# SE Property Holdings, LLC v. Stewart

> United States Bankruptcy Court, W.D. Oklahoma · August 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10461592

## Case

- **Court:** United States Bankruptcy Court, W.D. Oklahoma
- **Decided:** August 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10461592

## How later opinions describe it (automated extraction)

- holding that a “proponent need only ‘explain the admissible form that is anticipated’”
- recognizing that a “court may consider... the content or substance of otherwise inadmissible materials when ‘the party submitting the evidence show[s] that it will be possible to put the information... into admissible form.’”

## Opinion text

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Dated: August 3, 2022 2 Sere 7
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The following is ORDERED: wo
ONY BAEZ

Janice D. Loyd
U.S. Bankruptcy Judge

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
In re: )
)
David A. Stewart and Terry P. Stewart, ) Case No. 15-12215-JDL
) Chapter 7
Debtors. )
) (Jointly Administered)
)
SE Property Holdings, LLC, )
)
Plaintiff, )
V. ) Adv. No. 16-1087-JDL
)
David A. Stewart and Terry P. Stewart, )
)
Defendants. )

ORDER ON MOTION TO STRIKE EXPERT REPORT AND MOTION FOR LEAVE TO
SUPPLEMENT THE SUMMARY JUDGMENT RECORD
Introduction
Debtors have moved the Court for an order striking the appraisal of jewelry made
by Plaintiff's expert witness submitted by Plaintiff in support of both its motion for partial
summary judgment and in opposition to the Debtors’ motions for summary judgment.

Debtors argue that the appraisal was not authenticated by an affidavit or sworn testimony
so that the appraisal constitutes inadmissible hearsay evidence which cannot be
considered on the pending cross-motions for summary judgment. Before the Court for
consideration are:

1. Defendant Terry P. Stewart’s Motion to Strike Plaintiff’s Exhibit 1 to Plaintiff’s
Reply to Terry Stewart’s Response to Motion for Partial Summary Judgment (“Motion to
Strike”). [Doc. 168];
2. SEPH’s Response to Defendant Terry P. Stewart’s Motion to Strike Plaintiff’s
Exhibit 1 to Plaintiff’s Reply to Terry Stewart’s Response to Motion for Partial Summary
Judgment. [Doc. 175];
3. SEPH’s Motion for Leave to Supplement the Summary Judgment Record. [Doc.
177]; and
4. Defendants David A. Stewart and Terry P. Stewart’s Response and Objection to
SEPH’s Motion for Leave to Supplement the Summary Judgment Record. [Doc. 178].
Background
One of the myriad issues, though an important one, in this case has been whether
the Debtors provided false testimony in their Schedules and depositions as to the amount
and value of their jewelry so as to bar their discharge under 11 U.S.C. § 727(a)(4).1 In their
defense, Debtors have been relying, in part, upon the appraisal of the jewelry by their
expert, Kannard Jewelers. SE Property Holdings, LLC (“SEPH”) had retained an expert,
but he was unwilling to examine the jewelry with Mr. Stewart present, and Mr. Stewart
refused to allow the expert to examine the jewelry without him being present. After several
requests for Debtors to permit an inspection of the jewelry, on April 30, 2021, SEPH filed
1 Unless otherwise noted, all statutory references are to sections of the United States
Bankruptcy Code, 11 U.S.C. § 101 et seq.
2
a motion to compel the same. [Doc. 108]. At the hearing on the motion to compel held on
June 3, 2021, the parties agreed for SEPH’s new expert to examine the jewelry with Mr.
Stewart present on June 24, 2021. [Doc. 191, pgs. 31-35, 46-47, 49-50].
Prior to the jewelry examination, on May 28, 2021, both SEPH and the Debtors filed

their respective motions for summary judgment. On June 11, 2021, all the parties filed
their responses to the opposing party’s motion for summary judgment. The examination
of the jewelry by SEPH’s expert took place on June 24, 2021. The following day, SEPH
filed its application to file Exhibit 1 (the expert’s appraisal) to Plaintiff’s response under
seal. [Doc. 155]. Three days later, on June 28, 2021, SEPH withdrew its application to file
the expert report under seal and filed Seph’s Amended Reply to Terry Stewart’s Response
to SEPH’s Motion for Partial Summary Judgment (“Amended Reply”) [Doc. 164], to which
it attached the jewelry appraisal by its expert witness, J. Miles Dowd (the “Dowd Report”).
[Doc. 164-1].
Debtor Terry Stewart filed her Motion to Strike the Dowd Report because it was

unauthenticated, not accompanied by an affidavit and thus inadmissible hearsay which
could not be considered by the Court in ruling upon the § 727(a)(4) false oath issues in
both SEPH’s and the Debtors’ motions for summary judgment. SEPH responded to the
Motion to Strike by arguing that summary judgment law did not require it to have the
expert’s appraisal supported by an affidavit. Three days after filing its Amended Reply,
SEPH “hedged its bets” by filing Seph’s Motion for Leave to Supplement the Summary
Judgment Record [Doc. 177], by which it attached an Affidavit executed by its expert, J.
Miles Dowd, attesting to his preparation of the appraisal. [Doc. 177-1].

3
Discussion
To support her Motion to Strike, Terry Stewart cites the long-existing rule of law that
“only admissible evidence may be considered by a court with a motion for summary
judgment,” and therefore, unauthenticated documents were inappropriate for consideration.
See, e.g., Gross v. Burggraf Construction Co., 53 F.3d 1531, 1541 (10th Cir. 1995). More

precisely, the issue presented by the present case is whether the court can consider an
“unsworn” expert report at the summary judgment stage. Many cases have answered the
question in the negative. See, e.g., Rainforest Café, Inc. v. Amazon, Inc., 86 F.Supp.2d
886, 904 (D. Minn. 1999) (While it might be true the courts routinely consider expert reports
when deciding motions for summary judgment, courts do not do so where the reports are
“unsworn or unverified.”); Provident Life and Accident Insurance Co. v. Goel, 274 F.3d 984,
1000 (5th Cir. 2001) (“Unsworn expert reports... do not qualify as affidavits or otherwise
admissible evidence for [the] purpose of Rule 56, and may be disregarded by the court
when ruling on a motion for summary judgment.”) (quoting 11 Moore, Moore’s Federal

Practice,¶ 56.14[2][c] (3rd ed. 1997)); United States v. One TRW, Model M14, 7.62 Caliber
Rifle, 441 F.3d 416, 426 (6th Cir. 2006); Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 26 (11th
Cir. 2003) (an unsworn expert report cannot be considered on summary judgment).
Unfortunately for the Debtors, that is no longer the majority view of the law.2

2 Counsel for Terry Stewart points out that this Court, in fact in this bankruptcy case, has
held that “[i]t is well settled that unauthenticated documents cannot be considered on a motion for
summary judgment. In order to be considered by the court, ‘documents must be authenticated by
and attached to an affidavit that meets the requirements of [Fed. R. Civ. P. 56(e)].” In re Stewart,
2017 WL 5565227 (Bankr. W.D. Okla. 2017)(quoting In re Harris, 209 B.R. 990, 996 (10th Cir. BAP
1997). As will be discussed, in the present case and henceforth, the Court elects to follow the
majority line of cases recognizing the changes brought about by the 2010 amendments to Rule 56.
4
As stated by the cases above, prior to its amendment in 2010, Rule 56 of the Fed.
R. Civ. P. required that a sworn or certified copy of any document referred to in an affidavit
be attached to the affidavit. It was generally recognized an exhibit could be used on a
summary judgment motion only if it were properly made part of an affidavit. Further, to be
admissible, documents had to be authenticated by an attached affidavit that met the

requirements of Rule 56, and the affiant had to be a person through whom the exhibit could
be admitted into evidence.
Rule 56(c)(4) states that, when supporting a factual position for summary judgment
purposes “[a]n affidavit or declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” After the 2010
revisions to the Rule, parties are no longer required to prepare a formal affidavit, as 28
U.S.C. § 1746 “allows a written unsworn declaration, certificate, verification, or statement
subscribed in proper form as true under penalty of perjury to substitute for an affidavit.”

Fed. R. Civ. P. 56 Advisory Committee’s Note to 2010 amendment. The 2010
amendments to Rule 56 have been summarized by Wright and Miller, Federal Practice and
Procedure, § 2722 as follows:
However, when the rule was amended in 2010, the rulemakers
omitted these specific requirements, and simply added to the
list of appropriate materials “documents.” As explained in the
Committee Notes, the requirements were viewed “as
unnecessary given the requirement in subdivision (c)(1)(A) that
a statement of disputed fact be supported by materials in the
record.” Thus, although the substance or content of the
evidence submitted to support or dispute a fact on summary
judgment must be admissible, the material may be presented
in the form that would not, in itself be admissible at trial. Under
the amended rule, however, a party desiring to use a
5
document must cite to the particular part of the document that
supports its assertions.
****
It is also worth noting that although affidavits remain an
available type of summary-judgment evidence, a formal
affidavit no longer is required. Section 1746 of Title 28
specifically authorizes a written “unsworn declaration,
certificate, verification, or statement” signed by the person
under penalty of perjury to substitute for an affidavit. Thus, all
these changes reduce the need to utilize affidavits on
summary judgment today. (citations omitted).
Since 2010 courts, including some within the same district, have reached varying
conclusions as to whether an expert report need be sworn to be considered on a motion
for summary judgment. However, the majority of post-2010 cases hold that the report need
not be sworn or authenticated.
In Sanchez v. Hartley, 299 F.Supp.3rd 1166,1181 n.11 (D. Colo. 2017), the court
forcefully rejected the argument made herein by the Debtors:
Dickson objects that Dr. Honts's expert report is incompetent
summary judgment evidence because it is “unsworn” (i.e., not
in the form of an affidavit or declaration). The Court is frankly
tired of addressing this utterly formalistic and baseless (yet
surprisingly common) objection. See Pertile v. Gen. Motors,
LLC, 2017 WL 4237870, at *2 (D. Colo. Sept. 22, 2017). The
cases Dickson cites in support of his position—Adickes v. S. H.
Kress & Co., 398 U.S. 144, 158 n.17, 90 S.Ct. 1598, 26
L.Ed.2d 142 (1970), and Sofford v. Schindler Elevator Corp.,
954 F.Supp. 1459, 1462–63 (D. Colo. 1997)—have been
abrogated on this point by the 2010 amendments to Federal
Rule of Civil Procedure 56. See Pertile, 2017 WL 4237870, at
*2 & n.3. The proper question at summary judgment is whether
the proffering party “is incapable of presenting its experts'
intended testimony ‘in a form that would be admissible in
evidence [at trial].’” Gunn v. Carter, 2016 WL 7899902, at *2
(D. Colo. June 13, 2016) (quoting Fed. R. Civ. P. 56(c)(2)).
Dickson does not attempt to show that Sanchez cannot bring
Dr. Honts to testify at trial, or that Dr. Honts's opinions have not
been adequately disclosed. Dickson's objection is therefore
6
overruled.
Similarly, in Foreward Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *1-2
(W.D. Mich. 2011) the court stated:
Newly revised Rule 56 of the Federal Rules of Civil Procedure
governs the procedure by which the court must review
objections to the admissibility of evidence presented in
connection with a motion for summary judgment. In some
respects, the 2010 amendment Rule 56 works a sea change
in summary judgment procedure and introduces flexibility (and
consequent uncertainty) in place of the bright-line rules that
are obtained previously. Former Rule 56(e) contained an
unequivocal direction that documents presented in connection
with a summary judgment motion must be authenticated.
****
These authorities must be read carefully, however, in light of
the 2010 amendments to Rule 56, which eliminated the
unequivocal requirement that documents submitted in support
of a summary judgment motion must be authenticated.
Rather, the amended Rule allows a party making or opposing
a summary judgment motion to cite to materials in the record
including, among other things, “depositions, documents,
electronically stored information, affidavits or declarations” and
the like. FED. R. CIV. P. 56(c)(1)(A). If the opposing party
believes that such materials “cannot be presented in a form
that would be admissible in evidence,” that party must file an
objection. FED. R. CIV. P. 56(c)(2). Significantly, the objection
contemplated by the amended Rule is not that the material
“has not” been submitted in admissible form, but that it
“cannot” be. The comments to the 2010 amendments make
it clear that the drafters intended to make summary judgment
practice conform to procedure at trial. “The objection functions
much as an objection at trial, adjusted for the pretrial setting.
The burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that
is anticipated. There is no need to make a separate motion to
strike.” FED. R. CIV. P. 56 (2010 Advisory Committee
comments). The revised Rule therefore clearly contemplates
that the proponent of evidence will have the ability to address
the opponent's objections, and the Rule allows the court to
give the proponent “an opportunity to properly support or
address the fact,” if the court finds the objection meritorious.
7
FED. R. CIV. P. 56(e)(1). Thus, the amendment replaces a
clear, bright-line rule (“all documents must be authenticated”)
with a multi-step process by which a proponent may submit
evidence, subject to objection by the opponent and an
opportunity for the proponent to either authenticate the
document or propose a method to doing so at trial.
See also DeYoung v. Dillon Logistics, Inc., 2021 WL 414536, at *4 (E.D. Tex. 2021) (“In
the Fifth Circuit a district court may consider unsworn expert reports if the proponents
provide a method for presenting them as admissible evidence. Here, the plaintiffs have
satisfied their burden by proposing that the experts will testify at trial to their reports. The
court is satisfied that the expert reports can be presented in a form that would be
admissible.”); Lee v. Offshore Logistical and Transport, L.L.C., 859 F.3d 353, 355 (5th Cir.
2017) (“Although the substance or content of the evidence submitted to support or dispute
a fact on summary judgment must be admissible..., the material may be presented in a
form that would not in itself, be admissible at trial.”); Fraternal Order of Police, Lodge 1 v.
City of Camden, 842 F.3d 231, 238 (3rd Cir. 2016) (holding that a “proponent need only
‘explain the admissible form that is anticipated’”); Humphreys & Partners Architects, L.P.
v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015) (recognizing that a “court may
consider... the content or substance of otherwise inadmissible materials when ‘the party
submitting the evidence show[s] that it will be possible to put the information... into
admissible form.’”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012
(determining that a district court may consider the statement “if the statement could be
reduced to admissible evidence at trial or reduced to admissible form.”).
The only two post-2010 cases cited by Terry Stewart in support of her argument that
the appraisal is inadmissible are inapposite. In In re Jaramillo, 2020 WL 1867891 (Bankr.
8
D. N.M. 2020), the court excluded appraisals where “[n]one of the parties who prepared
the reports testified at the hearing.” The pre-2010 case cited by the Jaramillo Court
excluded an appraisal “as improper hearsay evidence where the appraiser was not
available for cross-examination.” See Waddell v. Comm’r of Internal Revenue, 841 F.2d
264, 267(9th Cir.1988) (per curiam). In Green v. United States, 2016 WL 5876030 (W.D.

Okla. 2016) the court actually denied the Defendant’s motion to strike an appraisal which
had been done by a deceased individual who had prepared an appraisal report, not as an
expert witness but to comply with Internal Revenue Service requirements. The Court
admitted the report under both the “business records” and a document relied upon by a
testifying expert exceptions to the hearsay rule.
There are cases within the Tenth Circuit which, even following the 2010
Amendments to Rule 56, hold that an expert witness report must be authenticated before
being considered on a motion for summary judgment. See, e.g., Pruitt v. Alamosa County
Sheriff’s Office, 2020 WL 3971651 (D. Colo. 2020) (finding that “even assuming the reports

were not required to be sworn, ‘[t]he burden is on the proponent to show that the material
is admissible as presented or to explain the admissible form that is anticipated.’”). The only
Tenth Circuit case, albeit in an unpublished opinion,3 has stated that “unsworn expert
reports are not competent evidence on summary judgment.” Peak ex rel. Peak v. Central
Tank Coatings, Inc., 606 Fed.Appx. 891, 895 (10th Cir. 2015).4

3 Under 10th Cir. R. 32.1, “[u]npublished cases are not precedential, but may be cited for
their persuasive value.”
4 That statement, however, must be placed in context. The Tenth Circuit in Peak recognized
that the Advisory Committee’s notes on the 2010 Amendments to Rule 56(c)(4) stated that
although “[a] formal affidavit is no longer required,” Rule 56(c)(4) still requires that “a written
9
Even in the absence of an oath affirming in an affidavit, Federal law recognizes
certain unsworn declarations as competent evidence to oppose a motion for summary
judgment. 28 U.S.C. § 1746. Section 1746 directs that whenever a rule requires “any
matter” be supported by a “sworn declaration...oath, or affidavit” such matter may be
supported, “with like force and effect,” by an unsworn declaration. Such unsworn

declaration must be “subscribed by [the declarant], as true under penalty of perjury, and
dated in substantially the following form:”
****
(2) If executed within the United States, its territories,
possessions, or commonwealths: “I declare (or certify, verify,
or state) under penalty of perjury that the foregoing is true and
correct. Executed on (date) (Signature).
Id. Strict compliance with § 1746 is not required as long as the unsworn declaration
“substantially” satisfies the statute. Rogers v. City of Selma, 178 F.Supp.3d 1222, 1232
(S.D. Ala. 2016); See also United States v. Roberts, 308 F.3d 1147, 1154–55 (11th Cir.
2002), cert. denied, 538 U.S. 1064, 123 S.Ct. 2232, 155 L.Ed.2d 1119 (2003) (finding §
1746 met when the unsworn declaration included the disclaimer “to the best of [the
declarant's] knowledge, information or belief”); Schroeder v. McDonald, 55 F.3d 454, 460
n. 10 (9th Cir.1995) (finding § 1746 met where it stated that “the facts stated in ... the
complaint [are] true and correct as known to me”).
In the present case, the Dowd Report, even without an accompanying affidavit, is
unsworn declaration, certificate, verification, or statement [be] subscribed in proper form as true
under penalty of perjury [under 28 U.S.C. § 1746] to substitute for an affidavit.” The Court went
on to note that “because neither report contains proper subscriptions, they cannot be considered
on summary judgment.” As discussed below and contrary to the facts in Peak, in the present case
the expert report is signed, dated and recites that the “statements of fact stated in this report are
true and correct.”
10
dated, states that “[t]he statements of fact contained in this report are true and correct” and
is signed by Mr. Dowd. [Doc. 164-1, pg. 3 ¶ 13]. Furthermore, SEPH has stated Mr. Dowd
will testify at trial as to his report. There is no question in the Court’s mind that SEPH has
met its burden of showing that the Dowd Report can be presented in an admissible form
at trial and/or that the Dowd Report itself meets the requirements of Rule 56(c)(1) and (4)

and § 1746.
As to Terry Stewart’s argument that the appraisal conducted on June 24, 2021 has
no relevance to the value of the jewelry at the time of the bankruptcy petition filed in 2014,
the Court finds that to be an issue of fact to be presented and argued at the time of the trial
on the matter. Debtors also assert that the Dowd Report fails to establish that he is a
qualified expert in the field of jewelry appraisal. The Dowd Report indicates that his
company “is an independent jewelry appraisal company;” that he is a member of the
National Association of Jewelry Appraisers; that he has a diploma as a Graduate
Gemologist; that he has been in the business for approximately 35 years; and cites the

“certification of appraisal practices” underlying the Dowd Report. At least on the face of
the Dowd Report, at this stage of the proceeding, Mr. Dowd appears to qualify as an expert
which SEPH is entitled to present at trial. Debtors will have their opportunity to challenge
his expert status at trial.
Lastly, although probably the most expeditious way of resolving the present issue,
is that even if a party initially submits an unsworn affidavit or declaration to substantiate a
claim under Rule 56, if the party attaches an unsworn expert report along with the expert’s
sworn declaration or deposition affirming the report, the unsworn report’s deficiencies are
cured. Rawers v. United States, 488 F.Supp.3d 1059, 1105 (D. N.M. 2020). See, e.g.,
11
Wright & Miller, Affidavits in Support of or in Opposition to Summary Judgment, 10B
Federal Practice & Procedure, § 2738 (4th ed. July, 2020) (“Subsequent verification or
reaffirmation of an unsworn expert’s report, either by affidavit or deposition, allows the
court to consider the unsworn expert’s report on a motion for summary judgment.”) (citing
DG & G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 826 (8th Cir.

2009); Humphreys v. Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 539
(4th Cir. 2015) (stating that a court can consider an unsworn expert's report on a summary
judgment motion if a party subsequently affirms or verifies it with an expert's affidavit or
deposition); Cornell Research Found., Inc. v. Hewlett–Packard Co., 2007 WL 4349135, at
*19 (N.D. N.Y. 2007) (“Despite the potential inappropriateness of submitting the unsworn
report of a party's own expert to support or oppose a summary judgment motion, such a
defect is, as plaintiffs argue, curable through the submission of an affidavit or a declaration
verifying the report's contents.”). Thus, even if the Dowd Report standing alone was not
sufficient for consideration in opposition to the Debtors’ motions for summary judgment

(which the Court finds it was sufficient), after the Debtors objected to the Dowd Report
because it was not supported by an affidavit, SEPH corrected any alleged deficiency by
subsequently filing Dowd’s Affidavit.
Based on the above,
IT IS ORDERED that Defendant Terry P. Stewart’s Motion to Strike Plaintiff’s Exhibit
1 to Plaintiff’s Reply to Terry Stewart’s Response to Motion for Partial Summary Judgment
[Doc. 168] is Denied.
IT IS FURTHER ORDERED that SEPH’s Motion for Leave to Supplement the

12
Summary Judgment Record [Doc. 177] is Granted. 5
# # #

5 Since the Court has denied the Debtor’s Motion to Strike and permitted consideration of
the expert report without an affidavit, it would appear to render moot a ruling on SEPH’s Motion to
Supplement the Summary Judgment Record. At the same time, granting SEPH’s Motion to
Supplement Record would also render moot Debtor’s Motion to Strike. A ruling in favor of SEPH
on either motion gets the Dowd Report before the Court for consideration on both parties motions
for summary judgment. In this case, however, to make the record clear the Court prefers to
dispose of all motions on their merit.
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10461592. Public record. Not legal advice.