Opinion
Civil Action No: 00-460 Section: "J" (5)
August 17, 2000
Before the Court's is the Government Motion for Summary Judgment (Rec. Doc. in). Plaintiff opposes the motion. The motion, set for hearing on Wednesday, August 2, 2000, is before the Court on briefs without oral argument.
In its motion, the Government seeks summary judgment enforcing a promissory note executed by the defendant in connection with an educational loan for the benefit of his son. Defendant opposes summary judgment arguing, inter alia, that the note has been paid in full, through credits applied to the federally-guaranteed loan from his federal income tax returns for 1990, 1991, 1992, 1995, 1996, and 1997. He attached copies of receipts for the payments applied in 1992 and 1995, and stated in an affidavit that he has requested receipts for the other years. Additionally, the Government, in its Reply, acknowledged receipt of offset payments for 1993 and 1996, but alleges these amounts were already applied to the debt as reflected in the Department of Education's Certificate of Indebtedness ("COI") (Memo in Support of MSJ, Exh. 2). The Court's review of the COI does not indicate that any credits were applied. Further, as pointed out by defendant in his Supplemental Memorandum, no explanation is provided in any of the papers provided to the Court for the fact that the COI reflects a principal amount of $4613.07, rather than the $4000 loan applied for and apparently received.
The Court finds that the defendant this affirmative defense, but raised it in his Fifth Defense included in his Answer. Rec. Doc. 3.
Based on the foregoing, the Court finds that factual issues exist as to the amount due and what payments have been made to date, or whether the loan has in fact been repaid, which preclude summary judgment. Accordingly;
IT IS ORDERED that the Government's Motion for Sunmary Judgment (Rec. Doc. 6) should be and is hereby DENIED.