In re Thomason
Docket Number | 21-40435-JMM |
Decision Date | 02 February 2022 |
Parties | In Re: MARILYNN THOMASON, Debtor. |
Court | U.S. Bankruptcy Court — District of Idaho |
Marilynn Lynn Thomason, Idaho Falls, Idaho Debtor pro se.
Louis V. Spiker, Boise, Idaho, Attorney for WaFd Bank, fka Washington Federal Savings.
JOSEPH M. MEIER CHIEF U.S. BANKRUPTCY JUDGE
Before the Court is debtor Marilynn Thomason's ("Debtor") objection to Proof of Claim No. 1 ("POC") filed by WaFd Bank, fka Washington Federal Savings ("Bank") in this chapter 13 case.[1] Claims Reg. No. 1-1. The POC was timely filed on September 24, 2021, wherein the Bank claimed a debt in the amount of $145, 230.80 secured by a lien on real property located in Madison County, Idaho. Id. Attached to the POC are copies of various documents including an accounting, a promissory note, addendum to note additional advance note, a recorded deed of trust and addendum thereto and a recorded additional advance agreement. Id. The deed of trust and additional advance agreement refer to real property located in Madison County, Idaho. The deed of trust, recorded on 08-28-2003 as instrument no. 306363, and the additional advance agreement, recorded on 07-27-2004 as instrument no 313629, describe the property as follows:
COMMENCING AT THE SOUTH 1/4 CORNER Of SECTION 2 TOWNSHIP 5 NORTH RANGE 39 EAST BOISE MERIDIAN MADISON COUNTY IDAHO (SAID POINT IS AN ALUMINUM CAP ON A 5/8" STEEL ROD) AND RUNNING THENCE NORTH 89 DEGREES 27, 12" WEST 782.00 FEET ALONG THE SECTION LINE MORE OR LESS TO A COUNTY ROAD RIGHT' OF WAY THENCE NORTH 0 DEGREES 16'48" WEST 1082.00 FEET TO THE TRUE POINT OF BEGINNING THENCE EAST 650.00 FEET THENCE NORTH 0 DEGREES 16'48" W 272.00 FEET TO A COUNTY ROAD THENCE WEST 650.00 FEET TO A COUNTY ROAD INTERSECTION THENCE SOUTH 0 DEGREES 16'48” EAST 272. 00 FEET TO THE TRUE FOINT OF BEGINNING. LESS COUNTY ROAD RIGHT OF WAYS.
Id. at Exs. B, D; Exs. 209, 210.
That property is described in the deed of trust as having the address of "2616 South 3000 West, Rexburg, Idaho 83440" ("Subject Property"). Ex. 209, p. 2.[2] Debtor timely objected to the POC.
On October 7, 2021, the Debtor objected to the POC and set the objection for a telephonic hearing on November 9, 2021. Doc Nos. 67 and 68. Thereafter, on October 22, 2021, the Debtor filed a brief and affidavit in support of her objection. Doc. Nos. 80 and 81. On November 2, 2021, Bank filed a written response to the objection, Doc. No. 89, along with a request to take judicial notice of certain documents, Doc. No. 91. On November 8, 2021, Bank filed a Declaration of Counsel in Support of Request to Take Judicial Notice. Doc. No. 98. Most of the documents described in the request for judicial notice and counsel's declaration arise out of the case of Washington Federal, et al. v. The Estate of Byron T. Thomason, et al., Case No. CV-2017-432, which case was filed in the District Court of the Seventh Judicial District of the State of Idaho, in and for Madison County (hereinafter "State Case"). Debtor opposed the request to take judicial notice but never set the matter for hearing. Doc. No. 115. As a result, the Court was not asked to rule on it prior to a hearing conducted on January 20, 2022, after which the request to take judicial notice became moot.
The Court conducted a telephonic hearing on the Debtor's objection to the POC on November 9, 2021. At that hearing, and consistent with Rule 9014, L.B.R. 9014.1 and 3007.1, the Court set the matter for an evidentiary hearing to be conducted on January 3, 2022. Doc. No. 100. The local rules applicable in the District of Idaho require participants to a hearing on an objection to a proof of claim to file a list of witnesses and a list of exhibits, and to exchange copies of any exhibits not later than 7 days prior to the scheduled hearing. LBR 3007.1. To alleviate any confusion, at the November 9, 2021 hearing, the Court expressly ordered that on or before December 27, 2021 (7 days prior to the January 3rd hearing) the parties were to exchange and file with the Court both a witness list and an exhibit list disclosing all witnesses and exhibits that they intended to call in their case-in-chief. The Court further required the parties to deliver to one another copies of any proposed exhibits they intended to introduce at the evidentiary hearing. Doc. No. 100.
Thereafter on December 20, 2021, the Debtor filed an exhibit list and a witness list, which did not disclose a witness or any exhibit but stated, "(THOMASON)'s witness list does not list any names as being called to testify, but (THOMASON) will call any and all necessary persons/entities under cross-examination and/or rebuttal." Doc. No. 121 at p. 2. Regarding exhibits, the Debtor stated: "(THOMASON)'s exhibit list does not have any exhibits listed as to be needed to supplement (THOMASON)'s already certified and filed exhibits in this contested matter other than (THOMASON) will submitted [sic] any and all necessary rebuttal exhibits, as needed." Id. The balance of Debtor's exhibit and witness list document contains various arguments alleging that Bank was required to disclose documents prior to that date, that Bank was required to respond to various allegations made by the Debtor in pleadings and affidavits previously filed by her, and that Debtor was going to cross examine any party whose name appears on documents and exhibits and named certain Bank attorneys and employees. Doc. No. 121. Bank filed its witness list and its exhibit list on December 27, 2021. Doc. Nos. 131 and 132.
On December 28, 2021, a telephonic hearing was conducted based on Bank's request to call a witness via Zoom at the evidentiary hearing, due to a concern about COVID infection outbreaks. Doc. Nos. 118 and 120. Ultimately, the Debtor and Bank agreed to conduct the entire evidentiary hearing using Zoom and the Court approved that joint request.
At that hearing, however, the issue of the disclosure of witness lists and exhibit lists was discussed. Debtor alleged that she had not been served with the Bank's witness list, exhibit list, or any exhibits as of December 28, 2021. While those lists and exhibits were filed on the Court's docket, they were not hand-delivered to the Debtor but rather mailed to her address, which is apparently a mailbox located at a UPS annex run by a private business in Idaho Falls, Idaho. Further, the Court informed the Debtor that her witness and exhibit list, Doc. No. 121, was not acceptable to the Court. Rather, under the local rules she was required to disclose particular witnesses she intended to call and to describe exhibits she intended to introduce on an exhibit list and to exchange those exhibits with Bank's counsel. The Court informed Debtor that it was not appropriate to invite either the Court or counsel to mine the docket for documents Debtor might introduce as exhibits and for witnesses she might call.
Thereafter, the Court continued the evidentiary hearing to January 13, 2022 in order to permit the Debtor to receive and review Bank's exhibits and witness list, and further required the Debtor to file and serve her rule-compliant exhibit list and witness list by January 3, 2022. Despite that order, the Debtor failed to file a witness list or exhibit list as required by the local rules and the November 9, 2021, order.[3] On January 13, 2022, Debtor and Bank appeared for the Zoom hearing. At this hearing, it became evident that Bank had mailed its exhibits to Debtor in a large stack, unbound and possibly neither tabbed nor marked. However, Bank recognized its mistake in doing so and had subsequently sent to the UPS mailbox a binder containing documents labelled 200 through 215 that were tabbed appropriately. It also represented that in that binder was another copy of the witness list, an exhibit list, and an affidavit of Richard Miller. The Debtor responded that she had not yet received the binder. The Bank's attorney argued that service on the Debtor was severely complicated by the fact that she will not accept deliveries at her home, does not have her own email account but uses her son's college account which has certain restrictions, and that she uses a private UPS postal annex that restricts deliveries.
The Bank also argued that the pre-marked exhibits were documents the Debtor has already received, including the Bank's POC and the attachments thereto, as well as the documents that were attached to the Declaration of Counsel in Support of Request to Take Judicial Notice, Doc. No. 98. The Court recessed the hearing and required the Debtor to call the UPS annex. When the hearing reconvened, Debtor reported that a package was in her mailbox. The Court again continued the hearing, this time to January 20, 2022, in order to permit the Debtor to receive and review Bank's bound and tabbed exhibits prior to the evidentiary hearing.
At the commencement of the hearing on January 20, 2022, the Court asked the Debtor to present her evidence. Despite not properly disclosing any witnesses or exhibits, Debtor argued that she had satisfied her evidentiary burden prior to that date and the burden had shifted to Bank. In response, Bank orally moved for the Court to overrule Debtor's objection to its POC on the grounds that she had not introduced any evidence and therefore had failed to meet her burden.
Nevertheless Bank then moved to present additional written evidence in support of its claim. It sought admission of certain exhibits which consisted of the recorded deed of trust and attached addendum, the additional advance payment agreement recorded in Madison County, and various documents entered by the court in the State Case. Exs. 209-215. Each of those exhibits were certified by the...
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