Nickless, Trustee v. Kessler et al

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS

IN RE : CHAPTER 7

TATYANA A. BERMAN :
DEBTOR : CASE NO.04-45436-JBR

DAVID M. NICKLESS, CHAPTER 7 TRUSTEE, :

PLAINTIFF, :

V. : AP. NO. 05-4225
AMALIA KESSLER and :

JOHN DOES 1-3,

DEFENDANTS.

MEMORANDUM OF DECISION ON MOTION OF DAVID M. NICKLESS, TRUSTEE,
FOR SANCTIONS FOR WILFUL VIOLATION OF THE AUTOMATIC STAY AND
FOR VIOLATION OF THIS COURT’S ORDER OF DECEMBER 11, 2006 (DOCKET #
397)
This matter came before the Court on a hearing on December 28, 2006 on the Motion of
David M. Nickless, Trustee, for Sanctions for Willful Violation of the Automatic Stay and for
Violations of this Court’s Order of December 11, 2006 (Docket #397) and Amalia Kessler and
Sam Abbas’ Response, styled “Motion of Defendants in Opposition to Motion for Wilful
Violation of the Automatic Stay - under Precludi Non Doctrine of Divested Jurisdiction under
Probate Exception of the Federal Jurisdiction - Telephonic Hearing Requested”( Docket #403).
Following the hearing at which the Court found that Kessler and Abbas continued to violate the
automatic stay and were in contempt of this Court’s orders, the Court again required Kessler and
Abbas to dismiss certain actions which the Court found they commenced in violation of the
automatic stay by January 8, 2007 or face incarceration and, in Kessler’s case, a fine of $1,000 a

day until the contempt is purged (docket #404). Because Kessler and Abbas are pro se and, in

light of Kessler’s misplaced reliance that her age and physical condition will somehow shield her

from the sanctions which the Court intends to impose if the contempt continues, the Court

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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chroni < id A tions not only to explain why it issued such an extraordinary
order but also to emphasize to Kessler and Abbas that the Court is prepared to impose these
sanctions if they continue with their current course of action.' That behavior ranges from filing
inaccurate and repetitive pleadings, to dilatory tactics to avoid discovery, to wilfully defying
orders of this Court. Indeed their behavior is extreme and includes misrepresenting to this Court
the orders of other courts; thus the Court intends to provide copies of this Memorandum to the
other courts where the Court believes actions commenced by Kessler and Abbas are pending lest
this Court’s orders be misrepresented.
FACTS AND HISTORY OF THE CASE

In September 2004 Tatyana Berman (the “Debtor”), who was bequeathed a remainder
interest in property in Santa Monica, California (the “Property”) by her now-deceased cousin (the
“Testatrix”), filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code.
David Nickless (the “Trustee”) was appointed Chapter 7 trustee when the original trustee

resigned. Kessler, who is 84 years old, was bequeathed a life estate in the Property. A few

months after the Trustee’s

ntment, he commenced the above adversary proceeding against

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Kessler, co-executor of the Testatrix’s estate, and John Does, unknown individuals believed to be

residing at the Property. The Trustee seeks a declaratory judgment and turnover of the Property.

In essence he alleges that Kessler violated the terms of the will by not paying the ongoing

'As the Court was preparing to issue this Memorandum of Decision, Kessler and Abbas
filed, by telecopier, an appeal of the Order of December 28, 2006 (docket #407). They have not
requested a stay of the Order although in the past, they have sought stays pending appeal. As
discussed infra, when the Court did grant a stay of the order permitting the Trustee to sell the
Property, the stay was conditioned upon the posting of a bond. The bond was never posted and
the stay expired on December 23, 2006.

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expenses of the Property’ and that she violated the will’s anti-contest provision by fraudulently
recording a deed purporting to convey full title to the Property to herself.* On September 20,
2005 Kessler, acting pro se, filed an answer (docket #9) replete with inconsistencies and non
sequiturs. For example she denied that anyone else resides at the Property with her but later in
the answer stated that Sam Abbas has been “full time on [the Property] since 2000;* she
acknowledged that she received a life estate in the Property but then claimed to own the Property
by adverse possession. Kessler asserted that she did not challenge the will during the Testatrix’s
life or before the probate court in California and that she is entitled to the rents and profits of the
Property when there is no evidence any such rents or profits exist. In the answer she also claimed
that all taxes have been paid, a statement which later in these proceedings she admitted is not

correct.’ Kessler also asserted a counterclaim against the Trustee in which she sought to recover

The will states in relevant part that
my friend, Amalia Kessler, be allowed to remain living in [the
Property] so long as she desires during her lifetime, rent free. Any
expenses in connection with [the Property], such as utilities,
insurance, taxes, etc. are to be paid by Amalia Kessler while she
has use of [the Property. ]}

*The will provides
If any person shall contest this will or any of its parts or provisions
or seek legal action to obtain any part of my estate contrary to the
provisions hereof, I specifically direct that such person is not to
receive any share, part or benefit of or from my estate, and any
share or interest given to such person shall be revoked and shall be

paid as though such person had died, without issue, before my
death.

“Based upon this statement, it appears that Abbas is one of the John Does. He has never
filed an answer, however.

°At several points during this proceeding, Kessler acknowledged that she had not paid the
real estate taxes and alleged that she recorded the deed in order to qualify as the owner of the

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Kessler did not receive from the Testatrix’s estate.°

The Trustee moved to dismiss the counterclaims or to require Kessler to file a more
definite statement (docket #10). The Court scheduled this motion for an October 20, 2005
hearing. Kessler then filed a “Motion to Dismiss on the Grounds of Forun Non
Conviens”(docket # 13), which the Court also scheduled for hearing on October 20, 2005 and,
sua sponte granted permission for Kessler to attend the hearing by telephone. On October 4,
2005 Kessler sought a continuance of the hearing but only as to the Trustee’s motion to dismiss
the counterclaims until November 23, 2005; among other things she stated that she needed to
consult counsel. The Court denied this request. Shortly thereafter Kessler filed a motion to
dismiss the adversary proceeding for lack of service and jurisdiction on the grounds that the
Trustee served the summons and complaint by mail,’ along with a memorandum of law and an
affidavit (docket #20 and #21). At the October 20, 2005 hearing, which both Kessler and Abbas
attended by telephone, the Court directed Kessler to file a more definite statement of her

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be dismissed (docket #24 and #26). Kessler did not appeal these orders.

Kessler next filed a motion to dismiss the adversary proceeding on the grounds that it was

Property to defer the payment of real estate taxes under a program designed to assist elderly
homeowners. At other times, she alleged that the Testatrix promised to leave the Property to her
and thus she is entitled to ownership of the Property. In any event taxes are accruing, along with
interest, contrary to the provisions of the will. See note 2, supra.

° Apparently there was an insufficient amount in the Testatrix’s estate to pay the cash
bequests in full.

"Fed. R. Bankr. P. 7004(b) provides for nationwide service of process by first class mail.

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barred by the statute of limitations and fraud (docket #33).* The pleadings, however, recite many
of the same arguments previously raised, including that Massachusetts is not the appropriate
forum for this action. For the first time, Abbas, as well as Kessler, signed the pleadings. The
Court held a telephonic hearing and denied the motion with the following notation: “DENIED.
FOR THE REASONS SET FORTH ON THE RECORD, THE MOTION (WHICH IS BARELY
INTELLIGIBLE) IS DENIED” (docket #53). The parties did not appeal this order.

At approximately the same time, the Trustee filed a motion to extend the discovery
deadline (docket #35) set by the Court’s pretrial order as Kessler had not responded to
interrogatories. In response to the Trustee’s motion, Kessler filed a pleading styled as “Answer
and Objections of the Defendants to Plaintiffs [sic] First Set of Interrogatories” (docket #40) and
signed by Kessler and Abbas. Despite the fact that Kessler and Abbas continued to represent
themselves, they argued that the discovery sought “[i]mproperly invades the attorney
workproduct privilege Since [sic] it seeks mental impressions of defendants [sic] counsel by
asking for all information Available [sic] to defendants.” They repeatedly invoked a privilege
unknown to this Court and perhaps the legal community at large: “the taxpayers privilege.”” The
Court heard and allowed the Trustee’s motion for an extension at the December 15, 2005
hearing.

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‘Because of the confused and rambling motion and memorandum it is unclear whether
Kessler was referring to the statute of frauds or the intentional tort of fraud.

*Since the “Answer and Objection” fails to provide the interrogatories, the Court can only
surmise that the interrogatories were attempting to elicit information about the real estate taxes
and perhaps Kessler’s ability to pay them.

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Kessler. This lead to the Court sua sponte issuing an order requiring Kessler to either represent
herself or hire counsel (docket #57).'° On December 27, 2005, Kessler and Abbas filed a notice
of appeal of this order (docket #65) and elected to have the appeal heard at the district court
(docket #66). This appeal was subsequently dismissed by this Court under District Court Local
Rule 203(A) (docket #175).

Two days before the scheduled December 15, 2005 hearing, Kessler and Abbas filed a
motion to withdraw the reference or abstain (docket #49) to which the Trustee objected (docket
#63). Acting without a hearing, on January 4, 2006 the Court denied the motion to withdraw the

reference to the extent it was really a motion seeking abstention.'' No appeal was taken. At the

"The Court also ordered Kessler to file a memorandum of law regarding her repeated
assertion that she is entitled to a jury trial in this declaratory judgment and turnover proceeding.
What she ultimately filed was a “Motion for an Inviolate Jury Trial Pursuant to Section 3 Article
1 of the State of California Constitution and the Seventh Amendment of the United States
Constitution (docket #71). It is a rambling pleading, full of inapplicable statements of law, that
does not support her claim of entitlement to a jury trial. Unfortunately this pleading is typical of
many filed by Kessler and Abbas. Their pleadings, which they generally sent to the Court by
telecopier, are often incomplete and repetitive, have attached surplus pages that appear to have
nothing to do with the specific pleading, and contain statements of law that are recited out of
context, sometimes incorrect, and often are irrelevant to the issues before the Court. Kessler has
filed notices of appeal that the Clerk’s Office, after diligent attempts, cannot link to any order
while at other times she files notices of appeals that purport to appeal many of the orders for
which the time to appeal has long since expired, orders from which she has already taken an
appeal, and, in some cases, even orders for which an appeal has been dismissed. The Court has
tried to construe her pleadings in such a way as to preserve her appeals whenever possible. See,

2006 (docket #160).

e.g. Order of February 16, 2006 (
''The motion specifically requested relief under the Pul/man abstention doctrine.
Pullman abstention requires a federal court to abstain when confronted with an unsettled
question of state law that must be resolved prior to the resolution of the federal issue. Railroad
Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941). As the Supreme Court has stated, one of
the primary types of federal abstention, “referred to as Pullman abstention, involves an inquiry
focused on the possibility that the state courts may interpret a challenged state statute so as to
eliminate or at least to alter materially, the constitutional question....” Ohio Bureau of
Employment Services v. Hodory, 431 U.S. 471, 477, 97 S.Ct. 1898, 1902-03, 52 L.Ed.2d 513

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same time the Court transmitted the motion to the district court so that the district court could deal
with the request to withdraw the reference. On February 17, 2006 the district court denied the
motion to withdraw the reference.

Shortly after the December 15, 2005 hearing the parties again engaged in a discovery
dispute when Kessler, this time without Abbas, filed a unilateral report attesting to a conference
under Bankr. R. Civ. P. 7026(f) with a proposed discovery plan (docket #60). The Trustee
immediately moved to strike (docket #61) as the report was not a joint report as called for under
the Court’s pretrial order and, more importantly, the Trustee did not agree to the proposed
discovery plan and did not participate in preparing the plan. Moreover, he stated that Kessler
never responded to the proposed joint report he sent her. The Trustee also filed a motion to
compel discovery (docket #62), noting that Kessler never complied with the automatic disclosure
requirements and efforts to resolve his ongoing discovery disputes with her proved unsuccessful.
The Court acted on these motions without a hearing and on January 4, 2006 ordered Kessler to
make the required automatic disclosures, to respond to the Trustee’s discovery requests,'? and to
file a memorandum of law in support of her alleged privileges. The order also contained a

1.8

statement encouraging Kessler to retain counsel.'’ Almost immediately Kessler responded by

(1977).

'*On January 12, 2006, Kessler appealed the order compelling discovery and elected to
have the appeal heard in the district court. The Court waived the filing fee for the appeal. On
January 3, 2007 the district court dismissed this appeal because Kessler failed to file a brief by
the extended deadline she had requested and then failed to respond to the court’s order to show
cause why she failed to comply with that deadline.

''The Court notes that recently more parties have been attempting to represent themselves
even in rather complex matters and as a result, the Court frequently and often repeatedly urges

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filing a series of motions: one for a protective order alleging that she should not be compelled to
respond to discovery or that discovery be limited to a written deposition because she was elderly,
ill, on a fixed income, and had no attorney representing her (docket # 87); one again seeking to
transfer the adversary proceeding to California (docket # 90); and one seeking to have me
disqualify myself on the basis of several false allegations, including that I am biased against “out
of towners,” that I hold a financial interest in this litigation and its outcome, and that I have had ex
parte communications with the Trustee (docket #85). The motion to transfer venue was denied
without a hearing by order of January 12, 2006 (docket # 98) as the motion raised the same
arguments previously rejected in this Court’s earlier order denying the motion to dismiss, an order
which had not been appealed. On January 27, 2006 Kessler filed an untimely appeal (docket
#113) of the January 12, 2006 order denying the motion to transfer venue, along with an election
to have that appeal heard by the district court. That appeal was dismissed by this Court pursuant
to LR, D. Mass Rule 203(A) (docket #120).

On January 12, 2006 the Court, and by that term I am referring to myself in my official
capacity, also denied the motion to disqualify me without a hearing (docket #97). Given the
seriousness of Kessler’s allegations that the Court has, again specifically meaning I have, acted

improperly in this matter, the Court wishes to be clear that there have been several colloquies

them to retain counsel. Kessler apparently misunderstood the Court’s initial urging as she asked
orally and in writing to have this Court appoint counsel and that the Court waive her payment of
attorneys’ fees. Yet, as discussed elsewhere, when Kessler had not one but two premier
bankruptcy attorneys represent her, she refused to cooperate with them and commenced
proceedings pro se causing both attorneys and their law firms to ask and obtain permission to
withdraw from this case, thus leaving Kessler once again unrepresented.

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regarding these charges with Kessler and Abbas during various hearings."* To ensure that I do
not, and did not, hold any pecuniary interest in this litigation or have any relationship that might
appear as improper, I have questioned Kessler and Abbas on several occasions and asked them to
describe the source of their concern so that I may take appropriate action, including recusing
myself if necessary. Their only explanation is that the Trustee earns a commission from the
bankruptcy estate and I must rule on his commission and attorneys’ fees. The only basis for their
accusation of ex parte communications is that I, as noted, have ruled on some of their motions
without a hearing. As I have explained to Kessler and Abbas on a number of occasions, that the
Trustee earns a commission as set forth in the Bankruptcy Code and that I must review his fees
does not render either of us unable to carry out our respective responsibilities. I have ruled on
motions without a hearing when I believed it was appropriate to do so. As I have explained to
Kessler and Abbas, a bankruptcy court is not required to hold a hearing on every motion that
comes before it. That any court rules on a matter without hearing oral arguments should not be
seen as a nefarious plot to deny litigants their day in court nor as evidence that a court is having ex
parte contact with another party. Despite this Court’s efforts to explore Kessler and Abbas’
concerns and despite this Court’s attempts to explain that their proffered “reasons” why they

believe they are being treat unfairly do not support the charges they have hurled at this Court and

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the Court will not detail the attacks any further, it notes that much of Kessler’s and Abbas’

discourse has devolved into ad hominem attacks and the invectives hurled by them have become

‘At the first hearing held on October 20, 2005, Kessler and Abbas argued that courts in
Massachusetts would be prejudiced against them. See transcript of October 20, 2005 hearing
(docket #168).

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increasingly inappropriate."

Also acting without a hearing, on January 12, 2006 the Court granted so much of Kessler’s
request that sought additional time to respond to the outstanding discovery. On February 2, 2006
Kessler filed a motion to stay the taking of her deposition and to quash the deposition notice
(docket # 129) on the grounds that she is elderly and the Trustee was deposing her as a form of
harassment.'° The motion was denied and she and Abbas were ordered to appear for their
depositions in California..'’ Kessler and Abbas never appeared for their depositions causing the

Trustee to ask for sanctions (docket #150). In response the Court issued its first orders to show

cause to Kessler (docket #158) and to Abbas (docket #157).'* The Court arranged for Kessler and

The Court mentions these attacks not as a basis for sanctions against Kessler and Abbas,
although frankly their behavior is sanctionable, but to give context to the Court’s ultimate
conclusion, supported by Kessler’s and Abbas’ own statements that they will do whatever it takes
to keep the Property. An example of Kessler’s and Abbas’ tirades against this Court can be
found in the transcript of the December 8, 2006 hearing (docket #390 at pp. 20-22).

'°The motion and accompanying papers suggest that Kessler and Abbas should both be
protected from discovery. Among the confused papers that constitute this pleading is a proposed
order for this Court to appoint a referee under California law, again on the grounds that the

Trustee is violating the law with the Court’s tacit approval.

"Kessler appealed this order (docket #143) and elected to have the appeal heard by the
district court. This Court dismissed the appeal pursuant to LR, D. Mass. Rule 203(a) when
Kessler failed to file a statement of issues or designation of the record (docket #173). Abbas did

nat anneal the ardaesr that he annear far hic dernrncitinn
not appeal the order that ne appear for his deposition.

'SDuring the interval between the time when the Court ordered that Kessler and Abbas
appear for their depositions and when they actually failed to appear, a series of additional
discovery disputes ensued. One point of mention during this period is that Abbas, who referred
to himself a Kessler’s guardian, was ordered to produce a certificate of appointment. Ultimately
all Abbas produced was his statement that he was is a “guardian de son tort.” He is not Kessler’s
guardian; he is, as Kessler noted in her original answer a friend who resides at the Property with
her.

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Abbas to appear by videoconference from the bankruptcy court located in Los Angeles, California
for a show cause hearing on March 23, 2006. Shortly before this hearing, Attorney Charles
Dougherty filed an appearance on Kessler’s behalf and appeared at the March 23, 2006 hearing.
Kessler and Abbas attended telephonically.’ Abbas argued that Kessler was ill on the day of the
scheduled deposition and he had to take her to the doctor’s.”” The argument does not address why
they failed to call the Trustee on February 6, 2006 when they were scheduled to be deposed. It
does not address why they failed to appear the next day although the Trustee left a message on
Kessler and Abbas’ answering machine that the Trustee was still in California and able to take
their depositions on February 7, 2006.*' More troubling is the fact that while the Defendants
argued that Kessler was ill and Abbas had to attend to her, they nevertheless filed a lawsuit
against the Trustee in the United States District Court for the Central District of California (CV

06-712-sjo (OPX)) on February 7, 2006, the very day they were to be deposed. The Court found

Kessler sought and obtained permission to attend telephonically. Abbas did not. In fact
Abbas only joined the hearing after the Court reminded Kessler that Abbas was also instructed to
appear for a show cause hearing. See transcript of March 23, 2006 hearing at pp. 2-5 (docket
#281).

*’Abbas represented that he told the Trustee to come to the doctor’s office to question
Kessler but the Trustee refused. The Trustee testified via affidavit that Abbas would not tell him
where the doctor’s office was located. The Court also notes that when it attempted to have the
order to show cause served on Abbas by Federal Express, as well as first class mail, the Federal
Express delivery person reported that he was told Abbas moved and left no forwarding address.
At the March 23, 2006 hearing Abbas denied that he made that statement and thought that a
neighbor might have said it. The Court finds Abbas’ statements regarding the offer he made to
have the Trustee question Kessler at her doctor’s office and who made the misrepresentation to
the Federal Express delivery person not credible.

*'As set forth in the Trustee affidavit and as he represented at the hearing, Abbas had
received the Trustee’s message but refused to appear on the grounds that he was again taking
Kessler to see her doctor. See Affidavit of David M. Nickless (docket #151) and Transcript at
pp16-19 (docket #281).

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both Kessler and Abbas in contempt of the order compelling them to appear for their depositions
in California and issued sanctions, including a sanction of $1,250 against Abbas (docket #202).
The sanction was to be paid by April 23, 2006. Abbas ignored this order leading the Court to
issue a further order requiring Abbas to pay the $1,250 sanction in $100 installments beginning
December 15, 2006, an order he also ignored.” Based upon Attorney Dougherty’s representation
that he had asked Kessler to arrange for dismissal of the California action against the Trustee, the
Court did not issue an order to show cause with respect to that lawsuit.”

Attorney Dougherty worked to resolve the discovery problems, amended some pleadings
and withdrew others filed by Kessler; in other words he attempted to assist Kessler in moving this

matter forward in a competent and professional manner. Attorney Dougherty withdrew and was

replaced by Attorney Daniel Glosband.* Attorney Glosband recently obtained permission to

>The Court issued a further order that Abbas make the first $100 payment by January 4,
2006 or he would be incarcerated for contempt. The first payment was then made.

Although the action is brought against the Trustee’s law firm, it seeks to deter him from
fulfilling his responsibilities to investigate the existence of assets of the Debtor and to liquidate
them. Most troubling is the assertion in the complaint that Abbas is entitled to title to the
Property.

“Glosband eventually succeeded Dougherty after the Court issued an order to show cause
(docket #274) against Dougherty, his law firm, Kessler, and Abbas for violating the automatic
stay by filing a lawsuit against the Trustee in the California Superior Court (Case No. SC
091077) essentially seeking to obtain control of the Property. At the show cause hearing, Abb
acknowledged that Dougherty and his law firm were not aware that Kessler and Abbas
commenced this action. Dougherty represented that Kessler would dismiss the action promptly
and thus he show cause orders were released as to all parties except Abbas. The hearing on the
Abbas show cause is scheduled for February 1, 2007.

This show cause order was issued contemporaneously with the “Order and Notice of
Evidentiary Hearing”(docket #275) in which the Court found that Dougherty, his law firm, and
Kessler violated the automatic stay by seeking and obtaining from the California probate court an
ex parte order revising, nunc pro tunc, its order on the distribution of the Testatrix’s estate issued
in 1992. The nunc pro tunc order, which the Court has declared void (docket #271), attempts to

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withdraw as Kessler’s attorney as she and Abbas persist in filing pleadings and commencing
actions pro se. The Court is aware of the enormous effort put forth by both Attorney Dougherty
and Attorney Glosband and their respective firms.

During the period when Attorney Dougherty represented Kessler, the Trustee filed a
motion for summary judgment (docket #228). Attorney Dougherty filed a similar motion in
Kessler’s behalf (docket #238). The Court abstained from the issue of whenever Kessler’s life
estate has been terminated or ought to be rescinded but granted essentially the rest of the
Trustee’s motion (docket #271). Specifically the Court authorized the Trustee to market the
Property, a remedy available under California law, and, if the Trustee did not undertake to have
the California probate court, or other court of competent jurisdiction, determine the status of
Kessler’s life estate, the Court stated it would conduct a hearing on the distribution of sale
proceeds. Kessler and Abbas were to vacate the Property only upon the consummation of a sale.
Kessler was also ordered to file a deed conveying the Property to the Trustee in his representative
capacity, subject to her life estate, essentially to correct the fraudulent deed she had previously
recorded, within 10 days of the Court’s order. Kessler sought a stay of the order granting
summary judgment and this Court granted that request but conditioned the stay upon the posting

ot a bond to offset the Property’s depreciation due to the mounting unpaid real estate taxes and

call into question whether the Debtor holds even a remainder interest under the will. See
“Memorandum of Decision” (docket #270) for an expanded discussion of these facts.
Dougherty, his law firm, and Kessler’s appeal from the “Order and Notice of Evidentiary
Hearing” is currently pending in the district court (Case No. 06-40240).

Kessler and Abbas have frequently represented that the Property is in poor condition.

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a bond. Despite several extensions of time in which to post a bond, no bond was ever posted and
the stay has expired. The time within which Kessler was to file a deed giving title in the Property
to the Trustee has also now expired. The Court is not aware that such a deed has been filed.

The most egregious acts committed by Kessler and Abbas are those related to the violation
of the automatic stay and the Court’s orders that they stop such behavior and dismiss the
offending actions. They have done neither. Kessler and Abbas did not dismiss California district
court action they commenced against the Trustee; that court dismissed the action for lack of
prosecution.*° Despite the dismissal, they continue to file pleadings in that action. They also have
instituted and/or continued a proceeding in the California probate court (WAP023025), they allege
that they have appealed orders of this Court to at least one court in California (Court of Appeal,
Second Appellate, Case No. B191667), and they refer to the case number (FP091077) which they
have pending somewhere against someone and apparently relates to this proceeding. The
difficulty and confusion is caused in part by Kessler and Abbas’ filing of various lawsuits and
pleadings without giving notice to anyone. They did, after the fact, file a motion for relief from
stay which also contained a resurrected request that this Court abstain from hearing this case
(docket #370) and that motion, along with others was set for hearing on December 8, 2006. At

that hearing it became clear to the Court that even the Trustee was having difficulty keeping track

*°A cursory review of the docket in the California federal court action (which appears as
docket #382 in this proceeding) reveals that Kessler and Abbas failed to respond to an order to
show cause issued by that court. Moreover their attempted appeal directly to the Ninth Circuit
Court of Appeals was dismissed by the district court as frivolous and not taken in good faith.
There is also a mandate, which Abbas mischaracterized as a remand, from the Ninth Circuit
dismissing a direct appeal but this Court cannot determine whether the mandate relates to the
same appeal dismissed by the district court because the pleadings filed by Kessler and Abbas are
difficult to track.

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of all the actions being prosecuted by Kessler and Abbas. Indeed at the December 8, 2006
hearing, the Trustee reported that he only learned of one of the actions that morning.

At the December 8, 2006 hearing this Court denied Kessler and Abbas’s motion for relief
and told them that they did not have the right to continue any of these lawsuits and ordered that
they all be dismissed. On December 11, 2006 the Court entered a supplemental order (docket

#387). That order provides:

Whereas this matter came before the Court for a hearing on
December 8, 2006 upon the Motion for Relief from stay and
Mandatory Absentation [sic] Under Probate Exception [docket
#370] filed by Amalia Kessler and Sam Abbas (hereinafter
“Movants”’) said Motion having been denied from the bench for
reasons set forth on the record, the Court hereby issues this
Supplemental Order to clarify its Order [Docket #383] in light of
the Movants’ pro se status. The Movants do not have relief from
stay and may not (1) institute any new litigation related to the
property located at 2912 Second Street, Santa Monica, California or
rights therein or (2) proceed with any existing litigation including,
but not limited to the California state court cases referenced in the
Motion [#B191667 and #WEP-023025] without first obtaining
authorization from this Court. The Court considers the Movants’
actions to be in violation of the automatic stay as discussed in a
previously-issued Memorandum of decision [Docket #270], which
is the subject of an appeal to the United States District Court of
Massachusetts. The Court will take such measures as may be
appropriate to enforce its Orders, including if necessary, imposition
of monetary sanctions and/or incarceration.

Kessler and Abbas did not appeal either the order of December 8 or December 11, 2006.
Nevertheless on or about December 15, 2006 Kessler and Abbas served the Trustee with a copy of
an amended complaint they served in the California district court action (06-00712sjo). In the
amended complaint they again seek equitable title to the Property. The Trustee filed an expedited

motion for contempt and on December 28, 2006 the Court held a hearing on this latest motion.

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This Court is cognizant that Kessler and Abbas face the loss of their use of the Property
and understands that this prospect is frightening for them. But it does not excuse the flagrant
disregard they have shown for the law and this Court’s authority. Although they disagree that
their actions violate the automatic stay, the law provides a proper avenue to pursue such
disagreement. Kessler and Abbas were free to seek reconsideration or file an appeal. They chose
neither course. Instead they are determined to do whatever it takes to remain in possession of the
Property and apparently to obtain title to the same, even by fraudulent means and even if it means
they ignore the clear language of the law and orders of this Court. The integrity of the judicial
system cannot countenance such behavior. Thus, faced with the ongoing defiant behavior of
Kessler and Abbas, the Court issued its December 28, 2006 order. Unless they obtain a stay of the
enforcement of the order or purge themselves of the contempt, the Court will have no alternative

but to impose the sanctions set forth in the order.

Dated: January 5, 2007

oel B. Rosenthal
United States Bankruptcy Judge
Y
CC: Amalia Kessler (by first class mail)
Sam Abbas (by first class mail)
David Nickless, Esq. (by CM/ECF)

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