extend time to file an opposition to Plaintiff's Motion for Summary Judgment, and on July 10, 1996, Defendant filed the instant Motion for Reconsideration of Summary Judgment. By Order dated August 2, 1996, the Court ordered Plaintiff to file a reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment, to which Defendant filed a sur-reply. All other pending motions have been held in abeyance pending determination of the instant Motion.
Summary judgment is appropriate where there are no genuine issues as to any material fact. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Upon consideration of Plaintiff's Motion, Defendant's Opposition, Plaintiff's Reply, Defendant's sur-reply and the entire record in this action, the Court finds that Plaintiff, the United States of America, has set forth sufficient and undisputed evidence regarding Defendant's default and his resulting debt. Defendant's attempts to evade payment of his debt are without merit and provide no basis for reconsidering the entry of summary judgment in favor of Plaintiff.
Defendant's opposition to Plaintiff's Motion for Summary Judgment raises two equally meritless arguments. First, Defendant argues that the lenders have not met the due diligence requirements imposed by statute and regulation and that, therefore, the lender and, subsequently, the Government, is barred from accelerating the loans. Dr. Singer correctly points out that both the United States Code and the Code of Federal Regulations specify a number of requirements that obligate the lender to utilize due diligence before tendering its claims to the United States for payment. The statute and regulations do not, however, give the borrower any basis for avoiding his debt based on the failure of the lender to properly service the loans. Dr. Singer has not and, indeed, cannot find any basis in the law or regulations for a defense to payment of the debt. Quite simply, Dr. Singer's reliance on the due diligence provision is misplaced. United States v. Smith, 862 F. Supp. 257, 262 (D. Haw. 1994) ("The due diligence statutes exist for the government's benefit, to ensure that the lender seeks recovery from the borrower before the lender makes a claim against the insurance . . . . The statute does not give the borrower the right to void his debt simply because he is now dissatisfied with the lender's collection practices.") Accordingly, the Court finds no basis for reconsidering its July 3, 1996, conclusion that any technical problems in the servicing of Dr. Singer's debt do not excuse Dr. Singer's failure to repay his student loans.
Secondly, Dr. Singer asserts that Congress' modification of the statute of limitations violates the Ex Post Facto clause of the Constitution. This argument is similarly without merit, because it has been recognized for almost 200 years that the Ex Post Facto clause only applies to penal statutes. See Collins v. Youngblood, 497 U.S. 37, 41, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990) & n.2 ("Although the Latin phrase ex post facto ' literally encompasses any law passed 'after the fact,' it has long been recognized by the Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them."), citing Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L. Ed. 648 (1798). Because the modification of the statute of limitations does not involve penal law, Dr. Singer's argument must be summarily dismissed.
Accordingly, the Court again finds that Dr. Singer is without question obligated to repay his student loans. Notwithstanding Dr. Singer's continued legal maneuvering, Dr. Singer has failed to indicate any reason that mandates a conclusion to the contrary.
For the foregoing reasons, it is by the Court this 16th day of October 1996,
ORDERED, that Defendant's Motion for Reconsideration of Summary Judgment be and hereby is DENIED; and it is
FURTHER ORDERED, Defendant's Motion for Stay of Enforcement Pending Reconsideration of Summary Judgment be and hereby is DENIED as moot; and it is
FURTHER ORDERED, that Defendant shall respond to the Motion of the United States for Entry of an Installment Payment Order within 10 days from the date of this Order.
Aubrey E. Robinson, Jr.
United States District Judge
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