Opinion
Case No. 03-4143-SAC.
August 12, 2004
MEMORANDUM AND ORDER
This case comes before the court on plaintiff's motion for summary judgment against pro se defendants Jack L. and Deborah L. Worden. The Court has subject matter jurisdiction of this matter and jurisdiction over the parties and property that is the subject of the action pursuant to 28 U.S.C. § 1345.
Defendant St. Mary's Lumber Co. has failed to answer and is in default, and the defendant State of Kansas filed a disclaimer and was dismissed from this action.
Defendants filed no response to plaintiff's motion for summary judgment. Thereafter, the court, in an abundance of caution, ordered defendants to show cause why that motion should not be considered and decided as an uncontested motion. Defendant Deborah L. Worden filed an unsigned response to the show cause order, raising arguments in opposition to the summary judgment motion, but not expressly explaining her failure to timely file a response to the summary judgment motion. The response did allege, however, that "it is impossible for defendants, who are not represented by council(sic), to understand what is happening in these proceedings," Dk. 38, p. 2, and that "Mr. Worden does not read or write so Mrs. Worden has carried the burden by herself," Id.
Summary Judgment Standards
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will . . . preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed 'to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947 (1987).
The rule in this district regarding a party's failure to file and serve motion papers provides: "If a respondent fails to file a response within the time required by [the rules of this court], the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D.Kan. Rule 7.4. The rules of this court further specifically state that "all material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." D.Kan. Rule 56.1(a).
The court cannot construe defendant's response to the show cause order to be a proper response to plaintiff's summary judgment motion because defendant's response was unsigned and untimely, if deemed a response to the summary judgment motion. But even if the court were to consider defendant's response to the court's show cause order (Dk. 38) to be a response to plaintiff's summary judgment motion, defendants have failed to specifically controvert plaintiff's statements of facts and to support their own factual assertions with proper citation to the record. See D.Kan. Rule 56.1(b)(1) ("Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed.") Thus defendant's response is insufficient to controvert plaintiff's motion.
Unanswered requests for admission
Fed.R.Civ.P. 36(a) governs the conduct of parties concerning a request for admissions, specifying in relevant part that:
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the Court may allow or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney.
Moreover, "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits the withdrawal or amendment of the admission." Fed.R.Civ.P. 36(b). "Unanswered requests for admission are deemed admitted." Bergemann v. United States, 820 F.2d 1117, 1119 (10th Cir. 1987).
Similarly, if a party fails to timely respond to requests for admissions as required by Fed.R.Civ.P. 36(a), those requests are deemed admitted. See Reynolds v. Delmar Gardens of Lenexa, Inc., 2003 WL 192481, 3 (D. Kan. Jan. 2, 2003). For purposes of a summary judgment motion the requests for admission which have been "deemed" admitted should be accepted as uncontroverted facts. See Kansas City Cable Partners v. Espy, 250 F.Supp.2d 1296, 1299-1300 (D. Kan. 2003); Ross v. K.C. Housing Authority, 1994 WL 680093 (D. Kan. 1994), aff'd, 52 F.3d 338, (10th Cir. Apr 21, 1995) (Table).
It is uncontroverted that defendants failed to respond to the request for admissions within thirty (30) days of service as required by Fed.R.Civ.P. 36(b). Pursuant to the governing rule, the "matter on which an admission is requested" is deemed admitted. Fed.R.Civ.P. 36(a).
The requests for admission in the present case are phrased in the alternative, asking each defendant to "admit or deny" certain matters, complicating the court's task in determining which matters should be deemed admitted. For example, Request for Admission No. 1 asks: "Do you admit or deny that you executed the Promissory Note with the Farmers Home Administration, now the Rural Housing Service, United States Department of Agriculture, dated April 12, 1995, attached to the Complaint as Exhibit A?" Dk. 33, Exh. 1, p. 1. Plaintiff, as the party requesting admissions, bears the burden of setting forth its requests simply, directly, not vaguely or ambiguously, and in such a manner that they can be answered with a simple admit or deny without an explanation, and in certain instances, permit a qualification or explanation for purposes of clarification. Tulip Computers Intern., B.V. v. Dell Computer Corp., 210 F.R.D. 100 (D. Del. 2002). Because the requested admissions include alternative statements both accepting and denying matters, the court has some concern that the result of deeming all the requested matters to be admitted could arguably be ambiguity on key issues. Nonetheless, the court believes that a fair reading of the requests, coupled with the intent of Rule 36, yields the conclusion that it is not the requests themselves, but rather the factual matters contained in the requests, which are deemed admitted. The court therefore finds the following facts to be established.
This is because one could argue that defendants admitted only that they admit or deny the factual statements contained in the requests.
Uncontroverted facts
On or about April 12, 1995, the defendants executed and delivered to plaintiff, acting through the Farmers Home Administration, now Rural Housing Service, United States Department of Agriculture, a promissory note whereby they promised to pay the plaintiff the sum of $67,780.00 with interest thereon at 8.75 percent per annum. As consideration for the note, the plaintiff made a Rural Housing loan to the defendants pursuant to the provisions of Title V of the Housing Act of 1949 ( 42 U.S.C. § 1471, et seq.).
To secure repayment of the promissory note, the defendants executed and delivered to the plaintiff on March 12, 1995, a purchase-money security interest in the form of a real estate mortgage upon certain real estate in Pottawatomie County, Kansas, within the jurisdiction of this Court, namely: Lot 7, Block Three (3), Mansfield Addition Unit 1, Wamego, Pottawatomie County, Kansas and more commonly known as 1430 Julie Drive, Wamego, Kansas. This mortgage was recorded in the office of the Register of Deeds of Pottawatomie County, Kansas, on April 12, 1995, in Book 285 at Page 388. Defendants own that real estate, which is the subject matter of this case.
On July 9, 1999, effective date June 12, 1999, defendants signed a reamortization agreement, wherein the reamortized amount (unpaid principal plus interest) became the principal debt of $90,112.39 at 8.75 percent per annum. Plaintiff is the owner and holder of the promissory note, real estate mortgage and reamortization agreement. Defendants failed to make payments of principal and interest when due and owing in violation of the terms of the promissory note, real estate mortgages and security agreements, and the security interests are subject to foreclosure. The accounting from Centralized Servicing Center evidences receipt of all funds paid by the Wordens on the loan account with USDA, Rural Housing Service in column 9, titled Amount Received.
Plaintiff elected to exercise its option to declare the entire unpaid principal balance, plus interest, to be immediately due and payable and made demand for said amounts. The United States advised Deborah Worden of the balance due and owing on the Promissory Note and Reamortization Agreement to the Rural Housing Service by letter dated December 4, 2000. The plaintiff has completed all loan servicing requirements of applicable statutes and regulations.
Plaintiff, United States of America, commenced this action for judgment on a promissory note and foreclosure of its mortgage and security interests in certain real estate located in Pottawatomie County, Kansas, within the jurisdiction of this court on July 22, 2003. Repayment on the Promissory Note to the Rural Housing Service, formerly the Farm Service Agency, was delinquent when this foreclosure case was filed.
A summons and copy of the complaint were served on defendants Deborah L. Worden and Jack L. Worden on September 10, 2003, as evidenced by the return of service filed with this Court on September 19, 2003. Defendant Deborah L. Worden filed an Answer to Complaint and Counterclaim against the United States on behalf of herself and her husband, defendant Jack L. Worden on October 1, 2003.
The United States filed its answer to the cross-claim of defendants Worden on October 21, 2003. The United States filed a motion to strike answer and counterclaim of defendant Jack L. Worden and supporting memorandum on October 24, 2003. The court granted that motion and permitted Jack L. Worden to file a proper answer by January 5, 2004. Defendant Jack L. Worden filed his answer to complaint and counterclaim against United States on January 9, 2004. This document was identical to the answer and counterclaim filed by Deborah L. Worden.
Thereafter, the United States served eighteen (18) requests for admission on defendants Deborah L. Worden and Jack L. Worden. Both defendants failed to respond to the requests for admissions within thirty days of service as required by Fed.R.Civ.P. 36(b), and such failure has continued through this date.
Defendants owe the United States, under the provisions of the promissory note, real estate mortgage, and reamortization agreement, a balance of $83,110.38 principal; $19,280.77 interest, as of April 7, 2003, plus interest accruing thereafter at the daily rate of $19.9236; and $15,322.53 interest credit or subsidy subject to recapture. The defendants Jack L. Worden and Deborah L. Worden are personally liable for the balance due on the Promissory Notes to the Rural Housing Service, formerly the Farmers Home Administration. Plaintiff is entitled to the foreclosure of its real estate mortgage on the subject real estate located in Pottawatomie County, Kansas, described as follows: Lot 7, Block Three (3), Mansfield Addition Unit 1, Wamego, Pottawatomie County, Kansas, and more commonly known as 1430 Julie Drive, Wamego, Kansas.
Analysis
Plaintiff has complied with its duty under the relevant rules of practice to submit its summary judgment motion and memoranda, containing a concise statement of material facts as to which it contends no genuine issue exists. The facts set forth by the plaintiff refer with particularity to the portion of the record upon which it relies, and are supported by affidavits, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admission. In short, the plaintiff has met its burden to show that summary judgment is warranted.
The court makes this ruling cautiously, aware that a pro se litigant's pleadings are construed liberally and judged against a less stringent standard than pleadings drawn by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (1991). However, "it is not the proper function of the district court to assume the role of advocate for the pro se litigant." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). The court is not to "construct arguments or theories for [a party] in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). Plaintiff's motion for summary judgment cannot be denied unless the court constructs not only the arguments and theories for defendants, but also facts which do not appear of record. Under the rules of this court, which are binding not only upon the court and the plaintiff, but also upon the defendants, plaintiff's motion for summary judgment must be granted.
IT IS THEREFORE ORDERED that plaintiff's motion for summary judgment (Dk. 32) is granted and defendants Jack L. Worden and Deborah L. Worden are jointly and severally liable in the total sum of $83,110.38 principal; $19,280.77 interest as of April 7, 2003, plus interest accruing after that date of $19.9236 per day to the date of judgment herein, together with interest at the legal rate thereafter; plus $15,322.53 interest credit or subsidy subject to recapture; plus the costs of this action.