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RECEIVED
IN DROP BOX
, I SEP -6 PH 4: 56
Case 11-05077-btb Doc 10 Entered 09/07/11 15:39:28 Page 1 of 7
\ .
Document Code:
Zach Coughlin,Esq.
121 River Rock St.
Reno, NV 89501
Tele: 775-338-8118
Attorney for Gessin
unbundled service, one motion
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
RE JOHN D. GESSIN;
)
BK CASE NO: 11-51818-btb
DEBTOR
)
vs.
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DEPT. NO: 11-05077-btb
)
TACEY RISSONE, ET AL;
)
PLAINTIFF;
)
ANSWER AND MOTION TO DISMISS;
)
REQUEST FOR SANCTIONS
OHN D GESSIN, ET AL
)
DEFENDANT
)
)
)
)
)
ANSWER AND MOTION FOR SANCTIONS
COMES NOW, Defendant/Debtor and moves this court to dismiss this Complaint based on insuficient service based on
the foregoing authorities. The Complaint received from Glade Hall, Esq. bares an issuance date on the summons of
August 2'''', 20 II. However, the envelope in which the Complaint was received is postmarked August 18th, 20 II, well
past the deadline for service on Mr. Gessin. Further, a proof of service was missing from the Complaints fled in this and
a parallel cases Adversary Case number 11-05078-btb. Mr. Gessin has incurred attorey's fees in defending that which
should prove unnecessary and unground in fact and law, based on the postmark date and BR 7012. Pursuant to N RCP
Rule II and FRCP Rule II, and notwithstanding the 21 day safe harbor provisions contained therein (which have not
been met by the undersigned) the undersigned moves this court to award sanctions, attorney's fees and costs against Mr.
Hall, especially in light of the fact that he has previously been adjudged to have vexatiously harrassed Mr. Gessin.
Further, particularly where there may have been a Settlement Agreement that expressly stated neither fault, guilt, or
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culpability was being admitted, a finding on nondischargeability would be truly impudent. See, Rosemary E. Williams,
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J.D, Nondischargeability of Debt Based on False Pretenses or Representations, Actual Fraud, or False Financial
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Statement Under Bankruptcy Code 523(a)(2), 43 Am. Jur. Proof of Facts 3d I (2009).
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Rule 7012. Defenses and Objections:
BK RSERVICE 57: 115 Page I 6A Bankr. Service L. Ed. 57: 115
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Chapter 57. Bankruptcy Rules 7001 to 7087 Rule 7004. Process; Service of Summons, Complaint Part Two. Digest of
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Decisions II I. Manner and Sufficiency of Service B. Time of Service Summary References 57: 115. Within 10 days of
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issuance of summons Under the bankruptcy rules, if a complaint is not served within ten days, but the court
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grants additional time for service, then the complaint is deemed to have been timely served and receives the
benefit of its original filing date. In re Fruehauf Trailer Corp., 250 B.R. 168 (D. Del. 2000). Summons must be hand-
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delivered or deposited into a mailbox within ten days afer the summons is issued. Fed.Rules Bankr.Proc. Rule
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7004(e), II U.S.C.A. In re Rodriguez Gonza- lez, 396 B.R. 790 (B.A.P. 1st Cir. 2008). Chapter 7 debtor was properly
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served with state's adversary complaint where, although state acknowledged that its frst attempt to serve debtor
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was inadequate, its second attempt was in full compliance with the applicable rules, as the second summons was issued
41 days afer the complaint was filed, and the complaint and summons were served on debtor on the day afer the
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second summons was issued. Fed.Rules Bankr.Proc.Rule 7004(a)( I), (e), II U.S.C.A.; Fed. Rules Civ.Proc.Rule
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4(m), 28 U.S.C.A. In re Moretto, 440 B.R. 534, 64 Collier Bankr. Cas. 2d (MB) 1419 (B.A.P. 8th Cir. 2010). Ten-day
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rule set forth in FRCP 4, incorporated by Bankruptcy Rule 7004 which governs service of process in bankruptcy
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adversary proceedings, is plainly and logically crafted with view toward alleviating prejudice which may arise if
defendant's responsive pleading window, i.e., thirty days from summons' issuance, is unduly narrowed or eliminated by
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late service of process; intent of Rule 7004 is confrmed by nature of remedy prescribed for noncompliance with rule:
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issuance of new summons so as to schedule new and adequate time for responsive pleading. In re Anderson, 179 B.R.
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401, 33 Collier Bankr. Cas. 2d (MB) 125 (Bankr. D. Conn. 1995). Creditors' service of process of II USCA 523
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nondischargeability complaint was incom- plete by not serving Chapter 7 debtor and invalid because it was served
more than 10 days afer summons was issued. In re Sciarretto, 170 B.R. 33 (Bankr. D. Conn. 1994).
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RULE II. SIGNIN G OF PLEADIN GS (a) Signature. Every pleading, written motion, and other paper shall be signed by
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at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be
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Case 11-05077-btb Doc 10 Entered 09/07/11 15:39:28 Page 3 of 7
signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise
specifcally provided by rule or statute, pleadings need not be verifed or accompanied by afidavit. An unsigned paper
shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorey
or party. [As amended; effective January 1, 2005.] (b) Representations to Court. By presenting to the court (whether by
signing, fling, submitting, or later advocating) a pleading, written motion, or other paper, an attorey or unrepresented
party is certifying that to the best of the person's knowledge, information, and belief, formed afer an inquiry reasonable
under the circumstances,-( I ) it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a non frivolous argument for the extension, modifcation, or reversal of
existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or,
if specifcally so identifed, are likely to have evidentiary support afer a reasonable opportunity for further investigation
or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifcally so identifed, are
reasonably based on a lack of information or belief. [As amended; effective January 1, 2005.] (c) Sanctions. If, afer
notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may.
subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law frms, or parties that have
violated subdivision (b) or are responsible for the violation. ( I ) How initiated. (A) By Motion. A motion for sanctions
under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to
violate subdivision (b). It shall be served as provided in Rule 5, but shall not be fled with or presented to the court unless,
within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim,
defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award
to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the
motion. Absent exceptional circumstances, a law frm shall be held jointly responsible for violations committed by its
partners, associates, and employees. (B) On Court's Initiative. On its own initiative, the court may enter an order
describing the specifc conduct that appears to violate subdivision (b) and directing an attorney, law frm, or party to show
cause why it has not violated subdivision (b) with respect thereto. (2) Nature of Sanction; Limitations. A sanction
imposed for violation of this rule shall be limited to what is suficient to deter repetition of such conduct or comparable
conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of,
or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and
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warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorey's
fees and other expenses incurred as a direct result of the violation. (A) Monetary sanctions may not be awarded against a
represented party for a violation of subdivision (b)(2). (B) Monetary sanctions may not be awarded on the court's
initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by
or against the party which is, or whose attorneys are, to be sanctioned. (3) Order. When imposing sanctions, the court
shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.
[As amended; effective January 1, 2005.] (d) Applicability to Discovery. Subdivisions (a) through (c) of this rule do not
apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules
16.1, 16.2, and 26 through 37. Sanctions for refusal to make discovery are governed by Rules 26(g) and 37. [As amended;
effectiv
Rule 7012. Defenses and Objections-When and How Presented-By Pleading or Motion-Motion for Judgment on the
Pleadings
(a) When Presented
If a complaint is duly served, the defendant shall serve an answer within 30 days afer the issuance of the summons,
except when a different time is prescribed by the court. The court shall prescribe the time for service of the answer when
service of a complaint is made by publication or upon a party in a foreign country. A party served with a pleading stating
a cross-claim shall serve an answer thereto within 20 days afer service. The plaintiff shall serve a reply to a counterclaim
in the answer within 20 days afer of the ... "
Jurisdiction
A determination of nondischargeability of a particular debt under II U.S.c. 523 is a "core"
proceeding. As such, bankruptcy courts have the authority to enter fnal orders and judgments.
Bankruptcy courts have exclusive jurisdiction to determine the dischargeability of debts under
four of the sixteen categories of non discharge ability actions: paragraphs (a)(2) (fraud claims),
(a)(4) (embezzlement, larceny, and breaches of fiduciary duty claims), (a)(6) (willful and
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malicious injury claims), and (a)(15) (certain familial obligation claims). By contrast, bankruptcy
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courts and nonbankruptcy courts have original and concurrent jurisdiction to determine the issue
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of uischargtability over the remaining twdvt cattgurits of nundischargeable debts.28
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Time Limit
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The complaint has to be brought within sixty days of the first meeting of the creditors.
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Standard of Proof
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Grogan v. Garner29, the United States Supreme Court held that the standard for burden of proof
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in nondischargeability cases was by a preponderance of the evidence, rather than the higher
11 standard of "clear and convincing" evidence. While no Supreme Court decision has determined
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that a preponderance of evidence standard, rather than clear and convincing evidence standard,
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also applies to objections to the discharge, courts considering the issue have referred to Grogan
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v. Garner and applied the same standard of preponderance standard to cases concerning the
16 issuance of the discharge.
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suWHEREFORE, tenant prays that the court exercise its discretion pursuant to NRCP 11 and impose
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signifcant monetary and/or merit based sanctions against both plaintiff and his counsel; for a award
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of attorney's fees and costs incurred by defendant, who has sought counsel with a local attorey other
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than himself on this matter, as a result of plaintiffs and her counsel's violation; and for such other,
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further and additional relief as seems just to the court in the premises, and damages and other relief
requested by Tenant herein.
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I declare under penalty of perjury under the laws of the State of Nevada that the
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foregoing is true and correct and that this document does not contain any social security
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numbers, pursuant to NRS 2398.030, an afrmation to that effect this hereby is.
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1 Dated this 6th, day of September, 2011
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