Case 16-11916-AJC DOC 22 Filed 04/05/16 Paju iL0t

i SO :j TfllC* dL * !*

16-11916-AJC r

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

www.f1ib.UStPUrti.qotf

Apfl -5 m :

. J

HECEIVPC_ : In re:

BARRY B. ESKANOS Case No. 16-11916-AJC

Chapter 13

3122 Pine Tree Drive

Miami Beach, FL 33140

Tel: 305 613-6894

bbeskanos@aol.com

Debtor

INDIVIDUAL DEBTORS OPPOSITION TO MOTION TO DISMISS FILED BY MOTION

TO DISMISS

COMES NOW, BARRY B. ESKANOS, DEBTOR in the above-styled action, and file

their Opposition to the Trust's PREMATURE AND MISLEADING Motion to Dismiss on the

following grounds:

1. IT IS PREMATURE AS NO CLAIMS HAVE YET BEEN FILED BY THE

FRANCHISE TAX BOARD, AND IF THEY ARE, THEY WILL BE OBJECTED TO

AS THE PURPORTED OBLIGATION HAS BOTH EXPIRED AND AMENDED

RETURNS FILED BY THE DEBTOR SHOWS THAT NOTHING IS DUE NOR

OWING FOR THOSE YEARS.

2. IT IS MISLEADING, AS THE FIRST CASE WAS DISMISSED ON MOTION OF

THE IRS, AND THOSE DEBTS HAVE EXPIRED ON APRIL 5th, 2016, AND NO

1

\

Exhibit D - Page 1 of 7

Case 6:14-cv-01192-MC Document 94-4 Filed 11/20/17 Page 1 of 7
case 16-11916-AJC DOC 22 Filed 04/05/16 Page 2 Of 38

16-11916-A/C

CLAIM HAS BEEN FILED BY THE IRS, AND IF ANY CLAIMS ARE FILED, THEY

WILL BE OBJECTED TO ON THE GROUNDS THAT AMENDED RETURNS

WERE FILED FOR THE PRIOR YEARS, AND NOTHING IS DUE NOR OWING,

ARGUMENT

1, Debtors filed for relief under the U.S. Bankruptcy Code on February 11!h, 2016, and

the first time FIVE YEARS AGO, October 31, 2011.

1. SUBSTANTIAL CHANGE OF CIRCUMSTANCES HAVE TRANSPIRED SINCE THE

FILING OF FIVE YEARS AGO, the Internal Revenue Service Filed a series of claims

and amended claims, with the latest amended claim dated 1/18/2012 in the

amount of J 16,421 in Secured Claim amount of Si 6,421; Unsecured Priority Claim

of $1,566.17; and Unsecured General Claim of $602,664.71. Ciaim14.

3. As of the filing of this opposition, this year, the IRS has not filed any claims AND

their liens have EXPIRED on April 5th, 201 6. See Exhibit 1 .

4. Debtors have spoken to the California Franchise Tax Board, who has NOT filed any

claim, as their demand is tied to the IRS, Debtors have filed amended returns for

the State of California which reflect NOTHING IS DUE NOR OWING for the tax years

in question, AND, the IRS no longer has any claims pending for those same tax

years. Because noting is owed to the IRS then nothing is similarly owed to the

California Franchise Tax Board, and amended 1040 returns for the subject years

were filed in BOTH State and Federal Courts to correct the erroneous amounts

that were claimed. That the IRS claimed amounts that are neither due nor owing,

because the Debtor years ago had a^ubrogation practice

2

Exhibit D - Page 2 of 7

Case 6:14-cv-01192-MC Document 94-4 Filed 11/20/17 Page 2 of 7
case 16-11916-ajc Doc 22 Filed (W05/16 Page 3 of 38

16-11916-AJC

5. That the insurance companies reported amounts on 1099's that were inaccurate

because their system of accounting was different than the Debtor's. Once the

files were all closed and returned, new amended returns have been filed and

nothing is owed.

6. Movants, will file INDIVIDUAL DEBTORS OBJECTION TO PROOF OF CLAIM

FILED BY CALIFORNIA FRANCHISE TAX BOARD IF THEY FILE ANY CLAIM,

AND NO CLAIM HAS YET BEEN FILED,

7. BECAUSE NO CLAIM HAS BEEN FILED a motion to dismiss is not only

misleading, but premature. The movant has attempted to mislead this Court into

believing that nothing has changed over 5 years, and that is simply untrue

8 THE MOTION TO DISMISS IS PREMATURE, BECAUSE IF a claim is filed by the

Franchise Tax Board, then a motion and proposed order (where required by the

Local Rules) will be timely served on all interested parties pursuant to the

referenced rule as is shown on the certificate of service previously filed with the

motion. The motion will contain the bulletin required by the referenced rule.

9, Section 505 of the Bankruptcy Code clearly indicates that Congress intended to

allow the bankruptcy court's to retain jurisdiction to determine certain tax issues for

the benefit of the estate. 124 Cong. Rec. H11095 (1978). In addition. Congress

refined the statute for the express purpose of providing a forum for the rapid

determination of claims so that disputed tax claims would not delay the conclusion

of the administration of a bankruptcy estate, kl. See also In re Diez, 45 B.R. 137.

139 (Bankr.S.D.FIa.1984) (citing Cohen v. United States, 115 F.2d 505 (1st

Cir. 19401). Any FUTURE Lien or Claim filed by the IRS will be dealt with WHEN

AND IF they are filed, and will be objected to by the Debtors, in part, on the

3

Exhibit D - Page 3 of 7

Case 6:14-cv-01192-MC Document 94-4 Filed 11/20/17 Page 3 of 7
Case 16-11916-AJC DOC 22 Filed 04/05/16 Page 4 of 38

16-11 91 6-AJC

following grounds.

EXHIBIT 1 SHOWS that the liens have expired. That Debtors during the tax a.

year of 1996 received two fraudulent 1099's and disputed them at the time

as being fraudulent; debtors did not receive the income from those 1099's

as listed; debtors filed proper returns showing that no tax was owing during

that tax year of 1996; and that any tax that was owed from salaries and

earnings was paid in full. Sixteen years have lapsed since that tax year and

Debtors should not be responsible for a tax debt that has expired, if any

there was and NO CLAIMS ARE ANTICIPATED,

b. That Debtors prior years debts were resolved when the Debtors received a

refund for the tax years 2009 and £01 1, but those refunds were seized as

part of the IRS Lien, and thus, there should be no monies due nor owing for

those years and thus no claims are anticipated.

Debtors received a refund of $5,929 in 2009 which was taken, in entirety, by c.

the IRS, and thus the Internal Revenue Service Unsecured Priority claim for

that year in the amount of $658 was satisfied already and thus no claims are

anticipated.

d. Debtors received a refund of $2,964 in 2008, which was taken, in entirety,

by the IRS and thus the Internal Revenue Service Unsecured Priority claim

for 2008 in the amount of $823 plus interest of $85,17 was satisfied already.

and thus no claims are anticipated.

4

Exhibit D - Page 4 of 7

Case 6:14-cv-01192-MC Document 94-4 Filed 11/20/17 Page 4 of 7
case 16-1191S-AJC DOC 22 Filed 04^05/16 Page 5 Of 36

16-11916-AJC

e. Debtors tan return for 2006 Show adjusted gross income of S5S,193 with tax

payments made of $4,342 and a tax refund due of $4,104. The refund was

taken, in entirety by the IRS and thus the Internal Revenue Service

Unsecured General Claim and Secured Claim of $16,421 is satisfied and no

claims are anticipated.

f. The relevant returns in question were created using Turbo Tax Software with

Audit protection.

10. If any claims are Filed, they will be objected to: and that any objection not timely

responded to, the Debtors are no longer subject to that claim, and ft is and should

be exting uished See 26 U S . C . § 1 334tc){2 }, and F R B P 501 1(b), effective

August 1, 1991. Nationwide Roofing & Sheet Metal. inc. v. Cincinnati Insurance

Co. (In re Nationwide Roofing & Sheet Metai, Inc.}, 130 B.R 769. 777

(Bankf.S.D.Ohio 1991).

11. finally, THIS MOTION IS BROUGHT IN BAD FAITH, AND FOR THE PURPOSE

OF HARASSMENT, AS the Circuit Court JUDGE SIGLER has already found that

MOVANT is GUILTY of slander of title, and left the prosecution of that matter to

the Debtor in a separate action. An adversary complaint Is being prepared for

monetary damages and to quiet title in the sum of $3.2 million dollars which will

more than satisfy any other claims that are filed by the Movant or any other entity.

Until such time as that adversary complaint is resolved, any dismissal would be

PREMATURE and improper.

12 The Movant's motion for sanctions should similarly be denied and the Court should

Sanction Counsel and the Movant for filing a MISLEADING motion which is based

5

Exhibit D - Page 5 of 7

Case 6:14-cv-01192-MC Document 94-4 Filed 11/20/17 Page 5 of 7
r

' case 16-11916-ajc doc 22 Filed 04*05/16 page s of 38

16-11916-AJC

on obligations that are neither due nor owing, Counsel has filed this motion

because Judge Sigler has found that the MOVANT is GUILTY of "HOPELESSLY

SLANDERING THE TITLE" OF THE Debtor s property and is hoping to avoid the

upcoming adversary action quieting title for that fraudulent, criminal conduct,

Fifing a forged document in the official records of Miami Dade County constitutes

a FELONY. EXHIBIT 3 The recorded assignment, Exhibit 3-5, by Defendants

SAM STRANDMO, AND INDECOMM GLOBAL SERVICES is Clearly also a false

document The chain of title has been irreparably broken by the rescission of the

assignments. Exhibits 3-3 and 3-4. Furthermore, Defendants SAM STRANDMO,

AND INDECOMM GLOBAL SERVICES acting on behalf of Movant Trust, are

therefore guilty of a felony in the seoond degree punishable as provided in s.

775 082, s 775 083, or s 775 084 (Florida Statute Section 817.535 2{b).

13 If that were not bad enough, the assignments were for the deed of trust only,

separating them from the note, which makes the mortgage and assignment both

VOID and UNENFORCEABLE See Carpenter v Longan 83 U.S. 271 (1872);

Reinaget v. Deutsche Bank Nat. Trust Co., 722 F, 3d 700 - Court of Appeals. 5th

Circuit 2013; The note and mortgage are inseparable; the former as essential, the

latter as an incident. An assignment of the note carries the mortgage with it, while

an assignment of the latter alone is a nullity, Catpenter v. Longan. 83 US 271 -

Supreme Court 1873

CONCLUSION:

Because Trust's Motion is NOT reliant on any actual claims filed by EITHER THE IRS or

the CALIFORNIA FRANCHISE TAX BOARD; the fact that any filed claims will be dealt

with IF and WHEN they are filed; that makes the motion premature. There has been a

SUBSTANTIAL CHANGE OF CIRCUMSTANCES since the filing FIVE YEARS AGO, and

6

Exhibit D - Page 6 of 7

Case 6:14-cv-01192-MC Document 94-4 Filed 11/20/17 Page 6 of 7
Case 16-11916-AJC DOC 22 Filed 04705/1 6 Page 7 of 38

16-1 1916-AJC

the motion is MISLEADING and unsupported by any actual valid claims, it must be denied.

The simple fact is the IRS liens that were used to dismiss the bankruptcy FIVE YEARS

AGO no longer exist and are EXTINGUISHED as of April 5,h, 2016. The Franchise Tax

board claims are tied to the IRS and amended returns were filed in both the State of

California and the IRS showing nothing is owed. The premature and unsupported motion

should be denied, The Movant's motion for sanctions should similarly be denied and the

Court should Sanction Counsel and the Movant for filing a MISLEADING motion which is

based on obligations that are neither due nor owing. Counsel has filed this motion

because Judge Sigler has found that the MOVANT is GUILTY of "HOPELESSLY

SLANDERING THE TITLE" OF THE Debtor's property and is hoping to avoid the

upcoming adversary action quieting title for that fraudulent, criminal conduct. Filing a

forged document in the official records of Miami Dade County constitutes a FELONY.

Respectfully S

Barry B. Eskanos

Debtor, Pro Se

3122 Pine Tree Drive

Miami Beach, FL 33140

305 613-6894

bbeskanos@aol.com

7

Exhibit D - Page 7 of 7

Case 6:14-cv-01192-MC Document 94-4 Filed 11/20/17 Page 7 of 7