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exchanged prior to trial in accordance with Rule 91 and this
Court’s Standing Pre-Trial Order. Presumably Mr. Thomson was
unaware of these documents when formulating his expert opinion,
since he makes no mention of them. The Court deemed the
consequent surprise significant in these circumstances. The
estate then sought by requests and motions filed after trial to
have judicial notice taken of the documents. Such submissions
were denied as an improper attempt to augment the closed record
without the concurrence of the opposing party.
Mr. Thomson relied on a property profile from Chicago Title
showing no prior liens, but this document has not been made a
part of the record. The record also leaves unclear the extent to
which the property profile would have contained historical data
reflecting encumbrances as of February 1, 1995. As a result, we
are not satisfied that either expert relied on adequate
information in developing his opinion.
However, even if we were to hypothesize the existence of a
first lien, we do not believe that Mr. Thomson’s more general
reliance in valuing the Marsh note on good collateral coverage
would be appreciably weakened. Because Mr. Thomson appraised the
mobile home park at $16 to $20 million, generous coverage would
not cease to exist merely on account of a first trust deed in the
$10- to $11-million range.
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