Federated States of Micronesia Development Bank v Mori [1986] FMSC 14; 2 FSM Intrm. 242 (Truk 1986) (12 September 1986)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as FSM Dev. Bank v. Mori & Mailo [1986] FMSC 14; 2 FSM Intrm. 242 (Truk 1986)

[1986] FMSC 14; [2 FSM Intrm. 242]

FSM DEVELOPMENT BANK
Plaintiff,

vs.

YASU MORI & HIREKO MORI
Defendants.

FSM DEVELOPMENT BANK
Plaintiff,

vs.

T.M. MAILO & S. MAILO
Defendants.

CIVIL NO. 86-1001
CIVIL NO. 86-1001
ORDER DENYING MOTIONS

OPINION
Before Richard H. Benson
Associate Justice
September 12, 1986

APPEARANCES:

For the Plaintiffs: Maketo Robert
Attorney-at-Law
P.O. Box 979
Pohnpei, FSM 96941

For the Defendants: Jeanne H. Rayphand
Attorney-at-Law
MLSC
Truk, FSM 96942

[2 FSM Intrm.243]

* * * *

HEADNOTES

Jurisdiction-subject matter
In an action on a delinquent promissory note brought by an instrumentality of the national government which seeks to foreclose the mortgage securing the payment of the note, prior to the filing of an answer no interest in land is at issue, and therefore the motion to dismiss on the ground that the court lacked jurisdiction is denied. FSM Dev. Bank v. Mori, [1986] FMSC 14; 2 FSM Intrm. 242, 244 (Truk 1986).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice,
These cases were consolidated for the purpose of hearing similar motions. They came before the court pursuant to notice on August 28, 1986 on the motions filed by the defendants in each case for order dismissing the actions on the ground that the court lacked jurisdiction.

The issue presented is whether the court has subject matter jurisdiction of a case brought on a promissory note secured by a mortgage on land in which the plaintiff seeks a money judgment and a judicial sale of the land.

In each case the plaintiff alleges a default in payment as required by certain promissory notes, and seeks a judgment for the amount owing, and for attachment of judicial sale of land which secured the payment of the notes.

The motions to dismiss, each supported by a memorandum of points and authorities, are on the grounds that the plaintiff is not a part of the national government, and because an interest in land is involved.

The motions were originally opposed by the plaintiff which filed points and authorities in opposition. Later the plaintiff, after filing similar cases in the Truk State Court, moved for a stay of these cases because of the pendency of the State Court cases. These motions were unsupported by any memorandum of points and authorities.

Joint motions for dismissal of the cases were filed at the hearing on the grounds that there were pending State Court cases and that the cases involved interests in land.

The plaintiff did not appear at the hearing. The defendants appeared by counsel.

Subsequent to the filing of the motions to dismiss, but prior to the hearing, the Trial Division in Pohnpei held that "[T]he Federated States of Micronesia Development Bank is an instrumentality of the national government and part of the national government for purposes of Article XI, Section 6(a)

[2 FSM Intrm.244]

of the Constitution." FSM Dev. Bank v. Estate of Nanpei, [1986] FMSC 8; 2 FSM Intrm. 217, 221 (Pon. 1986). Counsel for the defendants accepted this holding and abandoned their first ground for the motion to dismiss.

The pertinent part of the Constitution reads, "The trial division of the Supreme Court has original and exclusive jurisdiction in cases...in which the national government is a party except where an interest in land is at issue." FSM Const. art. XI, § 6(a).

The term "at issue" has been defined as, "whenever the parties come to a point in the pleadings which is affirmed on one side and denied on the other, they are said to be at an issue." Black's Law Dictionary 114 (5th ed. 1979), or as "in a state of controversy: in disagreement." Webster's Ninth New Collegiate Dictionary (1986).

In this case no answer has yet been filed. There is therefore no issue at this time as to an interest in land. The court does have original and exclusive jurisdiction because the national government is a party.

The court therefore concludes:

1. The motions for stays have been waived by the plaintiff because no memoranda have been filed. FSM Civ. R. 6(d).

2. The motions to dismiss are denied because the national government is a party and no interest in land is at issue.

3. The joint motions to dismiss are denied because the grounds set forth are not correct statements of the law.