Opinion
3:01-CV-0935 NPM/GLS
April 10, 2002
ERIK PERETTA, ESQ., SOLOMON AND SOLOMON, Albany, NY, Attorneys for Plaintiff.
JODY HOLMES, a/k/a JODY A. HOLMES, Waverly, NY, Defendant.
MEMORANDUM-DECISION AND ORDER
The facts relating to this student loan default collection action are undisputed. On February 20, 1995, defendant, Jody A. Holmes, executed an Application and Promissory Note for Federal Stafford Loans, in favor of Chase, U.S.A. Trust/SLMA Trust ("promissory note"). See Affidavit of Deloris Gorham (Dec. 11, 2001) at 2, ¶ 3, and exh. A thereto. On May 1, 1995, Ms. Holmes executed a second such promissory note. See id., and exh. B thereto. Both of these student loans "were guaranteed by the New York State Higher Education Services Corporation and reinsured by the Plaintiff, the United States ["the U.S."] . . . pursuant to Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. § 1071, et seq. (34 C.F.R. Part 682." Id.
According to Deloris Gorham, a Loan Analyst with the U.S. Department of Education ("the Department"), "the Defendant defaulted under her payment obligations under said promissory notes and the lender's rights under said promissory notes were thereafter assigned to the New York State Higher Education Services Corporation[,]" which in turn made a claim upon the [U.S.], "which claim was then reimbursed by the [U.S.]" Gorham Aff. at 2, ¶ 4.
As the Certification of Indebtedness supplied by the Department indicates, the defendant now owes the U.S. $5,056.26 in principal; $854.79 in interest, for a total debt as of February 18, 2000, of $5911.05. See Complaint, exh. A thereto. Interest continued to accrue on the principal balance from that date at 8.250% per annum ($1.14 per day). Gorham Aff. at 2, ¶ 5. Because defendant Holmes' loans were variable interest rate loans, the 8.25% interest rate was applicable to the loans under both promissory notes until June 30, 2001. Id. However, "[o]n July 1, 2001, the interest rate changed to 6.79%, which rate shall apply until June 30, 2002." Id.
On approximately February 25, 2000, the Department received a federal offset (garnishment of IRS refund) in the amount of $1,050.00, which was posted to the [defendant's] account on or about March 7, 2000. See id. at 3, ¶ 6; and exh. D thereto. That IRS refund were the only monies received and applied to defendant's account. See id. As a result of defendant's defaults on these two promissory notes, the U.S. "referred this account to counsel for suit and collection to enforce its rights under the promissory notes." Id. at 3, ¶ 8.
Appearing pro se, defendant Holmes responded to the complaint by sending a letter to the law firm which is currently representing the U.S. in this action. In that July 15, 2001 letter, which the U.S. deems to be an answer, see id., defendant Holmes does not dispute liability, candidly stating, "I know I owe the money for a student loan[.]" See id., exh. E thereto. She recognizes though that in the 1999 tax season "federal taxes were taken, which totaled $1,050.00, and [she] ha[s] never received anything saying that [she] paid toward [her] student loan." Id. Significantly, defendant Holmes remains willing to pay on these two defaulted student loans. See id.
On June 11, 2001, the U.S. commenced the present action seeking repayment from defendant Holmes in the amount of $6,429.91, which represents $5,056.26 in "current principal (after application of all prior payments, credits, and offsets)," plus $1,373.65 in "current capitalized interest balance and accrued interest[.]" See Complaint at 1, ¶ 3. Insofar as any repayments are concerned, the U.S. responds that after reviewing the relevant Department records, as of December 10, 2001, the defendant had been credited with the $1,050.00 federal offset. Thus, despite the allegations in the complaint, the U.S. now asserts that the current principal due is only $4,860.47, "with interest due thereon in the amount of $685.73." See Gorham Aff. at ¶ 10. In addition to seeking recovery on the loans themselves, the U.S. is seeking to recover costs incurred in connection with this litigation in the amount of $40.00, which are recoverable under the express provisions of said promissory notes. See id. The U.S. is also claiming entitlement to charges allowed under 28 U.S.C. § 2412(a)(2). On December 20, 2001, the U.S. moved for summary judgment. Defendant Holmes has not responded to this summary judgment motion in any way, despite explicit warning in the U.S.' Notice of Motion for Summary Judgment, of "THE CONSEQUENCES OF FAILING TO RESPOND TO A SUMMARY JUDGMENT MOTION[.]" Notice of Motion for Summary Judgment at 1 (emphasis in original). Attached to that Notice is a document prepared by the U.S. District Court Northern District of New York setting forth in some detail the consequences of failing to respond to a summary judgment motion, including the possibility that "summary judgment, if appropriate, will be entered against you." See id. attachment thereto.
That statute reads as follows:
A judgment for costs, when awarded in favor of the United States in an action brought by the United States, may include an amount equal to the filing fee prescribed under section 1914(a) of this title. The preceding sentence shall not be construed as requiring the United States to pay any filing fee.
28 U.S. § 2412(a)(2) (West 1994).
I. Governing Legal Standard
The standard for summary judgment is clear and well-settled. "Summary judgment is properly granted when the non-moving party 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986)). "In deciding whether there is a genuine issue of material fact as to an element essential to a party's case, the court must 'examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party.'" Id. (quoting Frito Lay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944, 957 (2d Cir. 1993)). "The moving party bears the initial burden of demonstrating 'the absence of a genuine issue of material fact.'" Montes v. King, No. 00CIV .4707, 2002 WL 424318, at *2 (S.D.N.Y. March 19, 2002) (quoting Celotex, 477 U.S. at 323).
"Where the moving party meets that burden, the opposing party must come forward with 'specific facts showing that there is a genuine issue for trial,' Fed.R.Civ.P. 56(e), by 'a showing sufficient to establish the existence of [every] element essential to the party's case, and on which that party will bear the burden of proof at trial.'" Id. (quoting Celotex, 477 U.S. at 322). Where, as here, "a litigant is pro se, his [or her] pleadings should be read liberally and interpreted 'to raise the strongest arguments that they suggest.'" Id. (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting in turn Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
"Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's bald assertion, unsupported by evidence is not sufficient to overcome a motion for summary judgment." Id. (internal quotation marks and citations omitted).
II. Discussion
Viewing the record evidence before the court on this motion against that legal standard, clearly there exist no genuine issues of material fact, thus the U.S. is entitled to summary judgment as a matter of law. Defendant Holmes is not disputing liability. Moreover, although she did raise a potential factual issue as to the amount of such liability, that issue has been resolved. The complaint did not reflect the federal offset from defendant's IRS refund, to which she references in her July 15, 2001 letter because, as previously mentioned, when this action was commenced that "offset had not been reported in time to be reflected in the records sent to the U.S. Department of Justice (and, ultimately, to the undersigned counsel) for suit and collection[.]" Affirmation of Erik Peretta (Dec. 12, 2001) at 3, ¶ 9.
Defendant Holmes is not raising, either implicitly or explicitly, any other possible cognizable defenses. Consequently, the court hereby grants the U.S.' motion for summary judgment in the amount of $5,586.20, representing principal, interest and litigation costs due as of June 11, 2001, plus interest at the rate of 6.790% per annum on the principal amount of $4,860.47 from June 11, 2001 to the date of entry of judgment herein. The Clerk of the Court is directed to enter judgment accordingly.
Defendant Holmes defaulted on these loans in 1996. See Complaint, exh. A thereto. Despite the passage of more than 5 years between the date of default and the commencement of this action, the former is not time barred because the Higher Education Technical Amendments of 1991 ("HETA") abrogated the statute of limitations for student loan collections. See U.S. v. Phillips, 20 F.3d 1005, 1007 (9th Cir. 1994); see also U.S. v. McLaughlin, 7 F. Supp.2d 90, 91 (D.Mass. 1998) (HETA specifically provides that "[n]otwithstanding any other provision of statute, regulation, o administrative limitation, no limitation shall terminate the period within which suit may be filed, a judgment may be enforced, or an offset, granishment, or other action initiated or taken.").
IT IS SO ORDERED.