Kipple v. United States

105 Fed. Cl. 651, 110 A.F.T.R.2d (RIA) 5266, 2012 U.S. Claims LEXIS 821, 2012 WL 2878576
United States Court of Federal Claims·Decided July 16, 2012·No. No. 10-422C·Published·Cited by 2 cases

Opinion

OPINION

BRUGGINK, Judge.

This is a claim for recovery of monies allegedly illegally withheld by offset from a tax refund. The government used the offset process in order to recoup monies it contends were owed after plaintiff defaulted in repayment of student loans. We previously held that plaintiff had executed a promissory note, which was in default. We declined to grant the government’s motion for summary judgment, however, because it had not established that the note had been assigned to the Department of Education (“DOE”) and that the department had followed all necessary procedures preliminary to offset. See Kipple v. United States, 102 Fed.Cl. 773, 774-75 (2012).

Pending are the parties’ cross-motions for summary judgment. Defendant asserts that the government accepted assignment of the loan and satisfied all the requirements of 31 U.S.C. § 3720A (2006) before taking plaintiffs money. In his cross-motion, plaintiff asks the court to revisit the issues resolved in our prior ruling and challenges defendant’s assertions of assignment and satisfaction of the procedural requirements. The matter is fully briefed. Oral argument is deemed unnecessary. For the reasons set out below, we conclude that there is not a genuine dispute of material fact and that defendant is entitled to summary judgment.

BACKGROUND

In 1969, plaintiff entered the University of St. Thomas (“UST”) where he received four disbursements totaling $1,650 during 1969 to 1972 to pay for his studies.1 Upon each disbursement, plaintiff signed a corresponding line on a document also recording the date and amount of money for each disbursement. The document, clearly denominated “Promissory Note,” contained all the indicia of a loan even though plaintiff did not sign [653]*653one section at the end of the second page. We previously held that plaintiff had indeed borrowed money from UST. See Kipple, 102 Fed.Cl. at 778. DOE computer records clearly indicate that plaintiff defaulted on this loan in 1978 and made no further payments on the account after 1978.

In 1984, UST sought to assign the loan to the DOE. DOE rejected UST’s first application for assignment in July 1984 due to a lack of exit interview documentation. After a university official supplied a reason for the missing exit interview documentation, DOE no longer considered the missing exit interview documentation an obstacle to assignment. DOE computer records indicate the loan entered its computer system in November 1984. DOE referred plaintiff’s loan to the Treasury Offset Program (“TOP”) in 1990 and continued to pursue tax refund offset through 1992. The department made a few collection attempts through 2007, when it authorized a collections agency to seek repayment and resumed seeking tax refund offset.

The current dispute began in 2007 when DOE’s collections agent Van Ru Credit Corporation began contacting plaintiff. Plaintiff immediately objected on the ground that the $1,650 disbursed to him at UST did not constitute a loan. He voiced those objections to Van Ru Credit Corporation, the DOE’s Customer Care Group, its Office of the Ombudsman, the DOE Default Resolutions Group, his United States senator, and finally to this court through the present lawsuit. Plaintiff eventually moved for summary judgment, and defendant filed a cross-motion for summary judgment.

We construed plaintiffs complaint as seeking recovery for an illegal exaction. Plaintiff, as he has maintained for some years now, argued that the document he had signed, though denominated a “Promissory Note,” represented a grant or scholarship. Looking to the four corners of the document and plaintiff’s signature affixed to each disbursement of funds, we held that the document was a loan, which plaintiff had the obligation to repay. Plaintiff presently seeks to resurrect the controversy over whether he borrowed money, but he produces no new or persuasive evidence. We also noted in our prior opinion that defendant’s proposed findings of fact, supported by letters and computer recoi’ds, established plaintiffs default. Plaintiff did not meaningfully challenge defendant’s proposed findings of fact with respect to default. See id. at 775. Plaintiff contends once again that he was not in default, but has not supplied any evidence that raises a meaningful challenge. We will not, therefore, reconsider plaintiffs challenges to the existence of a loan and to his default.

We could not fully resolve the case during the last round of summary judgment motions because there was not sufficient evidence as to whether DOE had accepted assignment and whether it properly followed procedures applicable to offset. Defendant, relying on additional evidence concerning DOE’s adherence to TOP procedures, has renewed its motion for summary judgment; plaintiff has cross-moved.

DISCUSSION

In determining whether DOE engaged in an illegal exaction by improperly offsetting plaintiffs tax refund, we consider the relevant statutes and regulations governing TOP and whether DOE conformed with them. See Norman v. United States, 429 F.3d 1081, 1095 (Fed.Cir.2005) (“An ‘illegal exaction,’ as that term is generally used, involves money that was ‘improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.’”) (citation omitted).

The statute authorizing federal agencies to utilize TOP, 31 U.S.C. 3720A (2006), provides the following:

(a) Any Federal agency that is owed by a person a past-due, legally enforceable debt (including debt administered by a third party acting as an agent for the Federal Government) shall, and any agency subject to section 9 of the Act of May 18, 1933 (16 U.S.C. 831h), owed such a debt may, in accordance with regulations issued pursuant to subsections (b) and (d), notify the Secretary of the Treasury at least once each year of the amount of such debt.
[654]*654(b) No Federal agency may take action pursuant to subsection (a) with respect to any debt until such agency—
(1) notifies the person incurring such debt that such agency proposes to take action pursuant to such paragraph with respect to such debt;
(2) gives such person at least 60 days to present evidence that all or part of such debt is not past-due or not legally enforceable;
(3) considers any evidence presented by such person and determines that an amount of such debt is past due and legally enforceable;
(4) satisfies such other conditions as the Secretary may prescribe to ensure that the detennination made under paragraph (3) with respect to such debt is valid and that the agency has made reasonable efforts (determined on a government-wide basis) to obtain payment of such debt; and
(5) certifies that reasonable efforts have been made by the agency (pursuant to regulations) to obtain payment of such debt.

TOP is thus only authorized with respect to debts owed to the government.

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Kipple v. United States, 105 Fed. Cl. 651, 110 A.F.T.R.2d (RIA) 5266, 2012 U.S. Claims LEXIS 821, 2012 WL 2878576 (uscfc 2012).

105 Fed. Cl. 651 (Kipple v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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