UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

www.flsb.uscourts.gov 

In re: 

Case No. 19-15157-SMG 

Fred James Hessler, 

Chapter 13 

Debtor. 

_____________________________________/ 

ORDER DENYING BCSS LTD. D/B/A TRI-COUNTY TRUCK & 

EQUIPMENT’S RULE 9011 MOTION, AND AWARDING EXPENSES AND 

ATTORNEYS’ FEES INCURRED BY DEBTOR IN OPPOSING THE MOTION 

This matter came before the Court for a hearing on April 22, 2020 upon 

B C S S, Ltd. d/b/a Tri-County Truck & Equipment’s (“Tri-County”) Amended Motion 

for the Imposition of Sanctions Against the Debtor and His Attorney Pursuant to 

Bankruptcy Rule 90111 (the “Rule 9011 Motion”). The Court has considered the Rule 

9011 Motion, the Debtor’s Response in Opposition2 (the “Response”), Tri-County’s 

1 ECF No. 142. 

2 ECF No. 153. The Court has reviewed the factual circumstances detailed in the Debtor’s Notice of 

Late Filing of Papers Pursuant to Local Rule 5005-1(F)(2) (ECF No. 155) and will consider the Debtor’s 

late filed Response. See Local Rule 1001-(E). 

Scott M. Grossman, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on May 18, 2020.

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Reply3 (the “Reply”), the Supplemental Affidavit of Attorneys’ Fees and Costs4 filed by 

Rachamin Cohen, Esq. (the “Cohen Affidavit”), and the record in this case. Because 

the Rule 9011 Motion is entirely without merit, it will be denied and the Court will 

award expenses and attorneys’ fees to the Debtor, Fred James Hessler, incurred in 

opposing the Rule 9011 Motion, for the reasons discussed in more detail below. 

In the Rule 9011 Motion, Tri-County seeks sanctions against Mr. Hessler and 

his attorney, Mr. Cohen, for refusing to agree to Tri-County’s request to vacate the 

Court’s February 12, 2020 Order Sanctioning B C S S, Ltd. D/B/A Tri-County Truck 

& Equipment for Willful Violation of the Automatic Stay and its Contempt of this 

Court’s Orders5 the “Sanctions Order”) and its corresponding February 14, 2020 Final 

Judgment6 (the “Final Judgment”). By separate Order,7 the Court has denied TriCounty’s Amended Motion to Vacate Order Sanctioning BCSS for Willful Violation of 

the Automatic Stay and its Contempt of this Court’s Orders8 (the “Motion to Vacate”). 

After careful consideration, the Court determined that Tri-County failed to establish 

any basis under Federal Rule of Civil Procedure 60 (made applicable by Federal Rule 

of Bankruptcy Procedure 9024) or otherwise, for the Court to vacate its Sanctions 

Order or Final Judgment. For this reason alone, the Rule 9011 Motion should be 

denied. 

3 ECF No. 154. 

4 ECF No. 157. 

5 ECF No. 112. 

6 ECF No. 114. 

7 ECF No. 160. 

8 ECF No. 134. 

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The Rule 9011 Motion must also be denied, however, because Rule 9011 does 

not apply to a party’s “refusal to vacate”9 a court’s orders. Rule 9011(b) provides 

that:10

By presenting to the court (whether by signing, filing, submitting, or 

later advocating) a petition, pleading, written motion, or other paper, an 

attorney or unrepresented party is certifying that to the best of the 

person's knowledge, information, and belief, formed after an inquiry 

reasonable under the circumstances, 

(1) 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 nonfrivolous argument for the 

extension, modification, or reversal of existing law or the 

establishment of new law; 

(3) the allegations and other factual contentions have evidentiary 

support or, if specifically so identified, are likely to have 

evidentiary support after a reasonable opportunity for further 

investigation or discovery; and 

(4) the denials of factual contentions are warranted on the 

evidence or, if specifically so identified, are reasonably based on a 

lack of information or belief. 

In its Rule 9011 Motion, Tri-County does not complain about a “a petition, pleading, 

written motion, or other paper,” signed, filed, submitted or later advocated by Mr. 

Cohen. Instead, Tri-County complains that Mr. Cohen and Mr. Hessler refused to 

“agree to the entry of an order granting the Motion to Vacate.”11 But neither Mr. 

Cohen nor Mr. Hessler can agree to vacate this Court’s orders; only this Court (or an 

9 Rule 9011 Motion at ¶ 21. 

10 Fed. R. Bankr. P. 9011(b). 

11 Rule 9011 Motion at ¶ 15. 

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appellate court) can vacate is orders. Further, in and of itself (and certainly in the 

context of this case), refusal by counsel or his client to consent to relief requested by 

an opposing party does not constitute signing, filing, submitting or later advocating 

“a petition, pleading, written motion, or other paper.”12

It is clear that Tri-County does not complain about a petition, a pleading or a 

written motion filed by Mr. Cohen on behalf of Mr. Hessler. Tri-County complains 

about this Court’s Sanctions Order and Final Judgment. Thus, even if there were 

any substantive merit in Tri-County’s position (there is not), neither Mr. Cohen nor 

Mr. Hessler took any action contemplated by Rule 9011 of which Tri-County could 

complain. And, as noted, the Court has denied Tri-County’s Motion to Vacate on the 

merits, thus validating Mr. Cohen and Mr. Hessler’s refusal to accede to Tri-County’s 

demands. 

The Eleventh Circuit has admonished litigants that courts “look with disfavor 

on a party’s use of Rule 11 or the ethical rules as combative tools. The rules governing 

the ethical conduct of lawyers are far too important to be trivialized and used in 

baseless mud-slinging.”13 The Court cannot and “will not tolerate attempts to use the 

ethical rules in a way contrary to the spirit of those very rules.”14 Here, there was no 

merit substantively (because the Court denied the Motion to Vacate) or procedurally 

12 Fed. R. Bankr. P. 9011(b). 

13 Autrey v. United States, 889 F.2d 973, 986 n.20 (11th Cir. 1989). The purpose of Rule 9011 is 

equivalent to that of Rule 11 of the Federal Rules of Civil Procedure, and the applicable standard of 

review is the same under both rules. In re Kouterick, 167 B.R. 353, 362 (Bankr. D.N.J. 1994) (citations 

omitted). 

14 Autrey, 889 F.2d at 986 n.20. 

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(because Mr. Cohen did not sign, file, submit, or advocate any offending paper) to the 

Rule 9011 Motion. The only conceivable basis for Tri-County’s Rule 9011 Motion was 

as a “combative tool” to obtain some perceived litigation leverage, which is contrary 

to both the letter and spirit of Rule 9011. 

Given the utter lack of merit to the Rule 9011 Motion and the facially improper 

purpose for which it was filed, it is certainly warranted here to award to Mr. Hessler 

– as the party prevailing on the motion – his reasonable expenses and attorney's fees 

incurred in opposing the motion.15 The Court has reviewed the Cohen Affidavit and 

has determined that the attorneys’ fees in the amount of $1,087.50 incurred in 

opposing the Rule 9011 Motion were entirely reasonable and should be awarded to 

Mr. Hessler and against Tri-County’s counsel, Mark Roher, Esq. pursuant to Fed. R. 

Bankr. P. 9011(c)(1)(A). 

Accordingly, for the reasons stated above and those stated on the record at the 

April 22, 2020 hearing, it is 

ORDERED:

1. The Rule 9011 Motion is DENIED. 

2. Mr. Hessler is awarded $1,087.50 in attorney’s fees incurred in opposing 

the Rule 9011 Motion. 

3. Mark Roher, Esq. is directed to pay $1,087.50 to the Debtor, 

c/o Rachamin Cohen, Esq., Cohen Legal Services, P.A., 12 SE 7th Street, Suite 805, 

15 See Fed. R. Bankr. P. 9011(c)(1)(A). 

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Fort Lauderdale, Florida 33301, within 14 days of the entry of this Order, and to 

promptly file a Notice of Compliance with the Court upon making such payment. 

# # # 

Copies furnished to: 

Mark Roher, Esq. who must serve a copy of this Order on all interested parties and 

file a certificate of service thereof.

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