FSM SUPREME COURT TRIAL DIVISION
Cite as FSM Dev. Bank v. Ifraim
10 FSM Intrm. 342 (Chk. 2001)
 
[10 FSM Intrm. 342]
 
FSM DEVELOPMENT BANK,
Plaintiff,
 
vs.
 
WANTUS IFRAIM and AKIEKO IFRAIM,
Defendants.
 
CIVIL ACTION NO. 2000-1016
 
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
 
Richard H. Benson
Associate Justice
 
Decided: July 23, 2001
 
[10 FSM Intrm. 343]
 
APPEARANCES:
 
For the Plaintiff:                              James P. Woodruff, Esq.
                                                         P.O. Box M
                                                         Kolonia, Pohnpei FM 96941
 
For the Defendant:                        Camillo Noket, Esq.
                                                        Directing Attorney
                                                        Micronesian Legal Services Corporation
                                                        P.O. Box D
                                                        Weno, Chuuk FM 96942
 
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HEADNOTES
 
Attorney, Trial Counselor and Client ; Evidence
     A lawyer generally cannot appear as an advocate when he also appears as a witness, although there is an exception when the testimony relates to an uncontested issue. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 344 (Chk. 2001).
 
Civil Procedure ) Summary Judgment
     An opposition to a summary judgment motion that merely states that the defendants do not understand how the plaintiff arrived at its figure and rely on their answer that they lack sufficient knowledge as to the exact amount owed does not create an genuine issue of material fact. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 344-45 (Chk. 2001).
 
Civil Procedure ) Summary Judgment
     When a moving party has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the non-moving party may not rely on unsubstantiated denials of liability or denials in its answer to carry its burden, but must present some competent evidence that would be admissible at trial that there is a genuine issue of material fact. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001).
 
Civil Procedure ) Summary Judgment
    When the defendants have presented no evidence, competent or otherwise, that the plaintiff's figure is incorrect, there is no genuine issue as to the amount owed. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001).
 
Civil Procedure ) Summary Judgment
     A plaintiff's motion for summary judgment has the obligation to clearly establish the lack of any triable issue of fact as to any affirmative defenses. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001).
 
Civil Procedure ) Summary Judgment
     A summary judgment motion that deals only with the note and the balance owed and fails to respond to the defendants' affirmative defenses will be denied. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001).
 
Civil Procedure ) Motions
     Failure to timely oppose a motion is deemed a consent to that motion. Even so, a court still
 
[10 FSM Intrm. 344]
 
needs proper grounds before it can grant that motion. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001).
 
Banks and Banking ; Torts ) Duty of Care
     30 F.S.M.C. 104(b) does not create a duty for the FSM Development Bank to provide technical assistance, but rather authorizes the FSM Development Bank to provide such assistance as a part of its functions. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001).
 
Civil Procedure ) Summary Judgment
     When the statute does not create a duty for the FSM Development Bank to provide technical assistance, and the movants have failed to put forth any competent evidence, such as affidavits or documentary evidence, to show that such a duty was created contractually or by justified detrimental reliance, their summary judgment motion based on that alleged duty must be denied because since they did not make out a prima facie case that the Bank had a duty to provide them technical assistance there was no factual basis for the motion and thus no proper grounds on which to grant it. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 346 (Chk. 2001).
 
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COURT'S OPINION
 
RICHARD H. BENSON, Associate Justice:

     On May 24, 2001, the plaintiff FSM Development Bank served, and on June 21, 2001, it filed its Motion for Summary Judgment. On June 14, 2001, the defendants, Wantus Ifraim and Akieko Ifraim, filed and served their Defendants' Opposition to Plaintiff's Motion for Summary Judgment and Cross Motion for Summary Judgment. By order issued and served on June 21, 2001, the Development Bank was given until July 2, 2001 to file and serve its opposition to the cross motion and to make any reply to the defendants' opposition, as it was advised, and the Ifraims were given five days or until July 6, 2001, whichever was earlier, to file any reply to the Development Bank's opposition, at which time the matter would be considered submitted for decision. The Development Bank has failed to file any opposition to the Ifraims' cross motion.

I. Loan Amount Still Outstanding

     The Ifraims signed a promissory note for $40,000 at 5% interest on August 25, 1992. The money was intended for a poultry-raising project. The project failed and the money was not repaid. The Development Bank seeks summary judgment that the Ifraims are liable on their promissory note for the amount of $52,244.59 ($38,569.83 in principal, $13,259.84, and $414.92 in late fees) as of May 24, 2001, with $5.28 in interest daily thereafter.

     The Ifraims do not dispute that they owe money on the loan but contend that there is a genuine issue of material fact concerning the amount owed. As evidence that its figure is correct, the Development Bank supplies bank documents and a supporting affidavit. The affiant was James Woodruff, the Development Bank's general counsel, a bank employee, and the attorney who signed and filed the Development Bank's summary judgment motion and all of the Development Bank's other filings in this case except the Complaint and Summons. This is not wise practice. A lawyer generally cannot appear as an advocate when he also appears as a witness, FSM MRPC R. 3.7, although there is an exception when the testimony relates to an uncontested issue, FSM MRPC R. 3.7(a)(1). The Ifraims' opposition merely states that they do not understand how the Bank arrived at its figure and rely on their Answer that they lack sufficient knowledge as to the exact amount owed.

[10 FSM Intrm. 345]

     This does not create an genuine issue of material fact. When a moving party has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the non-moving party may not rely on unsubstantiated denials of liability or denials in its answer to carry its burden, but must present some competent evidence that would be admissible at trial that there is a genuine issue of material fact. Marar v. Chuuk, 9 FSM Intrm. 313, 314-15 (Chk. 2000); FSM Social Sec. Admin. v. Weilbacher, 7 FSM Intrm. 442, 444 (Pon. 1996); Urban v. Salvador, 7 FSM Intrm. 29, 30 (Pon. 1995); Maruwa Shokai (Guam), Inc. v. Pyung Hwa 31, 6 FSM Intrm. 1, 4 (Pon. 1993). The Ifraims have presented no evidence, competent or otherwise, that the Development Bank's figure is incorrect. There is thus no genuine issue as to the amount owed.

     The defendants' answer asserted affirmative defenses of 1) failure to state a claim upon which relief can be granted, 2) lack of jurisdiction over the foreclosure action, 3) the statute of limitation and laches, 4) that the plaintiff failed to provide technical assistance and 5) a defense involving title to the mortgaged property which is no longer before this court.

     In the court's order setting a pretrial conference defendants were directed to file a memorandum in support of affirmative defenses 2, 3, and 4. Defendants withdrew 3 and submitted a memorandum in regard to 2 and 4. The order required plaintiff to respond to the defendants' memorandum. It did only as to the jurisdictional issue. The Development Bank prevailed in part on the jurisdictional issue, FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 1 (Chk. 2001), and the Ifraims prevailed on the issue that the real estate mortgage foreclosure lies with the Chuuk State Supreme Court, FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 107 (Chk. 2001).

     The plaintiff's motion for summary judgment covers only the note. It also had the obligation to clearly establish the lack of any triable issue of fact as to any affirmative defenses. FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985). The plaintiff has failed to make such a showing: its motion deals only with the note and the balance owed. And since the plaintiff failed to respond to defendant's Motion for Summary Judgment, nothing is before the court on plaintiff's position as to the technical assistance issue. The plaintiff's motion for summary judgment is accordingly denied.

II. Failure to Provide Technical Assistance

     The Development Bank did not file an opposition to the Ifraims' cross motion for summary judgment. Failure to timely oppose a motion is deemed a consent to that motion. FSM Civ. R. 6(d). Even so, a court still needs proper grounds before it can grant that motion. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

     The Ifraims deny liability for the unpaid balance because the Development Bank failed to provide them with technical assistance. The Ifraims raise this as a cross motion for summary judgment but it was also considered as an opposition or defense to the Development Bank's summary judgment motion. (It was raised as an affirmative defense in their Answer.) The Ifraims contend that the Development Bank had a duty provided by law to give them with such aid. The Ifraims further assert that the Development Bank's failure to render technical assistance contributed to their business failure and their consequent failure to repay the loan.

     The Ifraims' current moving papers refer to an earlier memorandum in which they cited 30 F.S.M.C. 104(2)(b) as the source of that duty. That statute does not create a duty for the Development Bank to provide technical assistance, but rather authorizes the Development Bank to provide such assistance as a part of its functions. Accord FSM Dev. Bank v. Mudong, 10 FSM Intrm. 67, 76-77 (Pon. 2001). The Ifraims now distinguish this case from Mudong on the ground that they had relied on the Development Bank's technical assistance on their original loan in the 1980's and expected it

[10 FSM Intrm. 346]

again with this loan (and had asked for it from the Development Bank and the state). They make this assertion in their answer, in an earlier memorandum, and now in their current moving papers. But nowhere do the Ifraims support this assertion with affidavits or documentary evidence. And neither party has filed a copy of the loan agreement (assuming there was one), the one document whose provisions, depending on what they are, might create a duty to provide technical assistance.

     Thus the Development Bank did not have a duty created by statute (as a matter of law) to provide the Ifraims with technical assistance. The Ifraims have failed to put forth any competent evidence to show that such a duty was created contractually or by justified detrimental reliance. The Ifraims have thus not made out a prima facie case that the Development Bank had a duty to provide them technical assistance. There being no factual basis for the motion and thus no proper grounds on which to grant it, the Ifraims' cross motion for summary judgment motion is denied.

III. Conclusion

     Accordingly, the FSM Development Bank's summary judgment motion is denied and the Ifraims' cross motion is denied.

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