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United States of America v. Julio C. Galarza

January 26, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JULIO C. GALARZA, DEFENDANT.



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

On March 1, 2010, Plaintiff the United States of America commenced this action against Julio C. Galarza, pro se.*fn1

Plaintiff has now moved for summary judgment. For the following reasons, that motion is GRANTED.

MEMORANDUM & ORDER

BACKGROUND

November 16, 1994, Mr. Galarza received a student loan in the amount of $51,219.37. Pl. 56.1 Stmt. ¶ 1 & Ex. 1.*fn2 In exchange, Mr. Galarza executed a promissory note in the principal amount of $50,301.13. Id. ¶ 2. Mr. Galarza failed to repay the note in full so, as required by law, Plaintiff purchased the note from the lender and became the assignee thereof. Id. ¶¶ 3, 4.

On February 2, 2010, U.S. Department of Education Loan Analyst Rosie Estrada signed, under penalty of perjury, a Certificate of Indebtedness reflecting that, as of November 6, 2009, Mr. Galarza owed: (1) $78,620.72 in unpaid principal*fn3 ; (2) $59,409.82 in unpaid interest; (3) additional interest, at a rate of $19.37 per day. See Compl. Ex. A. Plaintiff then commenced this action to collect.

DISCUSSION I. Standard of Review

"Summary judgment is appropriate where there are no

genuine disputes 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)).

"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). "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) (internal quotations and citations omitted). "Mere conclusory allegations or denials will not suffice." William v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).

In an action on a promissory note, summary judgment is appropriate if there is "'no material question concerning execution and default' of the note." Merrill Lynch Commercial Fin. Corp. v. All State Envelopes Ltd., 09-CV-0785, 2010 WL 1177451, at *2 (E.D.N.Y. Mar. 24, 2010) (internal citations and quotations omitted).

When a party has appeared in an action, but not opposed summary judgment, the moving party does not win by default. Instead, the Court must "examin[e] the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004). And "[i]f the evidence submitted in support of the summary judgment motion does not meet ...


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