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FOSTER v. ALEXANDER

January 27, 1993

ELAINE MORRISON FOSTER, Plaintiff,
v.
LAMAR ALEXANDER, Secretary, UNITED STATES DEPARTMENT OF EDUCATION, et al., Defendants.



The opinion of the court was delivered by: JOHN H. PRATT

 This simple but bothersome case comes before the Court on cross motions for summary judgment. Pursuant to Fed. R. Civ. P. 56(b), summary judgment shall be granted upon a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." After reviewing the record herein, we agree with defendants that plaintiff has failed to make a showing sufficient to establish the existence of the essential elements upon which her claims depend. There is no genuine issue as to any material fact. Furthermore, we find that plaintiff's statute of limitations arguments must fail under 20 U.S.C. § 1091a (1992). Accordingly, we find that defendants are entitled to judgment as a matter of law.

 Background

 From August 28, 1968 through September 14, 1970, plaintiff Elaine Foster *fn1" borrowed a total of $ 5,000.00 under the Federal Insured Student Loan program ("FISL") authorized under Title IV-B of the Higher Education Act of 1965, as amended 20 U.S.C. § 1071 et seq. (1990), (34 C.F.R. Part 282). At the time, Ms. Foster was pursuing a post-graduate doctorate in the humanities at Florida State University. *fn2" Plaintiff made payments to the holder of the loans, St. Augustine National Bank, now Barnett Bank, until 1976, at which time scheduled payments by plaintiff allegedly stopped. *fn3" The total amount paid during this period was $ 1,641.91. *fn4"

 On April 15, 1977, St. Augustine National Bank demanded payment from the Department of Education ("the Department") as the insurer of the loans. The claim was approved for payment by the Department on September 12, 1977, and plaintiff's outstanding promissory notes were assigned to the Department by the bank on September 24, 1977. Thereafter, the Department assumed collection responsibilities.

 On October 18, 1986, the Department sent plaintiff a letter providing notice that her 1986 tax refund would be offset to satisfy her outstanding FISL debt, and notifying plaintiff that she could request review of the debt within 65 days. Plaintiff did not request a review. On March 20, 1987, plaintiff's tax refund of $ 2,797.47 was offset in partial satisfaction of plaintiff's outstanding loans. At and around this time, plaintiff repeatedly protested to the Department both verbally and in writing that her debt had been paid in full by her ex-husband, Mr. Hubert Foster, as a part of their divorce settlement. Plaintiff was unable to furnish proof of that alleged payment. By letter dated August 3, 1990, the remaining balance owed on plaintiff's FISL loan, *fn5" was discharged on grounds of uncollectibility.

 Plaintiff continues to maintain that her loans were paid in full in or around 1975, and that since then she has not owed any debt to the Department. She proceeds pro se and brings three claims: Count One comes under the Privacy Act, 5 U.S.C. § 552a(g) (1977) seeking correction of alleged errors in her loan file, damages for harm resulting from those errors, and litigation costs; Count Two comes under the Tucker Act, 26 U.S.C. § 6402(d) (1992), seeking a refund of her allegedly improperly offset 1986 tax return; and Count Three comes under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., (1992) and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., (1992), seeking an order directing the Department to discontinue its allegedly false reports to outside credit bureaus regarding plaintiff's delinquent credit obligations, expunging all such prior reports, and requesting a declaration of the rights of plaintiff in light of the Secretary of the Department's allegedly improper actions towards her.

 Defendants deny plaintiff's allegations, and counterclaim pursuant to 28 U.S.C. §§ 1345, 1346(c) for payment of that portion of the debt which remains unpaid to date - namely the sum which was previously discharged on grounds of uncollectibility - plus additional interest and penalties.

 Discussion

 A. Plaintiff fails to make a sufficient showing of the essential element upon which her claims depend.

 Under Fed. R. Civ. P. 56(c), the moving party has the burden of demonstrating first that "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." Second, the moving party must show that it is "entitled to a judgment as a matter of law." We believe that defendants have met this burden.

 The case of Celotex Corporation v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), is particularly instructive in analyzing when defendants' burden of showing that there is no genuine issue as to any material fact has been met. The Supreme Court ruled in Celotex that:

 Id., at 322-323 (emphasis added). Therefore, in order to survive a motion for summary judgment, the nonmoving party must make a sufficient showing that she will be able to ...


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