Answer Brief By Timothy W. Weber

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MARK A. ADAMS, Appellant, Case No. 8:08-cv-1570-RAL vs. CORPORATE SPORTS MARKETING GROUP, et al. Appellees. /

_________________________________________________________________ ANSWER BRIEF OF APPELLEES ON APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA THE HONORABLE PAUL M. GLENN, PRESIDING _________________________________________________________________

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 33743 (727) 381-2300 (727) 343-4059 (fax) Attorneys for Appellees

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. IV PREFACE ............................................................................................................... VI STATEMENT OF THE FACTS AND CASE...........................................................1 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.

WHETHER THE BANKRUPTCY COURT ABUSED ITS DISCRETION IN EXTENDING, BY 13 DAYS, THE TIME FOR SERVICE OF PROCESS UNDER FED.R.CIV.P. 4(M), MADE APPLICABLE TO BANKRUPTCY ADVERSARY PROCEEDINGS, WHERE THE DEBTOR EVADED SERVICE OF PROCESS AND WHERE A REFUSAL TO GRANT THE BRIEF EXTENSION WOULD HAVE RESULTED IN APPELLEES’ CLAIMS BEING TIMEBARRED [RESTATED].....................................................................20

III.

WHETHER THE BANKRUPTCY COURT ERRED IN ENTERING A JUDGMENT DENYING THE DEBTOR’S DISCHARGE AND THE DISCHARGEABILITY OF THE SANCTIONS JUDGMENT IN FAVOR OF APPELLEES AND AGAINST THE DEBTOR WITHOUT AN AFFIDAVIT [RESTATED] ......................................................................................24 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 CERTIFICATE OF SERVICE ................................................................................28

iii

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

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

v

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."

vi

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 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 of the Debtor’s discharge by the Bankruptcy Court. (Doc. 11-13, generally) 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 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 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 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 Debtor’s 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 2

his schedules or statement of financial affairs and did not pay the applicable filing fee, resulting in a notice of deficiency from the Bankruptcy Court. (Doc. 21-1) In 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 Debtor produce additional documents concerning his assets, including documents 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 request. (Doc. 9-9, at 2-3) On February 2, 2006, Appellees made an appearance and filed their Motion to Extend Time to Object to Discharge or Dischargeability, seeking a sixty (60) day 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) 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 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); 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 Debtor’s discharge, as well as 11 U.S.C. § 523(a)(6) to oppose the dischargeability of the Debtor’s 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 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 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 Debtor’s announced intention in disciplinary

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. 221, 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

Debtor’s 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) 2 Personal 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 6

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 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, the Bankruptcy Court conducted a hearing on the Debtor’s 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 Debtor’s 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) 3 The Debtor amended his motion before the hearing; the amended motion focused on the Bankruptcy Court’s decision to extend the time for Appellees to object to discharge and dischargeability, the 120 day requirement of Rule 4(m), and the validity of service on Lisa Adams, the Debtor’s wife. (Doc. 10-25) 7

denied all of the Debtor’s 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 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 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,

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 September 28, 2007 Order. See Fed.R.Bank.P. 7012(a). 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. 1110) 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 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 Debtor’s Motion to Enlarge Time 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 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 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 that the Debtor’s 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 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] 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 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 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:

6

It is undisputed that the Debtor received notice of Appellees’ motion. 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

7

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 is appropriate in the particular circumstances; but (B) authorizes an act without an actual hearing if such notice is given properly and if – (i) such a hearing is not requested timely by a party in interest; or (ii) there is insufficient time for a hearing to be commenced before such act must be done, and the court authorizes 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 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 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 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 (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. 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 to grant a hearing harmless due to consideration of a motion for reconsideration). 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 complain of the absence of a hearing. Despite the Debtor’s 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 Debtor’s 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

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 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 Debtor’s 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. 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)). The Debtor’s challenges to the Bankruptcy Court’s 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 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 hearing should have been held. In addition, the Debtor’s arguments are barred by laches as Appellees relied 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 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. 18

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 19

powers to prevent prejudice to any party who relies upon a procedurally incorrect 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 the requested extension of time without a hearing, particularly in the absence of 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 centerpiece of his defense the granting of an extension to Appellees under the circumstances. II.

WHETHER THE BANKRUPTCY COURT ABUSED ITS DISCRETION IN EXTENDING, BY 13 DAYS, THE TIME FOR SERVICE OF PROCESS UNDER FED.R.CIV.P. 4(M), MADE APPLICABLE TO BANKRUPTCY ADVERSARY PROCEEDINGS, WHERE THE DEBTOR EVADED SERVICE OF PROCESS AND WHERE A REFUSAL TO GRANT THE BRIEF EXTENSION WOULD HAVE RESULTED IN APPELLEES’ 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 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 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 plaintiff’s claim from being time-barred. Id. at 1133. 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 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 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 matters on the merits. (AP, Doc. 23, at 10–11). 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 LeponeDempsy court held that the district court abused its discretion for not at least considering whether the plaintiff’s 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). 23

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 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 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 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 abandonment of the Debtor’s defenses. III.

12

WHETHER THE BANKRUPTCY COURT ERRED IN ENTERING A JUDGMENT DENYING THE DEBTOR’S DISCHARGE AND THE DISCHARGEABILITY OF THE SANCTIONS JUDGMENT IN FAVOR OF APPELLEES AND AGAINST THE DEBTOR WITHOUT AN AFFIDAVIT [RESTATED]

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 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 Debtor’s 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 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 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 defendant’s 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 Debtor’s 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 25

Bankruptcy Court to do anything more on the counts against the Debtor other than 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 the amount of any monetary claim. 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] The Debtor’s repeated attempts to represent his wife and professional

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 Adams and Law Offices of Mark A. Adams, P.A. 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 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 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 discharge and the dischargeability of the Debtor’s obligations to Appellees and grant such other and further relief as may be appropriate.

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, Florida 33596 this 8th day of December, 2008.

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

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