Dismissal

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NOTICE OF HEARING AND PLAINTIFF’S MOTION FOR ORDER OF DISMISSAL -

JORDAN RAMIS PC Attorneys at Law

1499 SE Tech Center Pl Ste 380 Vancouver WA 98683

Telephone: 360.567.3900 Fax: 360.567.3901 51333-72533E 1351621_1.DOC\KG/10/1/2015

Russell D. Garrett, WSB # 18657 JORDAN RAMIS PC 1499 SE Tech Center Place, Suite 380 Vancouver, WA 98660 Telephone: (360) 567-3900 Fax: (360) 567-3901 E-mail: [email protected]

Attorney for Chapter 7 Trustee

Hon. Paul B. Snyder Chapter: 7 Location: 500 W. 12th St. 2d Fl. Vancouver, Washington Hearing date: December 1, 2015 Time: 9:00 A.M. Response date: November 24, 2015

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF WASHINGTON

AT TACOMA In re MARK A. LEONARD, Debtor.

Case No. 13-43836-PBS Adversary Proc. No. 14-04061-PBS NOTICE OF HEARING AND PLAINTIFF’S MOTION FOR ORDER OF DISMISSAL

RUSSELL D. GARRETT, CHAPTER 7 TRUSTEE, FOR THE ESTATE OF MARK A. LEONARD, Plaintiff, v. MARK A. LEONARD, Defendant.

TO: DEFENDANT, MARK A. LEONARD, THROUGH HIS ATTORNEY OF RECORD AND

PARTIES IN INTEREST

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Case 14-04061-PBS Doc 21 Filed 10/01/15 Ent. 10/01/15 13:55:49 Pg. 1 of 9

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PLEASE TAKE NOTICE that Plaintiff’s Motion for Order of Dismissal, dismissing the

within adversary proceeding, will be heard on December 1, 2015, at 9:00 A.M. before the

Honorable Paul B. Snyder, United States Bankruptcy Court, Federal Building, 500 W. 12th,

Second Floor, Vancouver, Washington, and the Clerk are requested to note the motion on the

motion docket for that day.

YOU ARE FURTHER NOTIFIED that if you oppose the motion, you must file your

written response with the Clerk of the bankruptcy court, serve two copies on the Judge’s

chambers, and deliver copies to the undersigned and the United States Trustee’s Office NOT

LATER THAN THE RESPONSE DATE, which is November 24, 2015. If you file a response

you are also required to appear at the hearing.

IF NO RESPONSE IS TIMELY FILED AND SERVED, the Court may in its discretion,

GRANT THE MOTION PRIOR TO THE HEARING WITHOUT FURTHER NOTICE and

strike the hearing.

MOTION FOR ORDER OF DISMISSAL OF ADVERSARY PROCEEDINGS

The Plaintiff, Russell D. Garrett, Chapter 7 Trustee for the Estate of Mark A. Leonard

(“Plaintiff’), respectfully moves this Court for an Order dismissing all claims asserted against

Mark A. Leonard (“Defendant” or “Debtor”) in the adversary proceeding entitled Russell D.

Garrett, Chapter 7 Trustee, For the Estate of Mark A. Leonard v. Mark A. Leonard, Adv. Proc.

No. 14-04061-PBS.

On June 7, 2013, the Debtor filed a Chapter 7 petition for relief under the Bankruptcy

Code. Plaintiff filed the present adversary complaint on February 20, 2014, requesting denial of

discharge pursuant to 11 U.S.C. § 727. Trial is currently scheduled for October 5, 6, 7, or 8,

2015.

Plaintiff applies for an order dismissing the above adversary complaint for denial of

discharge under § 727(a) of the Bankruptcy Code on the grounds that Plaintiff has decided, after


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reviewing the record no purpose is served by spending further estate resources to prosecute this

case. The claims are not iron-clad, the Trustee has engaged in extensive discovery for assets,

and there are no other Plaintiffs in this case. The FDIC dismissed its claims several months ago,

before the Trustee had completed discovery. This motion is based upon the within points and

authorities.

POINTS AND AUTHORITIES

Rule 7041, of the Federal Rules of Bankruptcy Procedure, governs the dismissal of

adversary proceedings and states:

Rule 41 of the F.R.of Civ. P. applies in adversary proceedings, except that a complaint objecting to the debtor’s discharge shall not be dismissed at the plaintiff’s instance without notice to the trustee, the United States trustee and such other persons as the court may direct, and only on order of the court containing terms and conditions which the court deems proper.

See Fed. R. Bankr. P. § 7041.

Further, “[d]ismissal of a complaint objecting to discharge raises special concerns

because the plaintiff may have been induced to dismiss by an advantage given or promised by

the debtor or someone acting in his behalf.” Advisory Committee Report. In this instance, no

inducement has been offered the Plaintiff by the Debtor or any other party. However, the

Trustee has entered into a Compromise and Settlement with the debtor, under which the debtor

will pay $18,000.00 in return for the Trustee’s claims for turnover of certain alleged assets. This

Compromise and Settlement will be filed as a separate motion.

While voluntary dismissal under F.R.C.P. 41(a)(2) “lies within the sound discretion of the

trial court,” when exercising its discretion the court should consider the best interests of the

defendants, for the rule exists chiefly to protect them. In re Lansberry, 177 B.R. 49, 57 (Bankr.

W.D. Pa. 1995). Here, as in Lansberry, Debtor will not be prejudiced by the dismissal of the

complaint against them, but will be spared the expense of defending a lawsuit objecting to their


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discharge as will the creditors of the estate be spared from the cost or expense.

Wherefore, Plaintiff respectfully requests that the motion to dismiss the adversary

complaint be granted, with each party responsible for its own attorneys’ fees, costs, and

disbursements.

Dated this 1st day of October, 2015. JORDAN RAMIS PC Attorneys for Plaintiff By: /s/ Russell D. Garret Russell D. Garrett, WSBA # 18657

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DECLARATION OF RUSSELL D. GARRETT IN SUPPORT OF PLAINTIFF’S MOTION TO DISMISS ADVERSARY CASE – Page 1




Russell D. Garrett, WSB # 18657 JORDAN RAMIS PC 1499 SE Tech Center Place, Suite 380 Vancouver, WA 98660 Telephone: (360) 567-3900 Fax: (360) 567-3901 E-mail: [email protected]

Attorney for Chapter 7 Trustee

Hon. Paul B. Snyder Chapter: 7 Location: 500 W. 12th St. 2d Fl. Vancouver, Washington Hearing date: December 1, 2015 Time: 9:00 A.M. Response date: November 24, 2015



Case No. 13-43836-PBS Adversary Proc. No. 14-04061-PBS DECLARATION OF RUSSELL D. GARRETT


I, Russell D. Garrett, declare and state as follows:

1. I am the Chapter 7 Trustee for the Estate of Mark. A. Leonard in the above-

referenced case.

2. On February 20, 2014, I filed an adversary proceeding, as Adv. Proc. No. 14-

04061-PBS, which requests denial of discharge Debtor’s discharge. The adversary proceeding

was filed in concert with the FDIC’s nearly identical case on identical claims. The FDIC


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DECLARATION OF RUSSELL D. GARRETT IN SUPPORT OF PLAINTIFF’S MOTION TO DISMISS ADVERSARY CASE – Page 2




decided to dismiss its claims several months ago while pending discovery, which would benefit

the estate, was almost underway. That discovery helped lead to both the Trustee’s decision not

to further pursue this adversary case and to compromise and reconsider the claims against the

Debtor for turnover.

3. Plaintiff has not received any consideration, monetary or otherwise, in requesting

dismissal of its adversary complaint.

I HEREBY DECLARE THAT THE ABOVE STATEMENTS ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF AND THAT I UNDERSTAND THE STATEMENTS ARE MADE FOR USE AS EVIDENCE IN COURT AND SUBJECT TO THE PENALTY OF PERJURY.

Executed on this 1st day of October, 2015.

JORDAN RAMIS, P.C.

/s/ Russell D. Garrett

RUSSELL D. GARRETT, WSBA #18657 Chapter 7 Trustee


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[PROPOSED] ORDER ON DEFENDANT’S MOTION TO DISMISS ADVERSARY PROCEEDING – Page 1






Case No. 13-43836-PBS Adversary Proc. No. 14-04061-PBS [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO DISMISS ADVERSARY PROCEEDING


THIS MATTER came before this court on the Plaintiff’s Motion to Dismiss Adversary

Proceeding. The Court having reviewed the Plaintiff’s Motion, finding good cause, there having

been no objection filed to the Motion, and the Court being fully advised in the premises:

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[PROPOSED] ORDER ON DEFENDANT’S MOTION TO DISMISS ADVERSARY PROCEEDING – Page 2




NOW, THEREFORE, IT IS HEREBY ORDERED that the Plaintiff’s Motion for Order

to Dismiss Adversary Proceeding in its entirety is granted. Each party shall be responsible for its

own attorneys’ fees, costs and disbursements.

////END OF ORDER////

Presented by: JORDAN RAMIS, P.C. /s/ Russell D. Garrett RUSSELL D. GARRETT, WSBA #18657 Chapter 7 Trustee


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DECLARATION OF SERVICE JORDAN RAMIS PC Attorneys at Law



DECLARATION OF SERVICE

I hereby certify that on the date shown below, I served a true and correct copy of the

foregoing NOTICE OF HEARING AND PLAINTIFF’S MOTION FOR ORDER OF

DISMISSAL OF ADVERSARY CASE, DECLARATION OF RUSSELL D. GARRETT IN

SUPPORT OF PLAINTIFF’S MOTION TO DISMISS ADVERSARY PROCEEDING, and

PROPOSED ORDER ON PLAINTIFF’S MOTION TO DISMISS ADVERSARY

PROCEEDING on:

All ECF participants All Creditors

by first class mail, postage prepaid.

by hand delivery.

by facsimile transmission.

by facsimile transmission and first class mail, postage prepaid.

X by electronic transmission.

by electronic transmission and first class mail, postage prepaid.

DATED: October 1, 2015. /s/ Russell D. GarretRussell D. Garrett, WSBA # 18657

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Chapter 7 Trustee


Dismissal

Documents

Transcript of Dismissal