United States v. Lujan, Civ. No. 79-540-HB.

• Citation: 520 F. Supp. 282
• Decision Date: 15 January 1980
• Docket Number: Civ. No. 79-540-HB.
• Parties: UNITED STATES of America, Plaintiff, v. Herman D. LUJAN, Defendant.
• Court: United States District Courts. 10th Circuit. District of New Mexico

520 F. Supp. 282

UNITED STATES of America, Plaintiff, v. Herman D. LUJAN, Defendant.

Civ. No. 79-540-HB.

United States District Court, D. New Mexico.

January 15, 1980.

R. E. Thompson, U. S. Atty., Charles F. Sandoval, Asst. U. S. Atty., Albuquerque, N.M., for plaintiff.

Carl J. Schmidt, Albuquerque, N.M., for defendant.

MEMORANDUM OPINION

BRATTON, Chief Judge.

This is a suit involving a federally insured student loan. It is uncontested that on September 8, 1969 the defendant, Herman Lujan, executed a note payable to the Columbia Savings and Loan Association, Denver, Colorado in the amount of $1,500.00 with interest at the rate of 7%. It is also agreed that the plaintiff in this action, the United States, insured the note pursuant to 20 U.S.C. § 1001 et seq., that no payments were made since the note was executed and that the United States has paid the lender also pursuant to the above mentioned federal law.

The defendant, Herman Lujan, has filed a Motion for summary judgment. The United States has filed a memorandum opposing the defendant's motion for summary judgment together with its own Motion for summary judgment.

Turning first to the defendant's Motion for summary judgment, he argues two different grounds in support of his Motion. First, he argues that the applicable six year statute of limitations has run on the claim of the United States citing 28 U.S.C. § 2415. Second, he argues lack of consideration.

With regard to the statute of limitations, the only question is when did the cause of action accrue. If it accrued when the note went into default then the statute of limitations has run. But if the cause of action did not accrue until the United States had paid the lender under the guarantee arrangement then the statute of limitations did not run before suit was filed.

The law of suretyship is clear on this issue. The statute of limitations does not begin to run on the surety's cause of action against the principal until the surety has made payment on the debt to the creditor. A. Stearns, The Law of Suretyship, 5th Ed., 1951; L. Simpson, Handbook on the Law of Suretyship, 1950. Therefore, it is concluded that since the United States made payment to the lender less than six years prior to instituting suit that the defendant's motion for summary judgment on this basis is not well taken and will be denied.

The defendant's second argument is that the defense of lack of consideration entitles him to summary judgment. The defense argues that...