[an error occurred while processing this directive] [an error occurred while processing this directive]

In The United States Bankruptcy Court
For The District Of Colorado

Case No. 05-40334-EEB
Chapter 7
Adv Pro. 06-1225-EEB

In re: Robbins, Barbara

Debtor

Karen Dudnikov,
Michael Meadors

Plaintiffs

vs.

Barbara Robbins

Defendant

______________________________________________________________________________
 
RESPONSE TO DEBTOR'S MOTION TO DISMISS PLAINTIFFS' CLAIM WITH PREJUDICE ______________________________________________________________________________

        Plaintiffs Karen Dudnikov and Michael Meadors do hereby Respond To Debtor's Motion To Dismiss Plaintiff's (sic) Claim With Prejudice ("Response To Motion To Dismiss"). In this frivolous filing by Debtor, she failed to specify exactly what she was claiming under the Rules so the Plaintiffs are assuming she is making her claim pursuant to F.R.C.P. 56. Allowing for service, Plaintiffs hereby file this timely Response:

BACKGROUND

        1. On October 7, 2005, the Defendant Barbara Robbins ("Debtor") filed a voluntary petition ("Petition") pursuant to Chapter 7 of Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Colorado. The Petition was assigned case number 05-40334-EEB.

        2. On February 2, 2006, Karen Dudnikov and Michael Meadors, Plaintiffs, filed an adversarial complaint ("Complaint") with Memorandum In Support ("Memorandum Supporting Complaint") against Barbara Robbins, the Debtor. This adversarial proceeding was assigned case number 06-1225-EEB.

        3. On March 2, 2006, Barbara Robbins filed her Response To Complaint ("Response To Complaint") along with thirty-three pages of material that appeared to be incomprehensible and unsupported exhibits of some sort relating to her counter-claims. This material was the subject of a Motion To Strike filed by the Plaintiffs filed March 5, 2006.

        4. On March 16, 2006, Plaintiffs filed their Reply To Debtor's Cross-Claims "Reply").

        5. On April 21, 2006, Barbara Robbins filed a Motion To Dismiss Plaintiff's (sic) Claim With Prejudice ("Motion To Dismiss") and a Motion To Vacate Default And Default Judgment ("Motion To Vacate").

MOTION NOT SUPPORTED

        6. Debtor's Motion To Dismiss does not state under what section of the F.R.C.P. it falls. Debtor's Motion To Dismiss cannot fall by default under Rule 12(b)(6) since under Rule 12(b) such "defenses shall be made before pleading", and Debtor filed her pleading on March 2, 2006. Plaintiffs must assume the Motion To Dismiss is being brought under Rule 56 by default.

        7. Defendant failed to comply with the provisions of Standing Order 2004-1-SBB and with the provisions of F.R.C.P. Rule 56.

        8. Defendant did not specify the burden of proof, identify the elements of the claim, set forth the undisputed facts or the disputed facts, or the legal basis for the judgment.

        9. Defendant did not submit any affidavits or documents supporting allegations made, relying solely on the Court to accept her word and her word only for everything alleged.

        10. Motions for Summary Judgment before the completion of discovery are not favored by Courts.

BURDEN OF PROOF

        11. Movant (Debtor) has the responsibility of burden of proof. Typically this comes in the form of affidavits and/or evidence properly submitted to support allegations made. Once the Movant has met the original responsibility, the responding party must, by a preponderance of evidence, disprove the allegations made. In the Motion To Dismiss, the Debtor has not properly submitted ANY affidavits or ANY evidence supporting allegations made by her or properly referenced ANY evidence already submitted, and on this basis the Motion To Dismiss should be denied. Debtor has not met the burden of proof as required and the Plaintiffs therefore request this Court immediately deny the Motion to Dismiss.

UNDISPUTED FACTS

        12. Debtor is attempting to have this Court assume jurisdiction over what she frivolously and incorrectly claims is a "default" judgment against her rendered by the District Court in Park County, Colorado (see Motion To Dismiss 7a, 7b).

        13. Debtor accuses Plaintiffs, Plaintiffs' Attorney, and/or the process server of altering the Summons served upon her (see Motion To Dismiss 7a) for the hearing to Show Cause.

        14. Debtor, contrary to her assertions, has not properly offered any evidence or facts supporting her allegation the summons was altered while making a defamatory allegation. Indeed, one would have expected Debtor to have taken immediate action upon receiving an "altered" document in 2004 instead of waiting two years later to complain.

        15. Debtor asserts statement made by the Court Clerk to the Judge on March 19, 2004, as being "false", and that "Plaintiffs knew it to be false when they made it" (see Motion To Dismiss 7b) and refers to it as "hearsay" evidence.

        16. A copy of the Integrated Colorado Online Network ("ICON") for case 01CV120 was submitted as Attachment #20, Reply, undisputed and not challenged by Debtor. On page 4, approximately line 49, Event ID #51, the ICON document plainly states:

        "Clerk recalls advising Barbara Robbins that her court date was scheduled for March 19, 2004 on March 1, 2004 when she filed her motion".

        This IS NOT HEARSAY evidence as it is plainly a district court generated document, submitted in evidence, and without any objection or challenge by the Debtor. Debtor's assertion that Plaintiffs were lying and knew they were lying is a fabrication, defamatory and malicious and subject to sanctions. In their Reply, Plaintiffs very plainly referred to Attachment #20 three times while quoting it (see Reply Page 3, 9), and Debtor had this document in her possession when she made this deliberately defamatory statement.

        17. Debtor asserts that her "conversation" with the Court Clerk did not meet the requirements of notification under the rules of service (see Motion To Dismiss 7c).

        18. Debtor had earlier asserted that the Court Clerk told her on March 1, 2004, that the hearing had been cancelled (see Response Page 2, Narrative line 16) by Anthony Johnson, attorney for the Plaintiffs.

        19. The Court Clerk had no basis for saying the hearing had been cancelled as the computer indicated there had been no cancellation, that the actual hearing date was March 19, and the Clerk told Debtor of that fact (see Reply, Attachment #20, page 4 line 49, Event ID #51).

        20. Debtor asserts that being told verbally by the Court Clerk that the hearing date was eighteen days later, almost a full three weeks later, did not constitute proper notification (see Motion To Dismiss 7c). Debtor offers no proof to support her allegation, only her insistence. Debtor went to the Court Clerk to seek clarification. If a verbal corrected notification from the Court Clerk carries no weight or authority, the courts would cease to function efficiently.

        21. Debtor failed to appear at the hearing even though informed by the Court Clerk of the date (see Reply, Attachment #20, page 4 line 49, Event ID #51).

        22. Plaintiffs have submitted numerous court documents and other documents signed by the Debtor, supporting claims made by Plaintiffs, while the Debtor has not submitted any properly noted documents or affidavits.

DISPUTED FACTS

        23. Debtor asserts that the "claim at bar is a default (failure to defend) judgment, and as such is an interlocutory order that, alone, determines no rights or remedies" (see Motion to Dismiss 6). Debtor fails to acknowledge that a final judgment is the actual problem that she is addressing and as such it is NOT an interlocutory order and it DOES convey rights and remedies.

        An entry of such a default is simply an interlocutory order that, alone, determines no rights or remedies and is not appealable. see. Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852 (8th Cir. 1996). (emphasis added)

        24. Debtor continues to assert that the Plaintiffs have an invalid judgment against her (see Motion To Dismiss Page 2, 8, 9) while improperly quoting a variety of court cases and offering nothing in evidence with which to dispute the judgments. The District Court offered her ample opportunity to contest the charges, which she declined to do.

        25. Debtor asserts Plaintiffs' list of costs "is without any substantive documentation" (see Motion To Dismiss Page 2, 10) while not specifically disputing any of the list of costs and never offering any "substantive documentation" of her own in contradiction.

        26. Debtor then asserts no proof of claim has been received by her, claiming a violation of Rule 3001 of the FRBP, (see Motion To Dismiss Page 2, 11) while omitting that all claims against her were filed and adjudicated in state courts years before she sought bankruptcy protection and well before the FRBP applied to her.

        27. Debtor alleges no fraud in connection with the Plaintiffs' claim however the District Court specifically noted damages against Barbara Robbins for violating the Colorado Consumer Protection Act (fraud) and awarded costs and legal fees (see Complaint Attachment #A page 1).

        28. Debtor continually asserts that plaintiffs are lying, and that their extensive documents submitted in evidence are not relevant, while all the court has to do is simply take her word for all matters.

        29. Debtor makes the statement that: "The claim at bar is a default (failure to defend) judgement" (see Motion To Dismiss 6). This is not true. The only default entered in the case of Northstar Companies v. Meadors and Dudnikov, 01CV120, was the Motion To Deliver Certificate of Origin, entered on July 9, 2002, by Judge Plotz in Park County (see Reply, Attachment #20, page 3, Event ID #25, #26, #27), where the Court entered a default order concerning the certificate of origin.

        Neither of the judgments assessing liability against the NorthStar Companies on October 8, 2002 (see Reply, Attachment #20, page 3 last two lines, Event ID #36) or against Barbara Robbins personally on May 6, 2004 was a default judgment (see Complaint, Attachment #A).

        As shown in the Order holding Barbara Robbins personally liable (see Complaint, Attachment #A, page 3), the Court specifically noted:

        "having reviewed the file and the Motion of Judgment Creditor, the responses of Barbara A. Robbins, the Trial Memorandum of the Judgment Creditor, and finds and orders as follows:" (emphasis added).

        The Court notes several times the defenses of Barbara Robbins, and the fact that she filed "documents and pleadings", and ruled against her. The Creditor did not FAIL TO DEFEND the motions; she simply failed to appear at the hearings, the dates of which she was fully aware. NOWHERE in the judgment is the word "default" used or hinted at.

        30. Debtor asserts "Claims Against Debtor Must Be Proven" (see Motion To Dismiss, 7 Title) along with "This Debtor did not fail to plead or defend, but was denied the opportunity to present evidence at hearing that would have eliminated the default" (see Motion To Dismiss, 7).

        Debtor was not DENIED the opportunity to plead. She did plead as she admits several times. Debtor did not avail herself of the opportunity to attend hearings. This is not grounds for having the judgments overturned at a later date. She was fully aware of the correct date of the hearing and could have attended. Barring that, she could have petitioned the District Court for a new hearing, or for the Court to reconsider, or to the Court for a new trial, or appealed. She did none of these.

BASIS FOR DENIAL OF SUMMARY JUDGMENT

        31. Judgment Was Based Upon State Law. The dismissals sought by Debtor is of an action pled and properly adjudicated, and finalized, two years ago, in state court actions based upon state laws.

        32. Debtor Has Not Attempted To Exhaust Any Or All Available State Remedies before taking the issue into federal court. Nowhere in Debtor's pleading is there any mention of the Debtor asking the district court to reopen the default judgments, or for rehearing, or for an appeal, or that the state courts were prejudiced against her. Debtor has not attempted any timely redress in state court and therefor cannot now seek relief in federal court. No justice is served by rewarding the failure of the Debtor to pursue any and/or all available remedies with a federal review.

        33. There Was No Default Judgment. Judgments made against Debtor were after the Court reviewed pleadings made by the Debtor, pleadings she has acknowledged making, and that the Court stated it reviewed. Debtor does not address or contest the Default Judgment concerning the Certificate of Origin, the only default or default judgment in the court records (see Reply, Attachment #20).

        34. Debtor has created a new category, "a failure to appear default judgment" (see Motion To Dismiss, page 3, 3 Summation), in an attempt to justify her previous failures in the District Court.

CAUSES OF ACTION NOT ADDRESSED

        35. In the Motion To Dismiss, Debtor has failed to address the Causes of Action stated in the Memorandum Supporting Complaint filed by Plaintiffs:

A. Debtor knowingly and fraudulently made a false oath or account, a violation of U.S.C. 727(a)(4)(A).

        36. Nowhere in the Motion To Dismiss does the Debtor address this allegation or offer evidence with which to refute it.

B. Debtor knowingly and fraudulently presented or used a false claim, a violation of 11 U.S.C. 727(a)(4)(B).

        37. Nowhere in the Motion To Dismiss does the Debtor address this allegation or offer evidence with which to refute it.

C. Debtor has failed to explain satisfactorily, before determination of denial of discharge, any loss of assets or deficiency of assets to meet the debtor's liabilities, a violation of 11 U.S.C. 727(a)(5).

        38. Nowhere in the Motion To Dismiss does the Debtor address this allegation or offer evidence with which to refute it.

D. The granting of relief would be a substantial abuse of the provisions of Chapter 7 as allowed under 11 U.S.C. 707(b).

        39. Nowhere in the Motion To Dismiss does the Debtor address this allegation or offer evidence with which to refute it.

E. The Debtor filed the petition in bad faith, a violation of 11 U.S.C. 707(b)(2)(A).

        40. Nowhere in the Motion To Dismiss does the Debtor address this allegation or offer evidence with which to refute it.

CONCLUSION

        41. As Plaintiffs have shown, there was no basis for either the Motion To Dismiss or the Motion to Vacate. ALL DOCUMENTS referenced by the Plaintiffs as proof of their claims have already been submitted to this court as attachments, none of which were challenged or disputed by the Debtor. Both motions are frivolous, unsupported by proof, and a waste of the Court's time and resources.

        42. Debtor doesn't even bother to bolster her claims with a single declaration or other shred of documentary evidence. Since Debtor's pleadings are bereft of anything approximating a "fact," in the absence of any facts from Debtor, according to the rules, this Court has no option but to "accept plaintiffs' allegations as true." Reuber v. United States, 750 F.2d 1039, 1061-63 (D. C. Cir. 1984)

        43. For the reason presented above, Plaintiffs request this Court speedily deny Debtor's Motion To Dismiss.

        44. As outlined in Standing Order 2004-1-SBB (II)(B), Plaintiffs note that the Debtor is not allowed a Reply to this response without leave of the Court.

        Respectfully submitted this 5th day of May, 2006.

        __________________________________________
Karen Dudnikov

        __________________________________________
Michael Meadors

Karen Dudnikov Michael Meadors
3463 Maskoke Trail P.O. Box 87
Hartsel, CO 80449
303-913-6075

[an error occurred while processing this directive]