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United States v. Romero

United States District Court, N.D. Illinois, Eastern Division

January 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT ROMERO, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          SIDNEY I. SCHENKIER United States Magistrate Judge

         On June 24, 2015, plaintiff, the United States of America (the "United States" or the "government"), filed a two-count complaint against defendant, Robert Romero, alleging that Mr. Romero owes principal and interest on two promissory notes he had executed pursuant to the Higher Education Act ("HEA"), as amended, 20 U.S.C. 1071, et seq, (doc. # 1: Compl.). Plaintiff has filed a motion for summary judgment on its claims (doc. # 23: PL's Mot. for Summ. J.). Mr. Romero filed a cross motion for summary judgment alleging that plaintiffs claims are barred by various affirmative defenses (doc. # 36: Def.'s Mot. for Summ. J). For the reasons that follow, the Court grants plaintiffs motion and denies Mr. Romero's motion.

         I.

         The legal standards governing motions for summary judgment are well-established. Summary judgment is appropriate where the moving party establishes that there is no genuine issue as to any material fact and he or she is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett U.S. 317, 323 (1986). A genuine issue exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Lnc, 417 U.S. 242, 248 (1986). In deciding a motion for summary judgment, we "construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Majors v. Gen 7 Elec. Co., 714 F.3d 527, 532 (7th Cir. 2013).

         "[A] factual dispute is 'genuine' for summary judgment purposes only when there is 'sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (quoting Anderson, 477 U.S. at 249). "When opposing a properly supported motion for summary judgment, the non-moving party must 'cit[e] to particular parts of materials in the record' or 'show[ ] that the materials cited do not establish the absence ... of a genuine dispute.'" Melton v. Tippecanoe Cnty., 838 F.3d 814, 818 (7th Cir. 2016) (quoting Fed.R.Civ.P. 56(c)). The non-movant "must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor." Modrowski v. Pigatto, 712 F.3d 1166, 1168-69 (7th Cir. 2013) (internal citations and quotations omitted). "Metaphysical doubt as to the material facts is not enough to overcome summary judgment, and a party may not rest upon the mere allegations of his pleading." Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (internal citations omitted). "[S]urviving summary judgment requires evidence, not assumptions;" "mere speculation or conjecture" is insufficient to create a factual dispute to defeat summary judgment. Thornton v. Ml Aerospace LP, 796 F.3d 757, 768-69 (7th Cir. 2015) (internal citations and quotations omitted).

         II.

         In support of its motion for summary judgment, plaintiff submitted a statement of facts and attached copies of two promissory notes. The government states that the copies show that Mr. Romero signed the first promissory note on September 5, 1998 ("Note 1") and the second promissory note on August 13, 1999 ("Note 2") (doc. # 27: Pl.'s Stmt, of Facts ("PSOF"), Ex. D: Note 1; PSOF, Ex. F: Note 2).[2] In addition, plaintiff submitted certificates of indebtedness for each note, which provide a summary of the history of these two student loans.

         In the certificate of indebtedness for Note 1, Philippe Guillon, a loan analyst for the U.S. Department of Education (the "Department"), certified the following under the penalty of perjury: (a) on September 5, 1998, Mr. Romero executed Note 1 to secure a loan of Si8, 500.00 from National City Bank;[3] (b) the loan was disbursed in separate increments of $10, 000.00 and $8, 500.00 between September and December 18, 1998; (c) the loan obligation was guaranteed by the Pennsylvania Higher Education Assistance Agency ("Pennsylvania HEAA"), and then reinsured by the Department; (d) the holder (National City Bank) demanded payment, but Mr. Romero paid nothing and defaulted on the obligation on March 30, 2002; (e) due to this default, the guarantor (Pennsylvania HEAA) paid the total amount owed to the holder -- $21, 643.66 (which included accrued interest); (f) the Department reimbursed Pennsylvania HEAA; (g) the guarantor attempted, but was unable, to collect this debt from Mr. Romero; (h) on November 25, 2009, the guarantor assigned its right and title to the loan to the Department; (i) no payments were received from Mr. Romero; (j)as of June 22, 2015, Mr, Romero owed the Department $31, 187.17, comprised of the $21, 643.66 the Department had paid the guarantor plus $9, 543.51 in interest; and (k) interest continued to accrue on the $31, 187.17 thereafter, at an annual rate of 2.33% and daily rate of $1.38 through June 30, 2015 (PSOF, Ex. C: Cert, of Indebt. for Note 1).

         In the certificate of indebtedness for Note 2, Mr. Guillon certified the following under the penalty of perjury: (a) on August 13, 1999, Mr. Romero executed Note 2 to secure a loan of $10, 000.00 from National City Bank; (b) the loan was disbursed in separate payments of $8, 500.00 and $1, 500.00 on September 1, 1999; (c) the loan obligation was guaranteed by Pennsylvania HEAA, and then reinsured by the Department; (d) the holder (National City Bank) demanded payment, but Mr. Romero paid nothing and defaulted on the obligation on March 30, 2002; (e) due to this default, the guarantor (Pennsylvania HEAA) paid the total amount owed to the holder - $10, 814.84 (which included accrued interest); (f) the Department reimbursed Pennsylvania HEAA; (g) the guarantor attempted, but was unable, to collect this debt from Mr. Romero; (h) on November 25, 2009, the guarantor assigned its right and title to the loan to the Department; (i) no payments were received from Mr. Romero; (j) as of June 22, 2015, Mr. Romero owed the United States $15, 583.45, comprised of the $10, 814.84 the Department had paid the guarantor plus $4, 768.61 in interest; and (k) interest continued to accrue on the $15, 583.45 at an annual rate of 2.33% and daily rate of $0.69 through June 30, 2015 (PSOF, Ex. E: Cert, of Indebt. for Note 2).

         III.

         Before we proceed to the merits of the government's claims, we address whether Mr. Romero has raised any genuinely disputed issues of material fact in response to plaintiffs motion. In his response to plaintiffs statement of undisputed facts, Mr. Romero purports to deny each of plaintiff s facts except for the fact of his Illinois citizenship and the date plaintiff filed its complaint. However, Mr. Romero does not support his denials with citations to materials in the record, affidavits, admissions, or any other evidence upon which a jury could properly proceed to find a verdict in his favor.

         Local Rule 56.1(b)(3)(C) states that "[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." L.R. 56.1(b)(3)(C). A party opposing a motion for summary judgment must identify the material facts in dispute and cite to admissible evidence controverting the moving party's evidence. Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 359 (7th Cir. 2009). The Seventh Circuit has "repeatedly held that the district court is within its discretion to strictly enforce compliance with its local rules regarding summary-judgment motions, " including by deeming a material fact admitted if it is not properly controverted. Id. at 360. "[R]epeatedly and improperly characteriz[ing] facts as disputed without citing evidence that directly contradicts [the other party's] assertions" does not "demonstrate a genuine fact dispute." Senske v. Sybase, Inc., 588 F.3d 501, 504 n.l (7th Cir. 2009). Nor do "evasive denials that do not fairly meet the substance of the material facts asserted, " Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000), or "improper denials and legal argument, " Smith v. Lamz et ai, 321 F.3d 680, 683 (7th Cir. 2003), create a genuine dispute of material facts. Mr. Romero's responses to plaintiffs statement of facts fall into these categories.

         A.

         Mr. Romero contends that he "has no independent recollection of executing" Note 1 or receiving $18, 500.00 under Note 1, and, therefore, that he "lacks knowledge or information sufficient to form a belief and on that basis denies plaintiffs assertions (doc, # 34: Def.'s Resp. to PSOF at ¶¶ 3, 5). A lack of recollection by itself, however, is not sufficient to create a genuine issue of material fact. See Tinder v. Pinkerton Sec, 305 F.3d 728, 735-36 (7th Cir. 2002) (plaintiffs affidavit asserting that she did not remember seeing or receiving a brochure did not raise a genuine issue that the brochure was distributed to her in light of the uncontroverted affidavits of two other individuals that indicated the brochure was sent and presumably received); see also Hemphill v. State Farm Mut. Auto Ins. Co., 805 F.3d 535, 541 (5th Cir. 2015) ("Lack of memory by itself is insufficient to create a genuine issue of material fact"); Mucha v. nil of Oak Brook, 650 F.3d 1053, 1056 (7th Cir. 2011) (holding that an alleged lack of recollection was "inconclusive, " and "cannot by itself create a genuine factual dispute"); Hudson v. C.P. Rail Sys., 24 F.App'x 610, 613 (7th Cir. 2001) (party's "bare assertion" that he "does not recall" making inappropriate comments did not create a genuine issue of material fact); FDIC v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 205 F.3d 66, 75 (2d Cir. 2000) ("vague denials and memory lapses ... do not create genuine issues of material fact").

         Thus, Mr. Romero's bare assertion that he does not remember signing Note 1 and receiving the $18, 500.00 specified in the note does not raise a genuine dispute as to whether he executed the note and received the funds. Nor is Mr. Romero's lack of "independent recollection" of signing the document sufficient to raise a question as to the authenticity of the copy of Note 1 that plaintiff submitted. See Brown v. Chicago Transit Auth. Ret. Plan, 197 F.App'x 475, 481 (7th Cir. 2006) (holding that the plaintiffs affidavit that she did not remember seeing documents was not enough to create a disputed issue of material fact as to the documents' authenticity). Therefore, we deem admitted plaintiffs assertions that Mr. Romero executed Note 1, that the note is authentic, and that Mr. Romero received $18, 500.00 pursuant to Note 1.

         B.

         Regarding Note 2, Mr. Romero simply denies, with no explanation or citation to the record, that he executed Note 2 on or about September 5, 1998 (Def.'s Resp. to PSOF at ¶ 9). There is no doubt that plaintiffs statement of facts misstated the date that Note 2 was executed. The copy of Note 2 that plaintiff submitted shows that it was signed on August 13, 1999 (PSOF, Ex F: Note 2). As we noted above, we find that this error was a mere technicality. "But rather than point out this inadvertent error and note that the statement is otherwise undisputed, defendants dispute the statement, which serves only to waste the court's, and the litigants', time." Ezeil v. Bass, No. 09 C 6908, 2012 WL 379744, at *2 n.3 (N.D. 111. Feb. 1, 2012). Mr. Romero's summary denial - without any supporting citations to materials in the record -- does not create a genuine issue of material fact as to the authenticity or accuracy of Note 2. See, e.g., Norton v. Country Mortg. Servs., Inc., No. 07 C 6530, 2010 WL 55902, at *3-4 (N.D. 111. Jan. 4, 2010) (holding that there was no genuine issue as to authenticity of signatures where plaintiff did not cite any evidence to support her denial of authenticity); Fireman's Fund Ins. Co. v. Amstek Metal, LLC, No. 07 C 647, 2008 WL 4066096, at *3 n.3 (N.D- HI- Aug. 27, 2008) (disregarding the plaintiffs denial of the authenticity of documents because the plaintiff did not provide any documentation contradicting or undermining their authenticity). We therefore deem admitted plaintiffs assertions that Mr. Romero executed Note 2, that the note is authentic, and that Mr. Romero received $10, 000.00 pursuant to the note.

         C.

         Mr. Romero "denies" every other statement of fact plaintiff asserts (except for his Illinois citizenship and the date plaintiff filed its complaint), on the basis that they are conclusions of law and/or fact.[4] Mr. Romero's responses constitute the sort of "generalized self-serving legal conclusions, rather than particularized statements of fact, " that are insufficient to create a genuine issue of material fact. Greer v. Bd. of Educ. of City of Chi., 267 F.3d 723, 727 (7th Cir. 2001); see also Houston v. Sargent Jones & Officer Simmons, No. 14 C 9462, 2015 WL 9304489, at *2 (N.D. 111. Dec. 22, 2015) (a party "cannot create genuine issues of material fact by relying upon legal arguments, conclusions or suppositions . . . which do not constitute 'facts'"); Boyce v. Johnson, No. 13 C 6832, 2015 WL 7351679, at *2 (N.D. 111. Nov. 20, 2015) (same). As this Court has emphasized, "[i]n determining what is disputed, we focus not only on whether the parties profess to dispute a fact, but also on the evidence the parties offer to support their statements." Sansone v. Kormex Metal Craft, Inc., No. 14 C 841 8, 2016 WL 1529900, at *1 (N.D. 111. Apr. 14, 2016) (collecting cases). Mr. Romero offers no evidence or citation in support of his summary claims that plaintiffs statements of undisputed facts amount to conclusions of law or fact. Rather, Mr. Romero relied on "evasive denials" and "legal argument" that do not create a genuine dispute of material facts. Bordelon, 233 F.3d at 529; Smith, 321 F.3d at 683.

         Moreover, we disagree that plaintiffs assertions constitute legal or factual conclusions. As we explain further below, most of plaintiff s assertions are properly asserted statements of ...


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