ORDER GRANTING SUMMARY JUDGMENT BUT POSTPONING ENTRY OF IN REM JUDGMENT
Numerous motions are pending in this in rem foreclosure action. Although the Court cannot enter a final Judgment until the issue of the appropriate application of insurance proceeds is resolved, it concludes that Regions Bank and the United States are entitled to summary judgment for the reasons herein stated.
The United States and Regions Bank both seek in rem judgments against the subject property, located in Van Buren County, AR, and more particularly described in the pleadings submitted by the respective lien holders. It appears undisputed that Regions Bank has the first lien and the U.S. the second lien. Both Regions Bank and the United States have filed motions for summary judgment. The United States has also filed a Motion for Default Judgment as to Mauthe Gifford and Lee Threadgill, neither of which have responded timely to the Amended Complaint for Foreclosure.
Only the Defendant Jewell D. Threadgill has lodged any objection to the motions for summary judgment filed by Regions Bank and the United States. On June 8, 2005, Ms. Threadgill, proceeding pro se, filed a pleading objecting to the proposed foreclosure and to Regions' claim to the insurance proceeds arising from a fire on the mortgaged premises resulting in a total loss of the primary residence located on the premises. Ms. Threadgill's primary objection to the proposed foreclosure appears to be that her prior discharge in bankruptcy prohibits the attempted foreclosure.
Ms. Threadgill's June 8th submission is difficult to understand. Although it was docketed as a response objecting to summary judgment, Regions, Larry Gifford, and Farm Bureau Mutual all filed answers to Ms. Threadgill's submission, apparently out of an abundance of caution in the event the pleading was construed to state a cause of action. Additionally, Regions Bank filed a Motion to Dismiss arguing that Ms. Threadgill's motion fails to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. Rule 12(b)(6). Although Ms. Threadgill's submission has various assertions sprinkled throughout, the Court does not consider it to raise any affirmative causes of action.*fn1 The Court therefore considers it solely to the extent that it opposes the pending Motions for Summary Judgment.
An issue exists relating to the proper disposition of insurance proceeds arising from a fire on the premises. On January 1, 2003, a structure on the mortgaged premises was destroyed by fire. The structure was insured by Third-Party Defendant Farm Bureau Mutual Insurance Co. of Arkansas. Regions Bank and Jewell D. Threadgill were loss payees according to the terms of the insurance policy. Farm Bureau has issued a check in the sum of $45,000 for payment of such loss. The check is made payable to the order of "Jewell D. Threadgill, Regions Bank and USA Farmers Home Admin." Ms. Threadgill has refused to endorse the check. Regions currently has possession of the check and requests that the Court authorize the check to be cashed without Ms. Threadgill's endorsement and such funds ordered distributed to Regions Bank to be applied toward its judgment herein. Alternatively, Regions requests that the check be reissued and interpled into the registry of the Court.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only when, in reviewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
"A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id.
Once the moving party demonstrates that the record does not disclose a genuine dispute on a material fact, the non-moving party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. Rule 56(e). The plain language of Rule 56(c) mandates the entry of summary judgment against a non-moving party which, after adequate time for discovery, fails to make a showing sufficient to establish the existence of an element essential to its case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.
The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law. Holloway ...