1

2 2. COURT'S RULING PRECLUDED MERITS DETERMINATION

3 According to the Supreme Court, a legitimate Rule 60(b) motion is one contending that a
4 istrict court erred in making a procedural ruling, such as one ... that actually "precluded a merits
5 etermination." Gonzalez, 545 U.S. at 532.
6 Debtor showed an abundance of due diligence by filing a Rule 7009 (under Rule 9014)
7 n January 25, 2013 (docket no. 43) and a Rule 9011 motion to challenge the First Objection.
8 ebtor filed both motions timely. The Rule 9011 motion required a 21-day "Safe Harbor" period
9 efore she could file with the Court. (see docket no. 49) Debtor noticed the Court concerning
10 iming conflicts between the Hearing and her timely filed lawful motions. (docket no. 40, 45)
11 ebtor also filed a Motion to Compel performance of a subpoena (see docket no. 45) related to
12 irst Objection. (docket no. 50)
13
Debtor informed the Court that Second Objection had not been received timely. (docket
14 3 ,54) Debtor showed good faith effort to conduct discovery by acquiring a subpoena the same
15 ay as discovery of Second Objection, and by delivering it to a process server the following day.
16 included in declaration, docket no. 54) Debtor noticed the court of her efforts to acquire four
17 "terns that would quickly prove or disprove the statements in the Second Objection.
18
The Court declined to make any comment at all about Debtor's lack of notice of the
19 econd Objection and her good faith attempt to discover proof that w0uld establish a Hearing on
20 he Merits thereof. Because the Court failed to advise Debtor as to any of the hearing and
21 iscovery timing conflicts concerning Debtors three motions and her two sets of discovery, (see
22
lso docket no. 55) Debtor filed an Adversary complaint the morning of the Hearing to further
23
ommunicate to the court her dispute of all statements, documents, and conclusions contained in
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oth Objections.
25
Rule 9011 requires evidentiary support and a basis in law for any factual allegations
26
ttorneys make in their motions (,In re Schivo, 462 B.R. 765 (201l))(Ninth Circuit)
27
In In re Chaussee (398 B.R. 916 (2008)) the Ninth Circuit BAP held that the remedy for
28
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1 filing an improper proof of claim came under Rule 9011 or 105(a), rather than under
2 Consumer Protection Act or the Fair Debt Collection Practices Act 121. The Court
3 expressed its confidence that the "intricate design" of the claims process was adequately
4 protected by Rule 9011.122
5 The Court should exercise its equitable ability (see LEGAL STANDARD above) to
6 correct its records so that Debtor's challenges to all statements and documents in the Obiections
7 mav be heard and ruled on the merits in order to determine whether Debtor's Plan is not
8 confirmable. Debtor's obiection was included in an adversarv oroceedin!! in accordance with the
9 simole statement in Rule 3007 "A oartv in interest mav include the obiection in an adversarv
10 oroceedin!!."
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12
13
3. ERROR OF LAW AND FACT
(A) MINIMUM STANDARDS NOT MET
14 Objections did not meet and the Court failed to require the minimum standard requirements
15 Federal Rules of Bankruptcy Procedure. Minimum Standards include:
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(A) Federal Rules of Bankruptcy Procedure, Rule 3015 (f) states: Objection to
Confirmation is governed by Rule 9014.
(B) Federal Rules of Bankruptcy Procedure, Rule 9014(a) states: "Motion. In a contested
matter not otherwise governed by these rules, relief shall be requested by motion, and
reasonable notice and opportunity for hearing shall be afforded the party against
whom relief is sought. No response is required under this rule unless the court directs
otherwise."
(C) 9013-1 states: "Motion Papers. (d) Affidavits or Declarations. Factual contentions
made in support of or in opposition to any motion, application or objection should be
supported by affidavits or declarations and appropriate references to the record."
(emphasis added)
(D) Rule 3001 (d) Evidence of Perfection of Security Interest. If a security interest in
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1 property of the debtor is claimed, the proof of claim shall be accompanied by
2 evidence that the security interest has been perfected.
3 There was no evidence of perfection of security interest (B .R. 3001 ( d)) or compliance
4 with applicable evidence rule (B.R. 9014, FRCP 9017). The Objections failed to plead with
5 particularity or to make a factual showing. (B.R. 9013 and L.B.R. 9013-l(d))
6 The Objections did not follow the mandatory requirement to support factual contentions
7 with affidavits or declarations or in compliance with the applicability of the rules of evidence to
8 ~ i s contested matter. BONYM states it attaches a "Proof of Claim" but it contains no
9 authenticated documents or declarations authenticating the information provided or any
10 admissible evidence. There was and is no evidence before the court that BANK OF AMERICA,
11 N.A. First Objection can be granted. Not only does the First Objection lack authentication of
12 documents and statements, it controverts its own claim by alleging bifurcation of the Note and
13 Deed of Trust by stating two different parties are holders of the respective instruments.
14 Substantial justice is not possible here without some crumb of evidence the alleged "Secured
15 Creditor" has a right of any kind to object to the Plan. Debtor has never seen any appellate
16 iecision that allowed a creditor to make a claim of anv kind without evidence - a declaration in
17 suooort or authentication of conies - submitted as "oroof ."
- -
18
The Court failed to follow mandatory local rules in accordance with Northern District of
19 California Local Rule 1001-2.(a) Incorporation of Civil Local Rules incorporating Northern
2
0 District of California Federal Local Rule 7-6. Oral Testimony Concerning Motion "No oral
21
estimony will be received in connection with any motion, unless otherwise ordered by the
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assigned Judge." There was no order stating that oral testimony will be received at Hearing,
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nowever, the Court appeared to be attempting to acquire testimony concerning disputed matters
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without notice. Notwithstanding the pending and unresolved challenges/disputes to Objections
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per Debtor's Rule 7009, 9011, and 9016 motions, when debtor informed the Court at the outset
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of hearing (Hearing Recording at 01: 14, 01:37, 01:53 docket no. 63) then any factual testimony
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and resolution of factual dispute required an evidentiary hearing. (see also Federal Rules of
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