SUPREMB COURT 01' RORTH DAKOTA

)
GBEAT PLAIBS RATIONAL BARK, )
)
Plaintiff-Appellee, )
)
~. ) SUPBBMB COURT RO. 20090119
)
Sam Leppert and Laura Leppert, )
) FiLED
iN THE OFFICE OF THE
Defendants-Appellants. ) CLERK OF SUPREME COURT
)
Anthony Heinze and J. Doe I-V, ) MAY 26 20G9
)
Defendants. )
STATE OF NORTH DAKOTA

APPEAL noM 'l'BB BORTH DAKOTA DISTRICT COURT

COOR'l'Y 01' BADBS SOtrl'llBAST JUDICIAL DISTRICT

HORORABLB MIKAL SIMONSOK, DISTRICT JUDGE

APPBLLARTS' BRIBF
AND

REQUEST I'OR ORAL AIlGOIID'l'

Sam Leppert and Laura Leppert

1827 106th Avenue SB
Dazey, Borth Dakota 58429
(701) 733-5562
Defendants-Appellants
Pro Se
JONATHAN R. PAY
Suite 600 Dakota Center Building
51 Broadway
I'argo, Borth Dakota 58102
(701) 293-9190
Attorney for Plaintiff-Appellee
[Link]:l wtr
f\\.ED6VC\.ERK JUN 92009
sup~1AE COURt

. . R" .... ,Q .,
 TABLE OF CON'tENTS

Table of Authorities. • • • • • • • • • . • • ii
Statement of the Issue Presented for Review • .. 1

Statement of the Case • .... 2

Statement of the Facts .... ... 5

Argument • • • • • ... ....... 9

Conclusion. • ..... 15
Request for Oral Argument • 16
Certificate of Service. • • .. 17

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 TABLE OF AUTHORITIES

North Dakota Court Rules: Page

N.D. Rules. App. P. 35 • • • .... 1 ,9

N.D. Rules of Evidence Rule 1002 . • .... 1,10

Other Authorities:
N.D. U.C.C. Section 41-03-38. ... 1,10
Federal U.C.C. Section 3-603 • • • • . • • • 1,10
Title 12, U.S.C. Section 1831n (2) (A) ••• ... 1,13

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 STATEMBR'l' OF THE ISSUE PRESENTED FOR REVIEW

WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION IN RULING

SUFFICIENT EVIDENCE WAS PRESENT IN TIlE COURT RECORD TO

CONCLUDE THAT GREAT PLAINS NATIONAL BAN1t WAS ENTITLED TO

SUMMARY JUDGMERT

Authorities
N.D. Rules. App. P. 35
N.D. Rules of Evidence Rule 1002
N.D. U.C.C. Section 41-03-38
Federal U.C.C. Section 3-603
Title 12, U.S.C. Section 1831n(2) (A)

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 STATEMENT OF TIlE CASK
Nature of the case: Sam Leppert and Laura Leppert appeal from
the Order Authorizing Delivery of Sam Leppert's farm equipment,
machinery, livestock, and crops, entered on May 14, 2008, the
Judgment entered on February 4, 2009, the Amended Judgment entered
on February 13, 2009, granting Great Plains National Bank's Motion
for Summary Judgment, and the Order entered on March 10, 2009, by
Honorable Mikal Siminson, District Judge, Presiding, denying Sam
Leppert's Motion to Alter or Amend Judgment and every ruling
adverse to Sam Leppert and Laura Leppert during the progress and
hearing of such cause.
Course of Proceedings and Disposition in the Trial Court:
On August 16, 2007, Great Plains National Bank filed its
original Complaint against Sam Leppert alleging that he defaulted
on five Promissory Notes that he executed and delivered to Great
Plains National Bank. (Docket Entry No.2).
On November 29, 2007, Sam Leppert filed his Answer to Great
Plains National Bank's Complaint. (Docket Entry No. 15).
On December 4, 2007, a hearing was held before the District
Court regarding Great Plains National Bank's motion for an Order
granting immediate possession of Sam Leppert's farm equipment,
machinery, livestock, and crops.
On May 14, 2008, the District Court entered its Order
Authorizing Delivery of Sam Leppert's farm equipment, machinery,
livestock, and crops, based upon a Bond filed by Great Plains
National Bank. (Docket Entry No. 28).

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 On June 5, 2008, Great Plains National Bank filed it Amended
Complaint against Sam Leppert, Laura Leppert and Andrew Anthony
Heinze. (App. at 1-23).
On June 17, 2008, the District Court entered its Order
authorizing the Amended Complaint. (Docket Entry No. 40).
On July 1, 2008, Sam Leppert filed his Notice of Removal to
the United States District Court. (Docket Entry No. 42).
On July 9, 2008, Sam Leppert and Laura Leppert served their
Answer to the Amended Complaint filed by Great Plains National
Bank. (App. at 24-34).
On November 1, 2008, entered the Transcript of the Deposition
of Jeanne M. Witt, (Docket Entry No. 47), and the Transcript of
Deposition of Raymond Thielges, (Docket Entry No. 48).
On December 24, 2008, Sam Leppert served Great Plains National
Bank his Request for Admissions, (App. at 35-39), his Request for
Production of Documents, (App. at 40-44), and his Interrogatories.
(App. at 45-51).
On January 9, 2009, Great Plains National Bank filed its
Motion for Judgment, (App. at 52-53), a Memorandum of Law, (App. at
54-60), and a copy of the affidavit that was prepared for Jeanne
Witt by Great Plains National Bank's attorney, Jonathan R. Fay, in
support of its Motion for Summary Judgment. (App. at 61-62).
On January 16, 2009, Sam Leppert and Laura Leppert filed their
Response to the Great National Bank's Motion for Judgment, (App. at
63-70), the Affidavit of Sam Leppert, (App. at 71-74), and
Statement of Undisputed Material Facts. (App. at 75-78).

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 On January 30, 2009, a hearing was held regarding Great Plains
National Bank's Motion for Summary Judgment. (App. at 106-122).
On February 4, 2009, the District Court entered Findings of
Fact, Conclusion of Law and Order for Judgment. (App. at 79-84).
On February 4, 2009, the District Court entered a Judgment
signed by the Clerk of the District Court. (App. at 85-87).
On February 13, 2009, the District Court entered an Amended
Judgment signed by the Clerk of the District Court. (App. at
88-90).
On February 27, 2009, Sam Leppert filed his Motion to Alter or
Amend Judgment, (App. at 91-92), and Brief in Support of Motion to
Alter or Amend Judgment. (App. at 93-102).
On March 10, 2009, The District Court entered its Order
denying Sam Leppert's Motion to Alter or Amend Judgment. (App. at
103) •
On April 8, 2009, Sam Leppert and Laura Leppert filed their
Notice of Appeal and paid the required docket fee. (App. at
104-105).

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 STA'l'EMBNT OF THE FACTS

On August 16, 2007, Great Plains National Bank filed its

original Complaint against Sam Leppert alleging that he defaulted
under the terms of the loans. Attached to the Complaint were
"photocopies" of the alleged defaulted Promissory Notes. (Docket
Entry No.2). Sam Leppert filed his Answer to Great Plains
National Bank's Complaint denying each allegation due to his "offer
to pay" and the "refusal" on the part of Great Plains National Bank
to validate the alleged debt, or show adequate assurance of the
alleged debt, or show its the "Holder in Due Course" of its claims,
the "original" five Promissory Notes. (Docket Entry No. 15).
On December 4, 2007, a hearing was held before the District
Court regarding Great Plains National Bank's motion for an Order
granting immediate possession of Sam Leppert's farm equipment,
machinery, livestock and crops. On May 14, 2008, the District
Court entered an Order made for it to sign by Jonathan R. Fay,
attorney for Great Plains National Bank, Authorizing Delivery of
Sam Leppert's farm equipment, machinery, livestock and crops, in
lieu of the fact that Great Plains National Bank "never produced"
any of the "original" five Promissory Notes, or the "original"
Security Agreement or the "original" Financial Statement.
(Docket Entry No. 28).
Based upon the fact that Great Plains National Bank did not
enter any of the "original" five Promissory Notes or the "original"
Security Agreement, or the "original" Financial Statement, into the
District Court record at the December 4, 2007 hearing in support

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its motion, and "did not" prove, as a matter of law, that it was
the "Holder in Due Course", Sam Leppert decided to take the
Deposition of Jeanne M. Witt and Raymond Thielges who are employed
by Great Plains National Bank.
On April 16, 2008, Sam Leppert caused a Subpoena to served
upon Jeanne M. Witt, Loan Officer, and Raymond Thielges, Branch
Manager, for Great Plains National Bank, requiring them to bring
the "original blue ink" Promissory Notes for Account Numbers
300010121, 300010122, 35000155, 300010114 and 300010167, any and
all assignments of said Promissory Notes, and all internal
accounting ledgers pertaining to said Promissory Notes.
On May 1, 2008, Sam Leppert took the Deposition of Jeanne M.
Witt and Raymond Thielges at the Barnes County Courthouse, Valley
City, North Dakota. Neither Jeannne M. Witt or Raymond Thielges
brought with them any of the subpoenaed "original blue ink"
Promissory Notes for the account numbers allegedly in default, or
any and "all assignments" of said Promissory Notes, or any of the
"accounting ledgers" pertaining to said Promissory Notes. Both
Jeanne M. Witt and Raymond Thielges gave evasive answers to
questions that were relevant to Sam Leppert's defense. Their
attorney, Jonathan R. Fay, also objected to questions that were
relevant to Sam Leppert's defense. (Docket Entry No. 47 and 48).
On December 24, 2008, Sam Leppert served Great Plains National
Bank his Request for Admissions, (App. at 35-39), his Request for
Production of Documents, (App. at 40-44), and his Interrogatories,
(App. at 45-51). But, rather than responding to Sam Leppert's

6
discovery requests, on January 9, 2009, Great Plains National Bank
filed its Motion for Judgment, seeking Summary Judgment, an Order
"Quashing" Sam Leppert's discovery requests, and an Order
discharging the replevin bond, (App. at 52-53), a Memorandum of
Law, (App. at 54-60), and a "photocopy" of the affidavit that was
prepared for Jeanne M. Witt by Great Plains National Bank's
attorney, Jonathan R. Fay, in support of its Motion for Summary
Judgment. (App. at 61-62).
On January 16, 2009, Sam Leppert and Laura Leppert filed their
Response to Great National Bank's Motion for Summary Judgment,
(App. at 63-70), the Affidavit of Sam Leppert, (App. at 71-74), and
Statement of Undisputed Material Facts. (App. at 75-78).
On January 30, 2009, a hearing was held regarding Great Plains
National Bank's Motion for Summary Judgment. Both parties stated
their arguments and Sam Leppert entered his Request for Admissions,
Request for Production of Documents and his Interrogatories. The
District Court took the matter under advisement. (App. at
106-122).
On February 4, 2009, the District Court entered Findings of
Fact, Conclusion of Law, and an Order for Judgment, that were
prepared for the District Court to sign by Jonathan R. Fay,
attorney for Great Plains National Bank. (App. at 79-84).
On February 4, 2009, the District Court entered a Judgment
that was prepared by ~onathan R. Fay, attorney for Great Plains
National Bank and was signed by the Clerk of the District Court.
(App. at 85-87). The District Court totally disregarded all of Sam

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Leppert's pleadings and unrebutted Affidavit. The District Court
also disregarded the fact that Great Plains National Bank "never"
entered any of the five "original" Promissory Notes, or the
"original" Mortgage, or the "original" Security Agreement or the
"original" Financial Statement.
On February 13, 2009, the District Court entered an Amended
Judgment that was prepared for it by Jonathan R. Fay, attorney for
Great Plains National Bank and was signed by the Clerk of the
District Court. (App. at 88-90).
On February 27, 2009, Sam Leppert filed his Motion to Alter or
Amend Judgment, (App. at 91-92), and Brief in Support of Motion to
Alter or Amend Judgment. (App. at 93-102). The District Court
entered an Order denying Sam Leppert's Motion to Alter or Amend
Judgment on March 10, 2009. (App. at 103).
On April 8, 2009, Sam Leppert and Laura Leppert filed their
Notice of Appeal and paid the required docket fee. (App. at
104-105).

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 ARGUMENT

WHETHER TUB DISTRICT COURT ABUSED ITS DISCRETION IN RULING

sun'ICIENT EVIDENCE WAS PRESENT IN TUB COURT RECORD TO
CONCLUDE THAT GREAT PLAINS NATIONAL BANK WAS ENTITLED TO
SUMMARY JUDGMENT

A. Scope of Review
When the sufficiency of the evidence is challenged, this Court
reviews sufficiency of the evidence claims for errors at law. N. D.
Rules. App. P. 35.
B. Great Plains National Bank Did Not Prove Standing.
The District Court had knowledge of the fact that in order for
Great Plains National Bank to prove "standing" in a foreclosure
proceeding Great Plains National Bank was "required" to produce the
five "original" signed PromissorY Notes and the "original" signed
Mortgage, the "original" Security Agreement and the "original"
Financial Agreement But, the District Court ignored those facts.
The District Court stated in its Judgment (App. at 85-87),
that it had "jurisdiction" of the parties and "subject matter" to
this action. But, the District Court record in this case "does
not" reflect Great Plains National Bank entering the "original"
five signed Promissory Notes or entering the "original" signed
Mortgage associated with the alleged loans, or the "original"
Security Agreement or the "original" Financial Statement being
entered by Great Plains National Bank. How did the District Court
obtain jurisdiction of the parties and subject matter to this
action?

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 Pursuant to Section 41-03-38 of the North Dakota Uniform
Commercial Code, entitled, Signature, a person is not liable on an
Instrument unless the person signed the Instrument. Great Plains
National Bank has not produced any of the Instruments, the five
Promissory Notes, or the Mortgage or the Security Agreement or the
Financial Agreement, in this case.
Pursuant to Rule 1002, of the North Dakota Rules of Evidence,
entitled, Requirement of original: To prove the content of a
writing, recording, or photograph, the original writing, recording
photograph is required. The District Court Record does not reflect
evidence of Great Plains National Bank entering the "original"
Mortgage, or the "original" five Promissory Notes, or the
"original" Security Agreement, or the "original" Financial
Agreement, or Great Plains National Bank's "original" bookkeeping
journal entries maintained by Great Plains National Bank's CPA or
Auditor, for the term of the alleged loans as proof.
Pursuant to Federal U.C.C. Section 3-603, payment must be made
to "Holder in Due Course" or discharge of the note does not occur
placing the debtor in jeopardy as to being required to pay the note
twice, once to the entity who bills and once to the holder of the
note.
Great Plains National Bank never "proved standing" because it
failed to prove it was the "Bolder in Due Course" of the five
Promissory Notes and Mortgage in this case, therefore, the District
Court lacked subject matter jurisdiction to hear this case.

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 C. The Affidavit of Jeannne M. Witt Lacked Foundation.
Great Plains National Bank relied upon an affidavit that was
prepared by Great Plains National Bank's attorney, Jonathan R. Fay,
for Jeanne M. Witt to sign and used it in support of Great Plains
National Bank's Motion for Summary Judgment. (App. at 61-62).
Jeanne M. Witt made it known that she is an officer of Great Plains
National Bank; that she reviewed the Complaint and Amended
Complaint; that she had personal knowledge, "except" as to those
cases that are based upon the Bank's files and records; that she
"believed" such matters to be true; and that the subject loans
remain unpaid.
But, Jeanne M. Witt did not attach any evidence to her
affidavit that proved she is an "officer" of Great Plains National
Bank; that proved she reviewed the Complaint and Amended Complaint;
that proved she has personal knowledge; or that proved her "belief"
the Bank's files and records were true; or any evidence of any
bookkeeping journal entries certified by Great Plains National
Bank's CPA or Auditor for the period covering the alleged loans.
D. Great Plains National Bank Did Not Produce Conclusive
Evidence To Support The Allegations In Its Amended Complaint.
Great Plains National Bank alleged in its Amended Complaint
(App. at 1-23), that for value received, Sam Leppert executed and
delivered to Great Plains National Bank a Promissory Note (Loan No.
300010121) in the original amount of $30,000.00; a Promissory Note
(Loan No. 300010122) in the original amount of $26,000.00; a
Promissory Note (Loan No. 300010114) in the original amount of

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$15,000.00; a Promissory Note (Loan No. 35000155) in the original
amount of $31,000.00; a Promissory Note (Loan No. 300010167) in the
original amount of $65,000.00; and a Commercial Security Agreement
and Financial Agreement.
But, there was no evidence of the "original" Commercial
Security Agreement, or the "original" Financial Agreement, or any
evidence of the "original" five Promissory Notes, or any evidence
of the "original" Mortgage being entered by Great Plains National
Bank into the District Court record. Most importantly, there was
no evidence of any "original ll bookkeeping journal entries certified
by the CPA or Auditor for Great Plains National Bank for the period
covering the alleged Loans. Had Great Plains National Bank
produced its bookkeeping journal(s) regarding the five Promissory
Notes, the bookkeeping journal (s) would have shown that Sam Leppert
IIwas not indebted" to Great Plains National Bank.
The District Court record IIdoes not ll reflect any evidence of
any consideration being given to Sam Leppert, regarding the alleged
loans, or whether Great Plains National Bank risked any of its
assets in the alleged loans to Sam Leppert, or evidence of any
bookkeeping journal entries certified by the CPA or Auditor for the
period covering the alleged loans, or evidence of any Call Reports
for the period covering the alleged loans, or evidence of the
account number from which the money came to fund the check given to
Sam Leppert, or evidence of the deposit slip for the deposit of Sam
Leppert's Promissory Notes associated with the alleged, or evidence
of the order authorizing the withdrawal of funds from Sam Leppert' s

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Promissory Note deposit account(s), or evidence of the insurance
policy on Sam Leppert's Promissory Notes associated with the
alleged Loans, or evidence of who the actual "creditor" and
"debtor" are in this case.
If Great Plains National Bank did make five loans of its money
and if Great Plains National Bank carried an ongoing risk of loss
to have made the loans, its bookkeeping journal entries would have
certainly shown it. But, Great Plains National Bank has refused to
produce its bookkeeping journal(s) in support of the allegations
made in its Complaint. The bookkeeping journal(s) entries and
whether its a "Holder in Due Course" of the five "original"
Promissory Notes and the "original" Mortgage are key elements in
this case which the District Court has totally ignored to the
detriment of Sam Leppert and Laura Leppert.
E. Great Plains National Bank Is Required By Law To Follow
Generally Accepted Accounting Principles (GAAP).
As a National Bank, Great Plains National Bank is presumed to·
follow the law. Great Plains National Bank knew that it is
required by law, Title 12, U.S.C. Section 1831n(2) (A), to adhere to
Generally Accepted Accounting Principals (GAAP). GAAP has a
principal, called the Matching Principle. The principle works as
follows: When a bank accepts cash, checks, negotiable instruments,
promissory notes, or other similar instrument from a customer and
deposits or records the instruments as an asset, the bank "must
record an offsetting liabilityfl that matches the asset

13
the bank accepted from the customer. The offsetting liability
shows the tlbank owes" the customer the money tlit accepted" from the
customer.
Great Plains National Bank is knowledgeable of the fact that
its bookkeeping journal entries show that the "creditor" in this
case is Sam Leppert and that the "debtor" is Great Plains National
Bank. But, Great Plains National Bank does not want to produce its
bookkeeping journal(s) regarding the alleged loans to Sam Leppert.
Great Plains National Bank does not want it made known that when
Sam Leppert first applied to Great Plains National Bank for the
alleged loans, Great Plains National Bank "could not" loan its own
assets, other depositors funds, or its own credit to Sam Leppert.
Great Plains National Bank "needed" Sam Leppert's signed
applications and Promissory Notes. Great Plains National Bank was
aware of the fact that it risked "none of its assets" in the
alleged loans to Sam Leppert.
Great Plains National Bank knew that it was using Sam
Leppert's Promissory Notes to raise an "asset" in its bookkeeping
entries to "itself" and used the face value of the Promissory Notes
called "principal" which Great Plains National Bank loaned Sam
Leppert and against which Great Plains National Bank charged
interest. Consideration on the part of Great Plains National Bank
was "non-existent." Had Great Plains National Bank produced its
bookkeeping journal entries regarding the alleged loans in this
case, those entries would have shown that Great Plains National

14
Bank owes Sam Leppert, $170,000.00 plus interest and an additional
amount of $42,150.00 for farm equipment, machinery and livestock
previously taken by the Great Plains National Bank.
Great Plains National Bank knew and was aware of the fact that
Sam Leppert's Promissory Notes regarding this case were obtained by
"fraud." Great Plains National Bank also knew and was aware of the
fact that the Promissory Notes and Mortgage were "void" for lack of
consideration.
CONCLUSION
Based upon all of the above facts, there was "not" sufficient
evidence produced by Great Plains National Bank for the District
Court to conclude that Great Plains National Bank was entitled to
Summary Judgment, or entitled to a Delivery Order granting
immediate possession of Sam Leppert's farm equipment, machinery,
livestock and crops, or for the District Court to support its
Judgment and Decree of Foreclosure on Sam Leppert and Laura
Leppert's real estate.
Sam Leppert and Laura Leppert request that all the rulings of
the District Court be overturned, that Great Plains National Bank's
Complaint be dismissed with prejudice, as a matter of law, that all
of Sam Leppert's farm equipment, machinery, and livestock that was
seized be returned.

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 UQ~STFQRQ~n~

Sam Leppert and Laura Leppert respectfully request that they

be heard in oral argument upon the submission of this case.

Respectfully submitted,

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 CERTIJ'ICATE OJ' SERVICE

The undersigned hereby certifies that on May 26, 2009,

he served a true and correct copy of the foregoing Appellants'
Brief to the following address by U.S. first class mail, postage
prepaid:

JONATHAN R. FAY
Suite 600 Dakota Center Building
51 Broadway
Fargo, North Dakota 58102

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