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UNITED STATES BANKRUTPCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re:

FRED JAMES HESSLER

Chapter 13

 Case No.: 19-15157-SMG

Debtor.

/

DEBTOR’S RESPONSE IN OPPOSITION TO THE MOTION FOR 

IMPOSITION OF SANCTIONS AGAINST THE DEBTOR AND HIS 

ATTORNEY PURSUANT TO BANKRUPTCY RULE 9011

Debtor, Fred James Hessler (the “Debtor”), by and through its undersigned counsel, hereby 

files its Response in Opposition to the Motion for the Imposition of Sanctions Against the Debtor 

and his Attorney Pursuant to Bankruptcy Rule 9011 and in support thereof, states as follows:

STETEMENT OF FACTS

1. The legal doctrine of ex turpi causa non oritur actio, from a dishonorable cause an 

action does not arise, is well suited to this matter. 

2. BCSS, LTD. d/b/a Tri-County Truck & Equipment’s, (“Tri-County”) Motion for 

Sanctions is replete with misstatements of fact and law. The only truth in its quest for sanctions is 

that the Motion for Turnover and the Motion for Contempt were not served on an officer. However, 

the notice of every pleading was served upon Tri-County and as such it received actual notice of 

all relevant matters. 

3. Tri-County emailed undersigned demanding he vacate the Order Sanctioning and 

the Final Judgement because it claims to not have been served the Motions for Turnover and 

Contempt. However, the Order Sanctioning and the Final Judgement were both properly noticed 

via process server [ECF Nos 96 & 104]. Despite proper service, Tri County failed to appear at the 

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Show Cause Hearing and a servicer manager appeared on its behalf at the Evidentiary Hearing. 

I. Tri-County’s Motion Fails to meet the minimal requirements under Federal Rules of

Bankruptcy Procedure Rule 9011.

4. Bankruptcy Rule 9011 governs representations to the court and requires that filings

are “not being presented for any improper purpose . . . the claims, defenses, and other legal 

contentions therein are warranted by existing law,” and that, “the allegations and other factual 

contentions have evidentiary support” Fed. R. Bankr. P. 9011(b).

5. Tri-County fails to demonstrate that the pleadings warrant 9011 sanctions and

further fails to meet its burden under Rule 9011. The Debtor’s pleadings were not presented for 

improper purposes and his claims were warranted by existing law. “[T]he bankruptcy code permits 

sanctions only if the objectionable court paper is signed in violation of the rule.” In re Mroz, 65 

F.3d 1567, 1572 (11th Cir. 1995). ‘“Accordingly, the court’s inquiry should only focus on the

merits of the pleading gleaned from the facts and law.’” Id. (citing Jones v. Int’l Riding Helmets, 

Ltd., 49 F.3d 692 (11th Cir. 1995). Simply put, the allegations against the Debtor and undersigned 

are not sanctionable as Tri-County’s Motion is void of any allegations as to the merits of the 

Debtor’s pleadings. . 

6. Tri-County cites to Turner v. Sungard Bus. Systems, Inc., 91 F.3d 1418 (11th Cir.

1996) but fails to quote any portion of the case or how it relates to the facts in the present case. 

The Turner court found that the attorney:

knew from the moment he began representing Plaintiff that his claim was meritless (2) at 

the pretrial conference, Penick represented that he had evidence to support Plaintiff's claim 

that the job at issue had been filled though no such evidence was ever presented to the 

court, and (3) after taking Zales' deposition, Penick had to know that the case was without 

a factual basis but failed to dismiss it, thereby forcing Sungard (and the court) to expend 

time and money on a summary judgment motion.

Id. at 1422. Not a single of the Turner facts, which Tri-County cites, are relevant to the current 

matter before the Court. The Eleventh Circuit stated that; “only those claims without any factual or 

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legal basis whatsoever are sanctionable” In re Ballato, 183 B.R. 955 (Bankr. M.D. Fla. April 7,

1995) Citing Davis v. Carl, 906, F.2d 533, 538 (11th Cir. 1990). The record is deplete of facts to 

warrant that the undersigned petitioned the Court for a relief that is not supported by existing law

or that it was filed for improper purpose. 

7. Furthermore, the filing of a 9011 motion is improper when the “offending motion”

has been ruled on by the court. The Eleventh Circuit agreed “with the Second, Fourth, and Sixth 

Circuits that the service and filing of a motion for sanctions ‘must occur prior to final judgement 

or judicial rejection of the offending’ motion.” In re Walker, 532 F.3d 1304, 1309 (11th Cir. 2008). 

Here, the Court entered a final judgement and the sanctions Tri-County seeks is not warranted 

under Rule 9011. 

8. When moving for sanctions, the “party who moves for sanctions under Bankruptcy

Rule 9011 must follow a two-step process . . . [t]he party first must serve the motion on the 

opposing party” In re Walker, 532 F.3d 1304, 1308 (11th Cir. 2008). Bankruptcy Rule 9011 

requires the motion “shall be served as provided in Rule 7004.” Fed. R. Bankr. P. 9011(c). TriCounty’s Certificate of Service of its 9011 Motion fails to satisfy the criteria established under 

Bankruptcy Rules 9011 and 7004.

9. Rule 9011(c)(1)(A) grants the Court the discretion to award the prevailing party

reasonable attorney fees and expenses. In Gulf Coast Orthopedic Ctr. Inc., the court denied a 

movant’s 9011 motion and subsequently awarded the prevailing party reasonable expenses and 

attorney’s fees. 297, B.R. 861, 864 (Bankr. M.D. Fla. July 10, 2003). Should undersigned prevail 

in opposing Tri-County’s Rule 9011 Motion, it requests the Court award reasonable costs and 

attorney’s fees. 

WHEREFORE, the Debtor, Fred James Hessler, Rachamin Cohen, Esq. and Cohen 

Legal Services, P.A. respectfully requests the entry of an Order by the Court i) the Motion for the 

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Imposition of Santions Against the Debtor and his Attorney Pursuant to Rule 9011; ii) awarding 

attorney’s fees and cost incurred by the Debtor in opposing the Motion, and; iii) granting any 

further relief this Court deems just and proper. 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via 

Notice of Electronic Filing or E-Mail this 21st day of April, 2020 and to all parties listed below. 

I HEREBY CERTIFY that I am admitted to the Bar of the United States District Court for the Southern 

District of Florida and I am in compliance with the additional qualifications to practice in this Court set forth in 

Local Rule 2090-1(A).

Respectfully submitted,

COHEN LEGAL SERVICES, P.A.

Rachamin “Rocky” Cohen

Attorney for the Debtor

12 SE 7th Street, Suite 805

Fort Lauderdale, Florida 33301

Telephone: 305-570-2326

Email:Rocky@lawcls.com

By:__/s/Rachamin Cohen

Rachamin Cohen

Fla. Bar No. 96305

VIA USPS:

Bachrodt, Louis CIII

1801 West Atlantic Boulevard

Pompano Beach, FL 33069

Tri-County Truck & Equipment

1801 W Atlantic Blvd 

Pompano Beach, FL 33069

BCSS Ltd.

c/o Law Office of Mark S. Roher, P.A.

150 S. Pine Island Road, Suite 150

Plantation, FL 33324

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