Opinion
No. C 01-1859 SI
March 22, 2002
JUDGMENT
Summary judgment in favor of plaintiff and against defendant has been granted. Accordingly, judgment is hereby entered in favor of plaintiff and against defendant in the amount of $8,282.89 in principal and interest; $1,618.75 in attorneys' fees; $87.00 in administration costs; and $30.00 in court costs, for a total judgment of $10,018.64.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
On March 8, 2002, this matter was set for hearing on plaintiff's motion for summary judgment. Plaintiff appeared through counsel; defendant did not appear, nor did she contact the court concerning the hearing or request its postponement. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS plaintiff's motion for the reasons set forth below.
BACKGROUND
This is an action to collect the amount due on student loans obtained by defendant Shirley A. Freeman ("Freeman") to attend Lone Mountain College and the University of Denver. Plaintiff has submitted evidence establishing that on August 2, 1969, Freeman obtained a Federal Insured Student Loan from Wells Fargo Bank in the amount of $500 to be used to attend Lone Mountain College. Freeman defaulted on the obligation on September 2, 1975. Taking into account accrued interest of seven percent per annum, Freeman now owes $1,142.63 on this promissory note. Declaration of Myron McNeil ("McNeil Decl."), Ex. 1. In 1971 and 1972, Freeman obtained total of $1,250 in five disbursements of National Direct Student Loans from Lone Mountain College. Freeman defaulted on her obligation on August 8, 1978. Taking into account cancellations due, payments made, and accrued interest of three percent per annum, Freeman now owes $1,336.50 on these loans. Id. at Ex. 2. On January 16, 1974, Freeman executed a promissory note to secure a Federal Insured Student Loan of $2,500 from Union Bank to be used to attend the University of Denver. Freeman defaulted on her obligation on March 2, 1979. Taking into account accrued interest of seven percent per annum, Freeman now owes $5,803.76 on this promissory note. Id. at Ex. 3. The holders assigned the notes to the United States Department of Education, which now seeks to collect.
DISCUSSION
Now before the Court is plaintiff's motion for summary judgment. The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).
In a suit to enforce a set of promissory notes, the plaintiff is entitled to judgment if it presents evidence of the existence of the note, the defendant's default, and the amount due. See United States v. Irby, 517 F.2d 1042, 1043 (5th Cir. 1975); United States v. Glaude, 1999 WL 1080680, *1 (N.D. Cal. Nov. 12, 1999). Here, plaintiff has made out a prima facie case through submission of the signed promissory notes and certificates of indebtedness from the Department of Education. The burden thus shifts to defendant to prove that the amount due is not owing.Irby, 517 F.2d at 1043. Freeman did not submit an opposition to plaintiff's motion for summary judgment. In her Answer, Freeman denies taking out any student loans to attend Lone Mountain College. Instead, she contends that any paperwork she may have signed pertained to grants she received. As to the loan used to attend the University of Denver, Freeman contends that she completed repayment of the loan sometime between 1976 and 1980. Answer. At the initial case management conference, Freeman expressed her intention to locate proof that the loans described herein were either grants for which no repayment was necessary, or were loans that have been repaid. Freeman has not come forward with any evidence supporting these positions. Moreover, her arguments are contradicted by the documents submitted by plaintiff which provide clear evidence of her indebtedness. Therefore, plaintiff is entitled to summary judgment. Plaintiff will be awarded the amount due on the outstanding promissory notes, administrative and court costs incurred, and reasonable attorneys' fees, as provided for in the promissory notes signed by Freeman.
Each of the promissory notes signed by Freeman contained a clause requiring her to pay all reasonable attorney's fee and costs necessary for the collection of any amount not paid when due. Counsel for the United States has submitted a declaration setting forth the time spent on this action, 9.25 hours, and his hourly rate of $175. The Court finds this to be a reasonable hourly rate and a reasonable numbers of hours.