FSM SUPREME COURT TRIAL DIVISION
Cite as FSM Dev. Bank v. Jonah, 13 FSM Intrm. 522 (Kos. 2005).

[13 FSM Intrm. 522]

FSM DEVELOPMENT BANK,

Plaintiff,

vs.

DONALD JONAH and DORINDA DONALD,

Defendants.

CIVIL ACTION NO. 2002-2000

ORDER AND MEMORANDUM

Martin Yinug

Associate Justice

Decided:  November 29, 2005

APPEARANCES:

For the Plaintiff:   Michael J. Sipos, Esq.

                                 P.O. Box 2069

                                 Kolonia, Pohnpei   FM   96941

For the Defendants:   Sasaki L. George, Esq.

                                         Micronesian Legal Services Corporation

                                         P.O. Box 38

                                         Tofol, Kosrae   FM   96944

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HEADNOTES

Civil Procedure; Summary Judgment

      A movant must address affirmative defenses in requesting summary judgment. FSM Dev. Bank v. Jonah, 13 FSM Intrm. 522, 523 (Kos. 2005).

[13 FSM Intrm. 523]

Banks and Banking

      Under 30 F.S.M.C. 104(2), the Development Bank does not have a duty to provide technical support for the project for which the money was loaned because 30 F.S.M.C. 104 does not confer a private cause of action, and the Bank does not have a duty under this statute to provide technical assistance to debtors to whom it has already made a loan. FSM Dev. Bank v. Jonah, 13 FSM Intrm. 522, 523 (Kos. 2005).

Civil Procedure ) Summary Judgment

      Summary judgment will be granted in a claim for money damages when no questions of fact that preclude summary judgment exist and when there is no issue of fact remaining with respect to the amount owed. FSM Dev. Bank v. Jonah, 13 FSM Intrm. 522, 523-24 (Kos. 2005).

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COURTíS OPINION

MARTIN YINUG, Associate Justice:

      Pending before the court is the September 1, 2005 motion for summary judgment of the plaintiff FSM Development Bank ("the Bank"). The issues are fully briefed.

      The Bank moved for summary judgment based on the July 29, 2001 promissory note signed by the defendants. Donald Jonah is now deceased. The complaint alleges that in excess of $200,000.00 remains due and owing on the note. In her May 29, 2002 answer, defendant Dorinda Jonah ("Jonah") makes a blanket allegation of the affirmative defenses of "discharge in bankruptcy, estoppel, impossibility of performance, act of god, illegality, laches, statute of limitations, waiver, and other matters." Answer ∂ 22. Jonah also answers that the Bank "assumed the risks involved in the transaction," Answer ∂ 19, and that the Bank "breached its duty of care towards the Defendants." Answer ∂ 20.

      A movant must address affirmative defenses in requesting summary judgment. FSM Dev. Bank v. Rodriguez Corp., 2 FSM Intrm. 128, 130 (Pon. 1985). However, as the Bank points out in its reply, negligence and assumption of risk are tort concepts. Jonah has come forward with no evidence that the court may consider under Rule 56 of the FSM Rules of Civil Procedure that would support their application in this contract action. Nor has Jonah presented any evidence that the court may consider under Rule 56 that suggests the numerous defenses alleged in ∂ 22 of the complaint apply. No issues of fact exist with regard to these defenses.

      Jonah states in her response to the summary judgment motion that the Bank failed to renew credit insurance for Donald Jonah, and implies that had it done so, the loan would have been paid upon his death. However, it was Jonahís obligation, not the Bankís, to secure credit insurance under paragraph 7 of the loan agreement. Jonah also cites 30 F.S.M.C. 104(2) for the proposition that the Bank has a duty to provide technical support for the project for which the money was loaned. Jonah implies that the Bank breached this duty, but offers no facts admissible for consideration under Rule 56 to support this inference. But even if she had done so, 30 F.S.M.C. 104 does not confer a private cause of action. FSM Dev. Bank v. Mudong, 10 FSM Intrm. 67, 77 (Pon. 2001). Moreover, the Bank does not have a duty under this statute to provide technical assistance to debtors to whom it has already made a loan. FSM Dev. Bank v. Ifraim, 10 FSM Intrm. 342, 345 (Chk. 2001); Mudong, 10 FSM Intrm. at 76-77 (Pon. 2001). No question of fact exists on these points.

      Jonah also urges that "specific performance was impossible due to mistakes, frustrations, act

[13 FSM Intrm. 524]

of God, erosion, and poor tourism in Kosrae," and that "[d]efendant should be excused from specific performance." Memorandum of Points and Authorities at 6 (Oct. 7, 2005). This case involves a claim for money damages and not specific performance. Beyond that, Jonah offers neither legal authority nor any factual matter that the court may properly consider under Rule 56 of the FSM Rules of Civil Procedure to support this statement, which is argument. No questions of fact that preclude summary judgment exists relative to these contentions.

      The issue that potentially precludes summary judgment on the issue of damages is the amount owed on the note. The Bank submitted new calculations on this question to address concerns raised by Jonah in response the Bankís motion for summary judgment. The Bank points out errors of $9.00, $300.00, and $312.75, which have been corrected, and corrects a mistaken date on the payment ledger ) a date shown as November 26, 1997, should actually be October 26, 1997. The Bank also recites that because the 1% late penalty interest rate was not clearly made part of Jonahís obligation under the contract, the claim for this has been omitted. Jonah was given until November 25, 2005, to submit evidence in opposition to the new calculations, but did not. Thus, the court finds there is no issue of fact remaining with respect to the amount owed.

      Accordingly, the Bankís motion for summary judgment is granted. The Bank will submit a form of judgment that reflects its corrected calculations of the amount owed on the July 29, 2001 promissory note.

      Lastly, the court notes that the September 27, 2005 order incorrectly recites that July 1, 2005, was the pretrial motion cutoff date. The correct date was August 15, 2005.

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