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United States v. Benitez

September 3, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LIONEL BENITEZ, DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

On August 5, 2009, the United States of America commenced this action against Lionel Benitez, pro se, alleging that Mr. Benitez defaulted on student loans he received in 1978 and 1981. The United States has now moved for summary judgment. For the following reasons, that motion is GRANTED.

BACKGROUND

On January 5, 1978 and September 23, 1981, the Pan American Federal Credit Union issued Mr. Benitez federally insured student loans totaling $4,000. In return, an individual signing Mr. Benitez's name executed and delivered promissory notes to the Department of Health, Education and Welfare, Office of Education, that carried a principal amount of $4,000. Mr. Benitez has "no recollection of ever taking loans or receiving money from Pan American Federal Credit Union." (Def. Answer at 1; see also Def. 56.1 Stmt. ¶ 3(A)). And Mr. Benitez also claims that he had no need for loans, because he "received Federal Grants that paid for my education." (Def. 56.1 Stmt. ¶ 3(B)). But Mr. Benitez does not affirmatively deny that the promissory notes contain his signature, nor does he affirmatively claim to be an identity theft victim.

The student loans went into default, apparently without Mr. Benitez ever making a single principal payment. As required by law, the Department of Education then purchased the loans from Pan American, becoming the assignee thereof. Through private counsel, Michael T. Sucher, Esq., it has now commenced this action for unpaid principal, interest, and costs. In addition, it requests that Mr. Benitez pay an additional 20%, on top of his liability, as attorneys' fees to Mr. Sucher.

DISCUSSION

I. Summary Judgment Standard

"Summary judgment is appropriate where there is no genuine dispute concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Fed. R. Civ. P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).

"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134.

"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). "Mere conclusory allegations or denials will not suffice." William v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).

II. The United States is Entitled to Summary Judgment

The United States has met its initial summary judgment burden. The promissory notes contain Mr. Benitez's signature, and Mr. Benitez does not contend, much less evidence, that this signature is a forgery. See generally, Owusu v. New York State Ins., 655 F. Supp. 2d 308, 317 (S.D.N.Y. 2009) ("speculative assertions" that signature was forged do not defeat summary judgment). And the United States has provided a Certificate of Indebtedness, certified under penalty of perjury, that Mr. Benitez continues to owe $4,000 in principal on those loans, along with $7,899 in interest, as of February 3, 2009, that continues to accrue at a rate of $0.77 per day. (Compl. Ex. 1).

In response to this evidence, Mr. Benitez has failed to raise any triable issue of fact. True, Mr. Benitez claims that he doesn't remember taking out these loans thirty years ago. But his "failure to recall" receiving the loans is not "sufficient to survive summary judgment." Stein v. U.S., 07-CV-2684, 2009 WL 195953, at *6 (S.D.N.Y. Jan. 28, 2009); G-I Holdings, Inc. v. Baron & Budd, 218 F.R.D. 409, 414 (S.D.N.Y. 2003). And, although Mr. Benitez claims that he did not need the loans because he "received Federal Grants" to cover his education, Mr. Benitez's evidence shows only that he received a $575 grant in March ...


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