United States District Court, N.D. Iowa, Central Division
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY
Williams Chief United States Magistrate Judge.
matter is before the Court on the United States of
America's (“plaintiff”) Motion for Summary
Judgment as to defendants Marietta Corporation, Michael F.
Flannegan, and Marietta M. Flannegan
(“defendants”). (Doc. 31). Defendants timely
filed their resistance (Doc. 32), and the Court heard oral
argument on October 27, 2017. Although all parties subject to
the instant motion consented to proceed before the
undersigned (Doc. 12), this case was ultimately transferred
to the Honorable Leonard T. Strand, Chief United States
District Judge, for all proceedings, including final
disposition, because other defendants did not file an answer
and did not consent to me presiding over this case. Chief
Judge Strand, in turn, referred the instant motion to the
undersigned for a report and recommendation. For the
following reasons, I respectfully recommend that that Court
grant plaintiff's Motion for Summary
Judgment as to defendants Marietta Corporation, Michael F.
Flannegan, and Marietta M. Flannegan.
FACTUAL AND PROCEDURAL HISTORY
January 19, 2017, plaintiff filed its Amended Complaint
against defendants asserting a single foreclosure claim for
the property detailed in the Amended Complaint. (Doc. 16). In
support thereof, plaintiff alleged that the Small Business
Association (“SBA”) owned a promissory note
executed by defendants Marietta Corporation and Michael F.
Flannegan, as President/Secretary of the Corporation, whereby
those defendants “promised to pay SBA the sum of $298,
600 at 4.0% per annum.” (Doc. 16, at 3). Further,
defendants Michael F. Flannegan and Marietta M. Flannegan
executed a real estate mortgage on the subject property,
owned by Michael F. Flannegan, in favor of SBA.
further alleged that defendants failed to pay the principal
and interest due on the note and mortgage when due, in
violation of the terms of the note and mortgage.
(Id., at 5). Consequently, SBA accelerated the
indebtedness and demanded payment in full; the acceleration
was not appealed and no subsequent payment was received.
now seeks an in rem judgment against defendants and
the real property in the amount of $334, 652.25, including
$278, 455.17 in principal, advances, and other recoverable
costs, $56, 197.08 in interest as of September 18, 2017, plus
interest accruing thereafter in the daily amount of $30.52
per day until judgment, $400.00 for court costs, $44.32 for
service fees, $50.00 for a state court recording fee, and
statutory interest after judgment. (Doc. 31-1, at 1).
Plaintiff filed copies of the promissory note, mortgage,
applicable deeds, and default letters as attachments to its
motion for summary judgment. (Doc. 31-2, at 10-20). Further,
plaintiff filed a declaration made by a representative of SBA
attesting to defendants' default on the subject note and
the authenticity of the amount plaintiff now claims is owed.
(Doc. 31-2, at 21-22).
oral argument, defense counsel acknowledged that defendants
were in default and that summary judgment would be
appropriate in this case.
SUMMARY JUDGMENT STANDARD
judgment is appropriate when the movant shows that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a) (2016). A movant must cite to
“particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . admissions,
interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A fact is “material” if
it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (citation omitted).
“An issue of material fact is genuine if it has a real
basis in the record, ” Hartnagel v. Norman,
953 F.2d 394, 395 (8th Cir. 1992) (citation omitted), or
“when a reasonable jury could return a verdict for the
nonmoving party on the question, ” Wood v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005)
(internal quotation marks and citation omitted). Evidence
that presents only “some metaphysical doubt as to the
material facts, ” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986), or
evidence that is “merely colorable” or “not
significantly probative, ” Anderson, 477 U.S.
at 249-50, does not make an issue of fact genuine. In sum, a
genuine issue of material fact requires “sufficient
evidence supporting the claimed factual dispute” that
it “require[s] a jury or judge to resolve the
parties' differing versions of the truth at trial.”
(Id. at 249 (internal quotation marks omitted)).
party moving for summary judgment bears “the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of the record
which show a lack of a genuine issue.”
Hartnagel, 953 F.2d at 395. Once the moving party
has met this burden, the nonmoving party must go beyond the
pleadings and by depositions, affidavits, or other evidence
designate specific facts showing that there is a genuine
issue for trial. Mosley v. City of Northwoods, Mo.,
415 F.3d 908, 910 (8th Cir. 2005).
determining whether a genuine issue of material fact exists,
courts must view the evidence in the light most favorable to
the nonmoving party, giving that party the benefit of all
reasonable inferences that can be drawn from the facts.
Tolan, 134 S.Ct. at 1863; Matsushita, 475
U.S. at 587-88 (citation omitted); see also Reed v. City
of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir. 2009)
(stating that in ruling on a motion for summary judgment, a
court must view the facts “in a light most favorable to
the non-moving party-as long as those facts are not so
‘blatantly contradicted by the record . . . that no
reasonable jury could believe' them”) (alteration
in original) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)). A court does “not weigh the evidence or
attempt to determine the credibility of the witnesses.”
Kammueller v. Loomis, Fargo & Co., 383 F.3d 779,
784 (8th Cir. 2004) (citation omitted). Rather, a
“court's function is to determine whether a dispute
about a material fact is genuine.” Quick v.
Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir.
is well-established that actions on promissory notes raise
issues suitable for disposition on summary judgment. In a
suit on a promissory note written in favor of the government,
a prima facie case is established when the government
introduces evidence of the promissory note, the guaranty, and
the default.” United States v. Tieken, No.
8:00CV632, 2002 WL 818233, at *3 (D. Neb. Jan. 7, 2002). Once
the government establishes a prima facie case, the burden
shifts to the defendant to disprove the government's
is a foreclosure action on a promissory note owned by the
government, summary judgment will be proper if plaintiff
proves the existence of the promissory note and the mortgage,
and further shows that defendants are in default.
Tieken, 2002 WL 818233, at *3. Plaintiff has set
forth evidence sufficient to prove its prima facie case.
Namely, plaintiff has introduced the promissory note, the
mortgage on the subject real property, and evidence of the