HICA Education Loan Corporation v. Patel

Filing 8

MEMORANDUM-DECISION AND ORDER granting 7 Motion for Default Judgment: ORDERED that in view of default by defendant in failing to answer the complaint or make any appearance in this matter and the Clerk of the Court having entered default by defend ant and no appearance or objection having been made by defendant since that time, plaintiffs motion for default judgment (Dkt. No. 8) against defendants is GRANTED; it if further ORDERED that plaintiff is awarded $14,248.01 in damages with addit ional prejudgment interest from August 2, 2011 until the date of judgment against defendant at a rate of $1.17 per day.The Clerk of the Court is directed to enter judgment and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 3/5/12. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
HICA EDUCATION LOAN CORPORATION,
Plaintiff,
vs.

1:11-CV-00594
(MAD/RFT)

BHARAT C. PATEL,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF ALLEN M. ROSENTHAL
550 Old Country Road
Suite 201
Hicksville, New York 11801
Attorney for Plaintiff

Frank Steven Tate, Esq.

Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On May 27, 2011, plaintiff HICA Education Loan Corporation (“plaintiff”) commenced

the above captioned action alleging that defendant defaulted on a promissory note. Presently
before the Court is plaintiff’s motion for entry of a default judgment against defendant pursuant to
Rule 55(b) of the Federal Rules of Civil Procedure. (Dkt. No. 8). The Court has jurisdiction over
this suit pursuant to 28 U.S.C. § 1331.
II.

BACKGROUND
The Court has taken the facts set forth below from plaintiff's pleading and submissions.1

HICA is a South Dakota corporation with its principal place of business in Sioux Falls, South

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Defendant has submitted no contrary evidence as to the material facts.

Dakota. Defendant Brian D. Babiak is an individual and resident of New York. On January 25,
1994, defendant executed a promissory note payable to The Chase Manhattan Bank, N.A., New
York in the original principal amount of $20,000.00 (“the Note”). The Note is governed by the
Health Education Assistance Loan (“HEAL”) Program and 42 U.S.C. §§ 294 et seq. Plaintiff is
the holder of the Note and entitled to receive payments due under its terms. The Note provided
for the payment of interest at a yearly rate which was equal to a variable rate calculated by the
Secretary of the Department of Health and Human Services.
III.

DISCUSSION

A.

Default Judgment
“Under Rule 55(b) default judgment shall be entered if a defendant has failed to plead or

otherwise defend an action.” Parise v. Riccelli Haulers, Inc., 672 F.Supp. 72, 74 (N.D.N.Y.1987).
Fed.R.Civ.P. 55(b)(2) and Local Rule 55.2 set forth the procedural prerequisites plaintiffs must
meet before a motion for default motion may be granted. Plaintiffs must: (1) properly serve
defendant with a summons and complaint (to which no response has been made); (2) obtain an
entry of default; and (3) provide an affidavit setting forth the facts required by L.R. 55.2(a),
including an affidavit of non-military service and evidence that defendant is neither an infant nor
incompetent. See Fed.R.Civ.P. 55(b)(2); N.Y.N.D.L.R. 55.1 and 55.2.
As referenced above, plaintiff filed a complaint on May 27, 2011. On July 11, 2011,
plaintiff filed the returns of service with the Court. Plaintiff avers that defendant never answered
or otherwise moved with respect to the complaint, thus on August 3, 2011, plaintiff requested a
clerk's entry of default. Said default was entered on August 4, 2011. On October 26, 2011,
plaintiff filed a notice of motion for default judgment pursuant to Fed.R.Civ.P. 55(b). Plaintiff

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has fulfilled the procedural prerequisites for default judgment. Accordingly, the Court will
address the issues of liability and damages.
B.

Liability
“A party's default is deemed to constitute a concession of all well-pleaded allegations of

liability.” Resolution Trust Corp. v. Forney, 1993 WL 261415, *1 (W.D.N.Y.1993) (citing
Greyhound Exhibitgroup v. E.L. U.L. Realty, 973 F.2d 155, 158 (2d Cir.1992)). The allegations
in plaintiffs' complaint and supporting papers are therefore presumed accurate.
Plaintiff claims that defendant defaulted on his obligations under the Note. By failing to
answer plaintiff's complaint or oppose this motion, defendant has effectively conceded that he is
bound by the terms of the Note he entered into with plaintiff, and liable for the entire amount as
assessed by plaintiff, as well as interest.
C.

Damages
Plaintiff seeks $14,248.01 in damages, representing the total amount owed by defendant.

In support, plaintiff has provided the Declaration of Robin Zimmerman, a Senior Litigation
Analyst for Sallie Mae, Inc.2 Plaintiff claims that defendant is indebted for unpaid principal in
the amount of $13,724.74 accrued, unpaid interest through that date in the amount of $523.27 and
accrued, with interest continuing to accrue after that date at a variable rate set forth in the Note,
when calculated, at the rate of $1.17 per day; amounting to $14,248.01.
Upon review of plaintiff’s submissions, the Court awards judgment in plaintiff’s favor for
the sum certain sought. See HICA Educ. Loan Corp. v. Bolte, 2012 WL 423361, at *3 (S.D.N.Y.
2012) (there was no reason to delay the entry of judgment against defendant for the sum certain).

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Sallie Mae, Inc. is the servicing agent for HICA.
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IV.

CONCLUSION
It is hereby
ORDERED that in view of default by defendant in failing to answer the complaint or

make any appearance in this matter and the Clerk of the Court having entered default by
defendant and no appearance or objection having been made by defendant since that time,
plaintiff’s motion for default judgment (Dkt. No. 8) against defendants is GRANTED; it if
further
ORDERED that plaintiff is awarded $14,248.01 in damages with additional prejudgment
interest from August 2, 2011 until the date of judgment against defendant at a rate of $1.17 per
day.
The Clerk of the Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: March 5, 2012
Albany, New York

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