Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Austin v. United States Dep't of Education

March 19, 2010


The opinion of the court was delivered by: Honorable David H. Coar


Before this Court is a Motion for Summary Judgment filed by the Defendant United States Department of Education (the "Department") against Plaintiff Mozell Austin ("Austin"). For the reasons stated below, the Department's Motion for Summary Judgment is GRANTED.


On September 29, 2008, Austin initiated this action pro se, alleging that the Department engaged in wrongful debt collection practices by seeking to recover amounts the Department claimed were loaned to Austin during the period in which she was a student. Austin alleges that she was a victim of identity theft. She alleges that she never received any of the amounts disbursed in her name, and that the documents the Department relied on in pursuing collection of her loan were not signed by her.

On July 10, 2009, the Department filed its motion for summary judgment. Under Rule 56(e)(2), a party opposing a motion for summary judgment "may not rely merely on allegations or denials in its own pleading; rather its response must - by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial." If appropriate, summary judgment should be entered against a party who fails to so respond adequately. Fed.R.Civ.P. 56(e)(2). In this district, the procedures for replying to a motion are laid out with greater detail in Local Rule 56.1(a)(3).

In accordance with Seventh Circuit requirements, the Department's motion contained a notice to Austin describing Local Rule 56 in plain English and outlining the consequences of a failure to respond to its motion. See Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992). Despite having received this notice, Austin has not followed the proper procedures for responding to a motion for summary judgment. Instead of filing a response to each numbered paragraph in the moving party's statement, and providing specific references to supporting evidentiary material, Austin has submitted a narrative reasserting that she never applied for a student loan and received free Pell grants only. [Dkt. 53.] Under forms mis-titled "Amended Complaint," Austin apparently submits an additional statement of fact, indicating that she was disabled during 1994 and thus not able to attend college or receive student loans.*fn1 [Dkt. 59-60.] She supports her claim with unauthenticated documents, which the Court cannot consider. See Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir.1987) (supporting materials must be authenticated by "vehicles designed to sure reliability and veracity," such as depositions, answers to interrogatories, admissions and affidavits).

Pro se litigants are generally entitled to a level of deference not otherwise afforded to ordinary litigants represented by counsel. See e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (requiring liberal construction of pro se litigant pleadints). Nevertheless, "pro se litigants are not entitled to general dispensation from rules of procedure or court-imposed deadlines." Downs v. Westfal, 78 F.3d 1252, 1257 (7th Cir. 1996); see also Members v. Paige, 140 F.3d 699, 702 (7th Cir.1998) (stating that procedural rules "apply to uncounseled litigants and must be enforced").

The materials Austin has submitted in response to the Department's motion for summary judgment, even if construed liberally, fail to comply with Local Rule 56.1. "When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by [Rule 56.1], those facts are deemed admitted for purposes of the motion." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); see also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (holding that "a failure to respond by the non-movant as mandated by the local rules results in an admission"); Greer v. Bd. of Educ., of the City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001). Because Austin failed to properly oppose any of the Department's statements of fact, all of the Department's statements fairly supported by the evidence are deemed admitted. The Court is left to determine whether the Defendant is entitled to judgment as a matter of law in light of the uncontested facts.


The following facts may not be objectively true, but must be deemed as admitted in light of Austin's failure to properly dispute the Department's statement of facts.

Austin received a number of student loans prior to the year 1989. In September 1989, Austin consolidated the loans and signed a promissory note for a Subsidized Stafford Consolidation Loan for $8,397.97, having a 10 % rate of interest.

Austin defaulted on her loan repayment obligation in June 1994. Pursuant to the Department's collection procedures for defaulting borrowers, the guaranty agency paid the private lender who provided the original loan. This capitalized the interest on Austin's loan, increasing the principal balance.

When the guaranty agency's attempts to collect the loan from Austin proved unsuccessful, the loan was assigned to the Department. At the time of assignment, Austin's indebtedness to the agency amounted to approximately $26,000 ($12,350.51 in unpaid principal and $13,873.16 in unpaid accrued interest). As of March 26, 2009, her indebtedness to Education was approximately $29,000 ($12,350.51 in unpaid principal and $17,455.57 in unpaid accrued interest). Austin had yet to make a payment on her loan obligation.

A procedure exists in the Department's implementing regulations for having Austin's indebtedness discharged. The procedure calls for a debtor, like Austin, to file a Loan Discharge Application: False Certification (Unauthorized Signature/Unauthorized Payment). The application must include fivedifferent signature specimens of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.