Cite as LPP Mortgage Ltd. v. Maras,12 FSM Intrm. 27 (Chk. 2003)

[12 FSM Intrm. 27]

CIVIL ACTION NO. 2002-1019

Decided: August 4, 2003

APPEARANCES:

HEADNOTES

Civil Procedure – Dismissal

A case against one defendant will not be dismissed because that defendant will be a witness in the case since a party to a civil action is expected to be a witness in his own case. LPP Mortgage Ltd. v. Maras, 12 FSM Intrm. 27, 27 (Chk. 2003).

Civil Procedure – Dismissal

An action against a promissory note's cosigner is one for which a court can grant relief. LPP Mortgage Ltd. v. Maras, 12 FSM Intrm. 27, 28 (Chk. 2003).

Civil Procedure – Dismissal; Debtors' and Creditors' Rights

That a promissory note's co-signer did not receive the loan proceeds, but the other signers did and they spent it, is not a defense to an action on the note or a ground for dismissal of the case against the co-signer. LPP Mortgage Ltd. v. Maras, 12 FSM Intrm. 27, 28 (Chk. 2003).

Civil Procedure – Dismissal

Defendant co-signer's allegation that he did not sign the promissory note is not a ground for dismissal but a disputed fact which must be proven at trial. LPP Mortgage Ltd. v. Maras, 12 FSM Intrm. 27, 28 (Chk. 2003).

Civil Procedure – Dismissal; Civil Procedure – Pleadings

When a defendant's motion to dismiss has been denied, he has 10 days within which to file his

[12 FSM Intrm. 28]

answer to the amended complaint. LPP Mortgage Ltd. v. Maras, 12 FSM Intrm. 27, 28 (Chk. 2003).

COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On April 21, 2003, defendant Keichiro Dawe filed a Motion to Dismiss in Civil Action No. 2002-1020. Civil Action No. 2002-1020 had been consolidated into Civil Action No. 2002-1019 by court order entered April 3, 2003. Nevertheless, the motion was inadvertently placed in the file for Civil Action No. 2002-1020. Unfortunately, this has caused the court to overlook it until now.

The defendant raised four grounds for his motion: 1) he alleges he did not sign the promissory note this action is based upon; 2) he did not receive or spend the proceeds of the SBA loan; 3) the complaint fails to state a claim upon which relief may be granted; and 4) he will be a witness in the case.

The motion is denied. A party to a civil action is expected to be a witness in his own case. An action on a promissory note is one for which a court can grant relief. That a person who signed a promissory note with others (that is, a co-signer) did not receive the loan proceeds, but the other signers did and they spent it is not a defense to an action on the note. Whether defendant Dawe signed the note appears to be a genuine issue of fact in dispute – the plaintiff has filed documents that allegedly show Dawe's signature and Dawe alleges that he did not sign them – which must be proven at trial.

Now therefore it is hereby ordered that defendant Dawe's motion to dismiss having been denied, he has 10 days within which to file his answer to the amended complaint. FSM Civ. R. 12(a).