In an Opinion in a Chapter 7 bankruptcy case from the United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division, Judge John K. Olson cites several literary references and song in dealing with Kenneth A. Frank, an unrelenting pro se unsecured creditor. Judge Olson’s impassioned Opinion arose from the Court’s Order to Show Cause, entered May 26, 2016, which directed Mr. Frank to show cause why he should not be sanctioned pursuant to 28 U.S.C.S. § 1927 for unreasonably and veraciously multiplying the proceedings in the bankruptcy case and related Adversary Proceeding.
The result was not good for Mr. Frank, who was held personally liable for the excess costs, expenses, attorneys' fees and other damages reasonably incurred because of his misconduct.
Judge Olson refers to the nightmare of the case being clogged with unreasonable motions and appeals filed by Frank, none of which had sufficient basis in law or in fact. Judge Olson states that Franks repeatedly “filed documents so voluminous, winding, and fantastical that reviewing each one was an adventure of Baumian proportions.” In Footnote 37, the judge expounds:
L. Frank Baum’s seminal work, The Wonderful Wizard of Oz,
follows a young farm girl named Dorothy on her adventures along
a yellow brick road in the magical land of Oz. Along her way,
Dorothy is joined by a tin man who is in search of a heart, a
cowardly lion who seeks courage, and a scarecrow who lacks a brain.
The team encounters all sorts of troublesome nonsense, from flying
monkeys to opiatic flowers to ornery doormen. In the end, Dorothy
finds that there really is no place like home and suddenly awakens
back in her bed in Kansas: it had all been just a dream. If only the
same could be said about each and every frivolous filing from Frank.
Judge Olson continues later in the Opinion:
Although Frank claimed to have documentary evidence in support of his allegations, not a single such document was ever produced. Those frivolous and often outrageous actions have repeatedly multiplied these proceedings. This type of behavior cannot be allowed to continue and cannot be ignored. Each and every time that Frank filed a preposterous motion, this Court and the Trustee were inevitably forced to follow Frank "through the looking glass" and "down the rabbit hole,"38 where Frank believes that some broad conspiracy has been foisted upon him by the Trustee. In reality, the only conspiracy here seems to be one of Frank's creation: if he won't get paid, then he will drain the assets of the estate to the point that no unsecured creditor will get anything, even though the deus ex machina appeared in this saga in the form of an unexpected $17 million purchase back in 2013. The curtain should have fallen then.
Footnote 38 as referenced above provides:
In Alice’s Adventures in Wonderland (Lewis Carroll, 1865), a girl
named Alice falls down a rabbit hole and enters a strange world
filled with creatures as a tardy rabbit, a chain-smoking caterpillar,
and a Hatter sentenced to death for “murdering time.” Alice
searches for her way home, but an unfortunate incident involving
croquet, roses, and a devious cat ironically lead her to a trial where
she can produce no evidence whatsoever. As with the Wizard of Oz,
this tale is revealed to be nothing but a girl’s dream, and all is well
in the real world. Unfortunately, there is no “waking up” from the
nightmare that Frank has caused this Court, the Trustee, and the
In addition to delineating the unnecessarily burdensome nature of Mr. Frank’s conduct, the Court emphasized the three years of litigation prompted by Frank had cost the estate, the trustee, the estate's professionals, and the Court uncounted hours of pointless work and aggravation despite the Court giving Frank opportunity after opportunity to stop his evidence-free assertions of wrongdoing. The Court even gave Frank what it called a "Come to Jesus" talk at the show cause hearing on June 29, 2016, which Judge Olson summarized as “the clearest advice the Court could imagine any judge anywhere giving to a litigant to straighten up and fly right.” Judge Olson then included in Footnote 39 of the Opinion the following lyrics:
Nat King Cole and Irving Mills, Straighten Up and Fly Right, 1943:
A buzzard took a money for a ride in the air.
The monkey thought that everything was on the square.
The buzzard tried to throw the money off his back.
The monkey grabbed his neck and said, “Now listen, Jack,”
Straighten up and fly right, straighten up and fly right,
Straighten up and fly right, cool down paper, don’t’ you blow your top.
Ain’t no use in divin’. What’s the use of jivin’?
and cool down, don’t blow
The buzzard told the money, “You are chokin’ me!
Release your hold and I’ll set you free.”
The monkey looked the buzzard right dead in the eye and said
“Your story’s so touching, but it sounds like a lie.”
As the Opinion described: Frank didn't.
Lexis subscribers can access the opinion at: In re Ocean 4660 LLC, 569 B.R. 850, 878 (Bankr. S.D. Fla. Aug. 1, 2017)Lexis Advance subscribers can find the opinion at: In re Ocean 4660 LLC, 569 B.R. 850, 2017 Bankr. LEXIS 2143
Post author: Gabriela N. Nolen, Case Law Editor
Contributors: Laura McFarland-Taylor, Case Law Editor and Lisa G. Helker
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