Eresian v. Webster First Federal Credit Union (In re Eresian)

487 B.R. 53, 2013 WL 653113, 2013 Bankr. LEXIS 651
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedFebruary 21, 2013
DocketBankruptcy No. 10-44853-HJB; Adversary No. 11-04083
StatusPublished

This text of 487 B.R. 53 (Eresian v. Webster First Federal Credit Union (In re Eresian)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eresian v. Webster First Federal Credit Union (In re Eresian), 487 B.R. 53, 2013 WL 653113, 2013 Bankr. LEXIS 651 (Mass. 2013).

Opinion

MEMORANDUM OF DECISION

HENRY J. BOROFF, Bankruptcy Judge.

Before the Court are two motions for sanctions (together, the “Motions for Sanctions”) filed against Melanie Cara Eresian, the plaintiff in this adversary proceeding and the debtor in the underlying Chapter 7 bankruptcy case (the “Debtor”) — the first, a “Motion for Sanctions” filed by defendant Webster First Federal Credit Union (“Webster”), and the second, the “Trustee’s Motion for Sanctions Pursuant to Rule 9011 of the Federal Rules of Bankruptcy Procedure” filed by defendant David M. Nickless, the Chapter 7 trustee (the “Trustee”) in the underlying case. The Court must here decide (1) whether the Debtor’s filing of this adversary proceeding against Webster and the Trustee constitutes a violation of Bankruptcy Rule 9011(b)1; and (2) if so, the appropriate sanction.

[56]*561. FACTS AND TRAVEL OF THE CASE

The relevant facts are drawn from the record in this adversary proceeding (the “Adversary Proceeding”) and from the dockets in the underlying Chapter 7 bankruptcy case (the “Main Case”) and a related Chapter 13 case. See In re Mailman Steam Carpet Cleaning Corp., 196 F.3d 1, 8 (1st Cir.1999) (bankruptcy court may take judicial notice of its own dockets).

On September 30, 2010, Webster filed an involuntary Chapter 7 petition against the Debtor. See Ch. 7 Involuntary Petition, Main Case No. 10-44863, ECF No. 1. On October 21, 2010, the Debtor, acting pro se, filed an answer and objection to the involuntary petition, requesting dismissal on grounds that the petition was deficient pursuant to § 303(b) because it was filed by only one creditor, while the Debtor had a total of more than 12 creditors. See Debtor’s Resp. & Obj., Main Case ECF No. 4. The Debtor did not, however, attach to her pleading a list of all her creditors and their addresses, as required by Bankruptcy Rule 1003(b).2

Given the Debtor’s failure to file a list identifying her creditors, Webster requested that the Court order her to do so. See Exp. Mot. to Compel Alleged Debtor to Produce List of Creditors, Oct. 29, 2010, Main Case ECF No. 8. After a hearing held on November 3, 2010, the Court entered the following order:

THE ALLEGED DEBTOR IS ORDERED TO FILE THE LIST OF CREDITORS ON OR BEFORE 11/12/10. FAILURE TO FILE THE LIST WILL RESULT IN THE ENTRY OF AN ORDER FOR RELIEF.3

See Order re: Exp. Mot. to Compel, Nov. 3, 2010, Main Case ECF No. 20. The Debtor filed a list of creditors and their addresses on November 12, 2013. See List of Creditors, Main Case ECF No. 30.

Also on November 3, 2010, the Court scheduled an evidentiary hearing on the involuntary petition for December 8, 2010. Subsequent to the November 3 hearing, however, and in light of the Debtor’s reticence to comply with Webster’s discovery requests, Webster filed an “Expedited Motion to Set Discovery Scheduling Conference and to Continue Evidentiary Hearing” (the “Discovery Motion”). See Discovery Motion, Nov. 24, 2010, Main Case ECF No. 33. Webster attached to its Discovery Motion an exhibit listing the documents Webster wanted the Debtor to produce (“Exhibit A”).

On December 2, 2010, the Court entered an order that, inter alia: (1) ordered the Debtor to produce the documents de[57]*57scribed on Exhibit A on or before January 7, 2011; (2) ordered the Debtor to appear for the taking of her deposition on January 11, 2011; and (3) advised the Debtor that failure to comply “may subject [the Debt- or] to a finding of civil contempt, the remedies for which may include monetary sanctions and/or entry of an Order for Relief under Chapter 7 of the Bankruptcy Code.” Order re: Discovery Motion, Dec. 2, 2010, Main Case ECF No. 36 (the “First Discovery Order”). The First Discovery Order also continued the evidentiary hearing to January 26, 2011.

In furtherance of the First Discovery Order, Webster mailed to the Debtor a “Notice of Taking Deposition,” reiterating the Debtor’s obligation to produce certain documents and to attend the scheduled deposition. See Debtor’s Mot. to Quash, Jan. 3, 2011, Main Case ECF No. 40. The Debtor filed a motion to quash that notice, on grounds that it was “subsumed” by the First Discovery Order and failed to comply with Bankruptcy Rule 7026. See id. That motion was summarily denied on January 5, 2011. See Order on Mot. to Quash, Main Case ECF No. 42.

Two days later, Webster filed an expedited motion seeking an order finding the Debtor in contempt of the First Discovery Order. See Exp. Mot. for Contempt, Jan. 7, 2011, Main Case ECF No. 43 (the “First Contempt Motion”). Through that motion, the Court was made aware for the first time that it had erred in issuing the First Discovery Order, which directed the Debt- or to “produce those documents described on Exhibit “A” attached to this Order.” First Discovery Order 1 (emphasis supplied). Although the Court had intended to attach Webster’s “Exhibit A”, no Exhibit A was attached to the First Discovery Order. This error apparently led to out-of-court bickering between the Debtor and Webster, with Webster taking the position that the Court’s intention was obviously to incorporate its Exhibit A and the Debtor informing Webster that she had no intention of producing any documents. Instead, the Debtor asserted that “there is no court mandated schedule for the production of documents that exists” and that she was “neither able nor duty bound ... to produce documents.” First Contempt Motion, Ex. C.

Neither Webster nor the Debtor apprised the Court of its error or sought clarification of the First Discovery Order prior to the deadline for document production. Accordingly, at the hearing on the First Contempt Motion, the Court set a new deadline by which the Debtor was obligated to produce documents, scheduled a new date for the Debtor’s deposition, continued the evidentiary hearing to February 25, 2011, and also took the opportunity to edit Exhibit A to improve the relevancy and clarity of the document requests. See Am. Order, Jan. 11, 2011, Main Case ECF No. 50 (the “Amended Discovery Order”). The Amended Discovery Order was identical to the First Discovery Order, with the exception of the new dates and the addition of the previously missing (and now revised) Exhibit A.

More than a month after the entry of the Amended Discovery Order and only three business days prior to the Court-ordered document production, the Debtor filed a motion seeking clarification of the Amended Discovery Order and asking the Court for a protective order pending its ruling on the motion (the “Motion to Clarify”). See Motion to Clarify, Feb. 16, 2011, Main Case ECF No. 55. In the Motion to Clarify, the Debtor maintained that each of Webster’s document requests were “facially overbroad” and so “open-ended that the Alleged Debtor could not possibly fully determine, without undue burden and ex[58]*58pense — [sic] which documents would in fact, be responsive.” Motion to Clarify 3. Relying on this assertion, the Debtor had apparently submitted no

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Bluebook (online)
487 B.R. 53, 2013 WL 653113, 2013 Bankr. LEXIS 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eresian-v-webster-first-federal-credit-union-in-re-eresian-mab-2013.