United States v. M.L.K., Inc.
United States v. M.L.K., Inc.
Opinion of the Court
I. Introduction
This case involves an action by plaintiff United States of America, on behalf of its agency the Small Business Administration (“SBA”), for judgment on a promissory note and personal guarantees executed by defendants. The matter is currently before the court on plaintiffs motion for summary judgment (Doe. # 7). For the reasons set forth below, plaintiffs motion is granted.
II. Factual Background
The following facts are uncontroverted by the defendants.
Defendant M.L.K., Inc. has failed to make each monthly payment to plaintiff when each payment became due and payable. The last voluntary payment was made October 12, 1992. As a result of the failure to make each monthly payment when due, plaintiff exercised its option to declare the whole balance of the indebtedness due and so notified M.L.K., Inc., Marcus McFarland and Janet McFarland by registered mail, return receipt requested.
The amount due on the note has not been satisfied, and there is now due and owing to plaintiff from defendant M.L.K., Inc., as well as Marcus McFarland and Janet McFarland on their guarantees, the sum of $72,790.14 principal, plus accrued interest of $6,716.64 to December 15, 1993, plus accruing interest at the rate of 8% per annum from and after that date.
III.Standards for Summary Judgment
A motion for summary judgment gives a judge an initial opportunity to assess the need for a trial without weighing the evidence or determining credibility. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The requirement of a “genuine” issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. at 2512.
The party who files a motion for summary judgment has the initial burden of demonstrating the absence of a genuine issue of material facts concerning its claims. This burden may be met by showing that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a
TV. Discussion
Defendants do not directly controvert, in either their answer to the complaint or their response to plaintiffs summary judgment motion, plaintiffs assertions that: (1) M.L.K., Inc. executed the promissory note; (2) M.L.K. executed the security agreement; (3) Marcus and Janet McFarland executed the personal, unconditional guarantees; (4) defendants have defaulted on the note; (5) defendants received letters from the SBA notifying them that the SBA was holder of the note and had exercised its option to call the note; or (6) the amount due and owing under the note is as stated by plaintiff. These facts, if uncontroverted, would entitle plaintiff to judgment on its claims. See United States v. Frey, 708 F.Supp. 310, 312 (D.Kan. 1988).
Rather than produce evidence to directly controvert any of these factual aver-ments by plaintiff, defendants rely on a technical argument that plaintiff failed to properly support its summary judgment motion as required under Fed.R.Civ.P. 56(e), and therefore plaintiffs summary judgment motion should be denied. The note, security agreement, guarantees and other loan documents were attached to plaintiffs complaint. Rather than admit or deny their authenticity, defendants responded in their answer that the documents are “instruments] in writing, the terms and conditions of which are self-evident.” Defendants now contend that the plaintiffs reliance on the documents in their summary judgment motion is improper because plaintiff merely attaches the documents to its motion, and does not verify their authenticity by use of an affidavit, which defendants contend is required under Fed. R.Civ.P. 56(c) and D.Kan.Rule 206.
In its reply, plaintiff contends that defendants’ answer, which states that the “documents speak for themselves,” should be interpreted as an admission, by silence, that the defendants did in fact execute each of the documents in question. Additionally, in an attempt to, in plaintiff’s words, “moot out any procedural problems with this motion,” plaintiff has attached to its response an affidavit from Wayne R. Newell, who was a Senior Vice President at North Plaza State Bank at the time the documents were executed. In his affidavit, Mr. Newell states that the loan documents were prepared under his direction and that, along with personally executing the documents on behalf of the bank, he personally witnessed Janet McFarland and Marcus McFarland sign the documents in his office.
The court believes that given the cryptic language used by defendants in answering plaintiffs complaint, along with defendant’s contention that the authenticity of the documents was not properly supported by affidavit, an interesting question would arise as to whether the authenticity of the documents could be presumed for purposes of summary judgment. It is true that defendants produced no evidence to contradict the authenticity of the documents. However, it is plaintiffs burden under Fed.R.Civ.P. 56 to produce evidence relating to their authenticity. By merely producing the documents, without any supporting evidence as to their creation and authenticity, plaintiff arguably failed to carry its burden.
Defendants make one other legal argument, that being their contention that plaintiff failed to produce evidence that the note was properly assigned to the SBA, or that defendants received notice of such assignment. The court finds that in the affidavit of John E. Walls,
V Conclusion
IT IS, THEREFORE, BY THE COURT ORDERED THAT plaintiffs motion for summary judgment (Doc. # 7) is granted.
IT IS SO ORDERED.
. Defendants contend that, pursuant to Fed. R.Civ.P. 56(c), plaintiff has failed to properly support many of these facts in its summary judgment motion. The court has considered and rejected this argument, for the reasons set forth in the discussion section of this order.
. Although it is difficult to fault defendants for strictly holding plaintiff to its burden of proof, the court is troubled by the litigation tactics employed by defendants in this matter. It appears to the court that defendants had no valid grounds to contest the authenticity and execution
. Mr. Walls’ affidavit was attached to plaintiff's reply memorandum.
. The granting of this motion will result in termination of this litigation. In the final paragraph of their answer, defendants state that they "pray that the court will allow the joinder or impleader of the University of Kansas.” Defendants failed to serve a summons and complaint on third party University of Kansas within the ten day period following their answer provided in Fed.R.Civ.P. 14(a). The court would deny any attempt to do so now as untimely. See First Nat. Bank of Nocona v. Duncan Sav. & Loan Ass'n, 957 F.2d 775 (10th Cir. 1992); United States Fidelity & Guaranty Co. v. Perkins, 388 F.2d 771 (10th Cir 1968).
Reference
- Full Case Name
- United States v. M.L.K., INC., d/b/a Metro Construction, Marcus A. McFarland and Janet L. McFarland
- Cited By
- 1 case
- Status
- Published