UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, CASE NO. 14-13436

v. HON. GEORGE CARAM STEEH

EDWARD J. DAVIS JR.,

Defendant.

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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff, United States of America, brought a complaint against defendant

Edward J. Davis, Jr., on September 4, 2014. Plaintiff alleges failure to pay indebtedness

arising from two federally-guaranteed student loans. The matter is before the court on

plaintiff’s motion for summary judgment. The court heard oral arguments on the motion

on June 29, 2015. For the reasons stated below, plaintiff’s motion for summary

judgment shall be GRANTED.

I. FACTUAL BACKGROUND

This case involves an action to collect the balance due on two federally

guaranteed student loans. Defendant executed two promissory notes on April 25, 1989

to secure loans in the principal amount of $2,625.00 (Pl.’s Ex. A) and $3,193.00 (Pl.’s

Ex. B), to attend MTA School in Garret, Indiana. The loans collected interest at a rate of

8% and 6.79% respectively per annum under loan guaranty programs authorized under

Title IV-B of the Higher Education Act of 1965. At the date of filing the current lawsuit,

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plaintiff alleges that the outstanding balance arising from both loans totaled $18,020.84.

Plaintiff alleges that the defendant defaulted on the loan attached to plaintiff’s brief as

Exhibit A on July 19, 1990 and defaulted on the loan attached as Exhibit B on August 7,

1989. 

On September 4, 2014, plaintiff filed the current lawsuit to collect the amount due

under the promissory notes. Defendant answered the complaint, denying that he signed

the promissory notes and that the promissory notes are non-existent or illegible. The

defendant further puts forward that the amounts claimed as due and owed to the plaintiff

are inconsistent with the amount taken out as a loan by the defendant. The defendant

did not deny that he attended MTA School during the same period of time in which the

loan was disbursed. Further, defendant admitted to signing the promissory notes and

not making payments. Defendant maintains that he never received demands for

payment. 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) empowers the court to render summary

judgment "forthwith if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law." See Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001). The

Supreme Court has affirmed the court's use of summary judgment as an integral part of

the fair and efficient administration of justice. The procedure is not a disfavored

procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox

v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

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The standard for determining whether summary judgment is appropriate is

"'whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.'" 

Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.

2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The

evidence and all reasonable inferences must be construed in the light most favorable to

the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of

some alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d

900, 907 (6th Cir. 2001).

If the movant establishes by use of the material specified in Rule 56(c) that there

is no genuine issue of material fact and that it is entitled to judgment as a matter of law,

the opposing party must come forward with "specific facts showing that there is a

genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968);

see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere

allegations or denials in the non-movant's pleadings will not meet this burden, nor will a

mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at

252. Rather, there must be evidence on which a jury could reasonably find for the nonmovant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252). 

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III. ANALYSIS

Summary judgment is proper because there is no genuine issue of material fact.

First, the defendant brings forth no relevant evidence that the certificates of

indebtedness are not properly made or properly authenticated affidavits that establish a

prima facie case. Second, the defendant fails to raise a genuine issue of material fact as

to the plaintiff’s prima facie case.

1. Plaintiff’s Certificates of Indebtedness are Proper Affidavits

Defendant maintains that the certificates of indebtedness are insufficient to

establish a prima facie case because the certificates of indebtedness are neither

properly made nor properly authenticated affidavits and that the certificates of

indebtedness are “robo-signed.” The defendant is incorrect. The certificates of

indebtedness are properly made and are properly authenticated affidavit equivalents

that may be used to satisfy the required elements for recovery on a promissory note. 

Documents made under penalty of perjury may be submitted in lieu of affidavits in

federal court. 28 U.S.C. § 1746; United States v. Davis, 28 F. App’x. 502 (6th Cir. 2002).

In Davis, the court held that a certificate of indebtedness filed by the Department of

Education and testimony of a loan analyst who certified under penalty of perjury that

borrower had defaulted on a student loan, established a prima facie case that the

government was entitled to collect on the promissory note. Id. at 503.

Additionally, the affidavit from U.S. Department of Education (DOE) Loan Analyst

Laura Bevan lends further credence to the authenticity of the original certificate of

indebtedness. Defects in original certificates of indebtedness can be cured by

supplemental affidavits. United States v. Lawrence, 276 F.3d 193, (5th Cir. 2001); see

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also Stark v. Kent Products, Inc., 62 Mich. App. 548, 556 (1975) (If there is any

difference in opinion as to the terms of a contract it can be reduced to certainty by the

testimony of people familiar with the trade). In Lawrence, the defendant challenged the

legitimacy of a certificate of authenticity on the grounds that the certificates were not

based on personal knowledge and constituted “conclusory hearsay statements.” 276

F.3d at 196. The court further held that, because the records were maintained in

accordance with DOE procedures, an affidavit from a DOE official in custody and

control of the student loan records is admissible. Id.

Here, similar to Davis, the certificates of indebtedness were certified under

penalty of perjury by a loan representative from the Department of Education. The

signatures are present and dated on each certificate of indebtedness. That the name of

the signatory is unknown can be cured by the affidavit of Bevan. Similar to the situation

in Lawrence, Bevan is a U.S. Department of Education Loan Analyst who is familiar with

and conducts student loan business. Defendants have not objected to the court

considering the affidavit from Bevan. In the affidavit, Bevan confirms the validity and

accuracy of the certificates of indebtedness stating “The certificates of indebtedness

have been and remain true and accurate records.” (Bevan Aff. p. 2). Therefore, the

certificates of indebtedness are to be considered valid affidavits that plaintiff can use to

establish a prima facie case.

Defendant, however, further objects to the validity of the certificates of

indebtedness on the grounds that the loan analyst signatures on both documents are

identical and were thus signed using a machine or stamp. The defendant’s argument

lacks merit. While all of the evidence in a motion for summary judgment is to be looked

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at in the light most favorable to the non-moving party, when factual evidence is so

overwhelmingly in support of one inference over another, the court can choose the more

plausible option when deciding if is a material issue of fact for summary judgment

purposes. Anderson, 477 U.S. at 252. One glance at the two signatures in question is

all that is needed to come to the conclusion that the signatures were hand signed on

different occasions. The first letter of the signature on the Exhibit A loan has a

significantly larger loop than the signature on the Exhibit B loan. The entire signature

contains slight to significant differences when compared side by side. It can only be

reasonably concluded that both signatures were signed by a human hand and not

electronically. Therefore, the certificates of indebtedness are valid and can be used to

establish a prima facie case.

2. Documents on File Establish an Unrefuted Prima Facie Case

To recover on a promissory note, the government 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). Plaintiff contends that the certificates of indebtedness and the

promissory notes establish all three elements without any issue of material fact.

Defendant, however, contends that the prima facie case is not established because the

promissory note is an illegible photocopy and therefore ambiguous. Defendant’s

argument is unpersuasive; the plaintiff’s prima facie case is established by the

documents on file and the defendant has failed to present any genuine issue of material

fact.

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First, the defendant signed the promissory notes. Defendant admitted that he

signed the promissory notes. (Davis Interrog., paragraph 4). Not only did the defendant

admit to it by failing to respond to the interrogatory within 30 days pursuant to Federal

Rule of Civil Procedure 36(a)(3), but also expressly admitted that he signed it in his

interrogatory. Therefore, the court need not address the issue of automatic admission

due to the defendant’s failure to timely answer requests for admission. The express

signature is enough to substantiate the signature element.

Second, the government is the present owner or holder of the loan. The

promissory notes and certificates of indebtedness clearly establish that the United

States is the holder of the loan. (Pl.’s Ex. C; Pl.’s Ex. D). Nothing in the record disputes

this contention; the defendant’s signature is clear and consistent.

Third, the defendant defaulted on both loans. Defendant contends that the

contract is illegible due to an affixed note on the back of one of the pages. The terms

and conditions covered by the note are hidden. That the terms are hidden by the note,

however, does not exempt the defendant from performing on the promissory note nor

preclude summary judgment. United States v. McCain, No. 06-13830, 2007 WL

4557700 (E.D. Mich. Dec. 20, 2007). In McCain, the student loan promissory note had a

label affixed to the back yet the court still granted summary judgment in favor of the

government, determining the defendant remained liable for the terms agreed upon. Id.

at *4. It is well established law that “one who signs a contract will not be heard to say,

when enforcement is sought, that he did not read it, or he supposed it was different in its

terms.” Stark v. Kent Products, Inc., 233 N.W.2d 643, 645 (Mich. 1975). In Stark, the

court held that, objectively, the employer understood what he was signing when he

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signed it and thus must be held accountable for the contract. Id. at 548. Additionally,

because the terms of the contract were not changed, the defendant is held to the terms

agreed upon. Royal Ins. Co. of Am. v. Orient Overseas Container Line LTD, 525 F.3d

409, 421 (6th Cir., 2008). In Royal Insurance, the court held that summary judgment

was not proper because a shipper added illegible terms to boilerplate language after the

signing. Id.

Here, the defendant has admitted to signing the promissory notes and thus must

be expected to pay the amount agreed upon. As mentioned supra, the promissory note

was signed by the defendant. Therefore, similar to McCain and Stark, the defendant

cannot claim that the terms were not what he expected or agreed to. He is held to have

understood what he was signing and is expected to fulfill his obligations. Further, the

contract in the current case has not been changed since it was signed by the defendant.

Defendant fails to bring forward specific facts showing there is a need for trial. The

defendant’s use of Royal Insurance to support the notion that the note on the back

creates ambiguity is unpersuasive. Here, in contrast to Royal Insurance, the contract

was not changed after it was signed. Therefore, the terms are exactly as originally

agreed upon, only obscured by the affixed note. Summary judgment is therefore

permissible as the defendant has failed to show that there is or was any ambiguity in the

terms of the contract when it was signed. The plaintiff has established all three

elements of their prima facie case and the defendant has failed to raise a genuine issue

of material fact on any element.

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IV. CONCLUSION

For the reasons stated above, plaintiff’s motion for summary judgment (Doc. 10)

is GRANTED. 

IT IS SO ORDERED.

Dated: July 28, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

July 28, 2015, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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