AMILCAR I FIGUEROA BONILLA and ROSA D VELEZ RIVERA

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF PUERTO RICO
In re: 	:
:
AMILCAR FIGUEROA BONILLA 	: 	Case No. 06-01267 (GAC)
ROSA D. VELEZ RIVERA, 	:
:
Debtors 	: 	Chapter 13
:
__________________________________ :
DECISION AND ORDER
The issue pending before this court is whether to reconsider
a previous Decision and Order issued by the Court denying debtors’
objection to a proof of claim.
I. Background
On April 27, 2006, Amilcar Figueroa Bonilla and Rosa D. Velez
Rivera 	(the 	“debtors”) 	filed 	a 	petition 	under 	Chapter 	13 	of 	the
Bankruptcy 	Code 	(docket 	#1). 	The 	Court 	gave 	notice 	that 	the 	bar
date 	to 	file 	proofs 	of 	claim 	was 	September 	12, 	2006 	(docket 	#5).
Ana I. Roman and Carmen I. Amy (“creditors”), attempted to file on
that date, but ultimately filed the day after. The debtors filed an
objection 	to 	the 	claim, 	contending 	that 	it 	was 	untimely 	(docket
#47) and creditors responded indicating that they tried to file on
September 12, 2006, but that the court was closed (docket #50). The
Court 	scheduled 	the 	objection 	to 	claim 	#11 	and 	#12 	and 	the
creditor’s 	reply 	for 	a 	pre-trial 	hearing 	on 	January 	17, 	2007
(docket #51). The parties filed the pre-trial brief on February 19,
2007 	(dockets 	#68 	and 	#69). 	On 	February 	22, 	2007, 	the 	Court 	held
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the 	confirmation 	hearing, 	the 	chapter 	13 	plan 	was 	partially
confirmed 	and 	the 	objections 	to 	proofs 	of 	claim 	11 	and 	12 	were
scheduled for an evidentiary hearing on May 10, 2007 (docket #73).
The debtors amended their pre-trial brief to include exhibits to be
presented at the hearing (dockets #81 and #82).
The 	Court 	held 	an 	evidentiary 	hearing 	on 	June 	21, 	2007
(docket 	#100). 	Before 	the 	hearing 	began, 	the 	parties 	met 	in
chambers to stipulate that the Court could take judicial notice of
the 	fact 	that 	the 	Court 	is 	closed 	to 	the 	public 	at 	4:00 	p.m. 	and
that the drop box is available for filing until 4:45 p.m. (docket
#92). The debtors’ counselor admitted that the creditors “arrived
after – whoever filed arrived after four o’clock to file its claim
and could not file the claim on September 12th. Counsel admits that
there’s filing drop box that’s open until 4:45" (Transcript page 7,
lines 12-16).
At 	the 	evidentiary 	hearing, 	the 	parties 	presented 	evidence
which was duly marked and admitted, and the creditors presented the
testimony of Ms. Migdalia Dominguez. Ms. Dominguez testified that
she has been a secretary for fifteen years (Transcript page 9 line
20), 	that 	she 	was 	aware 	that 	the 	court 	closes 	at 	4:00 	p.m.
(Transcript page 12 line 20), that she left the office at 4:00 p.m.
(Transcript 	page 	13 	line 	11 	and 	12), 	that 	she 	arrived 	10 	minutes
after 4:00 p.m. (Transcript page 13 line 11-13). She also testified
that when she arrived at the Courthouse she found that the outside
gates 	were 	locked 	(Transcript 	page 	10 	lines 	4-9). 	She 	also
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testified 	that 	she 	was 	told 	by 	a 	court 	security 	guard 	that 	no
further 	filings 	were 	to 	take 	place 	that 	day 	(Transcript 	page 	10
lines 	9 	and 	11) 	and 	that 	she 	did 	not 	find 	a 	drop-box 	(Transcript
page 10 lines 12 and 13). On the morning of September 13, 2006, she
arrived at the courthouse and filed the proof of claim (Transcript
page 10 lines 20-22).
After 	the 	hearing, 	the 	parties 	were 	allowed 	until 	July 	27,
2007, to submit memorandums of law, and the Court took the matter
under advisement (docket #92).
In 	the 	Decision 	and 	Order 	dated 	June 	13, 	2008, the issue
before 	the 	Court 	was 	whether 	to 	allow 	the 	late 	filing 	of 	the
creditors’ proof of claim under an “excusable neglect” standard and
whether 	creditors 	were 	denied 	due 	process 	of 	law 	when 	they 	were
unable 	to 	access 	the 	court’s 	filing 	drop-box 	during 	normal
operating hours (docket #101). The Court concluded that disallowing
the creditors’ claim would be a denial of due process and thus, the
debtors’ 	objection 	to 	the 	proof 	of 	claim 	was 	denied. 	On 	June 	23,
2008, 	the 	debtors 	filed 	a 	motion 	for 	reconsideration 	and 	for
additional 	findings 	of 	fact 	and 	conclusions 	of 	law 	pursuant 	to
Federal Rules of Civil Procedure 59, made applicable in bankruptcy,
by 	Federal 	Rules 	of 	Bankruptcy 	Procedure 	9023 	(docket 	#103). 	On
June 	29, 	2008, 	the 	creditors 	replied 	to 	the 	debtor’s 	motion 	for
reconsideration (docket #110).
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II. Position of the Parties
A. Debtors
The 	debtors 	argued 	in 	their 	motion 	for 	reconsideration 	that
Proofs 	of 	Claim 	11 	and 	12 	were 	inadequate 	because 	they 	were 	not
accompanied 	with 	evidence 	of 	the 	existence 	of 	a 	debt, 	such 	as 	a
promissory 	note, 	a 	written 	contract, 	or 	bill. 	They 	asserted 	that
the creditors attached a civil suit petition to Proof of Claim 11
with 	no 	judgment, 	verdict, 	or 	order 	from 	any 	court 	and 	that
therefore, 	it 	does 	not 	conform 	to 	Federal 	Rule 	of 	Bankruptcy
Procedure 	3001. 	The 	debtors 	also 	contend 	that 	the 	civil 	suit
attached 	to 	the 	claim 	is 	in 	the 	Spanish 	language 	and 	thus,
unacceptable before the Federal District Court for the District of
Puerto Rico to serve as evidence.
Secondly, 	they 	contend 	that 	both 	proofs 	of 	claim 	appear 	as
priority, but they do not conform to the definition of priority, as
stated in 11 U.S.C. § 507, nor are they accompanied by any writing
explaining why they should be considered priority claims.
Thirdly, 	they 	argued 	that 	the 	Court 	took 	judicial 	notice 	of
the fact that the courthouse was being closed to the public between
the hours of 4:00 p.m. and 4:30 p.m. around the time of September
12, 	2006, 	and 	that 	this 	does 	not 	comply 	with 	Federal 	Rule 	of
Evidence 	201(b). 	They 	contend 	that 	the 	Court 	erred 	in 	its
assessment 	that 	the 	supposed 	fact 	is 	“generally 	known 	within 	the
territorial 	jurisdiction 	of 	the 	trial 	court” 	and 	that 	to 	the
contrary, this is not something generally known. The debtors also
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assert that neither is this supposed fact “capable of accurate and
ready determination by resort to sources whose accuracy cannot be
questioned,” and that on the contrary, the Bankruptcy Court’s own
website 	states 	that 	filing 	hours 	are 	Monday 	to 	Friday 	from 	8:00
a.m. 	to 	5:00 	p.m. 	They 	contend 	that 	to 	refute 	this 	publication,
evidence 	had 	to 	be 	presented 	in 	the 	form 	of 	testimony 	or
documentation which did not occur at the hearing. They also contend
that they were not given the opportunity to be heard as per Federal
Rule 	of 	Evidence 	201(e), 	as 	to 	the 	propriety 	of 	taking 	judicial
notice.
Finally, they argue that Ms. Dominguez’s testimony cannot give
a reasonable person confidence that she arrived at the courthouse
within 	normal 	filing 	hours, 	and 	that 	she 	never 	stated 	that 	she
arrived 	within 	filing 	hours, 	only 	that 	she 	left 	her 	office 	after
4:00 p.m. and that when she arrived the building was closed.
The 	debtors 	request 	that 	the 	Court 	amend 	its 	Decision 	and
Order 	and 	grant 	their 	objections 	to 	Proofs 	of 	Claim 	11 	and 	12,
stating 	that 	they 	do 	not 	comply 	with 	Federal 	Rule 	of 	Bankruptcy
Procedure 	3001(c), 	that 	they 	were 	filed 	after 	the 	final 	date 	to
file 	claims, 	that 	no 	evidence 	was 	presented 	showing 	that 	the
courthouse closed its doors to the public before its normal closing
hours on September 12, 2006, nor showing that Ms. Dominguez arrived
at the courthouse before the close of normal filing hours.
B. Creditors
The creditors assert that Proof of Claim 12 was withdrawn on
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the 	record 	in 	one 	of 	the 	hearings 	held 	and 	that 	the 	only 	one 	in
controversy 	is 	Proof 	of 	Claim 	11. 	Secondly, 	they 	argue 	that 	the
Court has the power to take judicial notice of the contents of its
own 	website, 	when 	such 	contents 	were 	relevant 	to 	a 	denial 	of 	the
creditors’ due process rights.
Thirdly, the creditors assert that in the decision and order
the 	Court 	accepted 	“Ms. 	Domínguez’ 	testimony 	that 	she 	arrived
during filing hours, but could not access the filing drop-box,” and
thus, such testimony is evidence enough. They also assert that the
Court 	did 	not 	have 	to 	take 	judicial 	notice 	that 	the 	gates 	of 	the
Courthouse were closed before 5:00 p.m. on the filing date, because
Ms. 	Dominguez’s 	testimony 	was 	also 	enough. 	The 	creditors 	also
contend 	that 	the 	Court 	can 	take 	judicial 	notice 	of 	the 	hour 	in
which its own gates are closing.
They 	also 	assert 	that 	the 	quotation 	attributed 	to 	the
creditors 	in 	paragraph 	forty-nine 	of 	debtor’s 	motion, 	in 	no 	way
contradicts 	the 	Court’s 	conclusion 	that 	Ms. 	Domínguez 	arrived
before 	5:00 	p.m., 	but 	could 	not 	access 	the 	filing 	drop-box. 	They
argue that it only stated the same as what the Court concluded as
fact: 	“that 	she 	arrived 	after 	the 	Clerk’s 	office 	and 	the 	outside
gates were closed,” and that this complemented her testimony that
she arrived in filing time but could not access the drop-box. They
assert that this testimony was not at anytime contradicted and was
subsequently accepted by the Court.
Finally, 	they 	contend 	that 	proofs 	of 	claim 	are 	filed 	to
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protect 	creditors’ 	right 	to 	continue 	litigating 	a 	local 	court
proceeding 	that 	began 	before 	the 	debtors’ 	filing 	of 	the 	petition
and 	that 	may 	result 	in 	a 	judgment 	imposing 	economic 	liability 	on
the debtors. They contend that in order to preserve their right to
continue 	litigating 	the 	case 	in 	the 	local 	court 	and 	execute 	a
judgment 	against 	the 	debtors, 	if 	such 	judgment 	is 	eventually
forthcoming, the appearing creditors must file a Proof of Claim, or
that 	possibility 	would 	be 	foreclosed. 	The 	creditors 	continue,
arguing that the proofs of claim could not contain a specific sum,
and that the only evidence needed to ascertain the existence of the
local 	court 	proceedings. 	They 	assert 	that 	the 	nature 	of 	these
claims were discussed in the first conference in chambers with the
Court, 	and 	that 	it 	was 	clearly 	understood 	by 	everybody 	present.
Therefore, the creditors request that the Court deny the debtor’s
motion of reconsideration.
III. Discussion
The 	parties 	contend 	that 	there 	are 	various 	issues 	pending
before the Court, but the only issue that was fully argued in the
Pre-Trial 	briefs 	(dockets 	#68, 	#69 	and 	#82) 	and 	at 	the 	hearing,
held 	on 	June 	21, 	2007, 	was 	whether 	Proof 	of 	Claim 	11 	was 	timely
filed.
Federal 	Rule 	of 	Evidence 	201 	titled 	Judicial 	Notice 	of
Adjudicative Facts, provides:
(a) 	Scope 	of 	rule. 	This 	rule 	governs 	only 	judicial
notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be
one 	not 	subject 	to 	reasonable 	dispute 	in 	that 	it 	is
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either 	(1) 	generally 	known 	within 	the 	territorial
jurisdiction 	of 	the 	trial 	court 	or 	(2) 	capable 	of
accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(c) 	When 	discretionary. 	A 	court 	may 	take 	judicial
notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice
if 	requested 	by 	a 	party 	and 	supplied 	with 	the
necessary information.
(e) Opportunity to be heard. A party is entitled upon
timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of
the 	matter 	noticed. 	In 	the 	absence 	of 	prior
notification, 	the 	request 	may 	be 	made 	after 	judicial
notice has been taken.
(f) 	Time 	of 	taking 	notice. 	Judicial 	notice 	may 	be
taken at any stage of the proceeding.
[...]
The debtors argued that they were not given the opportunity to
be 	heard 	as 	to 	why 	the 	Court 	took 	judicial 	notice 	that 	the 	Court
was being locked before 5:00 p.m., in spite of the published policy
indicating that the drop box is available for filing from 8:00 a.m.
to 	5:00 	p.m. 	In 	the 	Decision 	and 	Order 	(docket 	#101), 	the 	Court
stated that:
[t]his Court is aware that the public entrance to the
courthouse was being closed between 4:00 p.m. and 4:30
p.m., after the Clerk’s Office closes to the public,
and 	that 	the 	filing 	drop-box 	is 	inside 	the 	building
and 	was 	not 	available 	for 	filing. 	The 	entrance 	was
being 	locked 	in 	spite 	of 	the 	published 	policy
indicating that the drop box is available for filing
from 	8:00 	a.m. 	to 	5:00 	p.m. 	Monday 	through 	Friday,
except holidays.
Before 	the 	hearing 	began, 	the 	parties 	met 	in 	chambers 	to
stipulate 	that 	the 	Court 	could 	take 	judicial 	notice 	of 	the 	fact
that 	the 	Clerk’s 	Office 	is 	closed 	to 	the 	public 	at 	4:00 	p.m. 	and
that the drop box is available for filing until 4:45 p.m. (docket
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#92). Moreover, the debtors’ counselor admitted that the creditors
“arrived after – whoever filed arrived after four o’clock to file
its claim and could not file the claim on September 12th. Counsel
admits 	that 	there’s 	filing 	drop 	box 	that’s 	open 	until 	4:45"
(Transcript page 7, lines 12-16).
As per Federal Rule of Evidence 201(e), “A party is entitled
upon 	timely 	request 	to 	an 	opportunity 	to 	be 	heard 	as 	to 	the
propriety 	of 	taking 	judicial 	notice 	and 	the 	tenor 	of 	the 	matter
noticed.” 	The 	Court 	concludes 	that 	it 	failed 	to 	give 	debtor 	an
opportunity of a hearing after taking judicial notice that the drop
box was not available until 5:00 p.m., as advertised in the Court’s
website, therefore depriving the creditor of an opportunity to file
the Proofs of Claim in a timely fashion when the witness arrive at
the Court on September 12, 2006, at approximately 4:10 p.m. Thus,
a hearing will be scheduled to allow the debtors an opportunity 	to
be 	heard 	as 	per 	Federal 	Rule 	of 	Evidence 	201(e). 	Also, 	the 	Court
failed to grant the debtors an opportunity to present an officer of
the Court, namely Nydia Rivera, that had been announced by debtors’
counsel 	as 	a 	witness. 	The 	debtors 	may 	present 	this 	or 	any 	other
witness 	to 	refute 	the 	allegation 	that 	creditor’s 	witness, 	Ms.
Dominguez, did not arrive during filing hours.
The 	debtors 	has 	also 	brought 	forth 	in 	the 	Motion 	for
Reconsideration objections dealing with the validity of the Proof
of 	Claim, 	which 	will 	also 	require 	a 	hearing 	on 	the 	merits.
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Therefore, 	the 	Court 	will 	schedule 	a 	hearing 	on 	the 	issue 	of 	the
timeliness of the Proof of Claim and the validity of the claim.
ORDER
Wherefore 	IT 	IS 	ORDERED 	that 	the 	Motion 	for 	Reconsideration
filed by debtor is GRANTED, IN PART.
IT IS FURTHER ORDERED that a hearing will be schedule for June
23, 2009 at 1:30 p.m. 	The parties will inform the Court in ten (10)
days if the Pre-Trial briefs that were submitted (dockets #68 and
#69), 	will 	need 	to 	be 	amended 	or 	supplemented 	for 	the 	hearing
scheduled on June 23, 2009. All of the issues raised in the Motion
for Reconsideration will be addressed by the parties at the hearing
scheduled, 	including: 	the 	validity 	of 	Proof 	of 	Claim 	11, 	evidence
of the existence of a debt, evidence of the priority status of the
proof of claim and legal arguments as to why the Court cannot take
judicial 	notice 	of 	the 	Building’s 	closing 	time. 	Creditor 	to 	file
certified 	English 	translation 	of 	any 	documents 	it 	intends 	to 	rely
on at the hearing.
SO ORDERED.
San Juan, Puerto Rico, this 2nd day of April, 2009.
/s Gerardo A. Carlo-Altieri
_____________________________
GERARDO A. CARLO-ALTIERI
Chief, U.S. Bankruptcy Judge
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