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U Nited S Tates of A Merica v. L Ouise D Ennis


June 18, 2012


The opinion of the court was delivered by: Joseph F. Bianco United States District Judge


JOSEPH F. BIANCO, District Judge: exhibits.*fn1 Upon consideration of a motion for summary judgment, the Court shall Plaintiff United States of America ("plaintiff" or "United States") brought this action against Louise Dennis ("defendant" due as a result of defendant's alleged unpaid Plaintiff has filed an "Affirmation in Support of Motion for Summary Judgment" which outlines the student loan. relevant facts of this case, (Aff. in Support, Jan. 26, 2012, ECF No. 45), and plaintiff notified defendant

Plaintiff now moves for summary of the requirements of Local Civil Rule 56.1 through judgment, pursuant to Rule 56 of the Federal the service of the "Notice to Pro Se Litigant Who Rules of Civil Procedure. For the reasons Opposes a Motion for Summary Judgment." (Notice, set forth below, the Court grants plaintiff's Jan. 19, 2012, ECF No. 40-1; Cert. of Service, Jan. 19, 2012, ECF No. 41; Aff. in Support, Jan. 26, 2012, motion for summary judgment. ECF No. 45.) "A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001); see also


A. Factual Background

Gilani v. GNOC Corp., No. 04 Civ. 2935 (ILG), 2006 U.S. Dist. LEXIS 23397, at *4-5 (E.D.N.Y. Apr. 25,

The Court has taken the facts set forth 2006) (exercising court's discretion to overlook the parties' failure to submit statements pursuant to Local

below from the parties' affirmations and Civil Rule 56.1). Here, the evidentiary basis for the plaintiff's motion is straightforward and clear, rendering the need for a Rule 56.1 statement unnecessary for defendant to respond to the motion, or for the Court to consider the motion. Accordingly, construe the facts in the light most favorable disbursed for $30,153.96 on March 21, 2003 to the non-moving party. See Capobianco v. at 7 percent interest per annum. (Pl.'s Ex. City of New York, 422 F.3d 47, 50 (2d Cir. B, Certificate of Indebtedness, ECF No. 45-2005). 2.) The loan was made by the DOE under the William D. Ford Federal Direct Loan Defendant applied for and was approved Program. (Id.) The DOE demanded for a Direct Consolidation loan for a total payment according to the terms of the note, principal amount of $30,153.96 ("the loan"). and defendant defaulted on the obligation on (Pl.'s Ex. B, Certificate of Indebtedness, February 1, 2004. (Id.)

ECF No. 45-2; Pl.'s Ex. C, Direct Loan Repayment Plan Selection & Application Pursuant to the Certificate of and Promissory Note, ECF No. 45-2.) In Indebtedness ("COI"), sworn to under exchange for the loan, defendant executed penalties of perjury by a Loan Analyst for and delivered to the United States the Department of Education, defendant Department of Education ("DOE") her owed plaintiff $44,400.61 as of September promissory note, dated February 2, 2003, in 10, 2010. (Id.) The DOE had credited a total the principal amount of $24,481.99.*fn2 (Pl.'s of $1,920.00 in payments from all sources, Ex. C, Direct Loan Repayment Plan including Treasury Department offsets, if Selection & Application and Promissory any, to the balance. (Id.) Interest on the Note, ECF No. 45-2.) The loan was loan accrued on the principal of $30,153.96 at $5.78 per day. (Id.)

in the exercise of its broad discretion, the Court will overlook this defect and will deem admitted only Defendant has made numerous filings in

those facts in plaintiff's affirmation in support of connection with this case. As discussed

summary judgment that are supported by admissible evidence and not controverted by other admissible infra, her arguments in these filings are

evidence in the record. See Jessamy v. City of New largely incomprehensible and without merit.

Rochelle, 292 F. Supp. 2d 498, 504 (S.D.N.Y. 2003). However, her filings do not provide any

Thus, in the instant case, although the parties failed to evidence to controvert the above-referenced

submit Local Rule 56.1 statements, the Court has facts.

carefully reviewed the evidence submitted in both parties' papers and has determined that plaintiff has set forth detailed evidence fully supporting its claim, B. Procedural Background

and defendant has failed to submit any evidence to demonstrate the existence of any genuine issues of Plaintiff filed the complaint in this action

material fact in dispute. Accordingly, the court grants on January 24, 2011. Defendant was served

the United States' motion for summary judgment, as on April 18, 2011. On June 7, 2011, plaintiff

set forth infra.

The promissory note for consolidated loans lists the principal at the time the loan is requested. When the not answered or otherwise responded to

loan is funded, the amount given is the payoff plaintiff's complaint. On July 18, 2011, the

amount due on that date on the loan being Clerk of the Court entered default against

consolidated. The principal listed in the promissory defendant. On August 23, 2011, the Court

note, therefore, is typically a lower amount than is issued an Order directing defendant to

actually funded at a later date because additional interest has accumulated, or it can be lower if respond within 10 days as to why default

payments have been made in the interim. U.S. v. judgment should not be entered against

Manoussos, No. 10-cv-179 (JFB)(ARL), 2012 WL defendant. On September 2, 2011, defendant

899565, at *1 n.3 (Mar. 16, 2012). The Court notes filed a "Notice of Trial De Novo: Fed. R.

that plaintiff does not contest the specific amount CIV. P. #83.7-7 SEC. (a)." Defendant then

owed, but rather refuses to pay the loan based on incomprehensible arguments.

made a series of filings.*fn3 On November 17, "the movant shows that there is no genuine 2012, the Court issued an Order vacating the dispute as to any material fact and the entry of default and extending defendant's movant is entitled to judgment as a matter of time to answer the complaint to January 18, law." Fed. R. Civ. P. 56(a). The moving 2012. On January 12, 2012, defendant filed party bears the burden of showing that he or a "Notice in Memorandum of Law Vacate, she is entitled to summary judgment. Set Aside Decision/Judgment." (ECF No. Huminski v. Corsones, 396 F.3d 53, 69 (2d 42.) On January 19, 2012 plaintiff requested Cir. 2005). "A party asserting that a fact a pre-motion conference in anticipation of cannot be or is genuinely disputed must moving for summary judgment or, in the support the assertion by: (A) citing to alternative, moving for default judgment. On particular parts of materials in the record, January 25, 2012, the Court issued an Order including depositions, documents, stating that the Court construed defendant's electronically stored information, affidavits "Notice in Memorandum of Law Vacate, Set or declarations, stipulations (including those Aside Decision/Judgment" to be defendant's made for purposes of the motion only), answer and set a briefing schedule for admissions, interrogatory answers, or other plaintiff's motion for summary judgment. materials; or (B) showing that the materials That same day, defendant filed a "Notice in cited do not establish the absence or Memorandum of Law Vacate, Set Aside presence of a genuine dispute, or that an Decision/Judgment." (ECF No. 46.) Plaintiff adverse party cannot produce admissible filed its motion for summary judgment on evidence to support the fact." Fed. R. Civ. January 26, 2012. Defendant filed another P. 56(c)(1). The court "is not to weigh the document titled "Notice in Memorandum of evidence but is instead required to view the Law Vacate, Set Aside Decision/Judgment" evidence in the light most favorable to the and a "Notice in Interlocutory Injunction party opposing summary judgment, to draw Relief Preliminary Injunction" on January all reasonable inferences in favor of that 31, 2012. (ECF No. 47.) Plaintiff filed its party, and to eschew credibility reply on March 28, 2012. The Court has assessments." Amnesty Am. v. Town of W. fully considered the submissions of the Hartford, 361 F.3d 113, 122 (2d Cir. 2004) parties. (quoting Weyant v. Okst, 101 F.3d 845, 854

(2d Cir. 1996)); see Anderson v. Liberty

II. STANDARD OF REVIEW Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (summary

The standards for summary judgment are judgment is unwarranted if "the evidence is well settled. Pursuant to Federal Rule of such that a reasonable jury could return a Civil Procedure 56(a), a court may only verdict for the nonmoving party"). grant a motion for summary judgment if

Once the moving party has met its

Those filings included: five filings titled "Notice of

Trial De Novo: Fed. R. CIV. P. #83.7-7 SEC. (a)" than simply show that there is some

and made on September 7, 2011 (ECF No. 8), metaphysical doubt as to the material

September 19, 2011 (ECF No. 9), September 19, facts . . . . [T]he nonmoving party must

2011 (ECF No. 10), September 23, 2011 (ECF No. come forward with specific facts showing

11), and September 28, 2011 (ECF No. 12), and three that there is a genuine issue for trial.'"

motions seeking a "Stay of Proceeding[s] on

Interlocking Grounds" filed on October 12, 2011 Caldarola v. Calabrese, 298 F.3d 156, 160

(ECF No. 16), October 19, 2011 (ECF No. 21), and (2d Cir. 2002) (quoting Matsushita Elec.

November 8, 2011. (ECF No. 36.) Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d B. Liability 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, "[i]f the As proof that defendant took out the loan evidence is merely colorable, or is not at issue, plaintiff attaches a copy of the significantly probative, summary judgment Repayment Plan Selection and Federal may be granted." Anderson, 477 U.S. at Direct Consolidation Loan Application and 249-50, 106 S. Ct. 2505 (citations omitted). Promissory Note, signed by defendant, and Indeed, "the mere existence of some alleged dated February 2, 2003. (Pl.'s Ex. C, Direct factual dispute between the parties" alone Loan Repayment Plan Selection & will not defeat a properly supported motion Application and Promissory Note, ECF No. for summary judgment. Id. at 247-48, 106 45-2.) Under the promissory note for the S. Ct. 2505 (emphasis in original). Thus, the loan, the borrower "agree[s] to pay interest nonmoving party may not rest upon mere on the principal amount of [the loan] from conclusory allegations or denials but must the date of disbursement until the loan is set forth "'concrete particulars'" showing paid in full or discharged." (Id. at 4.) The that a trial is needed. R.G. Group, Inc. v. borrower also agrees that if the borrower Horn & Hardart Co., 751 F.2d 69, 77 (2d defaults on the loan, the borrower will pay Cir. 1984) (quoting SEC v. Research "reasonable collection fees and costs, plus Automation Corp., 585 F.2d 31, 33 (2d Cir. court costs and attorney's fees associated 1978)). Accordingly, it is insufficient for a with collection of the debt." (Id.) Defendant party opposing summary judgment "'merely does not contest that her signature appears to assert a conclusion without supplying on these documents, and does not dispute supporting arguments or facts.'" BellSouth that she received the money from the loan. Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Additionally, plaintiff attaches a COI Research Automation Corp., 585 F.2d at from a loan analyst in the DOE. (Pl.'s Ex. 33). B, Certificate of Indebtedness, ECF No. 45-III. DISCUSSION 2.) According to the COI, defendant executed a promissory note to secure a

A. Applicable Law direct consolidation loan on or about February 2, 2003. (Id.) The loan was

The case arises under the William D. disbursed for $30,153.96 on March 21, 2003 Ford Federal Direct Loan Program under the at 7 percent interest per annum. (Id.) The Higher Education Act of 1965, as amended, DOE demanded payment according to the

20 U.S.C. §§ 1087a-1087j. Pursuant to the terms of the note, and defendant defaulted Act, the Secretary of Education may require on the obligation on February 1, 2004. (Id.) any borrower who has defaulted on a loan made under the William D. Ford Federal All of the arguments in defendant's Direct Loan Program to "pay all reasonable filings are fanciful and/or collection costs associated with such loan," incomprehensible.*fn4 For instance, defendant and "repay the loan pursuant to an income contingent repayment plan." 20 U.S.C.

§ 1087e(d)(5)(A)-(B). plaintiff's request for a pre-motion conference, namely defendant's two filings that begin with a "Notice in Memorandum of Law Vacate, Set Aside Decision/Judgment" and include additional documents, filed on January 25, 2012 (ECF No. 46), and January 31, 2012 (ECF No. 47).

alleges "[t]he Plaintiff United States To the extent that defendant appears to Government absolute Statutory Power try to argue that the issue of her student loan violated the Clause of the Fourth debt was litigated in some court in Nassau Amendment to the United States County, defendant has produced no Constitution, actionable Torts-Conduct documentation, through court or other search and seizure thereof privilege- records, to support this fanciful allegation. Attorney/Client communication-potential Defendant has produced a document titled Counsel. The United States was absence of "Request for Change of Address or probable cause." (Notice in Memorandum Boxholder Information Needed for Service of Law Vacate, Set Aside of Legal Process." (Def.'s Ex. A, Jan. 31, Decision/Judgment at 4, Jan. 25, 2012, ECF 2012, ECF NO. 47.) In this document, No. 46.*fn5 ) Defendant also alleges that "Pro stamped with a date of November 23, 2010, Se applying the 'Plain Error Standard' plaintiff's law firm requests defendant's outlined in United States v. address for service of process. Although the Koeberlein . . . issues of error occurred form references that suit will be brought in affected Pro Se Substantial Constitutional "District Court County Nassau," (id.), this Rights (Fifth, Sixth, Eighth Amendments) does not mean that plaintiff initiated an and seriously affected the fairness of the action in state court. In fact, plaintiff filed proceeding. (Due Process)." (Notice in this action in federal court shortly after Memorandum of Law Vacate, Set Aside receiving defendant's address. Decision/Judgment at 1, Jan. 31, 2012, ECF No. 47.) In addition, defendant argues: "The In sum, plaintiff has met its burden of Defendant Pro Se allegation that Plaintiff proof in establishing the factual bases United States cause of actions is a underlying its claim for recovery. In reasonable probability that the Counsel's response to the plaintiff's evidence, unprofessional errors set-forth defendant has submitted no evidence to Constitutional Jurisprudence prohibit the show that there exists a genuine issue of United States Government required Pro Se material fact in dispute. Accordingly, to demonstrate as a witness against herself, because there is no genuine issue of material or forcing 'confession' through illegal fact in dispute, the court grants the United trickery by rehearing compelling testimony- States' motion for summary judgment. evidences filed in Calendar Jurisdiction thereof New York State District Court C. Damages County of Nassau. See: The Doctrine of 'Oath EX Officio.'" (Id.) Having reviewed According to the uncontroverted all of defendant's filings carefully and evidence supplied by the COI, defendant considered all of the arguments therein, the owed a principal amount of $30,153.96. The Court finds there is no evidence to COI states that interest accrues on the controvert the evidence submitted by principal at a rate of $5.78 per day. As of plaintiff that defendant executed the September 10, 2010, defendant owed promissory note, received the loan $14,246.65 in interest, for a total sum of disbursement, and owed $44,400.61 as of $44,400.61. The United States is entitled to September 10, 2010. post-judgment interest under 28 U.S.C. § 1961.

The United States also seeks costs

page numbers, the ECF docketing pagination is given. associated with this action. Costs comprise

the filing fee of $350, which plaintiff seeks * * * pursuant to 28 U.S.C. § 2412, and service of process fee of $29. (Pl. Aff. ¶ 14, Jan. 26, 2012, ECF No. 45; Pl.'s Ex. D, Process Plaintiff is represented by Liberatore Joseph Service Invoice, ECF No. 40-4.) The Court Iannarone and Dolores M. Iannarone, grants plaintiff these costs, totaling $379. Mullen & Iannarone, 300 East Main Street, See United States v. Ruiz, 10-CV-4551 Suite 3, Smithtown, NJ 11787. Defendant is (ADS) (ARL), 2011 U.S. Dist. LEXIS pro se. 115997, at *8 (E.D.N.Y. Oct. 7, 2011) (awarding United States $390 in costs in student loan action); United States v. Terry, CV 08-3785 (DRH) (ETB), 2009 U.S. Dist.

LEXIS 115562, at *7 (E.D.N.Y. Oct. 21, 2009) (awarding United States $150 in costs in student loan default judgment), adopted by 2009 U.S. Dist. LEXIS 115556 (E.D.N.Y. Dec. 11, 2009).


For the foregoing reasons, the Court grants plaintiff's motion for summary judgment and awards plaintiff $44,400.61, plus $379 in costs. Pre-judgment interest shall continue to accrue at the rate of $5.78 per day from September 10, 2010 until the date judgment is entered. Plaintiff is also entitled to post-judgment interest pursuant to 28 U.S.C. § 1961.*fn6 The Clerk of the Court shall enter judgment accordingly and close the case.


Dated: June 18, 2012 Central Islip, NY

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