United States of America v. Gardner

Filing 21

ORDER: The United States of America's Motion for Summary Judgment (Doc. # 16 ) is GRANTED. To the extent Gardner's response can be construed as a motion to dismiss, the motion (Doc. # 20 ) is DENIED. The Clerk is directed to enter jud gment in favor of the United States of America in the amount of $10,719.49 ($2,943.54 in principal, $6,650.95 in interest accrued through May 3, 2017, a $45.00 service fee, and $1,080.00 in attorney's fees), plus interes t at the rate of 8.00% 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 this case. Signed by Judge Virginia M. Hernandez Covington on 8/10/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 8:17-cv-1290-T-33JSS

MICHAEL A. GARDNER,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff the United States of America’s Motion for Summary
Judgment (Doc. # 16), filed on July 10, 2017. Defendant
Michael A. Gardner filed a document titled “Motion to Deny
Plaintiff’s Request for Summary Judgment [and] Motion to
Dismiss Case filed by the Plaintiff” on August 9, 2017. (Doc.
# 20). For the reasons below, the United States’ Motion is
granted.
I.

Background
As noted on the undersigned’s website, “[i]n deciding a

motion for summary judgment, the Court will deem admitted any
fact in the statement of material facts that the opposing
party does not specifically controvert, provided the moving
party’s statement is supported by evidence in the record.”

U.S. Dist. Ct., M.D. Fla., Judicial Info, Tampa Division,
Virginia

M.

Hernandez

Covington,

Civil

Motions,

http://www.flmd.uscourts.gov/judicialInfo/Tampa/JgCovington
.htm. Gardner failed to specifically controvert the material
facts and thus admitted all facts in the statement of material
facts that are supported by evidence in the record.
Gardner executed a promissory note on September 11,
1984, and a second promissory note on March 15, 1986, to
secure student loans from Colonial Savings in the amount of
$2,500 each. (Doc. # 16-2 at 1). The loans were disbursed on
October 16, 1984, and June 10, 1986, each in the amount of
$2,500. (Id.). Both loans accrued interest at a rate of 8%
per year. (Id.). “The loan obligation was guaranteed by Higher
Education Assistance Foundation, and then reinsured by the
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.” (Id.).
The holder of the notes demanded payment and credited
$1,761.47

to

the

outstanding

principal.

(Id.).

Gardner

defaulted on April 16, 1988, and August 5, 1988. (Id.).
Thereafter,

the

holder

guarantee.

(Id.).

reimbursed

by

the

The

filed

guarantor

Department

2 

a

claim
paid

of

against
the

claim

Education.

the

loan

and

was

(Id.).

The

guarantor attempted to collect on Gardner’s debt, but it was
unable to collect the full amount due. (Id.). So, on April
23, 1993, and May 7, 1993, the guarantor assigned its rights
and title to the notes to the Department of Education. (Id.).
The Department of Education has credited $0 in payments
from all sources. (Id.). Gardner “now owes the United States”
principal in the amount of $2,943.54 plus interest in the
amount of $6,650.95 for a total debt as of May 3, 2017, of
$9,594.49.

(Id.).

Interest

continues

to

accrue

on

the

$2,943.54 of principal at a rate of $.65 per day. (Id.).
The United States filed suit against Gardner in this
Court on May 30, 2017, to recover on the notes. (Doc. # 1).
Gardner was served on June 7, 2017, and filed his answer on
July 5, 2017. (Doc. ## 10, 14). After the Court entered its
Case Management and Scheduling Order (Doc. # 15), the United
States moved for summary judgment. (Doc. # 16). Gardner
responded on August 9, 2017. (Doc. # 20). The Motion is now
ripe.
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

3 

defeat a properly pled motion for summary judgment; only the
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).

4 

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,

conclusional

nothing

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.

5 

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 Gardner
(Doc. # 16-1), 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 Gardner defaulted on the note (Doc. #
16-2). See United States v. Carter, 506 Fed. Appx. 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, at
*7 (M.D. Fla. Apr. 30, 2015) (“The Department may establish
the prima facie elements by producing the promissory note and
certificate

of

indebtedness

signed

under

penalty

of

perjury.”). Therefore, the burden is on Gardner to establish
that he does not owe the loan amount described by the United
States. “It is not sufficient for [Gardner] to merely allege

6 

non-liability;

rather,

[he]

must

produce

specific

and

concrete evidence of the nonexistence, payment, or discharge
of the debt.” Hennigan, 2015 WL 2084729, at *9.
Although Gardner states in his response that he “does
not owe debt,” that “[t]he principal amount and loan are in
question,” and that he “has not entered into an agreement,”
(Doc. # 20 at 1-2), Gardner’s response is not sworn to, nor
has he submitted any evidence in support of his arguments. By
failing to introduce or cite to evidence creating a genuine
issue

of

material

fact,

much

less

carry

his

burden

of

rebutting the United States’ prima facie case, Gardner has
not

shown

that

the

grant

of

summary

judgment

would

be

inappropriate.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The

United

States

of

America’s

Motion

for

Summary

Judgment (Doc. # 16) is GRANTED.
(2)

To the extent Gardner’s response can be construed as a
motion to dismiss, the motion (Doc. # 20) is DENIED.

(3)

The Clerk is directed to enter judgment in favor of the
United States of America in the amount of $10,719.49
($2,943.54 in principal, $6,650.95 in interest accrued
through May 3, 2017, a $45.00 service fee, and $1,080.00

7 

in attorney’s fees), plus interest at the rate of 8.00%
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.
(4)

Once judgment has been entered, the Clerk is directed to
CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this

10th day of August, 2017.

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