UNITED STATES OF AMERICA v. COSKY

Filing 17

OPINION. Signed by Judge Robert B. Kugler on 7/12/2018. (rtm, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

UNITED STATES OF AMERICA,
Plaintiff,
v.
Francis A. COSKY,
Defendant.

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Civil No. 17-06095 (RBK/JS)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court upon the Motion for Summary Judgment (Doc. No.
13) filed by the United States of America Department of Education (“Plaintiff”) in response to the
answer (Doc. No. 4) filed by Francis A. Cosky (“Defendant”). For the reasons set forth below,
Plaintiff’s Motion is GRANTED.
I.

BACKGROUND AND PROCEDURAL HISTORY
On or around September 21, 1991, Defendant executed a promissory note with Sallie Mae

Student Loan Marketing Association (“Holder”) to consolidate multiple loans Defendant had taken
out between 1982 and 1989. (St. of Mat. Fact ¶ 2.) The two loans created by the promissory note
were for values of $16,617.00 and $11,872.00 respectively, with annual interest rates of 9.00%,
and were disbursed on November 15, 1991. (Pl. Br. at 2–3.) The two loans were guaranteed by the
New Jersey Higher Education Assistance Authority (“Guarantor”), and reinsured by the United
States Department of Education. (Id.)
Plaintiff asserts that Defendant defaulted on his loan repayment obligations on July 28,
1996. (St. of Mat. Fact ¶ 4.) As a result of Defendant’s default, Guarantor made a payment of
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$37,953.00 to Holder. (Id.) Guarantor was unable to collect the amount of this payment from
Defendant, and on October 9, 2010, assigned its right and title to the two loans to Plaintiff. (Id.)
Plaintiff had a similarly difficult time collecting on the debt from Defendant. The principal
amount at the time of default, $37,953.00, remains unpaid. (Id.) As of May 10, 2017, interest on
this principal value, accumulating at a 9.00% annual rate, totaled $65,341.97. (Compl. at 3.) Thus,
Plaintiff contends that Defendant has an outstanding payment obligation of $103,294.97, as of
May 10, 2017, plus any additional interest that has accrued since then. (Id.)
Plaintiff filed a complaint (Doc. No. 1) against Defendant on August 11, 2017. Defendant
filed an answer (Doc. No. 4) on October 2, 2017. Plaintiff responded with a Statement of Material
Facts (Doc. No. 15) and a Motion for Summary Judgment (Doc. No. 13) on February 15, 2018.
II.

JURISDICTION
The United States is the Plaintiff in the case at hand. 28 U.S.C. § 1345 provides that “the

district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced
by the United States . . . .” This Court may properly exercise jurisdiction over this dispute.
III.

STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate only when the moving party can establish that there is

no dispute as to a genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986).
A genuine dispute of material fact exists if the evidence is such that a reasonable jury could find
for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When a court
weighs the evidence presented by the parties, “[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Id. at 255.

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The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).
The moving party may satisfy its burden either by “produc[ing] evidence showing the absence of
a genuine issue of material fact” or by “‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “do more than simply show that there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive
summary judgment, the nonmoving party must “make a showing sufficient to establish the
existence of [every] element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen opposing summary
judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify those facts
of record which would contradict the facts identified by the movant.’” Corliss v. Varner, 247 Fed.
App’x 353, 354 (3d Cir. 2002) (citing Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311
F.3d 226, 233 (3d Cir. 2002)).
On motions for summary judgment in the District of New Jersey, the movant is required to
furnish a statement of material facts as to which there are no genuine disputes. L. Civ. R. 56.1(a).
Similarly, the opponent of summary judgment must also submit a responsive statement of material
facts, indicating agreement or disagreement with each fact set forth by the moving party in its
statement. Id. This responsive statement of material facts must be a separate document from a
brief, complaint, or answer. Id. The failure of the nonmoving party to submit an opposing statement
of material facts will result in each fact described in movant’s statement of material facts being
“deemed undisputed for purposes of the summary judgment motion.” Id.
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IV.

DISCUSSION
Defendant has failed to make a concrete showing that summary judgment would be

inappropriate in the case at hand. As an initial matter, Defendant has failed to file the necessary
documents required by Local Civil Rule 56.1 to dispute the facts asserted in Plaintiff’s motion for
summary judgment. Although Defendant does deny several of Plaintiff’s factual assertions in its
answer, this is not enough to satisfy the requirements of Rule 56.1(a). Without a separately filed
opposing statement of material facts in which Defendant expressly affirms or denies each fact as
laid out by Plaintiff, Defendant shall be deemed to affirm and assent to the facts as set forth by
Plaintiff. L. Civ. R. 56.1(a). Thus, although Defendant’s answer to Plaintiff’s complaint reads in
pertinent part, “4. Denied,” this does not constitute the required separate document to successfully
dispute a fact on a motion for summary judgment. Furthermore, the Court notes that, setting aside
the Local Rules requirement of a separate document disputing facts, an answer is not legally
sufficient for disputing a summary judgment motion. See, e.g., In re Lutz, 2011 WL 2144535, at
*1 (Bankr. N.D. Ohio May 31, 2011) (holding that even when a party denies a charge in an answer,
it will not be considered a response to a motion for summary judgment). Therefore, even if this
Court were to find that Defendant had met the requirements set forth in Local Civil Rule 56.1(a),
the bald affirmative defenses offered in the answer, mere allegations devoid of factual support, are
not enough to withstand a summary judgment motion.
Even if this Court were to ignore the strict requirements set forth in Local Civil Rule 56.1(a)
and were to read Defendant’s answer as an adequate legal response to Plaintiff’s statement of facts
and motion for summary judgment, this Court would still find that Defendant did not successfully
dispute Plaintiff’s claims. In Defendant’s answer to the complaint, Defendant denies the allegation
that he defaulted on his loan repayment requirements but fails to offer any support for his denial.
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The answer simply read, in pertinent part, “4. Denied.” This “mere allegation[]” falls short of the
facts necessary to contradict those asserted by the movant. Corliss, 247 Fed. App’x at 354. While
Defendant does list six affirmative defenses in his answer, each defense is entirely devoid of factual
support. Defendant simply asserts five times that “Plaintiff is barred by” a different legal doctrine,1
but Defendant has not raised these arguments in opposition to the motion for summary judgment.
Similarly, Defendant asserts that Plaintiff has failed to state a cause of action, but as with the other
affirmative defenses, Defendant offers no support whatsoever for his claim. Defendant is “rest[ing]
upon mere allegations” rather than providing the concrete facts necessary to “contradict the facts
identified by [Plaintiff].” Id.
By failing to meet the requirements of the Local Civil Rules, by failing to provide even the
faintest hint of a factually-based response to Plaintiff’s claims, and by failing to show that there is
any dispute as to a material fact, Defendant has failed to meet his burden to successfully oppose
summary judgment.
Even when a summary judgment motion is unopposed, as it is here, the Court must still
determine whether the motion for summary judgment is appropriate. See Fed. R. Civ. P. 56(e). The
Court must review the unopposed record to determine if the defendant is entitled to judgment as a
matter of law, notwithstanding the plaintiff's silence. See Anchorage Assoc. v. Virgin Islands Bd.
of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (“[A] district court, before granting a summary
judgment motion . . . must first determine whether summary judgment is appropriate—that is,
whether the moving party has shown itself to be entitled to judgment as a matter of law.”). In its
complaint, Plaintiff states that—as the insurer of Guarantor’s loan obligation—it has the power to

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Plaintiff raises affirmative defenses of: Accord and Satisfaction, Statute of Limitations, Latches,
Unclean Hands, and Equitable Estoppel.
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assume all rights and titles to the loan obligation upon the request of Guarantor, pursuant to 20
U.S.C. § 1080(b). Because Defendant has failed to file a response to Plaintiff’s summary judgment
motion, Defendant will be presumed to not object to this assertion. The Court finds that Plaintiff’s
claim, taken as true because it is not disputed by Defendant, does indeed indicate that summary
judgment is appropriate in the case at hand—Plaintiff has the statutory power to pursue a court
order for repayment of a loan obligation. See, e.g., U.S. v. Mance, 2017 WL 4857566, at *2
(E.D.N.Y. Oct. 24, 2017) (holding that 20 U.S.C. § 1080 “establish[es] a legitimate cause of action
entitling Plaintiff to relief.”)
V.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment is GRANTED.

An appropriate order shall follow.

Dated:

07/12/2018

/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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