United States District Court, E.D. Michigan, Southern Division
R. Grand Mag. Judge.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
E. LEVY UNITED STATES DISTRICT JUDGE.
Federal Direct Loan Program consolidation loan collection
action is before the Court on plaintiff's motion for
summary judgment brought pursuant to Fed.R.Civ.P. 56(a).
the United States' motion for summary judgment was filed
on May 15, 2017. (Id.) Defendant, Darold Whitehead,
who is proceeding pro se, has not responded to the
motion, and the time for doing so has long since expired.
E.D. Mich. R. 7.1(d)(1)(B) (requiring a response to a
dispositive motion within 21 days after service of the
motion). On July 17, 2017, the Court ordered defendant to
file a response to the government's motion on or before
August 4, 2017. (Dkt. 18.) To date, defendant has not filed a
response nor contacted the Court regarding his failure to do
government moves for summary judgment on the ground that
“defendant has asserted no valid defense to the [ ]
consolidation loan that is the subject of this
litigation” and therefore there is no genuine issue of
material fact for trial. (Dkt. 15 at 4-5.) Having reviewed
the pleadings, briefs, and supporting documents submitted by
the parties, the Court concludes that oral argument is not
necessary. E.D. Mich. R. 7.1(f)(2). For the reasons set forth
below, plaintiff's motion will be granted.
Statement of Facts
about June 20, 2004, Darold Whitehead signed a promissory
note to secure a direct consolidation loan from the U.S.
Department of Education. (Dkt. 1 at 4.) “Consolidation
loans enable borrowers to consolidate all of their
outstanding education loan obligations into a single loan,
typically at a lower rate of interest. The underlying loans
are extinguished and a new loan is issued in an amount
sufficient to pay off and retire the borrower's previous
debts.” (Dkt. 15 at 4.) The loan was disbursed on
August 16, 2004, in the amount of $6, 879.60 at an interest
rate of 4.375% per year. (Dkt. 1 at 3.) The terms of the
payment plan were set forth in the promissory note, and
plaintiff alleges that defendant defaulted on his payment
obligation on October 1, 2012. (Id.) On September
19, 2016, the U.S. Department of Education prepared a
Certificate of Indebtedness and referred the loan to the
Department of Justice for collection. (Id.) As of
the date the complaint was filed, defendant owed $11, 001.33
on the loan. (Dkt 15-4 at 2.)
answer fails to address the consolidation loan that is the
subject of this litigation. (See Dkt. 9.) Instead,
defendant raises defenses pertaining to an agreement into
which he entered into in April 1989. Specifically, defendant
asserts that he entered into an “agreement to further
his education with Jordan College, ” that “the
faculty of the school . . . began to become no-shows to the
school at or around October 1989, ” and that plaintiff
“decided to discontinue his schooling” in
November 1989. (Id.)
Standard of review
judgment is required where “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). A dispute about a material fact is
genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court “views the evidence, all facts, and
any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Pure Tech
Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135
(6th Cir. 2004) (citing Skousen v. Brighton High
Sch., 305 F.3d 520, 526 (6th Cir.2002)).
Sixth Circuit has held that “a district court cannot
grant summary judgment in favor of a movant simply because
the adverse party has not responded. The court is required,
at a minimum, to examine the movant's motion for summary
judgment to ensure that he has discharged that burden.”
Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991).
non-movant cannot, however, “rely on the hope that the
trier of fact will disbelieve the movant's denial of a
disputed fact, but must present affirmative evidence”
to defeat the motion. Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The
“mere existence of a scintilla of evidence in support
of the [non-movant's] position will be
insufficient.” Liberty Lobby, 477 U.S. at 252.
“If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Id. at 249-250.
recover on a promissory note, the [plaintiff] must first make
a prima facie showing that (1) the defendant signed it, (2)
the government is the present owner or holder, and (3) the
note is in default.” United States v.
Petroff-Kline, 557 F.3d 285, 290 (6th Cir. 2009)
(internal citations omitted). “For that purpose, the
[plaintiff] may introduce ...