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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

UNITED STATE OF AMERICA, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-754 

 Magistrate Judge King 

JEFFREY MARABLE, MD, 

 Defendant. 

 OPINION AND ORDER

 This matter is before the Court, with the consent of the parties 

pursuant to 28 U.S.C. § 636(c), upon Plaintiff United States of 

America’s Motion for Summary Judgment (“Plaintiff’s Motion for Summary 

Judgment”), Doc. No. 12, the response of defendant Jeffrey Marable, 

M.D., Defendant’s Memorandum in Opposition to Plaintiff’s Motion for 

Summary Judgment (“Defendant’s Response”), Doc. No. 13, and 

plaintiff’s reply, Plaintiff United States of America’s Reply to Its 

Motion for Summary Judgment (“Plaintiff’s Reply”), Doc. No. 14. For 

the reasons that follow, Plaintiff’s Motion for Summary Judgment is 

GRANTED. 

I. Background 

 Defendant attended medical school from 1986 to 1990 and took out 

various loans, including Government-insured Health Education 

Assistance Loans (“HEAL”) to pay for his schooling. Affidavit of 

Jeffrey Marable, M.D. (“Marable Affidavit”), attached to Defendant’s 

Response as Exhibit A, at ¶¶ 3-4. On February 21, 1995, defendant 

executed a Sallie Mae HEAL Relief Promissory Note in the principal 

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amount of $94,566.33 (the “HEAL Note”) to consolidate six education 

loans under the Federal HEAL Consolidation Program. See Complaint, 

Doc. No. 2, ¶ 3, Exhibit A; Answer, Doc. No. 6, ¶ 3. 

 Defendant made payments on the HEAL Note until January 5, 2005, 

at which time he filed a petition for bankruptcy relief under Chapter 

13 of the Bankruptcy Code. Marable Affidavit, ¶ 6. Sallie Mae filed 

a Proof of Claim in the amount of $75,774.34 in connection with a 

student loan or loans. Id. at ¶¶ 7-8; Proof of Claim, attached to 

Defendant’s Response as Exhibit A-2. Defendant’s bankruptcy was 

discharged on May 24, 2010 but the HEAL Note was not discharged in the 

bankruptcy. Certificate of Indebtedness, attached to Complaint as 

Exhibit B, at pp. 1-2. 

 Due to the bankruptcy, Sallie Mae filed an insurance claim with 

the Department of Health and Human Services (“HHS”) in the amount of 

$75,891. Id. Sallie Mae’s claim was paid on February 10, 2005 and 

the HEAL Note was assigned to HHS. Id. HHS notified defendant by 

letter dated February 18, 2005 that Sallie Mae had submitted an 

insurance claim and had assigned the HEAL Note to the United States 

Government. Id. 

In a letter dated May 25, 2010, HHS provided defendant with 

instructions for entering into a repayment agreement. Id. In a 

letter dated January 21, 2011, HHS notified defendant that, unless 

defendant submitted a written response, repayment agreement, or 

payment in full within sixty days, HHS would refer the HEAL Note to 

other federal agencies for the purpose of administrative offset under 

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the Debt Collection Improvement Act of 1996. Id. In a letter dated 

January 29, 2011, HHS notified defendant that the HEAL Note had been 

referred for collection and advised defendant that, unless he remitted 

payment in full or entered into a repayment agreement, the HEAL Note 

would be referred to the United States Department of Justice (“DOJ”). 

Id. Defendant was again notified on April 25, 2012 that the HEAL Note 

would be referred to the DOJ unless he entered into a repayment 

agreement within sixty days. Id. Defendant did not comply with any 

of these requests. Id. 

 Plaintiff United States of America filed this action on August 

20, 2012, on behalf of HHS, seeking recovery of principal and interest 

allegedly due on the HEAL Note. Plaintiff now seeks an order granting 

it summary judgment in the amount of $108,860.04, that amount 

reflecting $107,597.97 in principal and $1,262.07 in interest accrued 

through June 27, 2012, plus additional interest on the principal 

balance from June 27, 2012 to the date of judgment at the rate of 

3.125 percent per annum. Plaintiff’s Motion for Summary Judgment, p. 

4. 

II. Standard 

The standard for summary judgment is well established. This 

standard is found in Rule 56 of the Federal Rules of Civil Procedure, 

which provides in pertinent part: “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). Pursuant to Rule 56(a), summary 

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judgment is appropriate if “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of 

law.” Id. In making this determination, the evidence “must be viewed 

in the light most favorable” to the non-moving party. Adickes v. S.H. 

Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie 

if the dispute about a material fact is genuine, “that is, if the 

evidence is such that a reasonable jury could return a verdict for the 

non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). However, summary judgment is appropriate if the opposing 

party “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 (1986). The “mere existence of a scintilla of 

evidence in support of the [opposing party’s] position will be 

insufficient; there must be evidence on which the jury could 

reasonably find for the [opposing party].” Anderson, 477 U.S. at 252. 

 The “party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions” of the record which 

demonstrate “the absence of a genuine issue of material fact.” 

Celotex Corp., 477 U.S. at 323. The burden then shifts to the 

nonmoving party who “must set forth specific facts showing that there 

is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting 

Fed. R. Civ. P. 56(e)). “Once the moving party has proved that no 

material facts exist, the non-moving party must do more than raise a 

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metaphysical or conjectural doubt about issues requiring resolution at 

trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th 

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586 (1986)). 

III. Discussion 

 The Government filed this action to recover amounts allegedly due 

on the HEAL Note. To recover on a promissory note, the Government 

must “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) (citing United States v. MacDonald, No. 93-1924, 1994 WL 

194248, at *2 (6th Cir. May 16, 1994)). “For that purpose the 

government may introduce evidence of the note and a sworn transcript 

of the account or certificate of indebtedness.” Id. (citing United 

States v. Davis, 28 F. App’x 502, 503 (6th Cir. 2002)). “Once such a 

prima facie case is established, defendant has the burden of proving 

the nonexistence, extinguishment or variance in payment of the 

obligation.” Id. (citing Davis, 28 F. App’x at 503). 

 In the case presently before the Court, the Government has 

established a prima facie case by attaching to the Complaint a copy of 

the HEAL Note signed by defendant and a Certificate of Indebtedness 

signed under penalty of perjury by Barry Blum, the Chief of the 

Referral Control Section of the Debt Management Branch of HHS. The

Certificate of Indebtedness provides, inter alia, that HHS was 

assigned the HEAL Note from Sallie Mae in February 2005, that 

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defendant has not entered into a repayment agreement with HHS since 

the HEAL Note was assigned, and that HHS has declared the entire HEAL 

Note due and payable because of defendant’s “lack of cooperation” in 

“establishing an acceptable repayment schedule.” See Certificate of 

Indebtedness, pp. 1-2. According to the Certificate of Indebtedness, 

the total debt due on the HEAL Note as of June 26, 2012 is 

$108,860.04, consisting of $107,597.87 in principal and $1,262.07 in 

interest. Id. 

Because the Government has established its prima facie case, the 

burden shifts to defendant to “prov[e] the nonexistence, 

extinguishment or variance in payment of the obligation.” PetroffKline, 557 F.3d at 290. Defendant admits that he signed the HEAL 

Note, Complaint, Doc. No. 2, ¶ 3, Exhibit A; Answer, Doc. No. 6, ¶ 3, 

and he does not contest that the Government is the present holder of 

the HEAL Note. Instead, defendant argues that there is a genuine 

issue of material fact as to whether he is in default and, if found to 

be in default, what amount is due under the HEAL Note. 

Defendant avers that, after the 2010 “bankruptcy discharge, [he] 

received monthly statements from Sallie Mae on the [HEAL] Loan, and 

made payments according to the statements.” Marable Affidavit, ¶ 9. 

Defendant also avers that Sallie Mae placed the Loan in forbearance in 

March 2011 and that it remains in forbearance. Id. at ¶¶ 11-12. In 

further support of his position, defendant has submitted the 

transaction history for a Sallie Mae account that details payment and 

capitalized interest transactions from June 1990 through December 2012 

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(the “Sallie Mae Statement”).1 Defendant’s Response, Exhibit A-1. 

Defendant has also submitted a statement from HHS detailing activity 

on the HEAL Note from July 1995 through June 2012 (the “HHS 

Statement”). Id. at Exhibit B-1. 

As defendant argues, the Sallie Mae Statement and the HHS 

Statement reflect nearly identical payments from 1995 through January 

2005. The statements differ after January 2005. The HHS Statement 

reflects that defendant last made a payment on January 18, 2005 and 

that two “lender refund payments” were made in March 2005. Id. at pp. 

1, 26. The Sallie Mae Statement reflects that defendant made four 

additional payments in 2005 and seven payments between September 2010 

and March 2011, at which time interest began to capitalize on the loan 

quarterly. Defendant’s Response, Exhibit A-1, pp. 2-3. Defendant 

avers that the additional payments reflected in the Sallie Mae 

Statement were made on the HEAL Note and paid to Sallie Mae. Marable 

Affidavit, ¶ 9. 

Defendant’s affidavit and the Sallie Mae Statement are 

insufficient to show that there is a disputed issue of fact with 

regard to the “nonexistence, extinguishment or variance in payment of 

the obligation.” See Petroff-Kline, 557 F.3d at 290. Defendant has 

provided evidence that he made payments on a loan to Sallie Mae after 

his 2010 bankruptcy discharge. However, Sallie Mae assigned the HEAL 

Note to HHS on February 10, 2005 and notified defendant by letter 

 

1

 The Sallie Mae Statement provides, inter alia, the amount of each payment 

that was applied to principal, but it does not indicate the original or 

outstanding principal balance of the account. 

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dated February 18, 2005 that Sallie Mae had submitted an insurance 

claim and had assigned the HEAL Note to the United States Government. 

Certificate of Indebtedness, pp. 1-2. There is no evidence that 

defendant made any payments to HHS on the HEAL Note after the February 

2005 assignment or that defendant did not receive notice of the 

assignment.2

 

Defendant also avers that Sallie Mae placed the HEAL Note in 

forbearance in March 2011 and that, as of April 18, 2013, it remains 

in forbearance. Marable Affidavit, ¶¶ 11-12. In support of this 

assertion, defendant has provided a Sallie Mae statement, dated March 

1, 2013, indicating that a loan with a principal balance of $60,331.12 

is in forbearance status. Defendant’s Response, Exhibit A-3. It is 

clear to this Court, however, that the loan referred to in the March 

1, 2013 Sallie Mae statement is not the HEAL Note. 

First, the origination date and original loan amount of the loan 

referred to in the March 1, 2013 Sallie Mae statement differs from 

that of the HEAL Note. Significantly, the March 1, 2013 Sallie Mae 

statement provided by defendant does not include the loan account 

number or the second page of the statement, which would include the 

“loan level breakdown of the” totals listed on the first page. On the 

 

2

 Defendant avers that he “never received a statement from the United States 

Department of Health and Human Services.” Marable Affidavit, ¶ 10. However, 

that averment is insufficient to create a genuine issue of material fact as 

to whether defendant received notice of the assignment. It is clear from 

defendant’s affidavit that the “statement” he is referring to is a monthly 

billing statement and not a letter notifying him of the assignment. See id. 

at ¶¶ 9 (“After my bankruptcy discharge, I received monthly statements from 

Sallie Mae on the [HEAL] Loan, and made payments according to the 

statements.”), 10 (“I have never received a statement from [the] United 

States Department of Health and Human Services.”). 

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other hand, the Government has provided a Sallie Mae statement, dated 

September 2, 2012, for what appears to be the same loan addressed in 

the March 1, 2013 Sallie Mae statement provided by defendant.3

 The 

second page of that statement indicates that the loan originated on 

September 8, 1994 in the amount of $63,207.05. Plaintiff’s Reply, 

Exhibit C. The HEAL Note, however, originated in February 1995 in the 

amount of $94,566.33. See Complaint, Doc. No. 2, ¶ 3, Exhibit A; 

Answer, Doc. No. 6, ¶ 3. 

Second, the principal balance of $60,331.12 listed on the March 

1, 2013 Sallie Mae statement provided by defendant differs 

significantly from that of the HEAL Note. Sallie Mae’s January 24, 

2005 Proof of Claim relating to the HEAL Note, filed in defendant’s 

original bankruptcy proceeding, was in the amount of $75,774.34. 

Marable Affidavit, ¶¶ 7-8; Proof of Claim, attached to Defendant’s 

Response as Exhibit A-2. The sum of the payments and capitalized 

interest transactions that defendant represents occurred between 

January 2005 and December 2012, i.e., the transactions reflected on 

the Sallie Mae Statement, would result in a net increase in the 

principal amount of the HEAL Note since January 2005. However, 

defendant now argues that a loan with a principal balance of less than 

 

3

 The Court’s own review of the September 2, 2012 statement provided by the 

Government, the March 1, 2013 statement provided by defendant, and the Sallie 

Mae Statement confirms that the statement provided by the Government is for 

the same loan represented in the March 1, 2013 statement provided by 

defendant. The outstanding balance on the March 1, 2013 statement is 

$60,331.12. That total, reduced by the interest capitalized on the Sallie 

Mae Statement on September 30, 2012 ($1,307.56), October 29, 2012 ($421.51), 

and December 31, 2012 ($922.24), would result in a total of $57,679.81. That 

figure is the principal balance as of September 2, 2012 listed on the 

statement provided by the Government. 

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eighty percent of the amount of the January 2005 Proof of Claim is the 

HEAL Note. This cannot be. 

Finally, Sallie Mae assigned the HEAL Note to HHS on February 10, 

2005. Certificate of Indebtedness, at pp. 1-2. Because it no longer 

owned or held the HEAL Note, Sallie Mae could not legally place the 

note in forbearance in March 2011, as defendant contends. See Marable 

Affidavit, ¶¶ 11-12. 

Considering the discrepancies in the outstanding principal 

balances, origination dates, and original loan amounts, and the fact 

that Sallie Mae did not own or hold the HEAL Note at the time 

defendant contends Sallie Mae placed it in forbearance, a reasonable 

jury could not find that the March 1, 2013 Sallie Mae statement, and 

thus, defendant’s related averments, see Marable Affidavit, ¶¶ 11-12 

(referencing the March 1, 2013 Sallie Mae statement), are evidence 

that the HEAL Note is in forbearance. 

Defendant also contests the amount due on the HEAL Note. See 

Defendant’s Response, pp. 4-5. Defendant argues that the principal 

balance of the HEAL Note represented in the Certificate of 

Indebtedness is incorrect because it is higher than the original loan 

amount in 1995, even though defendant made $82,011.43 in payments 

between 1995 and 2005. Id. In support of this argument, defendant 

again refers to the March 1, 2013 Sallie Mae statement, which shows a 

loan balance of $60,331.12. Id. 

As discussed supra, defendant has offered no evidence that he 

made payments on the HEAL Note to HHS after the February 2005 

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assignment, and the March 1, 2013 Sallie Mae statement upon which 

defendant relies reflects the balance due on a note other than the 

HEAL Note. Although defendant argues that the HEAL Note has an 

outstanding amount less than the $108,860.04 reflected in the 

Certificate of Indebtedness, defendant has offered no evidence of 

payment by him on the HEAL Note that was not properly credited, nor 

has he presented evidence of error in the Certificate of Indebtedness. 

Accordingly, the Court concludes that plaintiff has established a 

prima facie case to recover on the HEAL Note and that defendant has 

failed to create a genuine issue of material fact as to “the 

nonexistence, extinguishment or variance in payment of the 

obligation.” See Petroff-Kline, 557 F.3d at 290. Plaintiff is 

therefore entitled to summary judgment as a matter of law. 

Plaintiff’s Motion for Summary Judgement, Doc. No. 12, is 

therefore GRANTED. 

Plaintiff is AWARDED damages consisting of $107,597.97 in 

principal and $1,262.07 in interest accrued through June 27, 2012, and 

$5,812.87 in additional interest on the principal balance from June 

27, 2012 to the date of judgment at the rate of 3.125 percent per 

annum,4 for a total award of $114,672.91. 

The Clerk shall enter FINAL JUDGMENT accordingly. 

March 21, 2014 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

 

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 $107,597.97 * 3.125% * 631 (the number of days from June 28, 2012 through 

March 21, 2014) ÷ 365 = $5,812.87. 

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