United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
Fannie Mae brings this diversity action against Matt Runte and Matt's Apartments, LLC. Fannie Mae asserts that Matt's Apartments defaulted on its obligations under a promissory note and that Runte defaulted on a guaranty of that note. This matter comes before the Court on plaintiff's Motion For Summary Judgment (Doc. #21) filed June 25, 2014. Defendants have not filed a response. For reasons set forth below, the Court finds that plaintiff's motion should be sustained.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co. , 11 F.3d 1535, 1538-39 (10th Cir. 1993). A "genuine" factual dispute is one on which the jury could reasonably find for the nonmoving party, and requires more than a mere scintilla of evidence. Liberty Lobby , 477 U.S. at 252. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id. at 248.
The moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Justice v. Crown Cork & Seal Co. , 527 F.3d 1080, 1085 (10th Cir. 2008). Once the moving party meets its burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial. Nat'l Am. Ins. Co. v. Am. Re-Ins. Co. , 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986). As to these matters, the nonmoving party may not rest on the pleadings but must set forth specific facts. Fed.R.Civ.P. 56(e)(2); Matsushita , 475 U.S. at 586-87; Justice , 527 F.3d at 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter , 500 F.3d 1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853 (10th Cir.1996).
When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods., L.P. , 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano , 557 U.S. 557, 586 (2009). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby , 477 U.S. at 250-51. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
Here, defendants have not filed a timely response and plaintiff's motion is therefore unopposed. Under D. Kan. Rule 7.4(b), a party who fails to file a responsive brief or memorandum within the time specified waives the right to later do so, and the Court will consider and decide the motion as uncontested. Ordinarily, the Court will grant the motion without further notice. Id . A party's failure to respond to a summary judgment motion, however, is not a sufficient basis on which to enter judgment. Reed v. Bennett , 312 F.3d 1190, 1195 (10th Cir. 2002). Rather, the Court must determine whether judgment for the moving party is appropriate under Fed.R.Civ.P. 56. The Court therefore accepts as true all material facts asserted and properly supported in the summary judgment motion. Id.
On July 13, 2007, Matt's Apartments entered into a commercial loan transaction with LaSalle Bank National Association. Doc. #22-1. Matt's Apartments executed a Multifamily Note in favor of LaSalle, in the original principal amount of $1, 540, 000.00. Doc. #22-2. Matt's Apartments also executed a Multifamily Deed of Trust, Assignment of Rents, and Security Agreement and Fixture Filing. Doc #22-3. Matt's Apartments agreed to pay attorney's fees and collection costs incurred to collect under the Loan Agreement.
To secure repayment of amounts owing under the Note, Runte executed a Guaranty of Payment which personally and unconditionally guaranteed the obligations of Matt's Apartments under the Note. Doc. #22-4. Runte also agreed to pay attorney's fees which LaSalle incurred in enforcing its rights under the Note and Guaranty. Id . The Note and Guaranty state that they are governed by Illinois state law.
On May 30, 2008, LaSalle assigned to Fannie Mae the Deed of Trust and the related loan documents. Doc. #22-5.
On February 6, 2013, Fannie Mae notified Matt's Apartments and Runte that Matt's Apartments had failed to make payments due under the Note and that all amounts were immediately due. Doc. #22-6. Matt's Apartments and Runte failed to pay the amounts due. Matt's Apartments and Runte admit that they are in default.
On April 23, 2013, the substitute trustee under the Deed of Trust conducted a foreclosure sale of the land and personal property secured by the Deed of Trust. At the foreclosure sale, Fannie Mae purchased the collateral for $450, 000.00.
As of June 16, 2014, Matt's Apartment and Runte are indebted to Fannie Mae in the following amounts: $1, 108, 220.79 in principal and $143, 860.60 in interest to June 16, 2014, plus interest from June 16, 2014 at a per diem rate of $344.16. As of May 31, 2014, Fannie Mae had incurred $21, ...