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United States v. Hunter

July 23, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff United States brought this action against pro se defendant Dwight Hunter ("Hunter") on March 28, 2001, seeking repayment of student loans amounting to $5,166.24.*fn1 On July 11, 2002, the parties stipulated to the dismissal of the action, without prejudice to refiling.*fn2 By letter dated March 26, 2007, defendant stated that the U.S. Department of Education withheld his 2006 tax refund "without merit and judgment" and requested a hearing "to recover funds in the amount of $2,388."*fn3 On April 4, 2007, I issued an Order to Show Cause as to why the relief requested by the defendant should not be granted. For the reasons set forth below, defendant's application is denied.


The following facts are drawn from the complaint and the parties' submissions in connection with this motion.*fn4 Disputes are noted.

On August 2, 1971, plaintiff states that defendant signed a promissory note for a guaranteed student loan to attend Queens College of the City University of New York.*fn5 Pursuant to the note, $1,000 was disbursed to defendant. On June 26, 1972, defendant signed a second promissory note for a student loan to attend Queens College, and pursuant to that note, $1,000 was disbursed to Hunter. On June 14, 1976, defendant signed a promissory note that combined the two previous loans, pursuant to which defendant agreed to repay $2,000. On March 11, 1978, defendant signed a promissory note and disclosure installment ("the 1978 note") reaffirming his commitment to repay the loans in the amount of $1,972.61.*fn6 Like all the previous loans, this note was made with Jamaica Savings Bank and guaranteed by the New York State Higher Education Assistance Corporation ("NYSHEAC") under the Federal Family Education Loan Program ("FFELP," formerly the Guaranteed Student Loan Program). See 20 U.S.C. § 1071.*fn7

On September 17, 1978, defendant defaulted on his obligation to repay the loans pursuant to the terms of the 1978 note. The guarantor, NYSHEAC, therefore paid the default claim of the lender, Jamaica Savings Bank, in the amount of $2,048.96.*fn8 Over the next sixteen years, NYSHEAC did not collect any payments from defendant. On July 11, 1994, NYSHEAC assigned the loan to the United States Department of Education ("Education"). At that time, the balance due upon the debt was $4,301.99 (the principal amount of $2,048.96, plus interest in the amount of $2,253.03). Since 1994, six collection agencies have sought payment from defendant. In 1997, Education referred the loan to the Department of Justice ("Justice") for collection. Defendant made three voluntary payments toward the debt in 1998 and 1999, in an amount totaling $347.02. See Exhibits A, B, and C, checks to Department of Education from Budget and Credit Counseling Services on behalf of Dwight Hunter, attached to Supplemental Declaration of S. Dawn Scaniffe ("Scaniffe");*fn9 see also Plaintiff's Exh. K, Account Transaction Screen.

On March 28, 2001, the United States filed this action against defendant. By letter dated August 26, 2005, Education notified defendant of its intention to refer his debt to the United States Department of the Treasury ("Treasury"), which would offset defendant's balance due under the Treasury Offset Program ("TOP").*fn10 The notice informed defendant that he must register any objections to the offset within 65 days of the notice's date. Defendant did not respond within the 65-day period. On March 17, 2006, $2,403 was offset from defendant's tax return and credited toward his debt to Education.



Plaintiff United States contends that "[t]o the extent that the Defendant seeks redress based upon the offset of his federal tax refund," Government's Response to Order to Show Cause, p. 2, this Court does not have subject matter jurisdiction under 26 U.S.C. § 6402(f). That statute provides in relevant part that

[n]o court of the United States shall have jurisdiction to hear any action, whether legal or equitable, brought to restrain or review a reduction authorized by subsection (c), (d), or (e) . . . . No action brought against the United States to recover the amount of any such reduction shall be considered to be a suit for refund of tax. This subsection does not preclude any legal, equitable, or administrative action against the Federal agency or State to which the amount of such reduction was paid or any such action against the Commissioner of Social Security which is otherwise available with respect to recoveries of overpayments of benefits under Section 204 of the Social Security Act.

26 U.S.C. § 6402(f). 26 U.S.C. § 6402(d) provides in relevant part that

(1) Upon receiving notice from any Federal agency that a named person owes a past-due legally enforceable debt (other than past-due support subject to the provisions of subsection (c) [the Social ...

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