Educational Credit Management Corporation v. Cogbill
MEMORANDUM OPINION. Signed by Judge C Lynwood Smith, Jr on 5/17/2012. (AHI)
2012 May-17 AM 08:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
THOMAS J. COGBILL, d/b/a
THE A/C DOCTOR,
Civil Action No. 11-cv-1401-CLS-NE
Plaintiff, Educational Credit Management Corporation, brought this action
against defendant, Thomas J. Cogbill, doing business as The A/C Doctor, pro se,
pursuant to 20 U.S.C. § 1095a.1 Plaintiff alleges that Stacie Curtis, one of defendant’s
employees, has defaulted on her student loan debt, and that defendant has refused to
comply with an order to garnish her wages in satisfaction of that debt.2 Plaintiff
moved for summary judgment.3 Upon consideration of the motion, brief, and
evidentiary submission, the court concludes that the motion is due to be granted.
I. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment “should
Doc. no. 1 (Complaint).
Id. ¶¶ 9-13.
Doc. no. 16.
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).4 In other
words, summary judgment is proper “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A
genuine issue of material fact ‘exists only if sufficient evidence is presented favoring
the nonmoving party for a jury to return a verdict for that party.’” Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (quoting Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1284-85 (11th Cir. 1997)).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “[A]n inference is not reasonable
if it is only a guess or a possibility, for such an inference is not based on the evidence,
but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692
Rule 56 was amended, effective December 1, 2010, in conjunction with a general overhaul
of the Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that
the changes “will not affect continuing development of the decisional law construing and applying
these phrases.” Adv. Comm. Notes to Fed. R. Civ. P. 56 (2010 Amends.). Consequently, cases
interpreting the previous version of Rule 56 are equally applicable to the revised version.
F.2d 1321, 1324 (11th Cir. 1983). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party for
a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law”).
Plaintiff filed a motion for summary judgment on December 22, 2011.5 The
court entered a briefing schedule; defendant’s response was due on or before January
17, 2012.6 Defendant never filed a response. On January 30, 2012, plaintiff moved
for entry of summary judgment, on the basis of defendant’s failure to file a response.7
The court ordered defendant to respond to that motion on or before February 15,
2012.8 As of the present date, defendant has not filed any response with the court.9
Doc. no. 16.
Text order of December 27, 2011.
Doc. no. 17.
Doc. no. 18.
In fact, defendant has filed only one document with the court, an answer that consisted of
one word: “DENY.” Doc. no. 6 (Answer) (emphasis original).
Thus, the only facts in the record are those provided by plaintiff in support of its
motion for summary judgment.
Plaintiff is a student loan guaranty agency that participates in the Federal
Family Education Loan Program (the “Program”).10 The Program is a statutory
scheme that encourages lenders to make educational loans to students; the federal
government pays part of the interest on the loans and guarantees their repayment. See
generally 20 U.S.C. §§ 1071-87. Under the terms of the Program, the government
may contract with guaranty agencies to perform some services, including guaranteeing
loans and collecting on defaulted loans. See id. §§ 1078(b), 1085(j). Guaranty
agencies under contract with the government have the power to issue administrative
wage garnishment orders, requiring the employers of borrowers who have defaulted
on their loans to withhold up to 15% of their “disposable pay.” Id. § 1095a(a).
“Disposable pay” is defined to include “that part of the compensation of any
individual from an employer remaining after the deduction of any amounts required
by law to be withheld,” e.g., taxes and Social Security payments. Id. § 1095a(e).
Before garnishment can begin, the borrower must be provided notice of the intent to
withhold earnings and the borrower may request a hearing. Id. § 1095a(a)(2); id. §
Stacie Curtis defaulted on her student loans, which were issued under the terms
Doc. no. 16-2 (Affidavit of Becca Riedell) ¶ 2.
of the Program; she owed $9,137.07 as of November 29, 2011.11 Plaintiff is the
guaranty agency assigned to Curtis’s loans.12 Curtis is employed by defendant,
Thomas Cogbill.13 On March 5, 2010, plaintiff served Curtis with notice that plaintiff
was going to order defendant to withhold her wages unless she took action within 30
days.14 On April 12, 2010, plaintiff served defendant with a withholding order,
requiring him to withhold 15% of Curtis’s disposable pay.15 Defendant did not
respond to the withholding order, and on June 14, 2010, plaintiff sent defendant a
second notice of withholding.16
From the date plaintiff served the first withholding order to the present, more
than two years have passed. However, the record contains Curtis’s pay stubs for only
six non-consecutive weeks in 2011.17 Those stubs indicate that Curtis was paid a
wage of $13.00 per hour during those pay periods.18 During the six weeks for which
there is evidence in the record, Curtis worked 40, 41.25, 39.5, 26.5, 38.25, and 24.75
Id. ¶¶ 4-5.
Id. ¶ 4.
See doc. no. 16-2 at Ex. D (Pay Stubs of Stacie Curtis).
Doc. no. 16-2 at Ex. A (Notice Prior to Wage Withholding).
Doc. no. 16-2 at Ex. B (Order of Withholding from Earnings).
Doc. no. 16-2 at Ex. C (Second Notice of Order of Withholding from Earnings).
Pay Stubs of Stacie Curtis. The pay stubs, which were obtained from Curtis via subpoena,
are for the weeks ending on August 20th, September 3rd, September 24th, October 8th, October
15th, and October 22th.
hours.19 Over the course of those six weeks, after deductions for taxes and Social
Security, she earned a total of $2,162.25.20 Fifteen percent of that amount is $259.46.
As a guaranty agency under the Program, plaintiff has the authority to order an
employer, such as defendant, to withhold wages to satisfy a debt, and may bring suit
to recover should the employer fail to comply. Specifically, 20 U.S.C. § 1095a
the employer shall pay to . . . the guaranty agency as directed in the
withholding order issued in this action, . . . and . . . the guaranty agency,
as appropriate, may sue the employer in a State or Federal court of
competent jurisdiction to recover, any amount that such employer fails
to withhold from wages due an employee following receipt of such
employer of notice of the withholding order, plus attorneys’ fees, costs,
and, in the court’s discretion, punitive damages, but such employer shall
not be required to vary the normal pay and disbursement cycles in order
to comply with this paragraph . . . .
20 U.S. C. § 1095a(a)(6). In order to collect on a defaulted loan, the guaranty agency
must provide 30 days’ notice to the borrower of its intent to garnish wages. Id. §
1095a(a)(2).21 The notice must inform the borrower “of the nature and amount of the
loan obligation to be collected, the intention of the guaranty agency . . . to initiate
Id. Curtis was paid a wage of $19.50 for the overtime hours she worked in the second
In addition to the statutory requirements, regulations issued by the Department of
Education also govern the garnishment procedure. Those regulations, found at 34 C.F.R. §
682.410(b)(9), largely mirror the statute.
proceedings to collect the debt through deductions from pay, and an explanation of
the rights of the individual under this section.” Id. If the borrower takes no action
following receipt of notice, the guaranty agency may serve the employer with a
withholding order. Id. § 1095a(a)(6). That order “shall contain only such information
as may be necessary for the employer to comply with the withholding order.” Id. §
The evidence in the record demonstrates that plaintiff was entitled to garnish
Curtis’s wages, and that plaintiff followed the proper procedure to do so. Plaintiff
served Curtis with notice, but Curtis took no action.22 Then, more than 30 days later,
plaintiff served defendant with a withholding order.23 That order specified Curtis’s
name and other identifying information, the amount she owed, plaintiff’s tax
identification number, and the federal statutory and regulatory authority for the
withholding.24 To date, defendant has not withheld funds from Curtis’s pay.25 Thus,
summary judgment is due to be granted.
The amount defendant presently owes plaintiff is unclear. The record before
the court is limited to pay stubs covering only six weeks of the two-year period in
Notice Prior to Wage Withholding.
Order of Withholding from Earnings.
Affidavit of Becca Riedell ¶ 8.
which defendant has been obligated to withhold a portion of Curtis’s wages.26 Those
records were obtained via a subpoena served on Curtis.27 Plaintiff provides an
estimate of the damages owed based on the assumption that Curtis worked an average
of 30 hours per week over the relevant period.28 Plaintiff requests that the court award
it damages in the amount of $45.80 per week from April 12, 2011, when the
withholding order was served on defendant, to the date of judgment.29 That amount
is equivalent to 15% of Curtis’s disposable income, based on an assumed 30 hour
work week.30 Plaintiff also requests an injunction requiring defendant to withhold
15% of Curtis’s disposable pay in the future, until the entire amount owed is paid
Rather than relying on an estimate, the court will allow the individual
defendant, Thomas J. Cogbill, a limited opportunity to provide full and accurate
records of Curtis’s earnings in the relevant period. Defendant Cogbill should
clearly understand that his failure to provide such records within the time
allowed will result in the court entering judgment in favor of plaintiff in the
amount of $45.80 per week, computed from April 12, 2011, the date upon which
Pay Stubs of Stacie Curtis.
Affidavit of Becca Riedell ¶ 11.
Doc. no. 16, at 4.
Id. at 9.
the withholding order was served on defendant Cogbill, to the date of judgment,
in addition to issuing the injunction sought by plaintiff. If defendant’s avails himself
of the opportunity to provide to both plaintiff and this court full and accurate records
of Curtis’s earnings in the relevant period within the time allowed, provision of that
information will make a more accurate calculation of damages possible. Plaintiff has
also requested costs, and attorney’s fees in the amount of $5,230.50.32
An appropriate order will entered contemporaneously herewith.
DONE this 17th day of May, 2012.
United States District Judge
See doc. no. 19-1 (Affidavit of W. McCollum Halcomb), at Ex. 1 (Invoice).
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