Johnson v. Sallie Mae Servicing Corp.

102 F. App'x 484
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 26, 2004
DocketNo. 03-3491
StatusPublished
Cited by1 cases

This text of 102 F. App'x 484 (Johnson v. Sallie Mae Servicing Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Sallie Mae Servicing Corp., 102 F. App'x 484 (7th Cir. 2004).

Opinion

ORDER

After Sallie Mae Servicing Corporation declared several of Brad Johnson’s federal student loans in default, he sued Sallie Mae and two of the loan guarantors, Oregon Student Assistance Commission and the Texas Guaranteed Student Loan Corporation. Johnson’s eleven-count complaint accuses Sallie Mae and the guarantors of violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, and accuses Sallie Mae individually of violating the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692o, and committing a number of state-law torts, including intentional infliction of emotional distress, breach of contract, and defamation. Johnson demanded more than $10 million in damages. The district court granted the defendants’ motion for summary judgment, and Johnson appeals. We affirm.

Johnson’s dispute with Sallie Mae turns on an alleged agreement he reached with Sallie Mae in September 1997 regarding his monthly loan payments. Johnson claims that a Sallie Mae employee informed him that if he paid the $880 arrearage on his account he could thereafter pay $232 monthly until April 2001, when the monthly payment would increase to $348. Johnson paid the $880 and then began making $232 monthly payments. However, in October 1998 Sallie Mae realized that the revised payment plan, without more, would not extinguish the loans within the 10-year period required by the governing federal regulations, and so it increased the amount due monthly. After Johnson protested, Sallie Mae recalculated the lowest possible monthly payment that it believed would allow Johnson to repay the loans in a timely fashion—$345.44. But Johnson, relying on what he characterized as a “contract” guaranteeing him that he could pay $232 monthly until April 2001, steadfastly refused to pay the increased amount. This led Sallie Mae to declare the loans in default and report the default to the guarantors, who in turn reported [486]*486the default to national credit reporting bureaus.

Believing Sallie Mae’s attempts to collect the higher monthly payment to be unlawful, Johnson, a law school graduate, initiated this pro se law suit. His theory is that by mailing him monthly statements showing the recalculated payment and calling about the increased amount due, Sallie Mae committed predicate acts of mail and wire fraud triggering civil RICO liability. His third amended complaint also claimed that Sallie Mae formed an enterprise with the guarantors so that the three together could use “schemes and artifices” to commit mail and wire fraud, extortion, and embezzlement. He further alleged that Sallie Mae committed multiple violations of the FDCPA in the course of trying to collect the higher monthly amount. Finally, Johnson alleged that by raising the monthly payment amount Sallie Mae breached the “contract” allowing him to pay $232 monthly, committed libel and slander by declaring him in default, and intentionally inflicted emotional distress upon him by “harassing” him for the higher monthly payment.

In granting summary judgment to the defendants on all counts, the district court reasoned that Johnson could not prove RICO violations because none of the defendants’ attempts to collect the loan balances Johnson admittedly owed constituted predicate criminal acts, nor did Johnson have evidence of a pattern of racketeering activity as required for RICO liability. The court further concluded that Sallie Mae was not a “debt collector” subject to liability under the FDCPA, and that the state law claims were both patently frivolous and preempted by the federal regulations governing the administration of student loans. The district court then denied Johnson’s motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).

On appeal Johnson argues that his RICO claims should have survived summary judgment because he submitted evidence that Sallie Mae, and later the guarantors, repeatedly mailed him monthly statements and called him demanding a higher payment than he believes was owed, thus engaging in a pattern of mail and wire fraud and extortion. To succeed on his RICO claim, Johnson must establish a pattern of racketeering activity involving at least two predicate criminal acts. 18 U.S.C. § 1961(1), (6); H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 232, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Both mail fraud under 18 U.S.C. § 1341 and wire fraud under 18 U.S.C. § 1343 may serve as predicate acts for a RICO violation. See 18 U.S.C. § 1961(1)(B); McDonald v. Schencker, 18 F.3d 491, 494 (7th Cir.1994). However, Johnson fails to explain in his brief what summary judgment evidence would establish that Sallie Mae or the guarantors committed either. Specifically, both mail and wire fraud require the making of a materially false statement or the concealment of a material fact. See Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Johnson has not shown that Sallie Mae or the guarantors either lied or concealed material facts from him in an attempt to defraud him of his money—money he admittedly owed. See Williams v. Aztar Ind. Gaming Corp., 351 F.3d 294, 299 (7th Cir.2004) (RICO claim hinging on mail fraud frivolous where defendant’s mailing contained no false representations intended to defraud plaintiff of his money). Likewise, although extortion under 18 U.S.C. § 1951 may qualify as a predicate act, see 18 U.S.C. § 1961(1)(B), Johnson’s claim that Sallie Mae and the guarantors sent him “threatening letters” demanding [487]*487payment falls far short of establishing that they induced payment using “actual or threatened force, violence, or fear” as required by § 1951.

Likewise, Johnson cannot establish that Sallie Mae is a “debt collector” subject to liability under the FDCPA. The FDCPA exempts attempts to collect debts that were not in default when obtained. 15 U.S.C. § 1692a(6)(F)(iii); Bailey v. Security Nat’l Servicing Corp., 154 F.3d 384, 386 (7th Cir.1998). It is undisputed that Johnson’s loans were not in default when Sallie Mae acquired them. Relying on Bailey,

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Bluebook (online)
102 F. App'x 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-sallie-mae-servicing-corp-ca7-2004.