Appellate Brief

UNITED STATES DISTRICT COURT FOR MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

In re: MARK A. A D M S CASE NO.: 8:08-cv-01570-R4L.

Appellant,

CORPORATE SPORTS MARKTEING GROUP, INC., ET. AL.,

Appellees. 1

ON APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORSDA, TAMPA DIVISION

THE HONORABLE JUDGE GLENN PRESIDING

INITIAL BRIEF OF APPELLANT

Mark A. Adams J.D., M.B.A 41 29 Balington Dr. Valrico, FL 33596 813-643-4412

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................ 2

STATEMENT OF JURISDICTION ............................................................ 3

STATEMENT OF THE ISSUES ................................................................... 4

STANDARD OF APPELLATE REVIEW ......................................................... 5

STATEMENT OF THE CASE AND FACTS .................................................... 6

SUMMARY OF THE ARGUMENT ............................................................... 12

1 . The Bankruptcy Court erred as a matter of law by entering its Order Extending Time to Oppose Discharge or Dischargeability without a hearing and without any showing of cause by the Appellees in contravention of Federal Rule of Bankruptcy Procedure 4004(b). controlling precedent. and the Appellant's right to due process ............................................. 13

I1 . The Bankruptcy Court erred as a matter of law by proceeding in the Adversary Case without valid service of process sufficient to confer personal jurisdiction in contravention of Federal Rule of Bankruptcy Procedure 7004 and the Appellant's right to due process ...................... 16

I11 . The Bankruptcy Court erred as a matter of law by entering defaults in the Adversary Case without the required showings of valid service of process and of an evidentiary basis for the relief requested by the Plaintiff Appellees .......................................................... 23

IV . The Bankruptcy Court erred as a matter of law by denying a discharge to the Appellant Debtor based upon the erroneously entered default in the Adversary Case .................... 24

CONCLUSION ........................................................................................ 25

TABLE OF AUTHORITIES

CASES:

Kontrick v . Ryan . 540 U.S. 443 (2004) ............................................................. 15

Coapin v . Coapin . 30 F.3d 1443 (I lth Cir . 1994) ............................................. 1 5

Familia de Boom v . Arosa Mercantil. S . A.. 629 F.2d 1134(5th Cir . 19801 .................. 20

In re Alton . 837 F.2d 457 (11th Cir . 1988) ......................................................... 15

Inre: Bush. 62 F.3d 1319 (11th Cir . 1995) .......................................................... 5

In re C m b e l l . 105 B.R. 19 (9th Cir . 1989) ....................................................... 21

In re: Chase & Sanbom Corp .. 904 F.2d 588 ( I lth Cir . 19901 .................................. 5

Nishimatsu Construction Co . v . HoustonNat . Bank 515 F.2d 1200 (5th Cir.1975) .......... 23

Royal Lace P a ~ e r Works . Inc . v . Pest-Guard Products . Inc .. 240 F.2d 814 (5th Cir . 1957) . 21

Worldwide Web Systems. Inc .. v . Feltman. 328 F.3d 1291 (I lth Cir . 2003) .................. 21, 25

In re Welther, 343 B.R. 340 (Bank. S.D. Fla. 20061 .............................................. 21

STATUTES:

28 U.S.C. 9 158(a)(l) ................................................................................ ..3

OTHER AUTHORITIES:

Federal Rule of Civil Procedure 4(m). ............................................................. .20,22

Federal Rule of Bankruptcy Procedure 4004(a). .................................................. 14, 15

Federal Rule of Bankruptcy Procedure 4004(b). .................................................. 15

Federal Rule of Bankruptcy Procedure 7004(a)(l). .............................................. .20

Federal Rule of Bankruptcy Procedure 7004(b)(l) ................................................ 20

Federal Rule of Bankruptcy Procedure Rule 7004(e).. .......................................... .20

Local Rule 7055-2(a). ................................................................................. 24

Local Rule 7055-2(c) .................................................................................. 24

STATEMENT OF JURISDICTION

This Court's jurisdiction is based on 28 U.S.C. 8 158(a)(l) which provides that the

district courts of the United States shall have jurisdiction to hear appeals from final judgments,

orders, and decrees of bankruptcy judges entered in cases and proceedings referred to the

bankruptcy judges under section 157 of this title.

This appeal is taken from orders and judgments of the Honorable Paul M. Glenn entered

in the adversary proceeding styled Corporate Sports Marketing Group, Inc., et. al., v. Mark A.

Adurns el. ul., Adversary Case No. 8:06-ap-00185-PMG and entered in and arising from the

Chapter 7 case styled In re: MarkA. Adums, Case No. 8:05-bk-29501-PMG.

STATEMENT OF THE ISSUES

The following issues are presented in this appeal:

1. Whether the Bankruptcy Court erred as a matter of law when entering the Order Granting

Motion to Extend Time to Oppose Discharge or Dischargeability on February 17,2006 in

Case No. 8:05-bk-29501-PMG.

2. Whether the Bankruptcy Court erred as a matter of law when entering the Order Denying

Motion to Vacate Ex Parte Order Granting Motion to Extend Time to Oppose Discharge

or Dischargeability and to Dismiss Untimely Adversary Proceeding on January 17,2008

in Case No. 8:05-hk-29501-PMG.


Motion to Dismiss Adversary Proceeding, Granting Motion to Extend Time, Denying

Motion to Enter Judgment of Dismissal, Denying Motion to Quash Service of Process

and to Dismiss, and Denying Amended Motion to Dismiss Adversary Proceeding on

March 19,2007 in Adversary Case No. 8:06-ap-00185-PMG.


Motion to Dismiss Adversary Proceeding by Law Office of Mark A. Adams, P.A., on

September 28,2007 in Adversary Case No. 8:06-ap-00185-PMG.


Motion for Entry of Default against Law Office of Mark A. Adams, P.A., on January 17,

2008 in Adversary Case No. 8:06-ap-00185-PMG.


Motion for Entry of Default against Lisa Adarns on January 17,2008 in Adversary Case

No. 8:06-ap-00185-PMG.


Motion for Default Judgment against Mark A. Adams on April 22,2008 (Adversary Case

No. 8:06-ap-00185-PMG.

8. Whether the Bankruptcy Court erred as a matter of law when entering the Default Final

Judgment against Mark A. Adarns on April 22,2008 Adversary Case No. 8:06-ap-00185-

PMO.


Discharge of Debtor on April 23,2008 in Case No. 8:05-bk-29501-PMG.

STANDARD OF APPELLATE REVIEW

This is an appeal from orders and the corresponding final judgments entered in the

adversary proceeding styled Corporate Sports Marketing Group, Inc., et ul., v Murk A. Adams

et. al., Adversary Case No. 8~06-ap-00185-PMG and entered in and arising from the Chapter 7

case styled In re: Mark A. Adams, Case No. 8:05-bk-29501-PMG. This Court reviews de novo a

bankruptcy court's legal conclusions. In re: Chase & Sanbom Corn.. 904 F.2d 588.593 (1 lth

Cir. 1990). A bankruptcy court's findings of fact are subject to a clearly erroneous standard of

review. In re: Bush. 62 F.3d 1319,1322 (11th Cir. 1995).

STATEMENT OF THE CASE AND FACTS

This appeal arises out of a ba&ruptcy proceeding which was commenced on October 14,

2005 by the filing of a Voluntary Petition under Chapter 7. (B: 8) (Notice of Commencement of

Case, Section 341 Meeting of Creditors, and Fixing ~eadlines).' On October 19,2005, the

Bankruptcy Court issued the Notice of Commencement which set February 6,2006 as the

deadline lo file a complaint objecting to discharge of the Debtor or to determine dischargeability

of certain debts. (B: 8). The record shows that the first date set for the meeting of creditors under

6 341(a) was December 8,2005. (B: 8). The record also shows that on April 16,2008, the

Trustee filed a Report of No Distribution. (B: 7) (Certified Docket for Bankruptcy Case No.

On February 2,2006, Plaintiff Timothy W. Weber appearing pro se on behalf of himself

and others2 filed a Motion to Extend Time to Oppose Discharge or Dischargeability (B: 9)

without including the notice required by Local Rule 2002-4 and without including any

evidentiary basis showing cause why an extension of time was necessary. The record shows that

no hearing was scheduled on Plaintiff Weber's Motion to Extend Time to Oppose Discharge or

Dischargeability (B: 9) and that no hearing was held between the time it was filed on February 2,

2006 and February 17,2006 when the Bankruptcy Court entered its Order Granting Motion to

All references to the Records on Appeal, as designated by the Appellant, are referred to as follows: B for the Records on Appeal from Bankruptcy Case No. 8:OS-bk-29501-PMG found in this Court's Docket # 9; AVI for the fnst volume of Records on Appeal from Adversary Case No. 8:06-ap-00185-PMG found in this Court's Docket # 10; and AV2 for the second volume of Records on Appeal from Adversary Case No. 8:06-ap-00185-PMG found in this Court's Docket # 11 followed by this Court's docket number for the item referenced followed by the page number or paragraph ifnecessary. The Appellees did not file any designation of items to be included in the record on appeal. * The Appellees are herein referred to as the Appellees or Plaintiffs as the Trustee did not join in the Adversary case, has filed a report of no distribution, and has not opposed the relief requested by the Appellant. (B: 7 and AVI: 1). The Appellant is also herein referred to as the Debtor. The other improperly named and un-served "parties" are referred to by name.

Extend Time to Oppose Discharge or Dischargeability (B: 10). (B: 7) (Certified Docket for

Bankruptcy Case No. 8:05-bk-29501-PMG). Furthermore, the record shows that Plaintiff Weber

appearing pro se on behalf of himself and others belatedly filed a complaint objecting to the

Appellant Debtor's discharge on April 7,2006, over two months after the deadline of February 6,

2006. (B: 7).

The Certified Docket for Adversary Case No. 8:06-ap-00185-PMG (AV1: 1) shows that a

summons was issued on April 7,2006 (AV1: 2) and that an Amended Complaint was filed later

on April 7,2006. (AV1: 1). The record shows that no service of process was made withii 120

days and that no new summons were issued prior to October 26,2006. (AVl: 1). Instead, the

Return of Service on the Appellant (AV1: 9) and the Return of Service on the Law Office of

Mark A. Adams, P.A. (AVl : 10) show that expired summons were served on August 18,2006.

On September 18,2006, the Appellant served the Debtor's Motion to Dismiss Adversary

Proceeding. (AVl : 3). On October 23,2006, the Appellant served and filed the Debtor's Motion

to Enter Judgment of Dismissal and Quash Notice of Hearing or Continue Hearing on Debtor's

Motion to Dismiss (AV1: 8) which showed that the Plaintiffs had failed to make any timely

response to the Debtor's Motion to Dismiss Adversary Proceeding and that the Plaintiffs had also

failed to even request a hearing on it and which requested a continuance of the hearing on the

Appellant Debtor's Motion to Dismiss which had been scheduled for October 24,2006.~

On October 19,2006, the Plaintiff Weber belatedly filed a Motion to Substitute Party,

Issue Alias Summonses, and Extend T i e Period for Service of Process (AV1: 4) in which

Weber demonstrated that he was completely ignorant of the most basic rules of procedure

The Appellanl contacted the judicial assistant and clerk for the Honorable Paul M. Glenn to inform them that this motion was being filed and that he could not attend the hearing scheduled on October 24,2006 as he was out of town representing Max Linn in seeking injunctions to allow him to participate in the Gubernatorial debate on October 24,2006.

7

including the rules requiring service of a summons within 10 days of its issuance, requiring that a

valid summons be served within 120 days of filing suit, and allowing service of summons by

mail. Weber further demonstrated his complete ignorance by failing to ask for issuancc of new

summons and instead asked the Bankruptcy Court to make service of the expired summons

served on the Appellant and the Law Office of Mark A. Adams, P.A. valid! (AVI: 4, p. 3)

On October 24,2006, the Bankruptcy Court held a hearing in spite of its knowledge of

the Appellant Debtor's inability to attend, heard argument, and granted a continuance, but also,

granted some relief to the Plaintiffs even though no notice of hearing had been served regarding

the Plaintiffs' motion and even though such motion had only been mailed to the Debtor on

October 19,2006. (AV1: 1 and 18).

On October 26,2006, the Court entered its Order Directing Issuance of Alias Summons

and Continuing Hearing (Docket # 10) which stated, "Plaintiffs shall have thirty (30) days from

the date of issuance of the alias summons in which to perfect service of process on Lisa Adams."

(AV1: 18).

On October 26,2006, an alias summons was issued (AVl : 17), and on November 22,

2006, Plaintiff Weber filed a Notice of Filing the Return of Service on Lisa Adams (AVI : 22)

which purported to show senrice of process on Lisa Adams by mailing the alias summons and

complaint to her at 4129 Balington Drive in Valrico, Florida 33594 on October 30,2006 (AVI:

23).

On November 27,2006, the undersigned served Lisa Adams' Motion to Quash Service of

Process and to Dismiss Adversary Proceeding (AV1: 24) which sought an order quashing service

of process and dismissing this adversary proceeding for lack of jurisdiction over the person,

insufficiency of process, insufficiency of service of process, failure to prosecute, and failure to

comply with the Bankruptcy Court's Order dated October 26,2006 (AV1: 18). In addition, this

motion pointed out that due to the repeated threatening and harassing phone calls which appear

to have come from Plaintiff Weber, the other Plaintiffs or the others who are currently the

subject of the FBI's criminal investigation, Lisa Adams decided to move to ensure her safety and

the safety of her children? (AVl : 24, py. 5). On August 6,2006, Lisa Adams ceased residing at

4129 Balington Drive in Valrico, Florida as shown by the Affidavit of Lisa S. Adams which was

attached as Exhibit A to Lisa Adams' Motion to Quash Service of Process and to Dismiss

Adversary Proceeding. (AVl : 24, pg. 5 and Exhibit A).

On December 1,2006, the Appellant served the Debtor's Amended Motion to Dismiss

Adversary Proceeding via facsimile and U.S. Mail. (AVI: 25). On December 5,2006, the

Bankruptcy Court held a hearing on the Debtor's Motion to Dismiss Adversary Proceeding.

(AVl : 3), the Appellees' Motion to Substitute Party, Issue Alias Summonses, and Extend Time

Period for Service of Process (AV1: 4), the Debtor's Motion to Enter Judgment of Dismissal and

Quash Notice of Hearing or Continue Hearing on Debtor's Motion to Dismiss (AV1: 8), Lisa

Adarm' Motion to Quash Service of Process and to Dismiss Adversary Proceeding (AV1: 24)

filed by the undersigned, and the Debtor's Amended Motion to Dismiss Adversary Proceeding

(AV1: 25). (AVl : 1). The Bankruptcy Court entered an Order on the foregoing motions on

March 19,2007. (AV2: 2).

The foregoing motions heard on December 5,2006, raised the lack of service of any valid

summons on any defendant (AV1: 3,24, and 25) and raised the Bankruptcy Court's entry of its

Order Granting Motion to Extend Time to Oppose Discharge or Dischargeability (B: 10) without

a hearing and without any evidentiary basis showing cause why an extension of time was

These calls included claims that her children had been killed and that her husband, the Appellant, was having an extramarital affair.

necessary. (AV1 : 25). In addition, the Debtor Appellant raised the foregoing issues in his

Motion to Vacate Ex Parte Order Granting Motion to Extend T i e to Oppose Discharge or

Dischargeability and to Dismiss Untimely Adversary Proceeding filed on December 1 1,2007 (B:

13), and on January 17,2008, the Bankruptcy Court entered an Order denying the same. (B: 14).

In it's Order entered on March 19,2007, the Bankruptcy Court found that '%he Plaintiffs

have not shown good cause for their failure to perfect service in accordance with Rule 4(m)."

(AV2: 2, p. 8). In addition, the Bankruptcy Court found "that the Plaintiffs have not satisfied

their burden of showing good cause for their failure to serve the Debtor within 120 days after

filing the Complaint." (AV2: 2, p. 8). Moreover, the Bankruptcy Court acknowledged that

Federal Rule of Bankruptcy Procedure 7004(e) "proides that service shall be made by delivery

of the summons and complaint within ten days after the summons is issued." (AV2: 2, p. 6).

However, the Bankruptcy Court's Order then held that service on August 18,2006 of the

Summons issued on April 7,2006 which expired ten days after its issuance or after April 17,

2006, and over 120 days prior to service was timely. (AV2: 2, p. 17). In addition, the

Bankruptcy Court's Order held that a Summons issued on October 26,2006 which the Plaintiffs

served by mail to Lisa Adams at 4129 Balington Drive in Valrico, Florida was effectively served

on her even though the only evidence offered was that Lisa Adams had not resided in the State of

Florida since August 6,2006. (AV2: 2, p. 17). Finally, the Bankruptcy Court improperly

concluded that it could extend the deadline for fding a complaint to oppose discharge or

dischargeability without a hearing and without including any evidentiary basis showing cause

why an extension of time was necessary. (AV2: 2, pp. 14-17).

As the Bankruptcy Court refused to dismiss the adversary proceeding commenced after

the bar date and in which no valid service had been made on any defendant, none of the

defendants filed any answer, and as a result, the Plaintiff Weber filed Motions for Entry of

Default against the Appellant Debtor, Mark A. Adams, (AV2: 10 and 22), the Defendant, Lisa

Adams, (AV2: 14), and the Defendant, Law Office of Mark A. Adams, P.A. (AV2: IS).

However, once again, the Plaintiff Weber demonstrated his ignorance by failing to include any

af'fidavits supporting the claims made in his Complaint or his Amended Complaint which also

failed to even include a copy of the void judgments which he seeks to collect upon and which he

claims supports denial of a discharge to the Appellant Debtor. (AV2: 10, 14,lS and 22).

In spite of the lack of service of any valid summons and the lack of any of the required

evidentiary support for the claims brought by Plaintiff Weber, the Bankruptcy Court entered

orders granting Weber's motions for entry of default against the Defendant, Law Office of Mark

A. Adams, P.A. (AV2: IS), against the Defendant, Lisa Adams, (AV2: 19), and against

Appellant Debtor, Mark A. Adams, (AV1: 2) without ever reaching the merits of the baseless

claims brought by Plaintiff Weber.

The clerk of the Badanptcy Court followed suit and entered defaults against the

defendants. (AV2: 20 and 21 and AV1: 3). Furthermore, the Bankruptcy Court entered a Default

Final Judgment against the Appellant Debtor, Mark A. Adams. (AV1: 4).

Finally, in spite of the fact that the record shows that on April 16,2008, the Trustee filed

a Report of No Distribution (B: 7), that the Trustee had not participated in the adversary

proceeding brought by Plaintiff Weber (AVl : I), that the Appellant Debtor had sought the

discharge of other debts (B: 7), and that no other creditor had objected to the discharge sought by

the Appellant Debtor in any way (B: 7), the Bankruptcy Court entered an Order Denying

Discharge of Debtor based solely on it's improper entry of default against the Appellant Debtor

in the adversary proceeding. (B: 21).

SUMMARY OF THE ARGUMENT

In blatant disregard of the rules and controlling precedent, the Bankruptcy Court entered

an order extending time for the Plaintiff Appellees, Weber et al., to file a complaint to oppose

discharge or dischargeability without a hearing based on Weber's motion which did not include

any evidentiary basis showing cause why an extension of time was necessary, and the

Bankruptcy Court refused to vacate the same.

In complete disregard of the rules and controlling precedent concerning sewice of

process necessary to invoke a bankruptcy court's personal jurisdiction over any defendant in an

adversary proceeding, the Bankruptcy Court held that personal jurisdiction was obtained on the

Appellant Debtor and the Law Office of Mark A. Adams, P.A., by service on August 18,2006 of

summons issued on April 7,2006 which expired four months earlier on April 17,2006 and that

personal jurisdiction was obtained on Lisa Adams by service of a summons issued on October

26,2006 which the Plaintiffs sewed by mailing it lo Lisa Adams at 4129 Balington Drive in

Valrico, Florida on October 30,2006 even though the only evidence offered was that Lisa

Adams had not resided in the State of Florida since August 6,2006.

In complete disregard of the rules and controlling precedent and without any evidentiary

support, the Bankruptcy Court entered defaults against the Defendants in the adversary

proceeding and entered a Default Final Judgment against the Appellant Debtor, Mark A. Adams

without ever reaching the merits of the baseless claims brought by Plaintiff Weber.


a Report of No Distribution, that the Trustee had not participated in the adversary proceeding

brought by Plaintiff Weber, that the Appellant Debtor had sought the discharge of other debts,

and that no other creditor had objected to the discharge sought by the Appellant Debtor in any

way, the Bankruptcy Court entered an Order Denying Discharge of Debtor based solely on it's

improper entry of default against the Appellant Debtor in the adversary proceeding in blatant

disregard ofthe Appellant Debtor's rights to due process under the bankruptcy code, rules, and

controlling precedent.

I. The Bankruptcy Court erred as a matter of law by entering its Order Extending T h e to Oppose Discharge or Dischargeability without a hearing and without any showing of cause by the Appellees in contravention of Federal Rule of Bankruptcy Procedure 4004@), controUing precedent, and the Appellant's right to due process.

On October 19,2005, the Bankruptcy Court issued the Notice of Commencement which

set February 6,2006 as the deadline to file a complaint objecting to discharge of the Debtor or to

determine dischargeability of certain debts. (B: 8). The record shows that the first date set for the

meeting of creditors under $341(a) was December 8,2005. (B: 8).

On February 2,2006, Plaintiff Weber filed a Motion to Extend Time to Oppose

Discharge or Dischargeability (B: 9) without including the notice required by Local Rule 2002-4,

without including any evidentiary basis showing cause why an extension of time was necessary,

and without even alleging that the Debtor would not be prejudiced by an extension of time. The

record shows that no hearing was scheduled on Plaintiff Weber's Motion to Extend Time to

Oppose Discharge or Dischargeability (B: 9) and that no hearing was held between the time it

was filed on February 2,2006 and February 17,2006 when the Bankruptcy Court entered its

Order Granting Motion to Extend Time to Oppose Discharge or Dischargeability (B: 10). (B: 7)

(Certified Docket for Bankruptcy Case No. 8:05-bk-29501-PMG). Furthermore, the record

shows that on April 7,2006, the last day allowed under the erroneously granted extension,

Plaintiff Weber belatedly filed a complaint objecting to the Appellant Debtor's discharge oveI

two months after the deadline of February 6,2006. (B: 7).

On December 5,2006, the Bankruptcy Court held a hearing on the Debtor's Motion to

Dismiss Adversary Proceeding. (AVl: 3), the Appellees' Motion to Substitute Party, Issue Alias

Summonses, and Extend Time Period for Service of Process (AV1: 4), the Debtor's Motion to

Enter Judgment of Dismissal and Quash Notice of Hearing or Continue Hearing on Debtor's

Motion to Dismiss (AVl : 8), Lisa Adams' Motion to Quash Service of Process and to Dismiss

Adversary Proceeding (AV1: 24) filed by the undersigned, and the Debtor's Amended Motion to

Dismiss Adversary Proceeding (AV1: 25). (AVl: 1).

The foregoing motions raised the Bankruptcy Court's entry of its Order Granting Motion

to Extend Time to Oppose Discharge or Dischargeability (B: 10) without a hearing and without

any evidentiary basis showing cause why an extension of time was necessary. (AVI: 25). In

addition, the Debtor Appellant raised the foregoing issues in his Motion to Vacate Ex Parte

Order Granting Motion to Extcnd Time to Oppose Disehargc or Dischargeability and to Dismiss

Untimely Adversary Proceeding filed on December 11,2007 (B: 13), but on January 17,2008,

the Bankruptcy Court entered an Order denying the same. (B: 14).

Without ever reaching the merits and in spite of the motions to vacate the erroneously

entered order extending time to file a complaint objecting to discharge and to dismiss the

untimely filed adversary case, the Bankruptcy Court entered orders granting Plaintiff Weber's

motions for entry of default against the Defendant, Law Office of Mark A. Adams, P.A., (AV2:

18), against the Defendant, Lisa Adams, (AV2: 19), and against Appellant Debtor, Mark A.

Adams, (AVl : 2).

The pertinent part of Federal Rule of Bankruptcy Procedure 4004(a) requires that "In a

chapter 7 liquidation case a complaint objecting tv the debtor's discharge under § 727(a) of the

Code shall be filed no later than 60 days after the fust date set for the meeting of creditors under

9 341(a)." The pertinent part of Federal Rule of Bankruptcy Procedure 4004(b) states, "On

motion of any party in interest, after hearing on notice, the court may for cause extend the time

to file a complaint objecting to discharge." (Emphasis added.)

It is a violation of due process to enter an order granting a motion under Rule 4004(b)

without an opportunity to be heard, and such an order must be vacated. See e.a., Conain v.

Coggin, 30 F.3d 1443, 1450-1451 (1 lth Cir. 1994) overruled on other grounds bv Kontrick v.

Rvan, 540 U.S. 443,454-459 (2004). (Coggin referred to the deadline set by Rule 4004(a) for

filing a complaint objecting to discharge as jurisdictional; however, Kontrick held that it was not

jurisdictional.) In addition, the Coggin court recognized that a motion for an extension of time

under Rule 4004(b) must show sufficient facts to justify the grant of the extension and that the

debtor was not prejudiced by the extension. Id.

In Kontrick, the United States Supreme Court held that the deadline set by Rule 4004(a)

for filing a complaint objecting to discharge is a claim processing rule, and if a complaint is filed

after that deadline, it may be raised as a defense to such complaint at any time before a

bankruptcy court reaches the merits. Kontrick v. Ryan, 540 U.S. 443.454-459 (2004).

Furthermore, the Kontrick Court recognized that the i lth Circuit has held that a bankruptcy

court has "no discretion to grant an untimely motion to extend the time to object." Id. at 458

citing. In re Alton, 837 F.2d 457,459 (1 lth Cir. 1988).

As no hearing was held on Plaintiff Weber's motion to extend time to file a complaint

objecting to discharge, as Plaintiff Weber's motion failed to include any evidentiary basis

showing cause why an extension of time was necessary, and as these errors were raised prior to

reaching the merits in the adversary case, the Bankruptcy Court erred as a matter of law in

refusing to vacate its order to extend time to file a complaint objecting to discharge, in refusing

to dismiss the untimely filed complaint objecting to the Appellant Debtor's discharge, in entering

any defaults against the Defendants, and in entering any judgments in favor of the Plaintiff

Appellees in Adversary Case No. 8:06-ap-00185-PMG.

Furthermore, as Plaintiff Weber failed to take appropriate action to correct the

Bankruptcy Court's violations of due process and instead proceeded to seek relief based upon

them, the Plaintiff Appellees cannot show that the Appellant Debtor was not prejudiced by their

improper actions, and therefore, it would be erroneous at this late date, over two and a half years

later, for the Bankruptcy Court to enter any order finding that the Appellant Debtor would not

have suffered prejudice by an extension of time in which to file a complaint objecting to his

discharge.

For the foregoing reasons, this Court should enter an order requiring the Bankruptcy

Court to vacate the judgments entered in Adversary Case No. 8:06-ap-00185-PMG and barring

the Plaintiff Appellees from objecting to the Appellant Debtor's discharge.

11. The Bankruptcy Court erred as a matter of law by proceeding in the Adversary Case without valid sewice of process sufficient to confer personal jurisdiction in contravention of Federal Rule of Bankruptcy Procedure 7004 and the Appellant's right to due process.

The Certified Docket for Adversary Case No. 8:06-ap-00185-PMG (AV1: 1) shows that a

summons was issued on April 7,2006 (AV1: 2) and that an Amended Complaint was filed later

on April 7,2006. (AV1: 1). 'l'he record shows that no service of process was made within 120

days and that no new summonses were issued prior to October 26,2006. (AVl : 1). Instead, the

Return of Service on the Appellant (AV1: 9) and the Return of Service on the Law Office of

Mark A. Adams, P.A. (AV1: 10) show that these summonses were served on August 18,2006,

over 120 days after these summonses expired on April 17,2006.

On September 18,2006, the Appellant served the Debtor's Motion to Dismiss Adversary

Proceeding. (AV1: 3). On October 23,2006, the Debtor served and filed the Debtor's Motion to

Enter Judgment of Dismissal and Quash Notice of Heating or Continue Hearing on Debtor's

Motion to Dismiss (AVI : 8) which showed that the Plaintiffs had failed to make any timely

response to the Debtor's Motion to Dismiss Adversary Proceeding and that the Plaintiffs had also

failed to even request a hearing on it and which requested a continuance of the hearing on the

Appellant Debtor's Motion to Dismiss which had been scheduled for October 24,2006.

On October 19,2006, the Plaintiff Weber belatedly filed a Motion to Substitute Party,

Issue Alias Summonses, and Extend Time Period for Service of Process (AVI: 4) in which

Weber demonstrated that he was completely ignorant of the most basic rules of procedure

including the rules requiring service of a summons within 10 days of its issuance, requiring that a

valid summons be served within 120 days of filing suit, and allowing service of summons by

mail. Weber further demonstrated his complete ignorance by failing to ask for issuance of new

summonses and instead asked the Bankruptcy Court to make service of the expired summonses

served on the Appellant and the Law Office of Mark A. Adams, P.A. valid! (AV1: 4, p. 3)

On October 24,2006, the Bankruptcy Court held a hearing in spite of its knowledge of

the Appellant Debtor's inability to attend, heard argument, and granted a continuance, but also,

granted some relief to the Plaintiffs even though no notice of hearing had been served regarding

the Plaintiffs' motion and even though such motion had only been mailed to the Debtor on

October 19,2006. (AVI: I and 18).

On October 26,2006, the Court entered its Order Directing Issuance of Alias Summons

and Continuing Hearing which stated, "Plaintiffs shall have thirty (30) days from the date of

issuance of the alias summons in which to perfect service of process on Lisa Adams." (AVl : 18).

On October 26,2006, an alias summons was issued (AV1: 17), and on November 22,

2006, Plaintiff Weber filed a Notice of Filing the Return of Service on Lisa Adams (AVl: 22)

which purported to show service of process on Lisa Adams by mailing the alias summons and

complaint to her at 4129 B a l i i o n Drive in Valrico, Florida 33594 on October 30,2006 (AV1:

23).

On November 27,2006, the undersigned served Lisa Adams' Motion to Quash Service of

Process and to Dismiss Adversary Proceeding (AV1: 24) which sought an order quashing service

of process and dismissing this adversary proceeding for lack of jurisdiction over the person,

insufficiency of process, insufficiency of service of process, failure to prosecute, and failure to

comply with the Bankruptcy Court's Order dated October 26,2006 (AV1: 18). In addition, this

motion pointed out that due to the repeated threatening and harassing phone calls which appear

to have come from Plaintiff Weber, the other Plaintiffs or the others who are currently the

subject of the FBI's criminal investigation, Lisa Adams decided to move to ensure her safety and

the safety of her children. (AVl: 24, pg. 5). On August 6,2006, Lisa Adams ceased residing at

4129 Balington Drive in Valrico, Florida as shown by the Affidavit of Lisa S. Adams which was

attached as Exhibit A to Lisa Adams' Motion to Quash Service of Process and to Dismiss

Adversary Proceeding. (AV1: 24, pg. 5 and Exhibit A).

On December 5,2006, the Bankruptcy Court held a hearing on the Debtor's Motion to

Dismiss Adversary Proceeding. (AVl : 3), Plaintiff Weber's Motion to Substitute Party, Issue

Alias Summonses, and Extend Time Period for Service of Process (AV1: 4), the Debtor's

Motion to Enter Judgment of Dismissal and Quash Notice of Hearing or Continue Hearing on

Debtor's Motion to Dismiss (AV1: 8), Lisa Adams' Motion to Quash Service of Process and to

Dismiss Adversary Proceeding (AVl : 24) filed by the undersigned, and the Debtor's Amended

Motion to Dismiss Adversary Proceeding (AV1: 25). (AV1: 1). The foregoing motions heard on

December 5,2006, raised the lack of service of any summons sufticient to obtain personal

jurisdiction on any defendant (AVl : 3,24, and 25). The Bankruptcy Court entered an Order on

the foregoing motions on March 19,2007. (AV2: 2).

In it's Order entered on March 19,2007, the Bankruptcy Court found that "the Plaintiffs

have not shown good cause for their failure to perfect service in accordance with Rule 4(m)."

(AV2: 2, p. 8). In addition, the Bankruptcy Court found "that the Plaintiffs have not satisfied

their burden of showing good cause for their failure to serve the Debtor within 120 days after

filing the Complaint." (AV2: 2, p. 8). Moreover, the Bankruptcy Court acknowledged that

Federal Rule of Bankruptcy Procedure 7004(e) "provides that service shall be made by delivery

of the summons and complaint within ten days after the summons is issued." (AVZ: 2, p. 6).

However, the Bankruptcy Court's Order then held that service on August 18,2006 of the

Summons issued on April 7,2006 which expired ten days after its issuance or after April 17,

2006, and over 120 days prior to service was timely and valid! (AV2: 2, p. 17). In addition, the

Bankruptcy Court's Order held that a Summons issued on October 26,2006 which the Plaintiffs

served by mail to Lisa Adams at 4129 Balington Drive in Valrico, Florida was effectively served

on her even though the only evidence offered was that Lisa Adams had not resided in the State of

Florida since August 6,2006. (AV2: 2, p. 17).





Adams, (AVZ: 14), and the Defendant, Law Office of Mark A. Adams, P.A. (AV2: 15).

Federal Rule of Bankruptcy Procedure Rule 7004(e) mandates that "Service made under

Rule 4(e), (g), @)(I), (i), or (i)(2) F.R.Civ.P. shall be by delivery of the summons and

complaint within 10 days after the summons is issued." (Emphasis added.) Furthermore, Rule

7004(e) mandates that "If a summons is not timely delivered or mailed, another summons

shall be issued and sewed." (Emphasis added.)

Federal Rule of Bankruptcy Procedure 7004(b)(l) allows service of process on an

individual by mail "by mailing a copy of the summons and complaint to the individual's

dwelling house or usual place of abode.. . ." (Emphasis added.) The Rules do not say service

of process may be made by mailing it to someone's former dwelling house, former usual place of

abode, or former residence.

The pertinent parts of Federal Rule of Bankruptcy Procedure 7004(a)(l) provide that

Federal Rule of Civil Procedure 4(m) applies in adversary proceedings. The pertinent part of

Federal Rule of Civil Procedure 4(m) requires that "If service of the summons and complaint is

not made upon a defendant within 120 days after the filing of the complaint, the court, upon

motion or on its own initiative after notice to the plaintiff, shall dismiss the action without

prejudice as to that defendant or direct that service be effected within a specified time; provided

that if the plaintiff shows good cause for the failure, the court shall extend the time for service

for an appropriate period." (Emphasis added.)

"When service of process is challenged, the party on whose behalf it is made must bear

the burden of establishing its validity." See, e. g., Familia de Boom v. Arosa Mercantil, S. A.,

629 F.2d 1134, 1139 (5th Cir. 1980).

Untimely service of a summons and nondischargeability complaint more than one month

after the summons was issued by the clerk of the bankruptcy court was a jurisdictional defect

precluding entry of a judgment against the debtor. In re Carnobell. 105 B.R. 19 (9th Cir. 1989).

"It is axiomatic that absent good service, the Court has no in personam or personal

jurisdiction over a defendant." In re Welther. 343 B.R. 340.343 (Bankr. S.D. Fla. 2006).

"Without personal service of process in accordance with applicable law, a federal court is

without jurisdiction to render a personal judgment against a defendant." &citing Roval Lace

Paper Works. Inc. v. Pest-Guard Products. Inc.. 240 F.2d 814 (5th Cir. 1957).

Insufficient service of process implicates personal jurisdiction and due process concerns.

Worldwide Web Systems, Inc.. v. Feltman, 328 F.3d 1291, 1299 (1 lth Cir. 2003). "Generally,

where service of process is insufficient, the court has no power to render judgment and the

judgment is void." @ (Emphasis added). A judgment entered in an action where service of

process was insufficient is void unless the defendant failed to raise insufficient service in its

motion to dismiss, its answer, or its motion to vacate default if one was made. Id. at 1299-1301.

The record shows that the only summonses sewed on the Appellant Debtor and the Law

Office of Mark A. Adams, P.A., were issued on April 7,2006 and were served on August 18,

2006 over 120 days after such s m n s e s expired. The record shows that Plaintiff Weber

purported to show service of process on Lisa Adams by mailing the alias summons and

complaint to her at 4129 Balington Drive in Valrico, Florida 33594 on October 30,2006, but the

only evidence offered was that Lisa Adams had not resided in the State of Florida since August

6,2006. The record also shows that insufficient service of process was raised in the initial

motions to dismiss filed by each of the defendants in Adversary Case No. 8:06-ap-00185-PMG

and that this fundamental jurisdictional issue was never waived by any of the defendants.

Therefore, the Bankruptcy Court erred as a matter of law by entering orders determining that

such service was sufficient, and as such service was insufficient, the default judgments entered

by the Bunkruptcy Court are void as a matter of law.

Furthermore, the record shows that Plaintiff Weber demonstrated his complete ignorance

by failing to ask for issuance of new summonses with which to attempt to obtain valid service of

process and instead waived the opportunity to request appropriate relief by asking the

Bankruptcy Court to make service of the expired summons served on the Appellant and the Law

Office of Mark A. Adams, P.A. valid and to make service of a summons to Lisa Adams at her

former residence valid! The Bankruptcy Court properly found that "the Plaintiffs have not

shown good cause for their failure to perfect service in accordance with Rule 4(m)" and "that the

Plaintiffs have not satisfied their burden of showing good cause for their failure to serve the

Debtor within 120 days after filing the Complaint."

As Plaintiff Weber failed to take appropriate action to correct his failures to obtain valid

service of process and instead waived that possibility by proceeding to seek relief based on

invalid service of process, the Plaintiff Appellees cannot show, over two and a half years later,

that the Appellant Debtor was not prejudiced by their improper actions, and therefore, it would

be erroneous at this late date for the Bankruptcy Court to enter any order reversing its finding

that the Plaintiff Appellees have not shown good cause for their failures to perfect service in a

timely manner and that they deserve any extension of time to perfect service on any of the of the

defendants in Adversary Case No. 8:06-ap-00185-PMG.

Therefore, this Court should enter an order requiring the Bankruptcy Court to vacate the

judgments entered in Adversary Case No. 8:06-ap-00185-PMG for lack of service of process

sufficient to obtain personal jurisdiction, barring the Plaintiff Appellees from seeking to obtain

alias summonses and perfect service of process at this late date, and baning the Plaintiff

Appellees from objecting to the Appellant Debtor's discharge at this late date.

111. The Bankruptcy Court erred as a matter of law by entering defaults in the Adversary Case without the required showings of valid service of process and of an evidentiary basis for the relief requested by the Plaintiff Appellees.





Adams, (AV2: 14), and the Defendant, Law Office of Mark A. Adams, P.A. (AV2: 15).

However, once again, the Plaintiff Weber demonstrated his ignorance by failing to include any

affidavits supporting the claims made in his Complaint or his Amended Complaint to which he

also failed to attach a copy of the void judgments which he seeks to collect upon and which he

claims supports denial of a discharge to the Appellant Debtor. (AV2: 10, 14, 15 and 22).


evidentiary support for h e claims brought by Plaintiff Weber, the Bankruptcy Court entered


A. Adams, P.A. (AV2: 18), against the Defendant, Lisa Adams, (AV2: 19), and against

Appellant Debtor, Mark A. Adams, (AV1: 2). Furthermore, the Bankruptcy Court entered a

Default Final Judgment against the Appellant Debtor, Mark A. Adams. (AV1: 4).

"A defendant's default does not in itself warrant the court in entering default judgment.

There must be a sufficient basis in the pleadings for the judgment entered." Nishimatsu

Construction Co. v. Houston Nat. Bank 5 15 F.2d 1200, 1206 (5th Cir. 1975).

Local Rule 7055-2(a) mandates, "When a party seeks a default judgment as a result of a

defendant's failure to respond after being served with a complaint, if otherwise appropriate, the

Court may enter a default judgment upon being provided with the following: .. .(3) Motion

for judgment by default. Attached to the motion shall be an affidavit in support of the

allegation set forth in the complaint." (Emphasis added). In addition, Local Rule 7055-2(c)

mandates, "The motion for entry of default shall state that service was duly effectuated in

compliance with the Federal Rules of Bankruptcy Procedure.. ." (Emphasis added).

As the Plaintiff Appellees failed to include any a d a v i t s in support ofthe allegations set

forth in their Complaint or their Amended Complaint in their motions for default and also failed

to even attach a copy of the void judgments upon which they sought to collect and which they

claim supports denial of a discharge to the Appellant Debtor, the Bankruptcy Court erred as a

matter of law by entering defaults against any defendant and by entering any judgments in favor

of the Plaintiff Appellees in Adversary Case No. 8:06-ap-00185-PMG.

Therefore, this Court should enter an order requiring the Bankruptcy Court to vacate the

judgments entered in Adversary Case No. 8:06-ap-00185-PMG for lack of service or process

sufficient to obtain personal jurisdiction and for failure to include the required evidentiary basis

for the relief requested by the Plaintiff Appellees.

IV. The Bankruptcy Court erred as a matter of law by denying a discharge to the Appellant Debtor based upon the erroneously entered default in the Adversary Case.


evidentiary support for the claims brought by Plaintiff Weber, the Bankruptcy Court entered


A. Adams, P.A. (AV2: 18), against the Defendant, Lisa Adams, (AV2: 19), and against

Appellant Debtor, Mark A. Adams, (AVl: 2). Furthermore, the Bankruptcy Court entered a

Default Final Judgment against the Appellant Debtor, Mark A. Adams. (AVI: 4).


a Report of No Distribution (B: 7), that the Trustee had not participated in the adversary

proceeding brought by Plaintiff Weber (AVl : I), that the Appellant Debtor had sought the

discharge of other debts (B: 7), and that no other creditor had objected to the discharge sought by

the Appellant Debtor in any way (B: 7), the Bankruptcy Court entered an Order Denying

Discharge of Debtor based solely on it's erroneous entry of a default judgment against the

Appellant Debtor in the adversary proceeding. (B: 21).

"Where service of process is insuillcient, the court has no power to render judgment

and the judgment is void." Worldwide Web Svstems, Inc., v. Feltman, 328 F.3d 1291. 1299

(1 lth Cir. 20031. (Emphaqis added). In addition, the default judgment was entered without the

evidenliary basis required by the Rules and controlling precedent.

As the Bankruptcy Court had no basis other than the erroneously entered and void default

judgment upon which to deny the Appellant Debtor a discharge of his debts, the Bankruptcy

Court erred as a matter of law and its findings were clearly erroneous when it entered its Order

Denying Discharge of Debtor.

CONCLUSION

For the foregoing reasons, this Court should enter an order requiring the Bankruptcy

Court to vacate the judgments entered in Adversary Case No. 8:06-ap-00185-PMG, barring the

Plaintiff Appellees from objecting to the Appellant Debtor's discharge, vacating the erroneously

entered Order Denying Discharge of Debtor, and directing the Bankruptcy Court to enter an

order granting the Appellant Debtor a discharge of all of his listed debts in Case No. 8:05-bk-

29501-PMG.

CERTBICATE OF SERVICE

I hereby certify that I have served a true and correct copy of this document via U.S. Mail

to Stephen L. Meininger, Esquire, attorney for the Bankruptcy Trustee, at 707 North Franklin

Street, Suite 850; Tampa, FL 33602; to D o d d R. W, Esquire, of Fowler White Boggs Ranker,

P.A., counsel for T i t h y W. Weber, at P.O. Box 1438; Tampa, FL 33601; and to Timothy W.

Weber, Esquire, pro se of Battaglia, Ross, Dicus & Wein, P.A., at P. 0. Box 41 100; St <+-

Petersburg, FL 33743 on this ^4f /*-day of October, 2008.

.? Mark A. Adams JDlMBA 4129 Balington Dr. Valrico, FL 33596 Telephone: 8 13-643-4412

Documents

Appellate Brief