ALLEGED DEBTORâS RESPONSE TO PETITIONING
CREDITORSâ MOTION FOR SUMMARY JUDGMENT - Page 15
See Exhibit D-3. Orders granted without due process are void and have no legal effect.
19
The
Fifth Circuit has also ruled that a defendant should be afforded a fair opportunity to secure
counsel of his own choice.
20
And due process typically will also include a reasonable
opportunity to conduct discovery.
21
Finally, the hearing held April 28, 2011 included no live
testimony; it is well established that a party not âafforded notice and an opportunity to be heard
on the motionâ has been denied the requirements of due process of law.
22
Baron was denied the
opportunity to be heard on how the district courtâs finding as to the excessive, unreasonable fees,
should impact the Courtâs granting of relief.
D. Baron Objects to Any Determination of the Claims of Insolvency on this Motion
Baron objects that the inclusion of the âinsolvencyâ question in the Petitioning Creditorsâ
Motion is a direct violation of this Courtâs January 17, 2013 order, which provides, in relevant
part, âORDERED that the sole legal issue to be determined by the Court at Trial is whether the
claims of the petitioning creditors are subject to a bona fide dispute . . .â. (Emphasis added) The
inclusion of this issue in the Motion is thus improper, and given the seven days Baron had to
prepare, with no prior determination of his jurisdictional or pleadings motions and with no prior
discovery, this imposes an undue hardship on Baron and denies him his right to due process.
This denial of due process is all the more troubling (putting aside the improper seizure of his
personal assets through Receivership by the District Court) in a matter which, as this Court
pointed out in In re Henry S. Miller Commercial, LLC, evokes special policy concerns requiring
18
Angel v. Bullington, 330 U.S. 183, 208 n.15 (1947)(âIf . . . a judgment has been vacated by the trial court or
reversed by an appellate court, it is no longer conclusive between the parties, either as a merger of the original cause
of action or as a bar to an action upon the original cause of action. . . .â.
19
Bass v. Hoagland, 172 F.2d 205, 209 (5th Cir. 1949) (âa judgment, whether in a civil or criminal case, reached
without due process of law is without jurisdiction and void.â)
20
Powell v. Alabama, 287 U.S. 45, 53 (1932); Texas Catastrophe Property Ins. Assân v. Morales, 975 F.2d 1178,
1180 (5th Cir. 1992) (âthere is a constitutionally guaranteed right to retain hired
counsel in civil mattersâ).
21
Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981) (âthe district court must give the plaintiff an opportunity
for discovery and for a hearing that is appropriate to the nature of the motionâ).
Case 12-37921-sgj7 Doc 56 Filed 02/08/13 Entered 02/08/13 13:38:21 Page 15 of 29
Case 3:13-cv-03461-O Document 1-6 Filed 08/28/13 Page 58 of 249 PageID 1640