United States District Court, D. Montana, Helena Division
Charles C. Lovell United State District Judge
a student loan debt collection action. The case is now before
the Court on the United States Department of Education's
motion for summary judgment. Defendant Kevin C. Hand,
appearing pro se, failed to respond to the motion.
On October 25, 2016, the Court ordered Defendant to show
cause why the motion for summary judgment should not be
granted. (ECF No. 14.) Defendant responded on November 3,
2016. (ECF No. 16.)
November 3, 2015, Plaintiff filed this action against
Defendant for recovery of $50, 186.22 (calculated as of July
25, 2016). This amount consists of principal in the amount of
$30, 107.88 and interest in the amount of $20, 078.34.
Interest is computed at the rate of $2.88 per day from July
25, 2016, until the date of judgment. (ECF No. 10, United
States Statement of Undisputed Facts, ¶ 5.) Plaintiff
presents the Declaration of Delfin M. Reyes, loan analyst
with the United States Department of Education. (ECF No. 11.)
Defendant's principal indebtedness results from four
promissory notes, all of which were authorized by the Higher
Education Act of 1965, as amended, 20 U.S.C. 1071 et seq.
response to this Court's order to show cause, Defendant
Hand responded on November 3, 2016, by asserting that it
violates his civil rights to be forced to represent himself,
by asserting that he has not asked for and does not desire to
consolidate his four student loans, and, finally, by
asserting that “he is qualified for Student Loan
Forgiveness due to current health issues, ability to work and
time of Loans.” (ECF No. 16 at 2.) Further, Defendant
states that he “shall call 1-844- 325-1189 to apply for
such debt relief.” (ECF No. 16 at 2.) However, that
filing was made six weeks ago, and the Court has received no
further information from Defendant Hand regarding his
intention to seek debt relief.
judgment is proper when the movant shows that there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The initial
burden of demonstrating the absence of a genuine issue of
fact is on the moving party. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). In determining whether this burden has been met,
the court must view the evidence in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986).
this initial burden is met, the opposing party must “go
beyond the pleadings” and “set forth specific
facts showing that there is a genuine issue for trial.”
Celotex Corp., 477 U.S. at 248, 106 S.Ct. at 2510
(internal quotes omitted). “If a party fails to
properly support an assertion of facts or fails to properly
address another party's assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed
for the purposes of the motion. . . .” Rule 56(e)(2).
party cannot manufacture a genuine issue of material fact
merely by making assertions in its legal memoranda.”
S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines) v. Walter Kiddle & Co., 690 F.2d 1235,
1238 (9th Cir. 1982). The non-moving party
“must show more than the mere scintilla of
evidence” or a “metaphysical doubt as to the
material facts at issue.” In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010
the movant's initial burden has been met, the non-moving
party must go beyond the pleadings and-by its own affidavits
or discovery-set forth specific facts showing a genuine issue
for trial. See Fed.R.Civ.P. 56(e); Celotex
Corp., 477 U.S. at 324; Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). If
the non-moving party does not produce evidence to show a
genuine issue of material fact, the moving party is entitled
to summary judgment. In ruling on a motion for summary
judgment, inferences drawn from the underlying facts are
viewed in the light most favorable to the non-moving party.
See Matsushita, 475 U.S. at 587.
is entitled to collect unpaid principal and accrued interest
on defaulted student loans insured under The Higher Education
Act of 1965. See 20 U.S.C. § 1080(a).
order to present a prima facie case of student loan
debt collection, the United States must prove three elements:
“(1) the defendant signed a promissory note for a
student loan; (2) the government owns the promissory note
signed by the defendant; and (3) the promissory note has not
been repaid or discharged.” United States v.
Gazanferi, 2016 WL 4491864 (C.D. Cal., Aug. 25, 2016)
evidence presented by Plaintiff shows that Defendant executed
his first promissory note in the amount of $2, 625.00 on
January 5, 1994. Defendant executed his second promissory
note in the amount of $4, 000.00 on March 3, 1994. Defendant
executed his third promissory note in the amount of $6,
625.00 on June 1, 1994. Defendant executed his fourth
promissory note in the amount of $6, 625.00 on September 21,
1996. As evidenced by the Certificate of Indebtedness
attached to Plaintiff's Complaint as Exhibit E, and
signed under penalty of perjury as required by law, Defendant
defaulted on each of the four promissory notes on January 30,
2001. (ECF No. 1-5.) As of that date of default, Defendant
had paid the following amounts on the four promissory notes:
$221.51, $381.58, $547.60, and $474.31. (ECF No. 1-5.)
Fifteen years have passed since these loans defaulted, and
during that period an additional $1, 625.00 has been credited
to Defendant's loans, mostly by tax refunds. (ECF No. 12
at 6, Pl's Brief in Supp.) After crediting all payments
made by the Defendant, the Department of Education now
certifies that Defendant continues to owe principal ($30,
1076.88)and interest ($20, 078.34) on the loans,