Opinion
Civil Action No. 00-2267-CM
March 27, 2001
MEMORANDUM AND ORDER
This is an action on two promissory notes given to secure student loans executed by defendant Vickie Distefano. Defendant appears pro se. This matter is before the court on plaintiff's motion for summary judgment (Doc. 9).
The court construes the facts in the light most favorable to defendant as the non-moving party pursuant to Fed.R.Civ.P. 56.
On June 9, 1981 and August 18, 1981, defendant executed promissory notes to secure student loans in the amounts of $2,500.00 and $500.00, respectively, from the Home State Bank of Kansas City, Kansas. Both promissory notes carried an interest rate of 9% per annum. The loans secured by the two promissory notes were made under federally funded loan programs authorized under Title IV-B of the Higher Education Act of 1965 (HEA), as amended, 20 U.S.C. § 1071, et seq. All right, title and interest in and to the promissory notes were assigned by the Home State Bank of Kansas City, Kansas to the guarantor, United Student Aid Funds, Inc., who in turn assigned all right, title and interest to the Department of Education as reinsurer under the loan guaranty programs authorized under the HEA.
Pursuant to the terms of the promissory notes, defendant was required to begin repayment six months after she ceased carrying at least one-half the normal full-time academic load at an eligible institution. Plaintiff claims that the defendant failed to repay the loan amounts and, as a result, is indebted to the United States in the principal sum of $2,811.67, plus interest of $3,261.00 through May 1, 2000, together with interest accruing at a rate of $0.69 per day until judgment. Plaintiff further asserts that defendant is indebted to the United States for interest on the notes after judgment at a rate set forth in 28 U.S.C. § 1961, and $150.00 for filing fee as allowed by 28 U.S.C. § 2412.
II. Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
Defendant acknowledges that she executed the two promissory notes and received the proceeds of the student loans. Defendant, however, argues that plaintiff's claim is barred by the statute of limitations and that the loans have been paid.
A. Statute of Limitations
Defendant contends that the time in which plaintiff has to collect on the promissory notes has expired. Defendant also questions the statute of limitations applicable to the amount of time allowed to reassign loans between guarantor institutions. In support, defendant cites to "1988 U.S.C. Title 20 1091a(a)(4)(B) and (C)," which refers to a six year statute of limitation.
The statute to which defendant refers, however, was amended in 1991 to eliminate all statutes of limitations for lawsuits brought to collect defaulted student loans under HEA. Specifically, the amended statute provides, "no limitation shall terminate the period within which suit may be filed, a judgment may be enforced, or an offset, garnishment, or other action initiated or taken by an institution that receives funds . . . a guaranty agency that has an agreement with the Secretary under section 1078(c) of this title that is seeking the repayment . . . or . . . the Secretary, the Attorney General, or the administrative head of another Federal agency, as the case may be, for payment of a refund due from a student" Further, § 1091a applies retroactively and effectively revives old claims. United States v. Shoemaker, No. 93-2113-KHV, 1993 WL 597958, at *1 (D.Kan. Dec. 1993); see also United States v. Phillips, 20 F.3d 1005, 1007 (9th Cir. 1994); United States v. Hodges, 999 F.2d 341, 342 (8th Cir. 1993); United States v. Glockson, 998 F.2d 896, 897 (11th Cir. 1993).
Thus, there is no statute of limitation that bars plaintiff's suit against defendant for repayment of her student loans. Moreover, the amended version of § 1091a also eliminates any statute of limitation applicable to actions taken by guarantor institutions. Plaintiff is entitled to summary judgment on this issue.
B. Repayment
Defendant contends that the loans at issue have been repaid. Defendant, however, fails to set forth her factual contentions by way of affidavit. Pursuant to Fed.R.Civ.P. 56(e), when a motion for summary judgment is made and supported by affidavits, an adverse party may not rest upon mere allegations or denials. Rather, the adverse party's response must set forth specific facts through admissible evidence showing that there is a genuine issue for trial. Panis v. Mission Hills Bank, 60 F.3d 1486, 1490 (10th Cir. 1995). In this case, defendant's allegations are merely set forth in her responsive pleading. However, since defendant appears pro se and may therefore lack familiarity with the federal rules, the court will consider whether defendant's allegations create a genuine issue for trial.
In support of its motion, plaintiff submitted an affidavit from Jessica Liu, a loan analyst at the Department of Education. In her affidavit, Ms. Lui declares that defendant has defaulted on the two promissory notes and that a total of $400.00 in payments has been received thus far. Ms. Lui further sets forth the amounts defendant currently owes.
In response, defendant asserts that her father repaid the loan amounts in 1982 by mailing a check. Defendant's father has since passed away, and defendant represents that her search for her father's records has been unsuccessful, nor can she obtain information regarding the check from the bank because the bank is no longer required by law to keep such records. Thus, defendant admits that she has no documentary evidence to establish that the loans were repaid.
In United States v. Daley, No. CS-91-0280-JBH, 1992 WL 106799, at *4-5, (E.D.Wash. May 13, 1992), the court held that defendant's allegation, which was unsupported by documentary evidence, that he had repaid his student loan was not enough to withstand summary judgment. The court questioned the defendant's efforts to obtain documentation, but nonetheless stated:
Certainly, in the vast bureaucracy of the United States government, there is potential for error. And it may well be that the defendant is truly without one shred of written documentation to prove his allegation that he did pay his student loans. Nevertheless, under the facts as presented, this court is compelled to award summary judgment to the government.
Id. at *5. In this case, defendant's conclusory allegation of repayment is insufficient to defeat the government's motion for summary judgment. This is especially true considering that the defendant was not even the individual who purportedly repaid the loans. Thus, the defendant can not provide testimony regarding the steps she may have taken in repaying the loan. Rather, only defendant's father, who has since passed away, could have testified upon personal knowledge and information that he mailed the payment. Accordingly, because defendant has failed to produce evidence to create a genuine issue of fact for trial, plaintiff is entitled to summary judgment.
Finally, defendant challenges the balance due. Specifically, defendant refers to $400.00 from a 1998 income tax return that was withheld as a payment for this debt. Defendant argues that the $400.00 "has not been mentioned" by plaintiff and further requests information as to where it was applied. Upon review of Ms. Lui's affidavit, it is clear that $400.00 was credited to the defendant's account. Moreover, application of the $400.00 to defendant's debt appears to be consistent with applicable statutes and regulations.
Accordingly, the court hereby finds that defendant is indebted to the United States in the principal sum of $2,811.67, plus interest of $3,261.00 through May 1, 2000, together with interest accruing at a rate of $0.69 per day until judgment. The court further finds that defendant is indebted to the United States for interest on the notes after judgment at a rate set forth in 28 U.S.C. § 1961, and $150.00 for filing fee as allowed by 28 U.S.C. § 2412.
IT IS THEREFORE ORDERED that plaintiff's motion for summary judgment (Doc. 9) is granted. Plaintiff is directed to prepare a judgment for the Clerk of the Court's signature, showing the principal amount due and owing, pre-judgment interest to the date of this order, and total administrative charges. The Clerk of the Court is hereby ordered to enter this order upon receipt.