Order Affirming Illegal Bankruptcy Court Decisions

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

MARK A. ADAMS, Appellant, v.

CASE NO: 8:08-cv-1570-T-26

CORPORATE SPORTS MARKETING GROUP, et al., Appellees. / ORDER This cause comes before the Court on Appellant Mark Adams’ (“Adams”) appeal of a Default Final Judgment (Dkt. 1-2) entered against him as the debtor in a bankruptcy adversary proceeding by the United States Bankruptcy Court for the Middle District of Florida (“the bankruptcy court”) in Case No. 8:06-ap-185-PMG. (Dkt. 1-2.) Adams also appeals an Order entered in the main Chapter 7 bankruptcy case, Case No. 8:05-bk29501-PMG, revoking his discharge based on the Default Final Judgment. (Dkt. 9-22.) The Appellee Creditors (collectively “Appellees”) are Corporate Sports Marketing Group, Inc. (“CSM”), Dwayne Martins (“Martins”), Christopher C. King (“King”), Martin Richardson (“Richardson”), the law firm of Battaglia, Ross, Dicus & Wein, P.A. (“BRDW”), and Timothy W. Weber (“Weber”). Adams filed an initial brief (Dkt. 18) and Appellees filed an answer brief (Dkt. 23). Adams failed to file a timely reply brief

after being granted three extensions of time to do so. (Dkts. 26, 28, 30.) Nonetheless, this appeal can be resolved without need for a reply brief from Adams. The full record and supplemental record of the bankruptcy court proceedings have also been filed with the Court. (Dkts. 1, 2, 9, 10, 11, 21, 22.) The Court has jurisdiction to hear this appeal of the final orders of the bankruptcy court pursuant to 28 U.S.C. § 158(a)(1). Having carefully considered all of the submissions, the Court finds that the judgment and order of the bankruptcy court are due to be affirmed. The answer brief of Appellees is thorough, well-reasoned, and amply supported by the record and, thus, portions thereof will be adopted and incorporated herein. PROCEDURAL HISTORY Adams filed a voluntary Chapter 7 petition in the bankruptcy court on October 14, 2005. A notice of commencement was sent to creditors scheduling a Section 341 hearing for December 13, 2005, and setting the deadline for objections to discharge and dischargeability for February 6, 2006. (Dkt. 9-8.) Adams did not timely file his schedules or statement of financial affairs and did not pay the applicable filing fee, which resulted in a notice of deficiency being issued by the bankruptcy court. (Dkt. 21-1.) In response, Adams moved to extend the time to accomplish these acts, which the bankruptcy court granted without a hearing. (Dkts. 21-2, 21-3, 21-4.) Adams’ Section 341 Meeting of Creditors was continued by the trustee to January 17, 2006. (Dkt. 2-2, at 2.) Counsel for Appellees attended the Section 341 Meeting of Creditors on December 13, 2005, and February 6, 2006. (Dkt. 9-9.) On the latter date, the trustee requested that 2

Adams produce additional documents concerning his assets, including documents concerning pre-petition transfers of assets by Adams and involving his wife and professional association. (Dkt. 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 60-day extension in light of the delayed filing of the schedules and statement of financial affairs, the continuation of the Section 341 meeting, the request for additional documentation from Adams, and the inability of Appellees to fully formulate a complete objection within the time provided. (Dkt. 9-9.)1 On February 6, 2006, Appellees also timely filed an

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At this point, it should be noted that the history of Appellees’ dispute with Adams is quite lengthy and is characterized by seven years of court proceedings, resulting in sanctions judgments against Adams, criminal contempt proceedings against Adams for refusing to cooperate with discovery in aid of execution to collect those sanctions judgments, Adams’ permanent disbarment from the practice of law by The Florida Supreme Court, Adams’ bankruptcy, and ultimately, the revocation of Adams’ discharge by the bankruptcy court. (See generally, Dkt. 11-13.) As found by The Florida Bar referee presiding over Adams’ disbarment, “[t]he unrebutted evidence proves beyond any reasonable doubt that the Respondent [Adams] engaged in deliberate conduct resulting in financial damages of over $150,000 to Attorney Timothy Weber and his law firm as well as additional financial damages to Mr. Weber’s former clients in the underlying litigation.” (See Dkt. 11-13 at 21; see also id. at 24 (finding that“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. (See generally, Dkt. 11-13.) In addition, counsel for Appellees, and 3

Objection to Discharge and Dischargeability. (Dkt. 21-9.) The bankruptcy court noted technical deficiencies with the objection and granted an extension up to February 27, 2006 to cure them. (Dkt. 21-10.) Meanwhile, on February 17, 2006, the court, without a hearing, granted Appellees’ Motion to Extend the Time to Object to Discharge and Dischargeability, extending the period to April 7, 2006. (Dkt. 9-10.) In reliance on the bankruptcy court’s order, Appellees withdrew “without prejudice” their previously filed objection. (Dkt. 21-11.) On April 7, 2006, Appellees timely filed the adversary proceeding against Adams, his wife Lisa, and the Law Offices of Mark A. Adams, P.A., objecting to Adams’ discharge (Count I), objecting to the discharge of the sanctions judgments against Adams and in favor of CSM, King, and Martins (Count II); objecting to the dischargeability of fraudulent transfer claims against Adams (Count III); objecting to the dischargeability of malicious prosecution, abuse of process, defamation, and additional sanctions claims against Adams 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). (Dkt. 22-1.) Appellees relied upon 11 U.S.C. § 727(a)(2), (3), (4), (5), (6) and (7) to oppose Adams’ discharge, as well as 11 U.S.C. § 523(a)(6) to oppose the dischargeability of the Debtor’s obligations to Appellees. (Dkt. 22-1)

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. (Dkt. 22-1.) 4

Appellees alleged, inter alia, that CSM, King, and Martins obtained state court judgments against Adams and his former professional association, Mark A. Adams, P.A., that ordered each to provide discovery in aid of execution. (Dkt. 22-2 at 3.) Appellees asserted that Adams and his professional association refused to comply with these court orders during the two years immediately preceding the filing of Adams’s bankruptcy petition on October 14, 2005. (Dkt. 22-2 at 3.) During this time, Adams allegedly dissolved Mark A. Adams, P.A., and transferred substantially all of its assets to himself and his wife as tenants by the entireties and then subsequently transferred those assets to Law Office of Mark A. Adams, P.A.. (Dkt. 22-2 at 3.) Appellees also asserted that 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 Adams’s stock in Mark A. Adams, P.A., worthless. (Dkt. 22-2 at 3.) Appellees further alleged that the state court judgments were based on the Adams’ willful and malicious actions towards CSM, King and Martins. (Dkt. 22-1 at 4.) Moreover, Appellees urged that in retaliation for obtaining those judgments, Adams willfully and maliciously filed a frivolous lawsuit against CSM and King and then subsequently amended to add Weber, BRDW, and Richardson. (Dkt. 22-1 at 4.) This lawsuit was dismissed with prejudice and Adams appealed. (Dkt. 22-1 at 4.) Appellees alleged a pattern of abusive misconduct perpetrated by Adams, including conduct involving fraud, as well as Adams’s announced intention in disciplinary proceedings to continue that pattern of conduct directed towards Appellees. (Dkt. 22-1 at 4.) Appellees 5

additionally alleged that Adams willfully, maliciously, and repeatedly defamed them by posting false internet articles accusing Appellees of bribing judges and committing other unlawful or unethical actions. (Dkt. 22-1 at 4. ) Appellees maintained that Adams 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. (Dkt. 22-1 at 6.) These statements also allegedly accuse CSM, King, Martins, and Richardson of participating in the corruption and illegal activity. (Dkt. 22-1 at 6.) Appellees attempted personal service2 of the Complaint on Adams at his home but, by all accounts, Adams actively evaded service of process. (Dkt. 10-4 at 2; Dkts. 10-5 - 10-15.) Adams was ultimately served on August 18, 2006, at the courthouse. (Dkt. 10-9.) In response, he filed a 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). (Dkt. 10-3.) Appellees filed their Motion to Substitute Party, Issue Alias Summonses, and Extend 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 Adams validly served as of that date. (Dkt. 10-4.) In the motion, Appellees detailed Adams’ repeated efforts to evade

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Appellees assert that personal service, rather than service by mail, was attempted because Adams continuously claimed in court that he did not receive matters by mail or received them in an untimely fashion. (Dkt. 11-1 at 23.) 6

service of process, attaching numerous affidavits of process servers and other who attempted to serve Adams. (Dkts. 10-7 - 10-15.) On December 5, 2006, the bankruptcy court conducted a hearing on Adams’ Amended Motion to Dismiss Adversary Proceeding3 and Appellees Motion to Substitute Party, Issue Alias Summonses, and Extend Time Period for Service of Process. (Dkt. 11-1.) Following the hearing, the bankruptcy court entered an Order extending the time period for service of process and deeming Adams timely served; finding that Lisa Adams was properly served; rejecting Adams’ claim that the court was required to conduct a hearing on Appellees’ motion to extend the time under Rule 4004(b), Federal Rules of Bankruptcy Procedure; and granting Appellees’ request to correct a misnomer in the professional association and finding that it was validly served. (Dkt. 11-2.) The court denied all of Adams’ motions to dismiss. (Dkt. 11-2 at 17.) Pursuant to Rule 7012(a) of the Federal Rules of Bankruptcy Procedure, Adams was required to file and serve an answer within ten days, but Adams filed a motion to enlarge the time to answer, (Dkt. 11-25), and a motion for an extension of time to perfect an interlocutory appeal from the bankruptcy court’s order. (Dkt. 22-2.) The court granted Adams’ motion to extend the time to file a notice of appeal or motion for leave to appeal. (Dkt. 22-4.) On April 6, 2007, the court also granted Adams’ request for an

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Adams amended his motion before the hearing in order to focus 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. (Dkt. 10-25.) 7

enlargement of the time to answer for 20 additional days. (Dkt. 22-3.) Adams still failed to plead within the time allowed by the Court. In addition, Adams never filed an appeal from the March 19, 2007 Order. Instead, on April 30, 2007, Adams filed a successive4 Motion to Dismiss for Lack of Jurisdiction and a Renewed Motion to Quash Service of Process and to Dismiss Adversary Proceeding. (Dkt. 11-6.) Adams track record makes clear that this filing was made solely for the purpose of delaying the proceedings.5 On September 28, 2007, the bankruptcy court entered another Order denying Adams’s objections to service of process, specifically referencing its prior ruling on the same point. (Dkt. 11-9.) Affording Adams every benefit possible, he was still required to answer within 10 days of the September 28, 2007 Order. See Fed.R.Bank.P. 7012(a). Adams nevertheless failed to plead within the time permitted by the Rules. Instead, he 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. (Dkt. 22-5.) Appellees opposed Adams’ motion to extend the time to

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Adams moved to dismiss on the same grounds rejected by the March 19, 2007 Order, in an effort to generate a second opportunity to appeal the denial of the motion to dismiss that Adams failed to timely appeal previously, despite being afforded extra time by the bankruptcy court. 5

As with the deadlines for filing the initial brief and the reply brief in the instant cast, Adams sought to extend the deadline for nearly every matter in the adversary proceeding and the main bankruptcy case. 8

file a notice of appeal or motion for leave to appeal. (Dkt. 22-6.) Appellees also moved the bankruptcy court for a default for Adams’s willful failure to plead. (Dkt. 11-10.) On January 17, 2008, after a hearing on the parties’ motions, the bankruptcy court entered an Order granting Adams’ motion to extend the time to file a notice of appeal and motion for leave to appeal. (Dkt. 22-7.) The court also granted in part and denied in part Adams’s motion to enlarge the time to file a response to the Complaint. (Dkt. 22-7.) In so doing, the court sternly advised that “Adams must file a written Answer to the Plaintiffs’ Complaint within 20 days from the date of this Order.” (Dkt. 22-7.) The court denied Appellees’ motion to default Adams “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 20 days from the date of this Order.” (Id.) Once again, Adams 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. He also did not timely file an answer as directed by the court. Rather, Adams filed a number of documents on behalf of Lisa Adams and Law Office of Mark A. Adams, P.A., and yet another “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.” (Dkts. 8-10.) Appellees renewed their motion for default based on Adams’s failure to plead, pointing out that Adams had at least four opportunities to file and serve an answer and 9

deliberately chose not to do so. The bankruptcy court scheduled a hearing on the renewed motion for default. (Dkt. 22-14.) As of the date of the hearing, Adams still had not served an answer to the Complaint. Consequently, the bankruptcy court entered its Order Granting Motion for Default Judgment. (Dkt. 1-4.) Thereafter, the clerk of the bankruptcy court entered a default against Adams, (Dkt. 1-3), and the court entered its Default Final Judgment. (Dkt. 1-2.) The court subsequently entered an Order in the main bankruptcy case revoking Adams’s discharge and finding that Adams’ obligations to Appellees were non-dischargeable in bankruptcy. (Dkt. 9-21.) Adams filed a single Notice of Appeal from both orders in the adversary proceeding. (Dkt. 1-1.) DISCUSSION Ground I In Ground I of the instant appeal, Adams raises the following issue: WHETHER THE BANKRUPTCY COURT ABUSED ITS DISCRETION IN GRANTING A MOTION FOR EXTENSION OF TIME TO OBJECT O 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. Despite allowing a default to be entered against him, Adams argues in Ground I that the bankruptcy court erred in granting Appellees’ motion to extend the time to object to his discharge and to object to the dischargeability of the his obligations to the Appellees. Adams argues that it was a denial of due process for the court to grant the

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motion without a hearing and without taking evidence. He first argues that Rule 4004(b) of the Federal Rules of Bankruptcy Procedure 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, the phrase “after notice and a hearing” or any similar phrase7 is defined by the Bankruptcy Code as follows: 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.”

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It is undisputed that Adams received notice of Appellees’ motion.

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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 (Bankr. D. P.R. 1996.) 11

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 In re: Grunau, 376 B.R. 322, 330 (M.D. Fla. 2007) (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). In determining what is appropriate from a procedural standpoint, the bankruptcy court is clearly vested with broad discretion. See id. (reviewing decision of whether to conduct a hearing for abuse of discretion); see also Colonial Daytona Ltd. Partnership v. American Sav. of Florida, 152 B.R. 996, 998 (M.D. Fla. 1993) (holding that discretionary rulings of the bankruptcy court are reviewed for abuse of discretion). Thus, Adams must show that the bankruptcy court abused its discretion in failing to conduct a hearing before granting Appellees an extension of time. Adams cannot meet his burden inasmuch as he: (1) failed to object after receiving notice of the request; (2)failed to request a hearing on the motion; and (3) failed to timely seek a rehearing or reconsideration of the order granting the extension. The record before this Court shows that Adams made no objection to the motion for extension of time before it was granted. The motion was filed and served on Adams on February 2, 2006. The bankruptcy court delayed until February 17, 2006 before entering an order granting the requested extension. Adams made no effort to request a hearing on the motion during this time. It is abundantly clear that Adams had notice of the motion and an opportunity to be heard, which is all that was required by Rule 4004(b). 12

Then, once the bankruptcy court entered an Order granting the extension to Appellees, Adams failed to file anything stating that he objected to the motion or took issue with the granting of it without a hearing until months later when Adams raised the issue in the adversary proceeding. The court could have afforded Adams a hearing or reconsidered the motion after considering any objection by Adams 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 Adams did not object or request a hearing and did not timely complain of the absence of a hearing. Although Adams repeatedly asserts his 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 Adams’ Section 341 hearing was continued to allow the trustee and Appellees time to investigate fraudulent transfers made by Adams and his former professional association immediately prior to the filing of bankruptcy. The trustee continued the initial Section 341 meeting of creditors to allow additional questioning of Adams concerning these transfers and, at the continued Section 341 hearing, the trustee asked Adams to produce documents concerning these fraudulent transfers because they were not available to Appellees at the time objections to discharge and dischargeability

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It should be noted that Adams has never attempted to show that the facts alleged in the motion for extension were untrue, even after filing multiple motions in the bankruptcy court concerning the Order extending the deadline. 13

were due. Adams never disputed these facts in the bankruptcy court and does not do so here. The continuance of the meeting of creditors and Adams’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, 192 B.R. at 41 (holding that 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 ad 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)). Ground II Ground II of Adams’ appeal asserts the following issue: 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. The crux of Adams’ argument is that Appellees failed to obtain service of process within the 120-day time limit and that the bankruptcy court was, therefore, required to dismiss the complaint absent a showing of good cause. Pursuant to Federal Rule of Civil Procedure 4(m), if a defendant is not served within 120 days, the court may 14

extend the time for an appropriate period upon a showing of good cause. However, 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. See Hornekamp v. Van Winkle and Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005). For instance, 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). Here, the bankruptcy court properly exercised its discretion in granting Appellees an extension of time for service of process on Adams. The court noted that Appellees had made a number of attempts at personal service and presented evidence that Adams was evading service of process. The court faulted Appellees for failing to serve Adams by U.S. Mail. Appellees explained to the court that they did not utilize service by U.S. Mail because Adams chronically complained about receipt of documents in the mail, but the court determined that Appellees did not show good cause for their failure to effect service on debtor within 120 days. (Adversary Proceeding, Dkt. 23 at 8.) However, relying on Hornekamp, the 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. (Id. at 10–11.) The court determined that the Adams acknowledged that he had been personally served on August 18, 2006, and that a short extension of 13 days would promote the Court’s policy of resolving matters on the merits. (Id.) 15

While Adams focuses on the absence of good cause, he fails to address the issue of whether the bankruptcy court abused its discretion in granting a 13-day extension under these circumstances. The 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’n, 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 plaintiff’s claim would be time-barred absent a permissive extension. Id. As the bankruptcy court noted in its Order, Appellees may have been time-barred from re-filing Counts I through IV of the Complaint if it were to dismiss the complaint, personal service on Adams was difficult, and the 13-day extension that was required was minimal. (Adversary Proceeding, Dkt. 23 at 10–11.) The court, after considering good cause, weighed these other factors as required and determined that a brief extension was appropriate. (Id. at 12.) Adams has not shown an abuse of discretion in the bankruptcy court’s extension of time and recognition of valid service of process. Ground III Ground III of the appeal asserts the following issue: 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. 16

Relying on Rule 7055-2, Local Rules for the Bankruptcy Court of the Middle District of Florida, Adams argues that a default judgment was improper in the absence of an affidavit in support of the allegations set forth in the complaint. However, Rule 70552 must be read in conjunction with Rule 55, Federal Rules of Civil Procedure, which is made applicable to adversary proceedings by Rule 7055, Federal Rules of Bankruptcy Procedure. Rule 55 provides two situations where the entry of a default is appropriate. 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), on the other hand, provides for entry of a default judgment by the Court “in all other cases.” Under Rule 55(b)(20, there is no requirement of an affidavit. Rule 7055-2, by its very terms, applies to situations “[w]hen 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, Adams 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 Adams’ willful refusal to plead after being ordered to do so twice. Nothing in Federal Rule of Civil Procedure 55 or Rule 7055-2 of the Local Rules for the Bankruptcy Court of the Middle District of Florida required the bankruptcy court to do anything more on the counts against Adams other than to revoke Adams’s discharge and 17

find that Adams’s obligations to Appellees were non-dischargeable. Adams 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. Ground IV Finally, in Ground IV of the appeal, Adams presents the following issue: 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. After Adams attempted to make this argument in the bankruptcy court, Appellees brought to the court’s attention that Adams lacked the authority to do so. At that time, Adams claimed that he was not actually disbarred because the judgment of the Florida Supreme Court was not personally signed by at least four judges of that court. However, Adams acknowledged that he was not prepared to test that theory and would not be asserting these parties’ rights anymore. Despite this acknowledgment, Adams now asks this Court to reverse multiple orders involving these parties. None of these orders and judgments at issue were ever appealed by Lisa Adams or Law Offices of Mark A. Adams, P.A. and this Court lacks jurisdiction to review them.

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ACCORDINGLY, it is ORDERED AND ADJUDGED: 1. The Default Final Judgment (Dkt. 1-2) entered against Adams as the debtor in a bankruptcy adversary proceeding in Case No. 8:06-ap-185-PMG (Dkt. 1-2) is affirmed. 2. The Order entered in the main Chapter 7 bankruptcy case, Case No. 8:05-bk29501-PMG (Dkt. 9-22), revoking Adams’ discharge based on the Default Final Judgment, is also affirmed. 3. The Clerk is directed to close this case. DONE AND ORDERED at Tampa, Florida, on January 28, 2009. s/Richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO:

Pro se parties Counsel of Record

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