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Auld v. Sun West Mortgage Co., Inc.

United States District Court, District of Kansas

March 26, 2015

STUART AULD, Appellant,
v.
SUN WEST MORTGAGE COMPANY, INC., Appellee.

MEMORANDUM AND ORDER

CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

Pursuant to 28 U.S.C. § 158(a)(1) and Federal Rule of Bankruptcy Procedure 8001, pro se appellant (and debtor) Stuart Auld appeals United States Bankruptcy Judge Dale Somers’s dismissal of his Chapter 11 bankruptcy case, In re Auld, No. 14-20424, 2014 WL 2780302, at *5 (Bankr. D. Kan. June 11, 2014), reconsideration denied, No. 14-20424, 2014 WL 3696720 (Bankr. D. Kan. July 23, 2014), and its related adversary proceeding, Stuart Auld v. Sun West Mortgage Company, Inc., No. 14-6057 (Bankr. D. Kan. November 26, 2014). Appellant has filed numerous motions:[1]

1. “Motion For Enlargment of Time to Amend Statement of Issues and Designation of Record on Appeal from Orders Entered by the Bankruptcy Court and File Motion to Consolidate Appeals; Statement of Issues and Designation of Record on Appeal From Orders Entered by the Bankruptcy Court” (Doc. 2).
2. “Motion and/or Request to Modify and/or Redesignate the Record on Appeal” (Doc. 9).
3. “Judicial Notice of Pleadings Filed and Supplemental Motion for Enlargement of Time to Amend Statement of Issues and Designation/Modification/Amendment of Record on Appeal from Orders Entered by the Bankruptcy Court” (Doc. 12).
4. “Amended, Supplemental and/or Renewed Motion and/or Request to Modify, Augment and/or Redesignate the Record on Appeal” (Doc. 15).
5. “Notice of Filing Memorandum and Motion to Vacate All Orders (including the recent 2/10/15 Orders) Made on behalf of Movants/Defendants/Appellees and/or for Reconsideration and/or to Set Aside the Court Orders to Date Due to: Lack of Standing and/or Lack of Bankruptcy Court Jurisdiction and/or Lack of Justiciable Matter and/or the Legal Doctrines of Payment, Acceptance, Accord and Satisfaction; Judicial Notice of Matters Rendering Defendant/Appellee’s Claims Mute [sic] Due to the Reasons Set Forth Herein; Request for Findings of Fact and Conclusions of Law on Standing And the Other Reasons Justifying Vacating, Set Aside or Reconsideration Set Forth Herein” (Doc. 16).
6. “Supplemental Motion for Enlargement of Time to Amend Statement of Issues and Designation of Record on Appeal from Orders Entered by the Bankruptcy Court; Motion to Consolidate Appeals; Statement of Issues as to Appealed Orders Entered by the Bankruptcy Court” (Doc. 20).

The court will now take up all of appellant’s pending motions.[2]

I. Background

This case is but one branch of a giant, tangled case, which appellant started in state court in 2011. See District Court of Johnson County, Kansas, Case No. 11-CV-4594. The case has since grown-traversing several state and federal courts, resulting in countless motions and appeals, costing considerable time and money, and wasting many of those courts’ time. Over the years, appellant has apparently employed two attorneys, both of whom eventually withdrew. He has been sanctioned for attorneys’ fees twice and had filing restrictions placed on him by Judge Thomas Sutherland of the District Court of Johnson County, Kansas (“the State Court”). Because this history is important context for his present bankruptcy appeal, the court now discusses in some detail the tortured legal history of appellant’s case.

The court begins with appellant’s original case before the State Court. Id. There, the State Court consolidated two cases-Case No. 11-CV-04594, filed on May 27, 2011, and Case No. 11-LA-06470, filed on June 23, 2011. Appellant, proceeding pro se, filed the first case against his father, John W. Auld, Sr., relating to an alleged security interest appellant claimed in real property owned and occupied by Auld, Sr.; the second case was a forcible detainer action filed by Auld, Sr. against appellant to evict him from the property. On November 19, 2012, the State Court granted the motion for summary judgment filed by then-Intervenor and present-appellee Sun West Mortgage Company, Inc. Recognizing that appellant was proceeding pro se, the State Court held hearing(s) and made multiple accommodations before ruling on Sun West’s motion, such as offering appellant time to file a substitute response that complied with Kansas Supreme Court Rule 141(b). Appellant was instructed that Sun West would reply to the substitute response, but if no substitute response was filed, Sun West would reply to his original response and the court would consider the motion accordingly. He did not file a substitute response. As a result, the State Court concluded appellant was not entitled to relief from Rule 141(b), as the court’s hearing and accommodations had sufficiently given appellant notice and opportunity to correct his response. Thus, the court found all of Sun West’s facts deemed admitted. And, to the extent plaintiff offered factual support, the court diligently footnoted appellant’s attempt to controvert the facts and the court’s conclusion regarding whether each fact is deemed uncontroverted. (See Doc. 10-2 at 23–30.) The court need not discuss the State Court’s factual findings to resolve this case. On December 10, 2012, the State Court denied appellant’s motion to reconsider.

On January 4, 2013, the State Court granted defendant John W. Auld, Jr., As Trustee of the John W. Auld, Sr. Living Trust’s motion for summary judgment. (Id. at 32–38) This time, appellant made a better attempt at controverting facts, but the court found his motion failed to comply with Rule 141(b). Nevertheless, the court addressed his factual paragraphs and a section called “Plaintiff’s Statement ...


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