United States of America v. Jesse

Filing 18

MEMORANDUM ORDER granting plaintiff's 14 Motion for Summary Judgment. Signed by Honorable Jimm Larry Hendren on March 9, 2010. (rw)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS F A Y E T T E V I L L E DIVISION U N I T E D STATES OF AMERICA v. V I T A T. JESSE C i v i l No. 08-3022 DEFENDANT PLAINTIFF

M E M O R A N D U M ORDER

Now on this 9th day of March, 2010, comes on to be considered
p l a i n t i f f ' s Motion for Summary Judgment (doc. 14). The Court,

b e i n g well and sufficiently advised, finds and orders as follows w i t h respect thereto: 1. T h e plaintiff initiated this action on May 14, 2008. In

t h e complaint, the plaintiff asserts that the defendant owes the plaintiff certain amounts as a result of two student loans

g u a r a n t e e d by the United States Department of Education. 2. T h e defendant did not file a timely answer; and, the

U n i t e d States District Clerk entered a default on August 20, 2008. 3. O n September 15, 2008, the defendant moved to set aside The Court granted that motion on

t h e Clerk's entry of default. S e p t e m b e r 19, 2008. 4. 1 9 , 2008. 5. The plaintiff now

T h e defendant's answer was thereafter filed on September

moves

for

summary

judgment.

The

d e f e n d a n t has not responded to the plaintiff's instant motion.

6.

The

standard

to

be

applied

to

a

motion

for

summary

j u d g m e n t is set forth in Rule 56 of the Federal Rules of Civil P r o c e d u r e and provides for the entry of summary judgment on a claim if the pleadings, depositions, answers to i n t e r r o g a t o r i e s , and admissions on file, together with t h e affidavits, if any, show that there is no genuine i s s u e as to any material fact and that the moving party i s entitled to judgment as a matter of law. F . R . C i v . P . 56(c); see also Carroll v. Pfeffer, 262 F.3d 847 (8 th C i r . 2001); Barge v. Anheuser-Busch, Inc., 87 F.3d 256 (8 th Cir. 1996). Summary judgment is to be granted only where the evidence

i s such that no reasonable jury could return a verdict for the nonm o v i n g party. (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

Accordingly, all evidence must be viewed in the light F.D.I.C. v. Bell, 106

" m o s t favorable to the non-moving party."

F . 3 d 258, 263 (8 th Cir. 1997); see also Bailey v. United States P o s t a l Service, 208 F.3d 652, 654 (8th Cir. 2000). Where summary a movant makes and properly party supports may not a rest motion upon for the

judgment,

the

opposing

a l l e g a t i o n s or denials of its pleadings; rather, the non-movant m u s t "set forth specific facts showing that there is a genuine i s s u e for trial." Liberty Lobby, 477 U.S. at 256. The non-moving

p a r t y must "make a sufficient showing on every essential element of i t s case for which it has the burden of proof at trial." Southwestern Bell Tel. Wilson v.

Co., 55 F.3d 399, 405 (8th Cir. 1995).

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7.

F o r the purpose of considering the motion for summary

j u d g m e n t and based upon the pleadings submitted by the parties, the C o u r t believes the following material undisputed facts appear: * F o r valuable consideration and to obtain a student loan,

t h e defendant, Vita T. Jesse, executed two promissory notes from B a n k IV, N.A. on December 16, 1988, in the original amounts of: (1) $ 3 , 1 0 0 . 0 0 , bearing interest at a variable rate to be established a n n u a l l y by the Department of Education (as of the date of the f i l i n g of the motion at the rate of 5.82%) and, (2) $2,625.00, b e a r i n g interest at the rate of 8.00% per annum. * T h e s e loans were insured by the Department of Education

u n d e r Title IV B of the Higher Education Act of 1965, as amended, 2 0 U.S.C. 1071 et seq. (34 C.F.R. 682). * Plaintiff payable. * * T h e defendant has refused and failed to pay the balance. O n November 20, 2008, the plaintiff served the defendant Under has the provisions the of the balance Promissory Note, due the and

declared

total

immediately

w i t h Plaintiff's First Set of Requests for Admission to Defendant. * admission. * A s of March 5, 2010, the defendant owed the total sum of The loan continues T h e defendant did not respond to plaintiff's requests for

$ 6 , 6 5 2 . 3 6 with respect to the $2,625.00 loan.

t o accrue interest at the rate of 8.00% per annum, or 60 cents per

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day. * A s of March 5, 2010, the defendant owed the total sum of The loan continues

$ 7 , 8 7 5 . 4 9 with respect to the $3,100.00 loan.

t o accrue interest at the variable rate of 3.73%, or 36 cents per d a y through June 30, 2010. 8. T h e instant motion by the plaintiff for summary judgment And, although the defendant

has not been opposed by the defendant.

d i d , belatedly, file an answer to the plaintiff's complaint, the defendant did not dispute the amounts owed, but only sought

" a m n e s t y " for the amount owed.1

Further, the plaintiff served the

d e f e n d a n t with certain requests for admissions on November 20, 2 0 0 8 , to which the defendant did not respond; therefore, pursuant to Rue 36(a)(3) of the Federal Rules of Civil Procedure, the

f o l l o w i n g issues of fact are deemed admitted by the defendant: * That Vita T. Jesse applied for and was granted the

f o l l o w i n g loans to attend the United States Truck Driving School, I n c . as a student: ** $3,100.00 * * promissory note dated $2,625.00 12/16/88, in the amount of promissory note dated 12/16/88, in the amount of

1 In her answer, the plaintiff does allude to a bankruptcy filing four (4) years ago. However, the plaintiff does not assert that loans at issue were discharged in that bankruptcy; and, pursuant to 11 U.S.C. § 523 (a)(8) bankruptcy does not discharge such a debt "unless excepting such a debt from discharge . . . would impose an undue hardship on the debtor and the debtor's dependents".

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*

T h a t Jesse signed the promissory notes and agreed to

r e p a y the loans according to the terms of the notes. * T h a t Jesse completed the course of study for which she

o b t a i n e d the loans. * T h a t Jesse made payments totaling $1,338.28 which have

b e e n applied to the debt balance. * being T h a t Jesse was notified on 4/18/08 that her case was referred to the U.S. Attorney's Office for the Western

D i s t r i c t of Arkansas to initiate legal action. * $1,338.28. * 9. T h a t Jesse has made no other payments other than the And, T h a t Jesse is in default on the two loans. B a s e d upon the all of the above, the Court finds that the

plaintiff's Motion for Summary Judgment (doc. 14) should be, and hereby is, granted, and and judgment should in be the granted total to the of

plaintiff,

against

the

defendant,

amount

Fourteen Thousand Five Hundred Thirty-One and 69/100 Dollars ($14,531.69)2, with interest accruing at the post-judgment rate of
. 3 4 % per annum until paid. IT IS SO ORDERED. / s / JIMM LARRY HENDREN JIMM LARRY HENDREN U N I T E D STATES DISTRICT JUDGE

2 The total as of the date of judgment is calculated pursuant to the figures provided in the plaintiff's Supplement to Motion for Summary Judgment (document 17) and pursuant to the Declaration of Delfin M. Reyes, of the Department of Education (Exhibit A to document 17).

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