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United States of America v. Rosewald Clerge

December 5, 2012

UNITED STATES OF AMERICA
PLAINTIFF,
v.
ROSEWALD CLERGE,
DEFENDANT.



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

FILED CLERK 12/5/2012 10:11 am

U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE MEMORANDUM OF DECISION AND ORDER

On February 9, 2011, the United States of America ("the Plaintiff" or "the United States") commenced this action against Rosewald Clerge, ("the Defendant") seeking to recover the outstanding debt allegedly owed to the U.S. Department of Education on the Defendant's student loan, including pre-judgment and post-judgment interest and administrative costs. Presently before the Court is the Plaintiff's motion for summary judgment. For the reasons set forth below, the motion is granted.

I. BACKGROUND

On or about July 29, 1992, the Defendant executed a promissory note to secure a loan of $4,000.00 from the Green Point Savings Bank ("Green Point"), located in Brooklyn, New York. On September 22, 1992 and February 18, 1993, the loan was disbursed in the total amount of $4,000.00. The loan obligation was guaranteed by New York Higher Education Services Corporation ("NYHESC" or "Guarantee Agency") and then reinsured by the U.S. Department of Education under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. 1071 et seq. (34 C.F.R. Part 682).

Green Point, as the holder of the note, demanded payment according to the terms of the note, and credited $0.00 to the outstanding principal owed on the loan. On June 26, 1995, the Defendant defaulted on the obligation and Green Point filed a claim on the loan guarantee. Due to this default, NYHESC, as the guarantee agency, paid the claim amount of $4,000.00 to Green Point. NYHESC was subsequently reimbursed by the U.S. Department of Education under its reinsurance agreement. Pursuant to 34 C.F.R. § 682.410(b)(4), NYHESC attempted to collect the debt from the Defendant, but was unable to collect the full amount. Accordingly, on May 2, 2003, NYHESC assigned its right and titled to the loan to the U.S. Department of Education. The U.S. Department of Education remains the owner and holder of the note.

On April 27, 2010, U.S. Department of Education Loan Analyst Peter La Roche signed, under penalty of perjury, a Certificate of Indebtedness reflecting that, as of April 27, 2010, the Defendant owed: (1) $2,841.24 in unpaid principal; (2) $2,610.25 in unpaid interest; and (3) additional interest, at a rate of $0.26 per day through June 30, 2010, and thereafter at such rate as the Department establishes pursuant to section 427A of the Higher Education Act of 1965, as amended 20 U.S.C. § 1077A. (Pl.'s Affirmation, Exh. E.)

On February 9, 2011, the United States commenced the instant action against the Defendant to recover the debt owed to the U.S. Department of Education. On May 7, 2011, the Defendant, acting pro se, filed a letter motion to dismiss the Plaintiff's Complaint in which he denied the allegations. In a decision dated October 6, 2011, the Court denied the motion to dismiss without prejudice and liberally construed the motion to dismiss as the Defendant's timely answer to the complaint pursuant to Federal Rule of Civil Procedure 12(1)(A)(i).

On April 11, 2012, the United States filed the instant motion for summary judgment. On November 7, 2012, the Court ordered the United States to serve and file as a separate document, together with the papers in support of its motion, the form notice provided under Local Rule 56.2, with any necessary amendment and with the full texts of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1 attached. The Defendant was directed to submit any opposition to the Plaintiff's motion for summary judgment within twenty days of the Plaintiff's service of the Local Rule 56.2 notice. In addition, the Court ordered the Plaintiff to submit documentation as to the alleged interest rate on the Defendant's student loan after June 30, 2010.

On November 13, 2012, in compliance with the Court's November 7, 2012 order and pursuant to Local Rule 56.2, the United States served on the Defendant a "Notice to Pro Se Litigant Who Opposed Summary Judgment," thus alerting the pro se Defendant "to the potentially serious consequences of a motion for summary judgment, and to the requirements for opposing such a motion." Local Rule 56.2, comm. note. On November 15, 2012, also in compliance with the Court's November 7, 2012 order, the United States submitted supplemental documentation as to the alleged interest rate on the Defendant's student loan after June 30, 2010. The interest rate changed as follows:

(1) Effective June 27, 2010, the rate changed from 3.28% to 3.27% per annum, or approximately $0.25 per day;

(2) Effective June 25, 2011, the rate changed from 3.27% to 3.16% per annum or approximately $0.25 per day; and

(3) Effective July 1, 2012, the rate changed from 3.16% to 3.19% per annum or approximately $0.25 per day.

(See Pl.'s Supp. Affirmation). As such, as of November 14, 2012, the alleged balance owning on the Defendant's loan was $5,682.57, which includes $2,841.24 in principal and $2,841.33 ...


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