Search by Case Name
Search by Case Number
Search by Keyword

#2115

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:    

HOMESTEAD LAND TITLE CO.,

DEBTOR(S)

CHAPTER 7

NO. 92-41602-7C

STEVEN J. MARTENS, Trustee,

PLAINTIFF,

v.

ROBERT WEHMEYER,

DEFENDANT

ADV. NO. 93-7100

ORDER GRANTING SUMMARY JUDGMENT

This proceeding is before the Court on the plaintiff-trustee's motion for summary judgment. The trustee appears by counsel Mary Patricia Hesse. Defendant Robert Wehmeyer does not appear. The Court has reviewed the relevant pleadings and is now ready to rule.

By failing to respond to the trustee's requests for admission and the present motion, Mr. Wehmeyer may be deemed to have admitted the following relevant facts. He signed two promissory notes payable to David C. Marker or assigns. The first one is dated June 10, 1992. It says Mr. Wehmeyer promises to pay Mr. Marker $2,000 principal plus 10% interest on July 10, a total of $2,016.67. The second one is dated July 15, 1992, and says Mr. Wehmeyer promises to pay Mr. Marker $5,500 on or before December 31, 1992. This note was to draw interest at 10% if not paid when due. The loans were paid to Mr. Wehmeyer through the debtor's checks, one for $2,000 and the other for $3,500. The Court is aware that Mr. Marker was the debtor's president, and so was in a position, if he chose, to use the debtor's money as though it were his own. This could explain why the notes were made payable to Mr. Marker but the loans were made with the debtor's checks. The trustee asserts Mr. Wehmeyer owes the debtor $7,500, the sum of the notes, plus interest.

However, although he never filed a formal answer to the trustee's complaint, Mr. Wehmeyer did respond with a letter in which he asserted he had received a $5,500 loan from Mr. Marker. He also claimed they had an oral agreement that he would not have to repay the loan until a business he was starting became profitable. Mr. Wehmeyer's letter, the terms of the notes, and the checks the trustee has submitted convince the Court that Mr. Wehmeyer received only $5,500 of the debtor's money and that the second note was intended to replace the first note and add a new $3,500 advance rather than to extend a separate $5,500 loan. Thus, the Court believes the trustee has shown that he is entitled to a judgment of only $5,500, plus prejudgment interest, not $7,500. By failing to respond to the trustee's request for admissions and motion for summary judgment, Mr. Wehmeyer has waived his claim of an oral agreement. He has also waived any defense based on the fact the notes were payable to Mr. Marker rather than the debtor.

For these reasons, the Court will enter a judgment in favor of the trustee in the amount of $5,500, plus $16.67 in interest owed on the first note for the month it was outstanding, plus prejudgment interest at the rate of 10% on the second note from January 1, 1993, until the date of judgment. Interest will accrue thereafter at the federal judgment rate.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of March, 1995.













__________________________________

JAMES A. PUSATERI

  CHIEF BANKRUPTCY JUDGE

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:    

HOMESTEAD LAND TITLE CO.,

DEBTOR(S)

NO. 92-41602-7C

CHAPTER 7

STEVEN J. MARTENS, Trustee,

PLAINTIFF,

v.

ROBERT WEHMEYER,

DEFENDANT

ADV. NO. 93-7100

JUDGMENT

This proceeding was before the Court on the plaintiff-trustee's motion for summary judgment. The trustee appeared by counsel Mary Patricia Hesse. Defendant Robert Wehmeyer did not appear. The Court reviewed the relevant pleadings and issued its order granting summary judgment.

For the reasons stated therein, the trustee is hereby granted judgment against Mr. Wehmeyer for $5,500 plus $16.67 plus prejudgment interest at the rate of 10% per annum from January 1, 1993, until the date of this judgment. Thereafter, interest will accrue at the federal judgment rate established pursuant to 28 U.S.C.A. §1961.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of March, 1995.











__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

Search by Case Name
Search by Case Number
Search by Keyword