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Donald Edmond v. American Education Services

November 4, 2011


The opinion of the court was delivered by: John D. Bates United States District Judge


This matter is before the Court on defendant's motion for sanctions, to dismiss, or for summary judgment. For the reasons discussed below, the motion for summary judgment will be granted.


Plaintiff and co-borrower Doris Muellner obtained a TERI Graduate Loan in August 2005 from Bank of America, N.A. while plaintiff was attending Suffolk University Law School. See Am. Compl. ¶ 2; Defendant's Memorandum of Points and Authorities in Support of Motion for Sanctions[] Motion to Dismiss or in the Alternative Motion for Summary Judgment ("AES Mem.") at 6; see also Memorandum of Law in Support of the Motion to Dismiss Submitted by the Pennsylvania Higher Education Assistance Agency/American Education Services [Dkt. #4-1], Ex. A (Cosigned Loan Request/Credit Agreement -- Information Page). Defendant American Education Services ("AES") serviced the loan.*fn1 Am. Compl. ¶ 3; AES Mem. at 7.

A. Plaintiff's Allegations

According to plaintiff, AES erroneously reported the loan delinquent to three credit reporting agencies, see Am. Compl. ¶¶ 13-14, and thus is responsible for the publication of "factually inconsistent statements . . . on or around the period of August, 2009 through December, 2009," id. ¶ 37, which have "injured and continue to injure [him]," id. ¶ 49. Plaintiff further has alleged that, "[t]o the extent that AES knew or should have known the harm its action would cause . . . [its] actions are malicious." Id. ¶ 48. He demands damages of $100,000 "for defamatory statements for each publication," id. at 15, and injunctive relief calling for "[r]emoval of all delinquencies previously reported," id. at 16.

B Defendant's Representations

Plaintiff had been granted a forbearance which was to expire on May 30, 2009. AES Mem., Affidavit of Shelly K. Bowman in Support of [Defendant's] Motion for Summary Judgment ("Bowman Aff.") ¶ 2. On or about April 16, 2009, AES notified plaintiff of the impending end of the forbearance period. Id., Bowman Aff., Ex. 6 (Letter to plaintiff from AES dated April 16, 2009). On June 1, 2009, plaintiff requested a hardship forbearance. Id., Bowman Aff. ¶ 3; see id., Boman Aff., Ex. 7 (Hardship Forbearance Form for Federal Family Education Loan Programs Stafford/SLS/PLUS/Consolidation Loans dated June 1, 2009). AES denied the request because plaintiff had submitted it on the incorrect form, id., Bowman Aff. ¶ 4, and sent plaintiff a blank copy of the correct form, id., Bowman Aff., Ex. 9 (Letter from AES to plaintiff dated June 20, 2009 with attachments). Its notice to plaintiff included the following statement:

It is important to continue to make payments until your alternative repayment option has been approved . . . . If your loan[] becomes delinquent, collection activities will continue until the account is brought current either by payment or a retroactively applied forbearance. Any forbearance retroactively applied will not result in the retraction of any negative reports on your credit file.

Id., Bowman Aff., Ex. 9 (emphasis added). Plaintiff's second request for a hardship forbearance on July 8, 2009, again submitted on the incorrect form, was denied. Id., Bowman Aff. ¶¶ 6-7; see id., Bowman Aff., Ex. 11 (Letter from AES to plaintiff dated July 14, 2009). "As of July 31, 2009, []plaintiff had made no payments to the account," id., Bowman Aff. ¶ 8, and as a result, "[p]laintiff was reported to the national credit reporting agencies as thirty (30) days delinquent," id., Bowman Aff. ¶ 9. After having made no payment by the end of August 2009, "[p]laintiff was reported to the national credit reporting agencies as sixty (60) days delinquent." Id., Bowman Aff. ¶ 10.

Plaintiff's third request for a forbearance was submitted on the proper form. Id., Bowman Aff., Ex. 13 (Letter from plaintiff to AES dated September 3, 2009, and Privately Insured Loan Repayment Option Form). On September 11, 2009, AES "granted the forbearance request and retroactively applied the forbearance to June 1, 2009 ending on November 30, 2009." Id., Bowman Aff. ¶ 12; see id., Bowman Aff., Ex. 14 (Deferment/Forbearance Loan Declaration dated September 11, 2009).

C. Discovery and Court Proceedings

The Court granted in part and denied in part defendant's first motion to dismiss, see generally Edmond v. Am. Educ. Servs., No. 10-0578, 2010 WL 4269129 (D.D.C. Oct. 28, 2010), and the sole claim remaining is one for defamation (Count III). AES filed an Answer to plaintiff's Amended Complaint on November 12, 2010. One week later, the Court issued an Order setting an initial scheduling conference for January 7, 2011 at 9:00 a.m. Plaintiff failed to appear. Nevertheless, on January 7, 2011, the Court issued a Scheduling Order which, among other dates, set March 31, 2011 as the deadline for all discovery and set a post-discovery status hearing for April 4, 2011 at 9:00 a.m.

Defendant's counsel served initial disclosures on plaintiff on January 21, 2011, see AES Mem., Ex. 3 (Defendant's Initial Disclosures), and requests for written discovery on February 2, 2011, id., Ex. 4 (Certificate of Discovery). Counsel sent these documents to plaintiff by first-class mail and he represents that the mail had not been returned as undeliverable. AES Mem. at 2. When he did not receive a timely response, counsel contacted plaintiff, who stated that he had not received the materials. Id. Plaintiff asked defendant's counsel to send duplicates to another address that plaintiff provided and counsel complied. Id.; see id. Ex. 5 (e-mail exchange). According to defendant's counsel, plaintiff requested additional time to respond to the discovery requests, and counsel asked that plaintiff respond by March 31, 2011. AES Mem. at 2. Plaintiff countered that "no such [discovery] materials are in [his] possession," ...

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