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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No. 4:10cv170-SPM/WCS

MARLENE DEKKER,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff filed a complaint on May 7, 2010, seeking judgment against the

Defendant for defaulting on student loan payments. Doc. 1. Summons was executed

and the Defendant's pro se Answer was filed by the Plaintiff. Doc. 5.1 A case

management and scheduling order was entered on August 12, 2010. Doc. 6. The

Defendant's copy of that order was returned to the Court as non-deliverable. Doc. 7. 

On October 6, 2010, Plaintiff filed a motion for summary judgment, doc. 8, and

certificate of service, doc. 9, showing it was mailed to Defendant's last known address. 

I entered an order, though concerned it might not reach the Defendant, and advised the

1

 Defendant's answer did not dispute the loan, but asserted that Plaintiff lacked

funds with which to repay the loan. Doc. 5. Defendant mailed her response, which was

in the form of a letter, to counsel for Plaintiff rather than to the Court. Id. 
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Defendant of her obligation to respond to the motion for summary judgment. Doc. 10. 

Defendant had until November 30, 2010, to file a response to the motion. Id. 

On November 2, 2010, Plaintiff filed a motion for an extension to file a Rule 26

Report. Doc. 11. Plaintiff noted that counsel had been unable to contact the pro se

Defendant and requested more time to confer and file the report. Id. The motion was

granted on December 1, 2010. Doc. 13. 

In the meantime, Plaintiff filed the Rule 26 Report on November 29, 2010. Doc.

12. That report explains that Defendant admits the debt owed Plaintiff but has no ability

to repay the loan. Id. Defendant indicates she will submit a request to the Department

of Education to ask for loan forgiveness in light of her financial situation. 

I noted in that order, doc. 13, that the pro se Defendant had not responded in any

way to the prior order entered, doc. 10. I pointed out that court orders had been

returned to the Court as undeliverable, although the certificate of service provided by

Plaintiff in the Rule 26 Report, doc. 12, listed the same address listed for Defendant as

is listed on the court docket. Docs. 10, 13. The Defendant had been advised that if

additional time was needed to respond to Plaintiff's motion for summary judgment, that

Defendant "must file a motion for extension of time (describing why the time is needed

and how much time is necessary) before the date on which the motion will be taken

under advisement." Plaintiff had not responded at the time the order was entered, nor

has Plaintiff filed any response in the three months since the last order was entered. 

Thus, the pending motion for summary judgment is ready for review and is unopposed. 

Rule 56 Evidence 

On or about December 4, 2000, Defendant executed a promissory note for a

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consolidation of loans held by the Department of Education. Doc. 8, p. 1; Att. 1, second

para., lines 1-2). By April 22, 2010, the Defendant owed principal in the amount of

$37,130.41 and interest in the amount of $23,008.43, for a total debt owed of

$60,138.84. Doc. 8, p. 1; Att. 1, lines 14-16. 

On or about October 10, 2001, Defendant executed a promissory note for a

consolidation of loans held by the Department of Education. Doc. 8, p. 1; Att. 2, second

para., lines 1-2). As of April 22, 2010, the Defendant owed principal in the amount of

$126,053.90 plus interest in the amount of $68,022.55, for a total debt owed of

$194,076.45. Doc. 8, p. 1 Att. 2, lines 14-16. 

On May 7, 2010, Plaintiff initiated this case seeking judgment on the two student

loan debts. Doc. 1. Attached to the complaint were two certificates of indebtedness

provided by a Department of Education loan analyst. Doc. 1, Att. 1 and 2. The

complaint and the certificates were served on the Defendant, and Defendant filed an

Answer in this case on August 2, 2010. Doc. 5. In the Answer, Defendant states that

she does "not deny that" she borrowed the student loans." Doc. 5-1. Defendant states

that even if she tried to repay the loan, "it would be impossible to pay them.” Id. She

said, "Once I graduated I made regular payment [sic] on my student loans, but then they

kept on increasing and I was not able to keep up with them." Doc. 5-1. Defendant

subsequently went through a divorce, her former husband left the country, and

Defendant states she has incurred more expenses and financial responsibilities. Id. 

Analysis

Either the claimant or Defendant may move for summary judgment, with or

without supporting affidavits, upon all or any part of the claim. Fed. R. Civ. P. 56(a) and

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(b). Summary judgment should be granted "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." FED. R. CIV. P. 56(c). Plaintiff, as the claimant, "is entitled

to a summary judgment only when no genuine issue of material fact exists, the papers

on the motion demonstrate his right to relief, and every one of the defenses asserted

legally are insufficient." 10A C. Wright, A. Miller, and M. Kane, Federal Practice and

Procedure § 2734, at 405 (1983). The motion should be denied if there is a genuine

dispute of material fact as to any defense raised. Id. at 406; United States v. Carter,

906 F.2d 1375, 1377 (9th Cir. 1990) (citing § 2734). A "genuine issue" requires that

there be such evidence that a reasonable jury could return a verdict for the party

seeking summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.

Ct. 2505, 2510, 91 L. Ed. 2d 202.

Analysis

Defendant does not dispute the debt owed to Plaintiff. There is no dispute as to

the amount of the debt.2

 Because the claim is undisputed and Defendant does not

dispute the debt, judgment should be entered in favor of Plaintiff in the amount of

$60,138.84 as to the first promissory note and $194,076.45 as to the second promissory

note for a total amount of $254,215.29. 

2

 Defendant indicates in her Answer that her prior tax refunds, whatever the

amount owed, for 2008 and 2009 were taken by the Government for the student loan

default. It is presumed that the Plaintiff's motion for summary judgment has deducted

amounts owed and already collected by the taking of the tax refunds. If that is not the

case, Defendant should file objections to this report and recommendation. 

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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's motion

for summary judgment, doc. 8, be GRANTED and judgment entered in favor of the

Plaintiff in the amount of $254,215.29 representing interest of $91,030.98, and principle

on the two promissory notes of $163,184.31.

IN CHAMBERS at Tallahassee, Florida, on March 16, 2011.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv170-SPM/WS