United States v. Goodman

2010 DNH 037

• Court: District Court, D. New Hampshire
• Decided: March 2, 2010
• Docket: 09-CV-216-SM
• Status: Published

Opinion

United States v . Goodman 09-CV-216-SM 03/02/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff

v. Civil N o . 09-cv-216-SM Opinion N o . 2010 DNH 037 Craig A . Goodman, Defendant

O R D E R

The government brings this civil action against Craig

Goodman, seeking to recover unpaid principal and interest on a

student loan Goodman obtained in 1987. The government says

Goodman defaulted on that loan in 1989 and currently owes more

than $12,000. Although the government has moved for summary

judgment, Goodman has not objected.

For the reasons discussed below, the government’s motion for

summary judgment is granted.

Standard of Review

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v . Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Int’l Ass’n of

Machinists & Aerospace Workers v . Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).

Here, Goodman was properly served with the government’s

complaint and filed an answer (document n o . 4 ) . Subsequently,

however, it appears he moved and left no forwarding address. See

Docket Entry n o . 7 (“Mail returned by USPS. Defendant has moved

and left no forwarding address.”). He has, then, failed to meet

his obligation to keep the Clerk’s office apprised of any change

in address. See Local Rule 83.6(e). And, as a result, it is

unclear whether he actually received a copy of the government’s

motion for summary judgment. Nevertheless, that fact cannot

preclude the court from ruling on the pending motion. See id.

(“Counsel or pro se parties who fail to provide the clerk’s

office with their current address in accordance with this rule

are not entitled to notice.”).

2 Because Goodman failed to object to the government’s motion

for summary judgment, the court will take as admitted the factual

statement recited in that motion, as supported by the attached

exhibits. See Local Rule 7.2(b)(2) (“All properly supported

material facts set forth in the moving party’s factual statement

shall be deemed admitted unless properly opposed by the adverse

party.”). See also Cordi-Allen v . Halloran, 470 F.3d 2 5 , 28 (1st

Cir. 2006); McCrory v . Spigel (In re Spigel), 260 F.3d 2 7 , 31

(1st Cir. 2001). It does not, however, “automatically follow”

that the government is entitled to summary judgment. Stonkus v .

City of Brockton Sch. Dep’t, 322 F.3d 9 7 , 101-02 (1st Cir. 2003).

The court must still determine whether the uncontested facts

presented by the government, when viewed in the light most

favorable to Goodman, entitle the government to judgment as a

matter of law. Id. at 102 (citing Fed. R. Civ. P. 56(e)).

Background

The undisputed material facts, as recited by the government,

are as follows:

On September 2 1 , 1987, the defendant executed and delivered a promissory note (the “Note”) payable to Norstar Bank, Rochester, New York, in the total principal amount of $4,700.00. On January 1 1 , 1988, $2,625.00 of this loan was disbursed (the “First Disbursement”), bearing interest at eight percent (8%) per annum, repayable in monthly installments. On January 1 1 , 1988, $2,075.00 of this loan was disbursed (the “Second Disbursement”), bearing interest at a

3 variable rate to be established annually by the U.S. Department of Education, repayable in monthly installments.

Repayment of the Note was guaranteed by New York State Higher Education Services Company, and then reinsured by the United States Department of Education under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. § 1071 e t . seq. (34 C.F.R. Part 6 8 2 ) . The defendant defaulted on his obligations under the terms of the Note on or before May 2 5 , 1989. Due to the default, the guaranty agency paid a claim in the amount of $3,380.51 to the holder on the First Disbursement. Due to the default, the guaranty agency paid a claim in the amount of $1,590.83 to the holder on the Second Disbursement. The Department of Education then reimbursed the guarantor pursuant to its reinsurance agreement. After the guarantor was unable to collect the full amount due, it assigned the right and title to the loans to the Department of Education on August 1 5 , 1993.

The defendant has refused or neglected to pay this debt and i s , therefore, indebted to the United States under the First Disbursement in the amount of $8,389.50 (including principal in the amount of $3,380.51 and interest of $5,008.99) as of October 6, 2008, plus interest at the rate of $0.74 per day from October 6, 2008 to the date of judgment, plus interest at the legally applicable rate from the date of judgment until the debt is paid in full. As a result of his default, the defendant is additionally indebted to the United States under the Second Disbursement in the amount of $3,747.69 (including principal in the amount of $1,590.83 and interest of $2,156.86) as of October 6, 2008, plus interest at the rate of 5.82% per annum through June 3 0 , 2009, and thereafter at such rate as the Department of Education establishes pursuant to Section 427A of the Higher Education Act of 1965, as amended, 20 U.S.C. § 1077a, plus interest at the legally applicable rate from the date of judgment until the debt is paid in full.

Plaintiff’s memorandum (document n o . 8-2) at 1-3 (citations

omitted).

4 Discussion

In count one of its complaint, the government seeks

reimbursement of the outstanding principal and interest on the

First Disbursement ($8,389.50, plus interest that has accumulated

since October 6, 2008). In count two, it seeks the outstanding

principal and interest on the Second Disbursement ($3,747.69,

plus interest since October 6, 2008).

In support of its motion for summary judgment, the

government has filed: (a) a copy of the Note, signed by Goodman

on September 2 1 , 1987; (b) a Certificate of Indebtedness

certifying that Goodman has defaulted on his obligation to repay

the First Disbursement; and (c) a Certificate of Indebtedness

certifying that he has defaulted on his obligation to repay the

Second Disbursement. Exhibits A , B , and C to Complaint. Both of

those certificates are signed by a government loan analyst, under

the penalties of perjury.

The evidence introduced by the government is sufficient to

establish a prima facie claim of entitlement to payment under the

Note. See, e.g., United States v . Emanuel, 2009 DNH 189 at 4

(D.N.H. Dec. 1 0 , 2009) (“The [United States] can establish a

prima facie case that it is entitled to collect on a promissory

note if it introduces the promissory note and a certificate of

5 indebtedness signed under penalty of perjury by a loan analyst.”)

(quoting Guillermety v . Sec’y of Educ., 341 F. Supp. 2d 682, 688

(E.D. Mich. 2003)). And, given Goodman’s failure to object to

the government’s motion, contest its statement of facts, or

otherwise respond, the undisputed evidence of record establishes

the government’s entitlement to judgment as a matter of law on

counts one and two of its complaint.

Conclusion

For the forgoing reasons, as well as those set forth in the

government’s memorandum, the government’s motion for summary

judgment (document n o . 8 ) is granted. The Clerk of Court shall

enter judgment in accordance with this order and close the case.

SO ORDERED.

March 2 , 2010

cc: Michael T . McCormack, Esq. Craig A . Goodman, pro se