

on the Bankruptcy Courts order extending the time, Appellees withdrew without

prejudice their previously filed but technically deficient objection. (Doc. 21-11)

On April 7, 2006, Appellees timely filed the instant adversary proceeding

against the Debtor, Lisa Adams, and Law Offices of Mark A. Adams, P.A. objecting

to the Debtors discharge (Count I), objecting to the discharge of the sanctions

judgments against the Debtor and in favor of CSM, King, and Martins (Count II);

objecting to the dischargeability of fraudulent transfer claims against the Debtor

(Count III); objecting to the dischargeability of malicious prosecution, abuse of

process, defamation, and additional sanctions claims against the Debtor possessed by

Appellees (Count IV); and seeking to set aside fraudulent transfers of assets to Lisa

Adams and Law Office of Mark A. Adams, P.A. (Count V). (Doc. 22-1) Appellees

relied upon 11 U.S.C. 727(a)(2), (3), (4), (5), (6) and (7) to oppose the Debtors

discharge, as well as 11 U.S.C. 523(a)(6) to oppose the dischargeability of the

Debtors obligations to Appellees. (Doc. 22-1)

Appellees alleged, among other things, that CSM, King, and Martins obtained

state court judgments against the Debtor and the Debtors former professional

association, Mark A. Adams, P.A., that ordered each to provide discovery in aid of


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execution. (Doc. 22-1, at 3) The Debtor and his professional association

contemptuously refused to comply with these court orders during the two years

immediately preceding the filing of the Debtors bankruptcy petition on October 14,

2005. (Doc. 22-1, at 3) During this time, the Debtor dissolved Mark A. Adams, P.A.

and transferred substantially all of its assets to himself and Lisa Adams as tenants by

the entireties and then subsequently transferred those assets to Law Office of Mark A.

Adams, P.A. (Doc. 22-1, at 3) This transfer placed all assets of Mark A. Adams, P.A.

out of the reach of CSM, King and Martins, the holders of perfected judgment liens,

and rendered the Debtors stock in Mark A. Adams, P.A. worthless. (Doc. 22-1, at 3)1

Appellees further alleged that the state court judgments were based on the

Debtors willful and malicious actions towards CSM, King and Martins. (Doc. 22-1,

at 4) Moreover, in retaliation for obtaining those judgments, the Debtor willfully and

maliciously filed a frivolous lawsuit against CSM and King and then subsequently

amended to add Weber, BRDW, and Richardson. (Doc. 22-1, at 4) This lawsuit was

dismissed with prejudice but the Debtor willfully and maliciously appealed the

dismissal despite knowledge of its frivolous nature. (Doc. 22-1, at 4) Appellees

alleged the pattern of abusive misconduct perpetrated by the Debtor, including

conduct involving fraud, as well as the Debtors announced intention in disciplinary

1The Debtor did not even list the stock of Mark A. Adams, P.A. on his bankruptcy


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proceedings to continue that pattern of conduct directed towards Appellees. (Doc. 22-

1, at 4)

Appellees additionally alleged that the Debtor willfully, maliciously, and

repeatedly defamed Appellees in numerous ways, including posting false internet

articles accusing Appellees of bribing judges and committing other unlawful or

unethical actions. (Doc. 22-1, at 4) The Debtor made false and malicious complaints

of illegal and unethical conduct about Weber and BRDW to the FBI, FDLE, The

Florida Bar, and others for the purpose of vexing and harassing Weber and BRDW.

(Doc. 22-1, at 6) These statements also accuse CSM, King, Martins, and Richardson

of participating in the corruption and illegal activity. (Doc. 22-1, at 6)

Appellees attempted personal service2 of the complaint on the Debtor at his

home but, consistent with prior conduct, the Debtor actively evaded service of

process. (Doc. 10-4, at 2; Docs. 10-5 to 10-15) The Debtor was finally served on

August 18, 2006 at the courthouse. (Doc. 10-9) In response, the Debtor filed

Debtors Motion to Dismiss Adversary Proceeding asserting that service of process

was untimely under Fed.R.Civ.P. 4(m) and Fed.R.Bank.P. 7004(e). (Doc. 10-3)

Appellees filed their Motion to Substitute Party, Issue Alias Summonses, and Extend

schedules. (Doc. 22-1, at 3; Doc. 21-5)2Personal service, rather than service by mail, was attempted because the Debtor

chronically claims in court that he does not receive matters by mail or receives them


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Time Period for Service of Process in which Appellees requested that the Court

extend the time periods in Fed.R.Civ.P. 4(m) and Fed.R.Bank.P. 7004(e) to August

18, 2006 and to deem the Debtor validly served as of that date. (Doc. 10-4) In the

motion, Appellees detailed the Debtors efforts to evade service of process and

historical pattern of doing so, attaching numerous affidavits of process servers and

other who attempted to serve the Debtor. (Doc. 10-7 to 10-15) On December 5, 2006,

the Bankruptcy Court conducted a hearing on the Debtors Amended Motion to

Dismiss Adversary Proceeding3

and Appellees Motion to Substitute Party, Issue Alias

Summonses, and Extend Time Period for Service of Process. (Doc. 11-1)

Following the hearing, the Bankruptcy Court entered its Order on the various

motions extending the time period for service of process and deeming the Debtor

timely served; finding that Lisa Adams was properly served; rejecting the Debtors

claim, made ten months after the fact, that the Bankruptcy Court was required to

conduct a hearing on Appellees motion to extend the time under Fed.R.Bank.P.

4004(b); and granting Appellees request to correct a misnomer in the professional

association and finding that it was validly served. (Doc. 11-2) The Bankruptcy Court

in an untimely fashion. (Doc. 11-1, at 23)3The Debtor amended his motion before the hearing; the amended motion focused

on the Bankruptcy Courts decision to extend the time for Appellees to object todischarge and dischargeability, the 120 day requirement of Rule 4(m), and thevalidity of service on Lisa Adams, the Debtors wife. (Doc. 10-25)


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denied all of the Debtors motions to dismiss. (Doc. 11-2, at 17)

Pursuant to Fed.R.Bank.P. 7012(a), the Debtor was required to file and serve

an answer within ten (10) days. Instead, the Debtor filed a motion to enlarge the

time to answer, (Doc. 11-25), and a motion for an extension of time to perfect an

interlocutory appeal from the Bankruptcy Courts order. (Doc. 22-2) The

Bankruptcy Court granted the Debtors motion to extend the time to file a notice of

appeal or motion for leave to appeal. (Doc. 22-4) On April 6, 2007, the

Bankruptcy Court also granted the Debtors request for an enlargement of the time

to answer for twenty (20) additional days. (Doc. 22-3) Despite the extension

provided by the Bankruptcy Court, the Debtor failed to plead within the time

allowed by the Court. In addition, the Debtor never filed an appeal from the March

19, 2007 Order.

Instead, on April 30, 2007, the Debtor filed a successive4 Motion to Dismiss

for Lack of Jurisdiction and a Renewed Motion to Quash Service of Process and to

Dismiss Adversary Proceeding. (Doc. 11-6) This filing was clearly made in bad

faith and solely for the purpose of delaying the proceedings.5 On September 28,

4The Debtor moved to dismiss on the same grounds rejected by the March 19,

2007 Order, apparently in an effort to generate a second opportunity to appeal thedenial of the motion to dismiss that the Debtor failed to timely appeal previously,despite being afforded extra time by the Bankruptcy Court.5 It should not go unnoticed that the Debtor sought to extend the deadline for


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(Doc. 22-7) The Bankruptcy Court denied Appellees motion to default the Debtor

without prejudice to the Plaintiffs right to renew the Motion in the event that the

Debtor fails to file an Answer to the Complaint within twenty (20) days from the

date of this Order. (Doc. 22-7)

Not surprisingly, the Debtor did not timely file a notice of appeal or motion

for leave to appeal the September 28, 2007 Order denying his second, successive

motion to dismiss. Even less surprising is the fact that the Debtor did not timely

file an answer as directed by the Court. Instead, the Debtor filed a number of

documents on behalf of Lisa Adams and Law Office of Mark A. Adams, P.A. and,

most abusively, filed a Motion to Enlarge Time to File Motion for Leave to

Appeal or File Notice of Appeal of Order on Debtors Motion to Enlarge Time to

File Motion for Leave to Appeal or File Notice of Appeal and Debtors Motion to

Enlarge Time to File Response to the Complaint. (Docs. 8 to 10) Incredibly, the

Debtor sought an extension of time to appeal an order refusing to grant him an

extension of time to appeal!

Appellees renewed their motion for default based on the Debtors failure to

plead, pointing out that the Debtor had at least four (4) opportunities to file and

serve an answer and deliberately chose not to do so. The Bankruptcy Court

scheduled a hearing on the renewed motion for default. (Doc. 22-14) As of the

date of the hearing, the Debtor still had not served an answer to the complaint.


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Consequently, the Bankruptcy Court entered its Order Granting Motion for Default

Judgment. (Doc. 1-4) Thereafter, the Clerk of the Bankruptcy Court entered a

default against the Debtor, (Doc. 1-3), and the Bankruptcy Court entered its

Default Final Judgment. (Doc. 1-2) The Bankruptcy Court thereafter entered an

Order in the main bankruptcy case revoking the Debtors discharge and finding

that the Debtors obligations to Appellees were non-dischargeable in bankruptcy.

(Doc. 9-21) The Debtor filed a single Notice of Appeal from both orders in the

adversary proceeding. (Doc. 1-1)


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ARGUMENT

I. WHETHER THE BANKRUPTCY COURT ABUSED ITS DISCRETIONIN GRANTING A MOTION FOR EXTENSION OF TIME TO OBJECT

TO DISCHARGE OR DISCHARGEABILITY UNDER FED.R.BANK.P.4004(B) WITHOUT A HEARING WHERE THE DEBTOR DID NOTTIMELY OBJECT TO THE MOTION, NEVER REQUESTED AHEARING ON THE MOTION, AND FAILED TO TIMELY SEEKRECONSIDERATION BEFORE APPELLEES RELIED UPON THEEXTENSION [RESTATED]

The Debtor, after intentionally allowing a default to be entered against him,

argues that the Bankruptcy Court erred in granting Appellees motion to extend the

time to object to the Debtors discharge and to object to the dischargeability of the

Debtors obligations to the Appellees. The Debtor argues that it was a denial of

Due Process for the Bankruptcy Court to grant the motion without a hearing and

without taking evidence. For the reasons that follow, this Court should affirm.

The Debtor first argues that Fed.R.Bank.P. 4004(b) required the Bankruptcy

Court to conduct a hearing on Appellees motion, relying on the phrase after

hearing on notice contained in the rule.6 However, as the Bankruptcy Court aptly

noted, the phrase after notice and a hearing or any similar phrase7 is defined by

the Bankruptcy Code:

6It is undisputed that the Debtor received notice of Appellees motion.7Rule 4004(b)s provision after hearing on notice has been construed to be a

phrase similar to after notice and a hearing, thus making Section 102 applicableto its procedures. See In re Amezaga, 192 B.R. 37, 40 (Bank. D. P.R. 1996).


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In this title

(1) after notice and a hearing or a similar phrase

(A) means after such notice as is appropriate in the particular

circumstances, and such opportunity for a hearing as isappropriate in the particular circumstances; but

(B) authorizes an act without an actual hearing if such noticeis given properly and if

(i) such a hearing is not requested timely by a party ininterest; or

(ii) there is insufficient time for a hearing to be

commenced before such act must be done, and the courtauthorizes such act.

11 U.S.C. 102(1). The 1978 Revision Notes explain that a hearing will not be

necessary in every instance. If there is no objection to the proposed action, the

action may go ahead without court action. The 1978 Revision Notes also indicate

that the phrase such opportunity for a hearing as is appropriate in the particular

circumstances is designed to permit the court to dispense with a hearing. See also

In re: Grunau, 376 B.R. 322, 330 (M.D. Fla. 2007) (Howard, J.) (recognizing that

Section 102 allows the Bankruptcy Court to act without a hearing if one is not

requested by a party in interest or there is not enough time to conduct the hearing).

Clearly, whether to conduct a hearing depends on what is appropriate under

the circumstances, as well as whether a party in interest requests a hearing. In

determining what is appropriate from a procedural standpoint, the Bankruptcy


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Court is clearly vested with a broad discretion. See Id. (reviewing decision of

whether to conduct a hearing for abuse of discretion); and also Colonial Daytona

Ltd. Partnership v. American Sav. of Florida, 152 B.R. 996, 998 (M.D. Fla. 1993)

(Kovachevich, J.) (discretionary rulings of the Bankruptcy Court are reviewed for

abuse of discretion). Thus, in this Court, the Debtor is required to show that the

Bankruptcy Court abused its discretion in failing to conduct a hearing before

granting Appellees an extension of time. This the Debtor plainly cannot do in light

of (1) the Debtors failure to object after receiving notice of the request; (2) the

Debtors failure to request a hearing on the motion; (3) the Debtors failure to

timely seek a rehearing or reconsideration of the order granting the extension; and

(4) the merits of the motion itself.

The record before this Court shows that the Debtor made no objection

to the motion for extension of time before it was granted. The motion was

filed and served on the Debtor on February 2, 2006. The Bankruptcy Court

waited until February 17, 2006 before entering an order granting the

requested extension. Likewise, the Debtor made no effort to request a

hearing on the motion during this time. The Debtor had notice of the motion

and an opportunity for a hearing, which is all that was required by

Fed.R.Bank.P. 4004(b). The Debtor simply chose not to avail himself of

that opportunity.


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Moreover, after the Bankruptcy Court entered an Order granting the

requested extension, the Debtor did not file anything indicating that he had an

objection to the motion or a problem with the Courts act of granting it without a

hearing until months later when the Debtor raised the issue in the adversary

proceeding. Had the Debtor indicated in any way that he objected to the extension

or desired a hearing, the Bankruptcy Court could have afforded the Debtor a

hearing or reconsidered the motion after considering the Debtors objections on the

merits. See In re: Wade, 948 F.2d 1122, 1125 (9th Cir. 1991) (finding initial failure

to grant a hearing harmless due to consideration of a motion for reconsideration).

In short, it was plainly within the Courts discretion to grant the motion without a

hearing where the Debtor did not object or request a hearing and did not timely

complain of the absence of a hearing.

Despite the Debtors procedural challenges, he makes little effort, if any, to

address the merits of the motion for extension.8 The motion for extension was

based upon the fact that the Debtors 341 hearing was continued to allow the

Trustee and Appellees time to investigate fraudulent transfers made by the Debtor

and his former professional association immediately prior to the filing of

8The Debtor never raised an objection that goes to the merits of the motion for

extension in the Bankruptcy Court. The Debtor has not attempted to show that thefacts alleged in the motion for extension were untrue, even after filing multiple


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bankruptcy. The Trustee continued the initial 341 meeting of creditors to allow

additional questioning of the Debtor concerning these transfers and, at the

continued 341 hearing, the Trustee asked the Debtor to produce documents

concerning these fraudulent transfers. They were not available to Appellees at the

time objections to discharge and dischargeability were due; as a result, Appellees

requested an extension and permission to conduct an examination of the Debtor

under Fed.R.Bank.P. 2004.9 The Debtor did not dispute these facts in the

Bankruptcy Court and does not do so here.

Clearly, the continuance of the meeting of creditors and the Debtors failure

to produce documentation of the pre-petition fraudulent transfers was sufficient

cause to extend the deadline. See In re: Datson, 197 B.R. 1 (D. Me. 1996)

(recognizing that an extension of time under Rule 4004(b) is the proper remedy

where the meeting of creditors has been rescheduled or delayed); In re: Amezega,

motions in the Bankruptcy Court concerning the Order extending the bar date.9The Debtor never produced the requested documents, a fact which would have

been developed in the record had the Debtor answered Appellees complaint. TheDebtor has stalled discovery of his finances for years while fraudulentlytransferring his assets out of the reach of creditors. This Court may take judicial

notice that the Debtor is a party to a criminal contempt proceeding beingprosecuted by the State of Florida as a result of the Debtors willful andcontemptuous refusal to comply with discovery in aid of execution on thesanctions judgments entered in favor of Appellees. The prosecution was dismissedon technical grounds and the State of Florida is seeking to reinstate it in the SecondDistrict Court of Appeals. See State v. Adams, Docket No. 2D06-278.


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192 B.R. at 41 (requests for extension under Rule 4004(b) should be granted

liberally, particularly where the need for discovery is the basis of the request).

Such extensions of time are necessary to prevent the Debtor from playing fast and

loose with their assets or with the reality of their affairs. In re: Amezega, 192 B.R.

at 41 (quoting In re: Tully, 818 F.2d 106, 110 (1st Cir. 1987)).

The Debtors challenges to the Bankruptcy Courts failure to conduct a

hearing on the motion are likewise barred by the doctrines of waiver and laches.

As to waiver, the Debtor failed to raise any opposition to the motion before the

order granting it was entered and the Debtor failed to timely request a hearing or

bring his objections to the attention of the Bankruptcy Court. Had the Debtor

complained at that time, the Bankruptcy Court could have conducted a hearing to

consider the Debtors opposition on the merits. Moreover, had the Debtor raised

any objection to the granting of the motion without an evidentiary hearing or the

sufficiency of the showing necessary to obtain the extension, the Bankruptcy Court

would have held a hearing and Appellees would have presented any evidence

deemed necessary. In short, the Debtor simply waited too long to complain that a

hearing should have been held.

In addition, the Debtors arguments are barred by laches as Appellees relied

upon the Debtors inaction and failure to timely object. In fact, Appellees had

timely filed an objection based on the information that it then had available. Once


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the Bankruptcy Court granted Appellees an extension without objection from the

Debtor, Appellees withdrew that objection and used the extended period to develop

a more comprehensive objection and refile. Had the Debtor complained of the

Bankruptcy Courts order or requested a hearing at that time, Appellees could have

maintained their timely filed objection and subsequently amended it.

The Debtor cites Coggin v. Coggin, 30 F.3d 1443 (11th Cir. 1994), a case

which actually forecloses the relief the Debtor seeks. In that case, the Eleventh

Circuit found that the Bankruptcy Court erred in granting, on an ex parte basis the

day the motion was filed, a motion for extension of time under Fed.R.Bank.P.

4004(b), as no notice of the motion was sent to the debtor. Id. at 1446. However,

the Eleventh Circuit expressly noted that the Debtor did receive the Order granting

the motion. Id. The Eleventh Circuit noted that the Debtor, upon receipt of the

Order, should have moved the court to revoke or amend that grant, as it was

improper without a hearing on notice. Instead, whether consciously or not, Coggin

sat on his rights and later brought this jurisdictional challenge. Id. at 1450 n. 9.

The Eleventh Circuit recognized that the error in granting the motion ex parte was

that of the court and not the appellees and that the appellees reliance on the grant

of the extension was excusable. Id. As a result, the Eleventh Circuit addressed the

merits of the motion for extension itself and affirmed the extension based upon an

abuse of discretion standard. Id.


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Notably, in Coggins, no notice of the motion for extension was given to the

Debtor. Id. at 1446. In the instant case, the Debtor received ample notice. In

Coggins, the court granted the motion the same day that it was filed, leaving the

debtor without an opportunity for a hearing. Id. In the instant case, the Debtor had

15 days to lodge his objection and request a hearing. The court in Coggin had no

occasion to address the issue of whether it was appropriate to dispense with a

hearing under Section 102(1) since no notice was provided and no opportunity for

a hearing was provided. As a result, Coggin is clearly distinguishable as to its

finding that Rule 4004(b) was violated.

Nonetheless, even if this Court found that the procedural requirements were

not met, Coggin does not give the Debtor the relief he seeks. The Eleventh Circuit

expressly notes that the only jurisdictional aspect of Rule 4004(b) is the

requirement that the motion for extension of time be filed before the bar date. That

was easily met in the instant case. The procedural matter of how the motion was

handled is not jurisdictional and, only if it was an abuse of discretion for the

Bankruptcy Court to grant the requested extension should the Debtor be afforded

relief from the extension itself. See In re: Black, 180 B.R. 534, 535 n.1 (S.D. Ind.

1995) (rejecting argument that failure to grant an unrequested hearing

automatically required reversal without consideration of the merits of the motion).

Finally, as noted in Coggin, the Bankruptcy Court has inherent equitable


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powers to prevent prejudice to any party who relies upon a procedurally incorrect

order of the court. Id.; see alsoIn re: Themy, 6 F.3d 688 (10th Cir. 1993).

In summary, the Bankruptcy Court was well within its prerogative to grant

the requested extension of time without a hearing, particularly in the absence of

any opposition by the Debtor. The Debtors belated attempt to vacate the order 22

months later was properly denied, particularly since Appellees relied upon the

Bankruptcy Courts order and the Debtors own inaction. The Debtor failed to take

reasonable and timely measures to interpose any objection the Debtor might have

had. Even had he done so, the Debtor has not shown that the result should have

been any different. The Debtor himself sought and obtained countless extensions

of time without a hearing in the Bankruptcy Court and this Court. It is simply

ridiculous for the Debtor, having intentionally failed to answer, to mount as the

centerpiece of his defense the granting of an extension to Appellees under the

circumstances.

II. WHETHER THE BANKRUPTCY COURT ABUSED ITS DISCRETIONIN EXTENDING, BY 13 DAYS, THE TIME FOR SERVICE OFPROCESS UNDER FED.R.CIV.P. 4(M), MADE APPLICABLE TOBANKRUPTCY ADVERSARY PROCEEDINGS, WHERE THE DEBTOREVADED SERVICE OF PROCESS AND WHERE A REFUSAL TO

GRANT THE BRIEF EXTENSION WOULD HAVE RESULTED INAPPELLEES CLAIMS BEING TIME-BARRED [RESTATED]

The Debtor fixes his argument on Appellees failure to obtain service of

process within the 120-day time limit and erroneously asserts that the Bankruptcy


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Court was required to dismiss the complaint absent a showing of good cause;

however, the Debtors argument totally ignores that the Bankruptcy Court is vested

with wide discretion to consider other factors that would warrant an extension of

the time for service, even when a showing of good cause is not made.

If a defendant is not served within 120 days, the court may extend the time

for an appropriate period upon a showing of good cause. Fed.R.Civ.P. 4(m).

Additionally, Rule 4(m) grants the trial court the discretion to extend the time for

service in the absence of good cause. See Hornekamp v. Van Winkle and Co., Inc.,

402 F.3d 1129, 1132 (11th Cir. 2005). Among the factors that may be considered

in the exercise of such discretion, a trial court may look to whether time limitations

would bar the action from being re-filed, whether the defendant is evading

attempted service or whether the defendant is concealing defects in service. Id.

(citing to Fed.R.Civ.P. 4(m) Advisory Committee Note, 1993 Amendments). The

plaintiff in Horenkamp miscalculated the deadline for obtaining service of process

and ended up serving the defendant 29 days after the time-limit for service of

process had expired. Id. at 1130. The Horenkamp court held that, even though

there was no showing of good cause on the part of the plaintiff, the trial court did

not abuse its discretion by extending time for service of process in order to prevent

the plaintiffs claim from being time-barred. Id. at 1133.

In the instant case, the Bankruptcy Court properly exercised its discretion in


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granting Appellees an extension of time for service of process on the Debtor. The

Bankruptcy Court noted that Appellees had made a number of attempts at personal

service and presented evidence that the Debtor was evading service of process.

However, the Bankruptcy Court faulted Appellees for failing to serve the Debtor

by U.S. Mail. Appellees explained to the Bankruptcy Court that the reason

Appellees did not utilize service by U.S. Mail was that the Debtor chronically

complains about receipt of documents in the mail. Nonetheless, the Bankruptcy

Court determined that Appellees did not show good cause for their failure to effect

service on debtor within 120 days. (AP, Doc. 23, at 8)10

However, relying on Horenkamp, the Bankruptcy Court noted that Appellees

would be time-barred from re-filing should the action be dismissed, and that they

encountered unusual difficulties in their efforts to effect personal service on the

Debtor.11 (AP, Doc. 23, at 1011). The Bankruptcy Court determined that the

Debtor acknowledged that he had been personally served on August 18, 2006 and

10 In its Order, the Bankruptcy Court acknowledged Appellees contention that theDebtor had a prior history of claiming that he had not received litigationdocuments sent to him by U.S. mail, and that Appellees believed that personalserve was the safer rout to avoid questions regarding proper service. (AP, Doc.

23, at 8). The Order then goes on to note that Appellees process server mademultiple attempts at the Debtors residence. (AP, Doc. 23, at 8).11 While the Bankruptcy Court did not make a final determination that the Debtoractively evaded service, the court did not that [a]t a minimum the record showsthat the [Appellees] encountered unusual difficulties in their efforts to personally


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that a short extension of 13 days would promote the Courts policy of resolving

matters on the merits. (AP, Doc. 23, at 1011).

While the Debtor focuses on the absence of good cause, the Debtor fails to

address the appropriate issue of whether the Bankruptcy Court abused its discretion

in granting a 13 day extension under these circumstances. It is true that a plaintiff

bears the burden of proving good cause for failure to timely serve a debtor. See In

re Teligent Serv., Inc., 324 B.R. 467, 472 (Bankr. S.D.N.Y. 2005). However, as

Horenkamp indicates, good cause is not the only basis upon which an extension

may be granted.

Indeed, the Bankruptcy Court was required to consider factors other than

good cause. Where a trial court finds that a plaintiff failed to show good cause for

failing to serve process within the 120-day period, the court still must consider

whether any other circumstances warrant an extension. See Lepone-Dempsy v.

Carroll County Comm., 476 F. 3d 1277, 1282 (11th Cir. 2007). The Lepone-

Dempsy court held that the district court abused its discretion for not at least

considering whether the plaintiffs claim would be time-barred absent a permissive

extension. Id.

As the Bankruptcy Court noted in its Order, Appellants may have been time-

serve the Debtor. (AP, Doc. 23, at 11).


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barred from re-filing Counts I through IV of the Complaint if the Bankruptcy Court

were to dismiss the complaint, personal service on the debtor was difficult, and the

13-day extension that was required was minimal. (AP, Doc. 23, at 1011). The

Bankruptcy Court, after considering good cause, weighed these other factors as

required and determined that a brief extension was appropriate. (AP, Doc. 23, at

12). The Debtor has not shown an abuse of discretion in the Bankruptcy Courts

extension of time and recognition of valid service of process.12

In addition, the Debtor waived its service related defenses by failing to

subsequently file an answer. Having lost the motions to dismiss and having been

ordered to answer on at least two separate occasions, the Debtor refused to file an

answer. The Debtors failure to press his defenses further and refusal to comply

with the Bankruptcy Courts legitimate processes can only be deemed a waiver and

abandonment of the Debtors defenses.

III. WHETHER THE BANKRUPTCY COURT ERRED IN ENTERING AJUDGMENT DENYING THE DEBTORS DISCHARGE AND THEDISCHARGEABILITY OF THE SANCTIONS JUDGMENT IN FAVOROF APPELLEES AND AGAINST THE DEBTOR WITHOUT ANAFFIDAVIT [RESTATED]

12

The Debtor has made passing reference to the expiration of the summons underFed.R.Bank.P. 7004. However, the Debtor does not argue that the BankruptcyCourt lacked the authority to extend the summons under Fed.R.Bank.P. 9006,which permits the Bankruptcy Court to extend any time period under the rules, orthat its decision to do so was an abuse of discretion. The Debtor also does notargue that he suffered any prejudice from the form of the summons.


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The Debtor, relying on Bankr.L.R.M.D.Fla. 7055-2, argues that a default

judgment was improper in the absence of an affidavit in support of the allegations

set forth in the complaint. Once again, the Debtor is incorrect.

To place the Debtors claims in context, Bankr.L.R.M.D.Fla. 7055-2 must be

read in conjunction with Fed.R.Civ.P. 55, which is made applicable to adversary

proceedings by Fed.R.Bank.P. 7055. Rule 55 provides two different circumstances

for the entry of a default. Rule 55(b)(1) provides for entry of a default judgment

by the Clerk if the plaintiffs claim is for a sum certain, the plaintiff submits an

affidavit showing the amount due, and the defendant was defaulted for not

appearing. Rule 55(b)(2) provides for entry of a default judgment by the Court in

all other cases. There is no requirement of an affidavit in Rule 55(b)(2).

Bankr.L.R.M.D.Fla. 7055-2, by its very terms, applies to situations When a

party seeks a default judgment as a result of a defendants failure to respond after

being served with a complaint, . . . . This clearly modifies the situation described

in Fed.R.Bank.P. 55(b)(1) where the defendant is defaulted for not appearing. It

is inapplicable where, as here, the Debtor did respond after being served with a

complaint but is subject to being defaulted for other reasons. The default judgment

entered in the instant case was entered by the Court as a result of the Debtors

willful refusal to plead after being ordered to do so twice.

Nothing in Fed.R.Civ.P. 55 or Bankr.L.R.M.D.Fla. 7055-2 required the


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personally signed by at least 4 judges of that court. However, the Debtor wisely

acknowledged that he was not prepared to test that theory and would not be

asserting these parties rights anymore.

Despite this statement, the Debtor goes right back to practicing law without

a license in this Court, asking this Court to reverse multiple orders involving these

parties. None of these orders were ever appealed by Lisa Adams or Law Offices of

Mark A. Adams, P.A. and this Court lacks jurisdiction to review them. The

Debtors arguments are so lacking in merit that the Debtor ought to simply be

sanctioned in the only way that seems to get through to him final dismissal.13

CONCLUSION

This Court should affirm the Bankruptcy Courts denial of the Debtors

discharge and the dischargeability of the Debtors obligations to Appellees and

grant such other and further relief as may be appropriate.

13Appellees have never collected one penny of the state court sanctions judgments

and have been subjected to years of additional abuse and frivolous appeals whilethe Debtor ignores court orders, fraudulently transfers his assets, and declaresbankruptcy. A monetary sanction is simply pointless.


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

sent United States Postal Mail to Mark. A. Adams, 4129 Balington Drive, Valrico,

Florida 33596 this 8th day of December, 2008.

s/Timothy W. WeberTIMOTHY W. WEBER, ESQUIREFlorida Bar No.: 86789BATTAGLIA, ROSS, DICUS & WEIN, P.A.

Wachovia Bank Building980 Tyrone Boulevard (33710)Post Office Box 41100St. Petersburg, Florida 33710(727)381-2300(727)343-4059 (fax)Attorneys for Appellees

answer brief by timothy w. weber

Documents