United States v. Hennigan
| Decision Date | 06 April 2015 |
| Docket Number | Case No: 6:13-cv-1609-Orl-31DAB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JEROME V. HENNIGAN, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This cause came on for reconsideration without oral argument, but additional briefing1, on the following motion filed herein:
On October 17, 2013, the United States, on behalf of the Department of Education (the "Department"), filed a Complaint against Jerome Hennigan alleging that he had defaulted on several student loans. Several of the student loans were from Dade Savings and Loan Association and guaranteed by the State of Florida and then reinsured by the Department of Education. The Department also seeks to recover a defaulted student loan made to Defendant from the Student LoanMarketing Association ("Sallie Mae"). All of the loans were made under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. 1071 et seq. (34 C.F.R. Part 682). Doc. 1.
The Department asserts that as of August 27, 2009, Defendant owed $19,357.37 on the promissory notes originating with Dade Savings and Loan and $87,161.32 on the loan from Sallie Mae, with interest accruing daily under the terms of the promissory notes at issue. Doc. 1-2. These amounts have risen such that as of September 8, 2014, Defendant allegedly owed $22,574.56 and $127,473.64, respectively, on the promissory notes at issue. Doc. 32 at 25-26. In support of the Complaint, the Department filed copies of two Certificates of Indebtedness attesting that Defendant defaulted on his obligation to repay the first set of promissory notes on May 28, 1986 and on his obligation to repay the second promissory note on October 8, 1991. Doc. 1-2. The Department asserts jurisdiction under 28 U.S.C. § 1345.
For the reasons set forth below, it is respectfully RECOMMENDED that the Department's Motion for Summary Judgment be GRANTED.
I. Procedural History
On February 7, 2014, Defendant Hennigan, proceeding pro se - although licensed as an attorney since 1989 - filed a Motion to Dismiss the Complaint, arguing about the specificity of the pleading and the supporting exhibits. Doc. 8. The Motion was summarily denied on February 25, 2014. Doc. 11. On March 17, 2014, Defendant filed an Answer denying the Court has subject matter jurisdiction because the claims in the Complaint were allegedly previously adjudicated in state court; Defendant additionally asserted 22 affirmative defenses. Doc. 13.
On September 11, 2014, the Department moved for summary judgment on the student loan agreements, providing copies of the Applications and Promissory Notes signed by Defendant and aStatement of Material Facts, supported by affidavit and other record citations. Doc. 32 (with exhibits). Defendant filed his response on October 10, 2014. Doc. 32. On December 17, 2014, the parties filed a motion to extend time until January 31, 2015 to conduct the mediation, because although formal mediation was scheduled for December 22, 2014, the parties were in "earnest settlement negotiations and both sincerely believe[d] that settlement [was] possible without mediation" and wanted to minimize additional financial expenses by avoiding the mediator's fee. Doc. 35. However, on February 3, 2015, the parties filed a Motion to Be Excused from Mediation because "despite the parties' best efforts, the parties are literally on different planets2 with no hope of reaching an amicable settlement." Doc. 37 ¶2. Finding the matter ripe for decision, the Court issued a Report and Recommendation on February 13, 2015 recommending the District Judge grant in part the Department's Motion for Summary Judgment as to the Dade Savings Promissory Notes and deny in part the Motion as to the Sallie Mae Promissory Note because the copy of the Note attached as an exhibit was cut off and did not include the promise to pay language as the Department alleged. Doc. 40.
However, on March 2, 2015, the Department of Education filed an "Objection" to the Court's Report and Recommendation (Doc. 40), in which the Department belatedly supplied a legible and complete copy of the Promissory Note signed by the Defendant for the loan from Sallie Mae. Doc. 42. Defendant Hennigan also filed his Objection to the Report and Recommendation addressing the Dade Savings Promissory Notes. Doc. 48.
The District Judge subsequently referred the matter to the undersigned to determine whether reconsideration of the Report and Recommendation was appropriate (Doc. 43) and the Court foundthat it was appropriate as to the Sallie Mae Promissory Note. Doc. 49. Defendant Hennigan was ordered to file his response to the Department's Objection (Doc. 42) by the date certain of March 17, 2015. However, Defendant failed to file an additional response by March 17, 2015, instead, filing his Response three days later, on March 20, 2015, contending he was granted three extra days for mailing "[p]ursuant to Fed.R.Civ.P. Rule 6(d)." Doc. 52 at 1.3
Although the Court is not required to consider responses which are filed late, it will in this case. The Department filed a Response to Defendant's March 20 Objection on March 30, 2015, attaching the Declaration of Laura Bevan, authenticating the original Sallie Mae Promissory Note. Doc. 56 at 4.
Defendant's original Response (Doc. 34) to the Department's Motion argued that the Department had failed to prove he had agreed to a "promise to pay" within the Sallie Mae Promissory Note. Doc. 34. Defendant recognizes in his latest Response (Doc. 52) that Doc. 52 at 1.
The bulk of Defendant's latest Response (Doc. 52) concerns the verbatim hearsay and business records arguments concerning the admissibility of the Certificate of Indebtedness No. 2 that he made in his original Response regarding Certificate of Indebtedness No. 1. Compare Doc. 52 at 4-17 with Doc. 48 at 3-17.4
The Court issues this Amended Report and Recommendation with the primary change being in the substantive discussion of the Sallie Mae Promissory Note, now that the original Note has been submitted, and no modification to the discussion of the Dade Savings Promissory Notes5.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, when faced with a "properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997).
Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91L.Ed.2d 265 (1986). "Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative." Sawyer v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "Essentially, the inquiry is 'whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.'" Sawyer, 243 F.Supp.2d at 1263 (quoting Anderson, 477 U.S. at 251-52).
The Department argues that it is entitled to summary judgment on the promissory notes at issue because the material facts in this case are not in dispute, Defendant received the loans, has failed to repay them, and the amounts demanded are due and owing, thus, it has the right to recover the amounts due. Specifically, the Department has produced evidence that Defendant executed the Promissory Notes and obtained two student loans in the amount of $34,581.29 and $9,161.82, he defaulted on his payment obligation on May 28, 1986 and October 8, 1991; to dispute the amounts owed, he must produce evidence of payment, which he has failed to do. Doc. 32.
Defendant argues in Response (Doc. 34) essentially three bases for denying summary judgment. First, he challenges the authenticity and content of the Department's Certificates of Indebtedness6 and the copies of the promissory notes supplied with them, arguing that they do notfall within the business records exception. Second, he argues that the Department failed to produce the original promissory notes and/or valid copies of the promissory notes, such that they cannot be used to support the Department's claims against him. Third, he argues that judgments obtained against him by an entity called HEMAR Insurance Corporation in 1993 were obtained in partial or full settlement of the...
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