Documente Academic
Documente Profesional
Documente Cultură
MARK A. ADAMS,
Appellant,
Case No. 8:08-cv-1570-RAL
vs.
Appellees.
/
_________________________________________________________________
ARGUMENT ...........................................................................................................12
I. WHETHER THE BANKRUPTCY COURT ABUSED
ITS DISCRETION IN 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 NOT TIMELY OBJECT TO THE
MOTION, NEVER REQUESTED A HEARING ON
THE MOTION, AND FAILED TO TIMELY SEEK
RECONSIDERATION BEFORE APPELLEES RELIED
UPON THE EXTENSION [RESTATED]..........................................12
ii
IV. WHETHER THE DEBTOR MAY PROSECUTE AN
UNTIMELY APPEAL FROM ORDERS AND
JUDGMENTS ENTERED AGAINST LISA ADAMS
AND LAW OFFICES OF MARK A. ADAMS, P.A.
WHERE THE DEBTOR, A DISBARRED ATTORNEY,
WAS PERMANENTLY ENJOINED FROM
ENGAGING IN THE UNAUTHORIZED PRACTICE
OF LAW AND WAS WARNED NOT TO REPRESENT
THE INTERESTS OF THESE PARTIES IN THE
BANKRUPTCY COURT [RESTATED] ...........................................26
CONCLUSION ........................................................................................................27
iii
TABLE OF AUTHORITIES
PAGE
CASES
Coggin v. Coggin,
30 F.3d 1443 (11th Cir. 1994) .......................................................... 18, 19, 20
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) ..............................................................................16
In 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
iv
STATUTES
RULES
v
PREFACE
For purposes of this appeal, Appellees will use the following method of
vi
STATEMENT OF THE FACTS AND CASE
This is an appeal from a Default Final Judgment (Doc. 1-2) entered against the
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 Debtor’s 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 Debtor’s permanent disbarment from the practice of law by
The Florida Supreme Court, the Debtor’s bankruptcy, and ultimately, the revocation
Appellees have been the victim of the Debtor’s conduct and, as found by The Florida
Bar referee presiding over the Debtor’s 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
financial damages of over $150,000 to Attorney Timothy Weber and his law firm as
1
well as additional financial damages to Mr. Weber’s 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 Respondent’s 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
making numerous false statements of fact to the court with the intent to deceive the
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
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
2
his schedules or statement of financial affairs and did not pay the applicable filing fee,
response, the Debtor moved to extend the time to accomplish these acts, which the
Bankruptcy Court granted without a hearing. (Docs. 21-2, 21-3, 21-4) The Debtor’s
Section 341 Meeting of Creditors was continued by the Trustee to January 17, 2006.
(Doc. 2-2, at 2) Counsel for Appellees attended the Section 341 Meeting of Creditors
on 12/13/05 and 2/6/06. (Doc. 9-9) On the latter date, the Trustee requested that the
concerning pre-petition transfers of assets by the Debtor and involving the Debtor’s
wife and professional association; the Debtor argued with the Trustee concerning the
extension in light of the delayed filing of the schedules and statement of financial
affairs, the continuation of the 341 meeting, the request for additional documentation
from the Debtor, and the inability of Appellees to fully formulate a complete
objection within the time provided. (Doc. 9-9) On February 6, 2006, Appellees
timely filed an Objection to Discharge and Dischargeability as well. (Doc. 21-9) The
Bankruptcy Court noted technical deficiencies with the objection and granted until
February 27, 2006 to cure them. (Doc. 21-10) In the interim, on February 17, 2006,
3
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 Court’s order extending the time, Appellees withdrew “without
prejudice” their previously filed but technically deficient objection. (Doc. 21-11)
against the Debtor, Lisa Adams, and Law Offices of Mark A. Adams, P.A. objecting
to the Debtor’s discharge (Count I), objecting to the discharge of the sanctions
judgments against the Debtor and in favor of CSM, King, and Martins (Count II);
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 Debtor’s
Appellees alleged, among other things, that CSM, King, and Martins obtained
state court judgments against the Debtor and the Debtor’s former professional
association, Mark A. Adams, P.A., that ordered each to provide discovery in aid of
4
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 Debtor’s 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 Debtor’s 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
Debtor’s 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
1
The Debtor did not even list the stock of Mark A. Adams, P.A. on his bankruptcy
5
proceedings to continue that pattern of conduct directed towards Appellees. (Doc. 22-
1, at 4)
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
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
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
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 Debtor’s 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,
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 Debtor’s
claim, made ten months after the fact, that the Bankruptcy Court was required to
association and finding that it was validly served. (Doc. 11-2) The Bankruptcy Court
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 Court’s order. (Doc. 22-2) The
Bankruptcy Court granted the Debtor’s 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 Debtor’s 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
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,
4
The 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 the
denial 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
8
2007, the Bankruptcy Court entered another Order denying the Debtor’s objections
to service of process, specifically referencing its prior ruling on the same point.
(Doc. 11-9) At best, the Debtor was required to answer within ten (10) days of the
Again, the Debtor refused to plead within the time permitted by the Rules.
Instead, the Debtor filed another motion to extend the time to file a notice of appeal
or motion for leave to appeal the Order denying his motion to dismiss. (Doc. 22-5)
Appellees opposed the Debtor’s motion to extend the time to file a notice of
appeal or motion for leave to appeal. (Doc. 22-6) Appellees also moved the
Bankruptcy Court for a default for the Debtor’s willful failure to plead. (Doc. 11-
10)
On January 17, 2008, after a hearing on the parties’ motions, the Bankruptcy
Court entered an Order granting the Debtor’s motion to extend the time to file a
notice of appeal and motion for leave to appeal. (Doc. 22-7) The Bankruptcy
Court also granted in part and denied in part the Debtor’s motion to enlarge the
time to file a response to the Plaintiffs’ Complaint. (Doc. 22-7) In so doing, the
Bankruptcy Court sternly advised that “the Debtor must file a written Answer to
the Plaintiffs’ Complaint within twenty (20) days from the date of this Order.”
nearly every matter in the adversary proceeding and the main bankruptcy case.
9
(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
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
File Motion for Leave to Appeal or File Notice of Appeal and Debtor’s Motion to
Enlarge Time to File Response to the Complaint.” (Docs. 8 to 10) Incredibly, the
Appellees renewed their motion for default based on the Debtor’s 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.
10
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 Debtor’s discharge and finding
(Doc. 9-21) The Debtor filed a single Notice of Appeal from both orders in the
11
ARGUMENT
argues that the Bankruptcy Court erred in granting Appellees’ motion to extend the
time to object to the Debtor’s discharge and to object to the dischargeability of the
Debtor’s 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
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
6
It is undisputed that the Debtor received notice of Appellees’ motion.
7
Rule 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 applicable
to its procedures. See In re Amezaga, 192 B.R. 37, 40 (Bank. D. P.R. 1996).
12
In this title
11 U.S.C. § 102(1). The 1978 Revision Notes explain that “a hearing will not be
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).
13
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
granting Appellees an extension of time. This the Debtor plainly cannot do in light
of (1) the Debtor’s failure to object after receiving notice of the request; (2) the
Debtor’s failure to request a hearing on the motion; (3) the Debtor’s failure to
timely seek a rehearing or reconsideration of the order granting the extension; and
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
hearing on the motion during this time. The Debtor had notice of the motion
that opportunity.
14
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 Court’s 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 Debtor’s objections on the
merits. See In re: Wade, 948 F.2d 1122, 1125 (9th Cir. 1991) (finding initial failure
In short, it was plainly within the Court’s discretion to grant the motion without a
hearing where the Debtor did not object or request a hearing and did not timely
address the merits of the motion for extension.8 The motion for extension was
based upon the fact that the Debtor’s 341 hearing was continued to allow the
Trustee and Appellees time to investigate fraudulent transfers made by the Debtor
8
The 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 the
facts alleged in the motion for extension were untrue, even after filing multiple
15
bankruptcy. The Trustee continued the initial 341 meeting of creditors to allow
continued 341 hearing, the Trustee asked the Debtor to produce documents
concerning these fraudulent transfers. They were not available to Appellees at the
under Fed.R.Bank.P. 2004.9 The Debtor did not dispute these facts in the
Clearly, the continuance of the meeting of creditors and the Debtor’s failure
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.
9
The Debtor never produced the requested documents, a fact which would have
been developed in the record had the Debtor answered Appellees’ complaint. The
Debtor has stalled discovery of his finances for years while fraudulently
transferring 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 being
prosecuted by the State of Florida as a result of the Debtor’s willful and
contemptuous refusal to comply with discovery in aid of execution on the
sanctions judgments entered in favor of Appellees. The prosecution was dismissed
on technical grounds and the State of Florida is seeking to reinstate it in the Second
District Court of Appeals. See State v. Adams, Docket No. 2D06-278.
16
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)).
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 Debtor’s 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
upon the Debtor’s inaction and failure to timely object. In fact, Appellees had
timely filed an objection based on the information that it then had available. Once
17
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 Court’s order or requested a hearing at that time, Appellees could have
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
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
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
hearing under Section 102(1) since no notice was provided and no opportunity for
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.
order of the court. Id.; see also In re: Themy, 6 F.3d 688 (10th Cir. 1993).
In summary, the Bankruptcy Court was well within its prerogative to grant
any opposition by the Debtor. The Debtor’s belated attempt to vacate the order 22
months later was properly denied, particularly since Appellees relied upon the
Bankruptcy Court’s order and the Debtor’s 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
circumstances.
process within the 120-day time limit and erroneously asserts that the Bankruptcy
20
Court was required to dismiss the complaint absent a showing of good cause;
however, the Debtor’s 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
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
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
In the instant case, the Bankruptcy Court properly exercised its discretion in
21
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
Court determined that Appellees did not show good cause for their failure to effect
would be time-barred from re-filing should the action be dismissed, and that they
Debtor.11 (AP, Doc. 23, at 10–11). 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 the
Debtor had a prior history of claiming that he had not received litigation
documents sent to him by U.S. mail, and that Appellees believed that personal
serve 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 made
multiple attempts at the Debtor’s residence. (AP, Doc. 23, at 8).
11
While the Bankruptcy Court did not make a final determination that the Debtor
actively evaded service, the court did not that “[a]t a minimum the record shows
that the [Appellees] encountered unusual difficulties in their efforts to personally
22
that a short extension of 13 days would promote the Court’s policy of resolving
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
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
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
extension. Id.
As the Bankruptcy Court noted in its Order, Appellants may have been time-
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 10–11). 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 Court’s
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 Debtor’s failure to press his defenses further and refusal to comply
with the Bankruptcy Court’s legitimate processes can only be deemed a waiver and
12
The Debtor has made passing reference to the expiration of the summons under
Fed.R.Bank.P. 7004. However, the Debtor does not argue that the Bankruptcy
Court 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, or
that its decision to do so was an abuse of discretion. The Debtor also does not
argue that he suffered any prejudice from the form of the summons.
24
The Debtor, relying on Bankr.L.R.M.D.Fla. 7055-2, argues that a default
for the entry of a default. Rule 55(b)(1) provides for entry of a default judgment
by the Clerk if the plaintiff’s 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
being served with a complaint, . . . .” This clearly modifies the situation described
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 Debtor’s
to revoke the Debtor’s discharge and find that the Debtor’s obligations to
Appellees were non-dischargeable. The Debtor chose not to contest the allegations
supporting these claims and there was no need to submit an affidavit to establish
association after the Florida Supreme Court took away his law license and
permanently enjoined him from doing so are plainly contemptuous. This Court
should dismiss this entire appeal as a sanction for the Debtor’s misconduct. At
minimum, the Debtor lacks standing to seek relief from orders entered against Lisa
After the Debtor attempted to make the same arguments in the Bankruptcy
Court, Appellees brought to the Bankruptcy Court’s attention that the Debtor
lacked the authority to do so. At that time, the Debtor claimed that he was not
actually disbarred because the judgment of the Florida Supreme Court was not
26
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
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
Debtor’s 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 Court’s denial of the Debtor’s
13
Appellees have never collected one penny of the state court sanctions judgments
and have been subjected to years of additional abuse and frivolous appeals while
the Debtor ignores court orders, fraudulently transfers his assets, and declares
bankruptcy. A monetary sanction is simply pointless.
27
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,
s/ Timothy W. Weber
TIMOTHY W. WEBER, ESQUIRE
Florida Bar No.: 86789
BATTAGLIA, ROSS, DICUS & WEIN, P.A.
Wachovia Bank Building
980 Tyrone Boulevard (33710)
Post Office Box 41100
St. Petersburg, Florida 33710
(727)381-2300
(727)343-4059 (fax)
Attorneys for Appellees
28