LPP Mortgage Ltd v Ladore [2003] FMSC 15; 11 FSM Intrm. 601 (Pon. 2003) (27 May 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as LPP Mortgage, Ltd. v. Ladore
[2003] FMSC 15; 11 FSM Intrm. 601 (Pon. 2003)

[FSM Intrm. 601]

LPP MORTGAGE, LTD.,
Plaintiff,

vs.

SILVESTER LADORE and HERMINA LADORE,
Defendants.

CIVIL ACTION NO. 2001-039

ORDER GRANTING SUMMARY JUDGMENT

Andon L. Amaraich
Chief Justice

Decided: May 27, 2003

APPEARANCES:

For the Plaintiff: Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendants: Silvester Ladore and Hermina Ladore, pro se

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HEADNOTE

Civil Procedure - Summary Judgment
In reviewing a summary judgment motion, the court will grant the motion if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. LPP Mortgage, Ltd. v. Ladore, [2003] FMSC 15; 11 FSM Intrm. 601, 602 (Pon. 2003).

Civil Procedure - Summary Judgment
When the defendants have not alleged that the bank records are inadequate or incorrect and they do not allege that payments have been made but not credited to their account and when the defendants have not submitted documentation nor proffered proof of any type that establishes or even suggests that the bank records are in error, a defendant's flat denial of the amount, without any effort to show how or why the amount is incorrect, does not create a genuine issue of material fact.. LPP Mortgage, Ltd. v. Ladore, [2003] FMSC 15; 11 FSM Intrm. 601, 602-03 (Pon. 2003).

Civil Procedure - Pleadings
A defense perfunctorily raised in an answer but never explained, documented, or developed through argument and citation to the law, ultimately carries little or no weight. LPP Mortgage, Ltd. v. Ladore, [2003] FMSC 15; 11 FSM Intrm. 601, 603 (Pon. 2003).

[FSM Intrm. 602]

Civil Procedure - Summary Judgment
An answer that alleges that they had made the monthly payments until a defendant became unemployed may be germane in a hearing on a motion for order in aid of judgment or other proceeding, but it does not create a genuine issue as to whether the defendants owe what they are alleged to owe, whether they stopped paying on that debt, and whether the plaintiff is entitled to recover the unpaid balance as a matter of law. LPP Mortgage, Ltd. v. Ladore, [2003] FMSC 15; 11 FSM Intrm. 601, 603 (Pon. 2003).

Civil Procedure - Summary Judgment
When the defendants have failed to file any opposition to the plaintiff's summary judgment motion, they are deemed to have consented to the granting of that motion. LPP Mortgage, Ltd. v. Ladore, [2003] FMSC 15; 11 FSM Intrm. 601, 603 (Pon. 2003).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On May 8, 2003, plaintiff filed a Motion for Summary Judgment. No opposition was filed by defendants. For the reasons stated herein, the Court grants the motion.

In reviewing a motion for summary judgment, the Court will grant the motion "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FSM Civ. R. 56(c); Kyowa Shipping Co. v. Wade, [1995] FMSC 15; 7 FSM Intrm. 93, 95 (Pon. 1995).

Upon a careful review of the record, the Court finds no genuine issue of material fact. The Complaint and Motion for Summary Judgment filed by plaintiff, along with an attached affidavit and other documents, establish that defendant has failed to timely pay a debt owed under a Secured Business Disaster Loan approved by the United States Small Business Administration on March 29, 1991. The promissory note which secured that loan was executed by the defendants on April 6, 1991. The note, issued at a 4% interest rate, was for the sum of $27,500. After giving credit for payments that were made by defendants over several years, but which stopped in the year 2000,^[1] the amount due on the principal alone is now $17,698.76.

Defendants' Answer admitted the existence of the promissory note but denied without explanation both that the balance due on principal is $17,698.76 and that plaintiff may foreclose upon the property that is the subject of the mortgage. However, a review of the record reveals the following: The bank documents are sworn to by a bank loan officer personally familiar with the history of the loan that is the subject of this litigation. Those documents show the balances and payments made from 1991 to 2000, and establish that $17,698.76 is the remaining amount owing on principal. Defendants have not alleged that the bank records are inadequate or incorrect. They do not allege that payments have been made but not credited to their account. Indeed, defendants have not submitted documentation nor proffered proof of any type that establishes or even suggests that the bank records are in error. There is no question that the amount owing on a defaulted promissory note is a material fact in an action to collect on that note. However, a defendant's flat denial of the amount, without any

[FSM Intrm. 603]

effort to show how or why the amount is incorrect, does not create a genuine issue of material fact.

Similarly, although the bank's right to foreclose on the mortgaged property is material to this action, defendants have alleged no fact and cited no legal authority that raises even the slightest question about the bank's ability to do so in this case. A defense perfunctorily raised in an Answer but never explained, documented, or developed through argument and citation to the law, ultimately carries little or no weight.

Defendants' Answer also alleged, "for their defense," that they had made the monthly payments of $172 until defendant Silvester Ladore became unemployed. That fact may be germane in a hearing on a motion for order in aid of judgment or other proceeding. However, it does not create a genuine issue as to whether defendants owe what they are alleged to owe, whether they stopped paying on that debt, and whether plaintiff is entitled to recover the unpaid balance as a matter of law.

Finally, because defendants failed to file any opposition to plaintiff's motion for summary judgment, they are deemed to have consented to the granting of that motion. FSM Civ. R. 6(d); Actouka v. Kolonia Town, [1991] FMSC 20; 5 FSM Intrm. 121, 123 (Pon. 1991).

Based on this record, plaintiff is entitled to judgment as a matter of law. FSM Civ. R. 56(c). Accordingly, plaintiff's Motion for Summary Judgment is HEREBY GRANTED. Plaintiff shall submit by June 6, 2003, a proposed judgment and affidavit setting forth the principal amount and a detailed calculation of interest owing as of that date, plus fees and costs incurred in this action.

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_______________________________________

Footnote:

1. Effective August 31, 2000, the promissory note and the mortgage which defendants had used as collateral were assigned by the U.S. Small Business Administration to plaintiff LPP Mortgage.

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