United States of America v. Bayless
Filing
21
ORDER: The United States of America's Motion for Summary Judgment (Doc. # 12 ) is granted. The Clerk is directed to enter judgment in favor of the United States of America in the amount of $11,344.41 ($5,399.00 in principal, $ ;4,800.41 in interest accrued through August 24, 2016, a $45.00 service fee, and $1,100.00 in attorney's fees), plus interest at the rate of 8.25% per annum on the unpaid principal to the date of this judgment and interest at the rate prescribed by 28 U.S.C. § 1961 from the date of judgment, for which sum let execution issue. Once Judgment has been entered, the Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 3/6/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
Case No. 8:16-cv-2757-T-33MAP
MICHAEL V. BAYLESS,
Defendant.
________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
United States of America’s Motion for Summary Judgment (Doc.
# 12), filed on December 13, 2016. Defendant Michael V.
Bayless filed a response on January 23, 2017. (Doc. # 14).
For the reasons that follow, the Motion is granted.
I.
Background
Bayless obtained a student loan around February 12,
2001, which “was disbursed for $4,112.81 at 8.25% per annum
on March 15, 2001.” (Doc. # 12 at Ex. B). “The loan was made
by the Department [of Education] under the William D. Ford
Federal Direct Loan Program under Title IV, Part D of the
Higher Education Act of 1965, as amended 20 U.S.C. [§] 1087a.”
(Id.). The Department of Education demanded payment according
1
to the terms of the note, and Bayless defaulted on the
obligation on July 25, 2006. (Id.). Pursuant to 34 C.F.R. §
685.202(b), “a total of $1,299.44 in unpaid interest was
capitalized and added to the principal balance.” (Id.). “The
Department has credited a total of $101.24 in payments from
all sources, including Treasury Department offsets, if any,
to the balance,” making the total balance as of August 24,
2016, $10,199.41 ($5,399.00 in principal and $4,800.41 in
interest). (Id.).
On September 26, 2016, the United States initiated this
default of student loan action against Bayless. (Doc. # 1).
Bayless then filed a motion to dismiss, arguing that “the
complaint fails to state a claim against defendant upon which
relief can be granted” and “that the court lacks jurisdiction
because the amount actually in controversy is less than ten
thousand dollars exclusive of interest and cost.” (Doc. # 7).
The Court denied the motion to dismiss on October 20, 2016.
(Doc. # 8).
The Court entered its Case Management and Scheduling
Order on October 24, 2016, setting a discovery deadline of
December 31, 2016, and specifying: “Each party shall timely
serve discovery requests so that the Rules allow for a
response prior to the discovery deadline. The Court may deny
2
as untimely all motions to compel filed after the discovery
deadline.” (Doc. # 9 at 3).
Bayless filed his Answer on November 4, 2016, stating:
The Defendant admits to the allegation of owing
monies to the plaintiff, but he is without
knowledge or information sufficient to form a
belief as to the truth of the allegations contained
in paragraph 3 and 4 of the complaint.
(Doc. # 10). The third and fourth paragraphs of the Complaint
describe the amount of the debt up to August 24, 2016, and
state that “[d]emand has been made upon the Defendant for
payment of the indebtedness, and the Defendant has neglected
and refused to pay the same.” (Doc. # 1 at 1-2).
Subsequently,
the
United
States
filed
a
motion
for
summary judgment on December 13, 2016. (Doc. # 12). The United
States requests that the Court grant its Motion and impose a
judgment in the amount of $11,344.41 ($5,399.00 of unpaid
principal, $4,800.41 of unpaid interest as of August 24, 2016,
a service fee of $45.00, and reasonable attorney’s fees of
$1,100.00), plus interest at the rate of 8.25% per annum on
the unpaid principal to the date of this judgment. (Id. at
7).
Bayless filed a response in opposition to the Motion on
January 23, 2017, arguing that the Motion should be denied
because the United States had not yet complied with his
3
discovery request. (Doc. # 14 at 1). Bayless attached his
“First Request for Production to Plaintiff” to the response,
which states that it was mailed to the United States on
December 22, 2016 — only nine days before the December 31,
2016, discovery deadline. (Doc. # 14-1).
Additionally, Bayless contends:
That the actual promissory note that is in the
courts file is not the original and is a fraud. On
December 16, 2016, Defendant viewed the document in
the court file that is alleged to be the original
note. Defendant does not recognize this document or
the signature on this document. The Plaintiff has
not produced any documents pertaining to the loan,
payments made on the loan, or Original contracts
related to the loan. Additionally, Defendant is an
expert at recognizing his signature.
(Doc. # 14 at 3). Bayless does not attach an affidavit or
other
evidence
in
support
of
his
contention
that
the
promissory note is a forgery.
On February 23, 2017, the Court directed the United
States to respond to Bayless’s assertion that his discovery
request had not been answered. (Doc. # 15). The United States
reported that it responded to Bayless’s request on February
6, 2017, (Doc. # 16), and subsequently provided the Court
with the discovery documents that it turned over to Bayless.
(Doc. # 20).
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The documents include a copy of the Certificate of
Indebtedness and copies of collection letters sent by the
United States’ counsel between December of 2015 and February
of 2016, before the initiation of this action. (Id. at 3-7).
Those letters stated the amount of the debt owed up to that
time and informed Bayless that he had “thirty (30) days after
[he] receive[d] this letter to dispute the validity of the
debt or any portion thereof.” (Id. at 4-7). No responses to
the letters were included in the documents.
The
United
States
also
turned
over
records
of
all
communications with Bayless by telephone and letter, (Id. at
17-27), as well as records of payments on the loan. (Id. at
28-32). A document labeled “Debt Level Information Screen,”
reports that the debt owed as of November 15, 2010, was
$7,627.56, representing $5,399 in principal and $2,228.56 in
interest up to that date. (Id. at 28).
The Motion is now ripe for review.
II.
Legal Standard
Summary Judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
5
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers
to
interrogatories,
and
admissions
on
file,’
designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995)(citing Celotex, 477 U.S. at 324).
6
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists
of
However,
nothing
conclusional
if
“more
allegations,”
the
than
summary
non-movant’s
a
repetition
judgment
is
response
of
not
his
only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
“In a suit to enforce a promissory note, where the
claimant
establishes,
affidavits,
the
through
existence
of
pleadings,
the
note,
exhibits,
the
and
borrower’s
default, and the amount due under the note, the claimant has
established a prima facie case.” United States v. Pelletier,
No. 8:08–cv–2224–T–33EAJ, 2009 WL 800140, at *2 (M.D. Fla.
7
Mar. 24, 2009). “The burden then shifts to the borrower to
establish that the amount is not due and owing. In the absence
of such proof, summary judgment in favor of the claimant is
appropriate.” Id. (citing United States v. Irby, 517 F.2d
1042, 1043 (5th Cir. 1975)).
The United States has established its prima facie case
by providing a copy of the promissory note signed by Bayless,
and the Certificate of Indebtedness, in which the United
States’ loan specialist states under penalty of perjury that
the United States is the current owner and holder of the note
and that Bayless defaulted on the note. United States v.
Carter, 506 F. App’x 853, 858 (11th Cir. 2013)(“To recover on
a promissory note, the government must show (1) the defendant
signed it, (2) the government is the present owner or holder,
and (3) the note is in default.” (citation omitted)); see
also United States v. Hennigan, No. 6:13-cv-1609-Orl-31DAB,
2015
WL
2084729,
Department
may
at
*7
establish
(M.D.
the
Fla.
prima
Apr.
30,
facie
2015)(“The
elements
by
producing the promissory note and certificate of indebtedness
signed under penalty of perjury.”).
Therefore, the burden is on Bayless to establish that he
does not owe the loan amount described by the United States.
“It is not sufficient for [Bayless] to merely allege non8
liability; rather, [he] must produce specific and concrete
evidence of the nonexistence, payment, or discharge of the
debt.” Hennigan, 2015 WL 2084729, at *9.
A. Further Discovery
Bayless’s response complained that the United States had
not yet responded to his discovery request, which was sent on
December 22, 2016, after the filing of the Motion for Summary
Judgment. (Doc. # 14 at 1). Although the response failed to
comply
with
Procedure
the
56(d),
requirements
the
Court
of
Federal
construed
Rule
the
of
Civil
response
as
requesting that the Court either deny the Motion as premature
or defer ruling until discovery had been completed. See Fed.
R. Civ. P. 56(d) (“If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may: (1)
defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or
(3)
issue
any
other
appropriate
order.”).
And,
although
Bayless’s discovery request did not provide the United States
enough time to respond before the passing of the discovery
deadline, the Court ordered the United States to explain
whether it had responded to the request and, if so, to file
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the documents that were provided to Bayless. (Doc. ## 15,
17).
The United States served its response to the discovery
request on February 6, 2017. (Doc. # 16). The Court has
reviewed the documents, including: a copy of the Certificate
of Indebtedness, copies of letters sent by the United States’
counsel
before
this
action
was
initiated,
records
of
communications with Bayless by telephone or letter throughout
the loan’s history, and records from November of 2010 showing
the loan balance at that time. (Doc. # 20). No other discovery
requests are outstanding, and no motions to compel discovery
are pending on the docket. Now that the additional documents
requested by Bayless have been added to the record and the
time for discovery has ended, the Court may turn to whether
any genuine issue of material fact exists.
None of the documents in the record create a genuine
issue of material fact, as none of the documents undermine
the prima facie case the United States established through
the
promissory
note
and
Certificate
of
Indebtedness.
No
document reveals an attempt by Bayless to refute the validity
of the debt, as he attempts to do in his response to the
Motion. Rather, the letters sent to Bayless between December
of 2015 and February of 2016 by the United States’ counsel
10
show that he was given the opportunity to contest the debt
before the United States filed suit, but did not. (Doc. # 20
at
4-7).
Furthermore,
the
records
reveal
that
the
same
principal amount reported by the United States in this action,
$5,399.00, was outstanding in November of 2010 and that
numerous other letters regarding the loan have been sent to
Bayless by the United States over the years. (Id. at 23-28).
B.
Original Documents
Bayless also complains that summary judgment should not
be granted because the United States has not produced the
original promissory note. But, “[t]he government did not have
to produce the original promissory note in order to recover
on the note because, as held in persuasive authority, the
note is not a negotiable instrument subject to Florida’s
commercial paper law.” United States v. Carter, 506 F. App’x
853, 858 (11th Cir. 2013)(citations omitted); United States
v. Geis, No. 13-80474-CIV-DIMITROULEAS, 2013 WL 12101145, at
*1 (S.D. Fla. Sept. 4, 2013)(“Defendant’s ‘defense’ that
Plaintiff failed to produce the signed bank documents is not
a defense as the original note [for the student loan] is not
a negotiable instrument and therefore need not be produced.”
(citation omitted)).
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Additionally, Bayless’s argument that the United States
has not established its case because it “has not produced any
documents pertaining to the loan, payments made on the loan,
or Original contracts related to the loan” is unavailing.
(Doc. # 14 at 3). First, the United States has now produced
documents requested by Bayless. (Doc. # 20).
Second, to the extent these documents are not originals
or other documents not in the record exist, they are not
required for the United States to show that it is entitled to
a judgment against Bayless. The United States needs to produce
only the promissory note and Certificate of Indebtedness to
establish its prima facie case,
Hennigan,
2015
WL
2084729,
establish
the
prima
at
facie
which it has done.
*7
(“The
elements
by
See
Department
may
producing
the
promissory note and certificate of indebtedness signed under
penalty of perjury.”); see also United States v. Davis, 28 F.
App’x 502, 503 (6th Cir. 2002)(affirming grant of summary
judgment
because
the
promissory
note
and
certificate
of
indebtedness, certified by a loan analyst under penalty of
perjury,
established
the
United
case)(citing Irby, 517 F.2d at 1043).
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States’
prima
facie
C.
Forgery
Finally,
Bayless
asserts
that
the
promissory
note
attached to the Motion is a forgery. Bayless states that he
does not recognize the signature on the note as his own. (Doc.
# 14 at 3). Bayless does not provide any evidence that the
signature is forged besides his own unsworn statement. But,
as the United States has established its prima facie case,
the burden is on Bayless to produce “specific and concrete
evidence of the nonexistence, payment, or discharge of the
debt.” Hennigan, 2015 WL 2084729, at *9.
Although Bayless’s response implies that he made an
affidavit regarding his signature, no affidavit was attached
to the response and Bayless has not filed it as a supplement
in
the
time
since.
Thus,
Bayless
has
not
provided
any
statement made under penalty of perjury to support his claim
of forgery. Cf. United States v. White, No. 5:08-CV-348-F,
2009 WL 3872342, at *3 (E.D.N.C. Nov. 18, 2009)(granting
summary judgment where defendant failed to “proffer[] any
sworn statement or statement made under penalty of perjury
supporting”
his
belief
that
“forgery
or
other
nefarious
actions [were] at play” regarding his student loans).
Furthermore, the forgery allegation is contradicted by
Bayless’s Answer in which he “admits to the allegation of
13
owing monies to the plaintiff.” (Doc. # 10). Nowhere in his
Answer does Bayless question the validity of the promissory
note, which the Certificate of Indebtedness attached to the
Complaint states was signed on February 12, 2001. (Doc. # 1
at 3). If the promissory note signed on February 12, 2001, is
a forgery, then Bayless would not owe the student loan debt
alleged by the United States — the opposite of Bayless’s
admission in his Answer.
Because Bayless admitted earlier that he had incurred a
loan obligation to the United States, he cannot now deny that
obligation by simply asserting that someone else signed the
promissory note. “It is well-settled law that admissions in
an answer are deemed judicial admissions, binding on the party
who makes them.”
Columbus Bank & Trust Co. v. McKenzie
Trucking & Leasing, No. 4:07-CV-189 (CDL), 2009 WL 3526648,
at *3 (M.D. Ga. Oct. 23, 2009)(citing Best Canvas Prods. &
Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621
(11th Cir. 1983); Mo. Hous. Dev. Comm’n v. Brice, 919 F.2d
1306, 1314 (8th Cir. 1990)). As the Eleventh Circuit has
explained, “judicial admissions are proof possessing the
highest possible probative value. Indeed, facts judicially
admitted are facts established not only beyond the need of
evidence to prove them, but beyond the power of evidence to
14
controvert them.” Best Canvas Prods., 713 F.3d at 621 (quoting
Hill v. Fed. Trade Comm’n, 124 F.2d 104, 106 (5th Cir.
1941)(internal quotation marks omitted)).
Bayless has not moved to amend his Answer. Nor would
granting leave to amend the Answer be appropriate, even if
Bayless had requested it, because requests to amend should be
denied when they are “designed to avoid an impending adverse
summary judgment.” Lowe’s Home Ctrs., Inc. v. Olin Corp., 313
F.3d 1307, 1315 (11th Cir. 2002)(citation omitted); see also
Columbus Bank & Trust Co., 2009 WL 3526648, at *5 (denying
motion to amend filed after plaintiff’s motion for summary
judgment by defendant “to rescue his defense by amending his
Answer to exclude his damaging admission that he executed the
Guaranty”).
As no evidence could controvert Bayless’s admission that
he owes a debt to the United States, and, regardless, Bayless
has presented no evidence beyond his own unsworn statement
that the promissory note is a forgery, Bayless’s allegation
of forgery does not create a genuine issue of material fact
as to the validity of the debt.
IV.
Conclusion
Because the United States has established a prima facie
case and Bayless has failed to proffer any evidence creating
15
a genuine issue of material fact, the United States’ Motion
for Summary Judgment is granted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
The United States of America’s Motion for Summary
Judgment (Doc. # 12) is GRANTED.
(2)
The Clerk is directed to enter judgment in favor of the
United States of America in the amount of $11,344.41
($5,399.00 in principal, $4,800.41 in interest accrued
through August 24, 2016, a $45.00 service fee, and
$1,100.00 in attorney’s fees), plus interest at the rate
of 8.25% per annum on the unpaid principal to the date
of this judgment and interest at the rate prescribed by
28 U.S.C. § 1961 from the date of judgment, for which
sum let execution issue.
(3)
Once Judgment has been entered, the Clerk is directed to
CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of March, 2017.
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