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Cors v. United States

United States District Court, Second Circuit

December 23, 2013

CHARLES RICHARD CORS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

REPORT AND RECOMMENDATION

KEVIN NATHANIEL FOX, District Judge.

TO THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE

Charles Richard Cors ("Cors"), [1] proceeding pro se and in forma pauperis, brings this action against defendant United States of America, alleging that: (1) he was charged the "wrong amount [of] interest" after he failed to repay timely a repatriation loan extended to him by the defendant for travel expenses associated with his return to the United States from the United Kingdom; (2) the denial of his application for a passport following his return to the United States, because of his failure to repay the loan extended to him by the defendant, along with accumulated interest and fees, was improper; and (3) he "may have been ejected from England illegally, " notwithstanding the expiration of his 90-day travel visa, and due to an error on the part of a United States Consulate official, because he spent all but five days of his five-month stay in the United Kingdom in a hospital. Before the Court is the defendant's motion for summary judgment, made pursuant to Rule 56 of the Federal Rules of Civil Procedure. Cors opposes the motion.

BACKGROUND

Cors traveled to the United Kingdom ("U.K.") in May 2010, having been issued a 90-day travel visa. About five days after he arrived in the U.K., on or about May 15, 2010, Cors was taken to the Maudsley Hospital in London. He remained at the hospital, as an inpatient, for five months.

On or about October 13, 2010, Cors received an emergency repatriation loan (the "Loan") from the United States Department of State ("State Department"), in the amount of $791.70, through the United States Embassy in London. In order to receive the Loan, Cors executed a form titled "Emergency Loan Application and Evacuation Document, " provided to him by the State Department, which contains a Promissory Note. On the Loan application form, Cors indicated that he lived at 287 Massachusetts Avenue, Apt[.] 7, Arlington, Massachusetts, which he identified as a "Friend's Residence."

Through the Loan application form's Promissory Note, Cors acknowledged that he is "a citizen of the United States" and "promise[d] to repay [the Loan] within 90 days after the signing of this note, and at an interest rate established in accordance with Federal Law." Cors also acknowledged that he understood that his "name [would] be included in the passport lookout system until the debt [was] repaid." Pursuant to the repayment agreement portion of the Loan application form, Cors affirmed that he understood that: (1) his obligation to repay the Loan would not be discharged until payment in full had cleared through an account of the Treasury of the United States; and (2) the loan would be subject to interest, penalties, and other charges for late payment. In addition, he promised to repay the principal amount of the loan, $791.70, within 90 days. Cors also affirmed his understanding that, if he failed to repay the Loan within 90 days: the Loan would be in default; the account would be turned over to the Treasury Department; and he would be liable for any costs for collection. Thereafter, the State Department purchased an airline ticket on Cors' behalf, enabling him to travel from London to Boston, on October 15, 2010.[2]

On October 21, 2010, the State Department wrote to Cors at the address indicated on the Loan application form, informing him, inter alia, of the address to which payments on the Loan were to be sent. On December 27, 2010, the State Department wrote to Cors again, advising him that his Loan payment was past due, that interest had accrued, and that if he submitted payment within 30 days, he could avoid having to pay additional penalties. On January 26, 2011, another letter was sent to Cors, advising him that the total amount due, with interest and penalties, was $843.04. On February 24, 2011, Cors was sent a "Notice of Intent to Offset, " which informed him that if he did not repay his debt within 60 days, the Loan would be referred to the Department of Treasury for debt collection or offset against federal payments due to him, such as tax refunds.

On or about March 14, 2012, Cors applied for a new passport at the New York Passport Agency, located at 376 Hudson Street, New York, New York. In a letter dated March 16, 2012, the State Department advised Cors that he was required to repay the Loan within 90 days, or else his passport application would be denied; by this date, the amount of the Loan, including interest and penalties, was $1, 166.68. Cors failed to respond to the letters sent to him by the State Department, and the Loan remained unpaid.

As set forth in the Declaration of Julie Slaughter ("Slaughter"), a manager in the Cross-Servicing Policy Branch of the Debt Management Services ("DMS")[3], Federal agencies owed debts ("creditor agencies") transfer the delinquent debts to DMS for collection. At the time of transfer, creditor agencies are "required to certify to DMS that the debts they transfer are delinquent, valid, and legally enforceable in the amount stated, and that any required due process has been given in accordance with 31 C.F.R. § 285.12 and any laws specific to the debt." DMS then performs "all appropriate and required actions to collect delinquent debts" referred to it by the creditor agencies. DMS charges the creditor agencies fees to cover the cost of collection. Such fees are based on the age of the debt at the time of referral to DMS: 28% for debts that are less than two years delinquent, and 30% for debts that are over two years delinquent. DMS then computes the fee on the entire debt balance, inclusive of principal, interest, penalties, and administrative costs the agency incurred when attempting collection prior to referral to DMS.

According to Slaughter, based on her review of the records related to Cors' debt, the State Department referred the debt to DMS on June 16, 2011. At the time of the referral of the debt to the Department of Treasury, the debt balance was $862.28, comprised of $791.70 in principal, $3.34 in interest, $50.00 in administrative charges, and $17.24 in penalties. On the day the debt was referred to DMS, DMS applied additional interest of $1.08 and penalties of $6.51, increasing the debt to $869.87, to which DMS added a 28% collection fee of $243.56. The resulting debt amounted to $1, 113.43. As of March 16, 2012, the debt balance was $1, 166.68, comprised of $791.70 in principal, $10.36 in interest, $50.00 in administrative charges, $59.41 in penalties, and $255.21 in DMS fees. As of April 2, 2013, the debt balance was $1, 240.92, comprised of $791.70 in principal, $18.65 in interest, $50.00 in administrative charges, $109.12 in penalties, and $271.45 in DMS fees. According to Slaughter, as of April 25, 2013, no collections had posted to Cors' account.

PROCEDURAL HISTORY

Cors commenced this action on March 27, 2012. Thereafter, on April 19, 2012, Cors filed an amended complaint, alleging that he was charged the "wrong amount [of] interest" on the Loan in that "interest on the loan is 50% not the normal government 10%"; he may have been "ejected from England illegally, " notwithstanding the expiration of his 90-day travel visa, because he spent all but five days of his five-month stay in the U.K. in a hospital; and the denial of his passport application was improper. On April 19, 2013, Cors filed a "motion of suspension" in relation to his "claim for illegal deportation [and] interest on [the] ticket provided by [the] American Consulate." In his motion, Cors asserted that he had learned from an official at the Brazilian Consulate that, "when detained in [a] hospital beyond the three month[] entrance visa - you apply at [the] local police bureau for an extension - it is an international statute." Cors alleged further, by way of his motion, that the "situation in England with the American Consulate [and the] Maudsley Hospital five months stay was [a] large error of new employees, lack of knowledge, etc." The defendant filed its motion for summary judgment on April 29, 2013. Cors' affirmation in opposition to the motion was filed on May 31, 2013; no reply was filed by the defendant.

THE PARTIES' CONTENTIONS

The defendant contends it is entitled to summary judgment because no genuine issue of material fact exists concerning whether Cors owes the principal amount of the Loan and all the interest, fees and penalties applied to it. With respect to the interest, fees and penalties, the defendant asserts that federal agencies are required to apply such charges on all receivables pursuant to 31 U.S.C. § 3717(a), (e), and that these agencies are required to transfer delinquent debts, such as Cors' debt to the Department of Treasury after 180 days, which may then impose a fee on the debtor to cover the costs of collection, pursuant to 31 U.S.C. § 3711(g)(1), (6). Furthermore, the defendant contends that it denied Cors' passport application properly, pursuant to 22 C.F.R. § 51.60, owing to his failure to repay the Loan. Additionally, the defendant maintains that Cors' "motion of suspension" should be construed as a request for leave to amend his amended complaint, and that leave should not be granted because the proposed amendment is futile, comes after undue delay, and would prejudice the defendant. The defendant also asserts that Cors' motion ...


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