5 ABR 487 UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA

In re RAYMOND L. OLSEN, and
GLADYS M. OLSEN,

Debtor(s)

Case No. 5-84-00009-HAR
In Chapter 7

GORDON ZERBETZ, Trustee of the
Olsen Estate,

Plaintiff(s)

v. PHYLLIS H. HERNANDEZ, MICHAEL
MEDALEN, and JOHN R. OLSEN,

Defendant(s)

MEMORANDUM DECISION REGARDING
SUMMARY JUDGMENT MOTIONS
AGAINST DEFENDANTS

          1. INTRODUCTION- The bankruptcy estate owns Lots 1-33, Tract B, Olsen Subdivision, Petersburg, Alaska. The debtors conveyed the 33 lots to their son, John R. Olsen, postpetition, but, in 1992, title was quieted in the name of the trustee in a prior adversary proceeding. Nonetheless, John R. Olsen conveyed Lot 1, Tract B, to Hernandez in 1996. Hernandez and Medalen sought a building permit for the lot.

          John has erected a barrier preventing access to the 33 lots in Tract B and to Tract A, a contiguous parcel also owned by the trustee. John appears to claim an interest in Tract A.

          Should the trustee's title be quieted against Hernandez, Medalen and John, and should John be enjoined from erecting the barriers to access? They obviously should.

          2. DISCUSSION-

          2.1. Procedural Status- The trustee filed motions and memoranda for 5 ABR 488

summary judgment against John R. Olsen⁽¹⁾ and Phyllis Hernandez and Michael Medalen.⁽²⁾ None of the defendants filed an opposition. Oral argument was held on July 28, 1998. The defendants did not attend.

2.2. Summary Judgment Against Hernandez and Medalen- In a Corrected Judgment filed April 3, 1992, in a previous adversary proceeding titled Gordon Zerbetz v John R. Olsen and Olivia J. Olsen,⁽³⁾ the court quieted title in the name of the trustee against the alleged interest of John R. Olsen, in the following property:

Lots 1 through 33 of the SUBDIVISION OF TRACT B, OLSEN SUBDIVISION, according to Plat No. 86-16, records of the Peterburg Recording District, First Judicial District, State of Alaska (as more fully described in the Quit-Claim Deed recorded on March 22, 1989 in Book 32 at Page 683 et seq in the Petersburg Recording District).⁽⁴⁾

In the present adversary proceeding, filed by the trustee seeking relief with respect to the same land, it is described slightly differently as:

Lots 1 through 33, SUBDIVISION OF TRACT B, OLSEN SUBDIVISION, A PORTION OF H.E.S. # 38, according to Plat 86-16, records of the Petersburg Recording District, First Judicial District, State of Alaska.⁽⁵⁾

These descriptions are obviously for the same 33 lots.

The complaint alleges that, John R. Olsen conveyed Lot 1, Tract A, Olsen Subdivision to Phyllis Hernandez in 1996. The description of the lot conveyed was misidentified as Tract A (the other parcel involved in this proceeding), instead of Tract 5 ABR 489

   B, but correctly identified as Lot 1, Tract B, by a copy of the Statutory Warranty Deed attached to the complaint.⁽⁶⁾

          The trustee also alleged that Michael Medalen, along with Phyllis Hernandez, may claim an interest by virtue of a building permit filed with the City of Petersburg for the same property.⁽⁷⁾

          Hernandez and Medalen did not file an answer. Their failure to deny the allegations amount to an admission and can support the summary judgment in this adversary proceeding.⁽⁸⁾

          It has thus been established that the lot conveyed to Hernandez in 1996 was property of the estate and not of John R. Olsen. Summary judgment will be granted that title should be quieted against the interest of Hernandez and Medalen, and the trustee is entitled to recover possession of Lot 1.

          2.3. Summary Judgment Against John R. Olsen- The trustee alleged in the complaint that John R. Olsen had created a barricade preventing access to the two parcels mentioned in the complaint. He also claims an interest in them. The trustee stated he seeks to prevent the erection of barriers in the publically dedicated rights-of-way in the two parcels described in the complaint. The complaint describes the real property as:

Parcel 1: TRACT A, OLSEN SUBDIVISION, according to Plat 84-33, records of the Petersburg Recording District, First Judicial District, State of Alaska, and

Parcel 2: Lots 1 through 33, SUBDIVISION OF TRACT B, 5 ABR 490 OLSEN SUBDIVISION, A PORTION OF H.E.S. # 38, according to Plat 86-16, records of the Petersburg Recording District, First Judicial District, State of Alaska.⁽⁹⁾

          With respect to Parcel 2 (Lots 1-33, Tract B, Olsen Subdivision), that matter has already been determined in the previous adversary proceeding, and affirmed by the Court of Appeals.⁽¹⁰⁾ The trustee's rights in Parcel 2 prime John's rights.

          Also, John did not directly deny the allegation in the complaint that the trustee owned Parcel 1 (Tract A, Olsen Subdivision) by filing an answer. Although there was no formal answer, John filed a document entitled Refusal of Summons & Complaint for "Fraud" F.R.C.P. 9(b).⁽¹¹⁾ It is the type of pleading associated with the Posse Comitatus movement, but the court will treat it as an answer anyway. It was a diatribe against the trustee, his attorney, the court, and the judicial system. But, it did not deny the essential elements of the trustee's complaint. This admission that the trustee owns Tract A would be sufficient to grant summary judgment.⁽¹²⁾

          Additionally, the court indicated at the hearing on July 28, 1998, that it would take judicial notice of an order entered in the main case⁽¹³⁾ which provides that the debtors, and every party claiming through them, were to vacate Tract A, Olsen Subdivision. Although the court can take judicial notice of its own files, if appropriate, at a summary judgment hearing, prior notice of the intent to take judicial notice to 5 ABR 491

   John should have been given.⁽¹⁴⁾ Since the trustee nor the court gave John notice of the intent to judicially notice the prior order regarding Tract A,⁽¹⁵⁾ the court will give John R. Olsen until Friday, August 14, 1998, to file an objection based on the court's judicial notice of the order.

          Parenthetically, the court declined to use the recent declarations of Gordon Zerbetz, Larry Compton, and Bernd Guetschow⁽¹⁶⁾ because these were not served with the motion for summary judgment, which was filed almost a year ago.

          John R. Olsen's failure to properly deny the allegations in the complaint regarding Tract A, Olsen Subdivision, are probably sufficient to allow the court to enter summary judgment quieting title of Tract A, Olsen Subdivision in the name of the trustee as being superior to that of John R. Olsen, and prohibiting John R. Olsen from erecting barriers within the public accesses to Tract A and Tract B, Olsen Subdivision. Nonetheless, since the court intends to also rely on its main case order⁽¹⁷⁾ directed to the debtors and all parties taking through them that Tract A be vacated in favor of the trustee, I will defer granting a summary judgement order against John to allow him time to object to the court judicially recognizing that order.

          Should John not respond, summary judgment will be entered against him, quieting title in Tract A, Olsen Subdivision in the name of the trustee, and enjoining him from blocking the dedicated rights-of-way in Tracts A and B, Olsen Subdivision. The trustee will be authorized to seek a writ of assistance to enforce his rights.

5 ABR 492

              3. CONCLUSION- An order will also be entered that summary judgment will be granted to the trustee against defendants Hernandez and Medalen, quieting title in Lot 1 of Tract B, Olsen Subdivision, and prohibiting John R. Olsen from erecting barriers to the public roads and access within the subdivision containing Lots 1 through 33 of Tract B, Olsen Subdivision according to Plat 86-16 in the Petersburg Recording District, Alaska.

          The court will enter an order granting John R. Olsen until August 14, 1998, to file an objection to the granting of summary judgment based on the court's judicial notice of the order with respect to Tract A, Olsen Subdivision.

          If John R. Olsen does not meaningfully respond to the court's taking judicial notice of the main order with respect to Tract A, Olsen Subdivision, the court will extend the judgment prohibiting him from barring access to Tract A, Olsen Subdivision, and quieting title in Tract A in the name of the trustee.

          Given the history with respect to these properties, the court will order that a writ of assistance may be issued allowing the trustee to seek the aid of law enforcement officials to assist him in carrying out his duties of liquidating these properties.

DATED: July 28, 1998

	HERBERT A. ROSS
	U.S. Bankruptcy Judge

1. 5 ABR 488 Docket Entries 8 and 9, filed August 4, 1997.

2. 5 ABR 488 Docket Entries 17 and 18, filed September 26, 1997.

3. 5 ABR 488 Adv. 5-84-00009-005-HAR.

4. 5 ABR 488 Complaint, Docket Entry 1, Exhibit A, Corrected Judgment recorded at O&J No. 15945.

5. 5 ABR 488 See, Complaint, Docket Entry 1, ś 3.

6. 5 ABR 489 See>, Complaint, Docket Entry 1, ś 7 and Exhibit B.

7. 5 ABR 489 Id, at ś 8 and Exhibit C.

8. 5 ABR 489 FRCP 8(d) and 56(e), incorporated by FRBP 7008(a) and 7056; Lockwood v Wolf Corp., 629 F2d 603, 611 (9^th Cir 1980).

9. 5 ABR 490 See, Complaint, Docket Entry 1, ś 3.

10. 5 ABR 490 John R. Olsen v Gordon Zerbetz (In re Raymond R. Olsen), 36 F3d 71 (9th Cir 1994).

11. 5 ABR 490 Docket Entry 7, filed July 14, 1997.

12. 5 ABR 490 See citations in footnote 6.

13. 5 ABR 490 Main Case No. 5-84-00009-HAR, Docket Entry 724.1, filed September 10, 1990.

14. 5 ABR 491 FRE 201(e, f); In re Mohring, 142 BR 389, 393 (Bankr ED Cal 1992), affd 153 BR 601 (9^th Cir BAP 1993), affd 24 F3d 247 (9^th Cir 1994).

15. 5 ABR 491 See, footnote 13.

16. 5 ABR 491 Docket Entries 22, 23, and 24, filed July 14, 1998.

17. 5 ABR 491 See, footnote 13.