United States v. Lawrence

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 01-50236
Summary Calendar
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT LAWRENCE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________

December 13, 2001

Before JOLLY, JONES, AND SMITH, Circuit mary judgment evidence, and in concluding
Judges. that Lawrence’s affidavit did not raise genuine
issues of material fact precluding summary
JERRY E. SMITH, Circuit Judge: judgment. Finding no error, we affirm.

Robert Lawrence appeals a summary judg- I.
ment for the United States in its suit to enforce From 1975 to 1978, Lawrence executed
four promissory notes. Lawrence argues that four promissory notes totaling $9,500 to ob-
the district court erred in refusing to apply the tain student loans that initially were made by
affirmative defense of laches, in finding that Lake Air National Bank and then were as-
the government had provided competent sum- signed to the United States Department of
Education (“DOE”). Lawrence defaulted on Lawrence argues that the district court
these loans in 1980; in 2000, the United States erred when it refused to apply the defense of
sued to collect a debt of $22,389.79.1 Law- laches and held that 20 U.S.C. § 1091a retro-
rence’s answer raised the defense of laches and actively eliminated all statutes of limitations
asserted that the debt had been paid in full. and laches defenses for collection of student
loans. Section 1091a states,
With its motion for summary judgment, the
United States submitted copies of the four It is the purpose of this subsection to en-
notes and assignments, four certificates of in- sure that obligations to repay loans and
debtedness (signed statements by a DOE loan grant overpayments are enforced with-
analyst certifying that DOE’s records listed the out regard to any Federal or State statu-
debt as unpaid), computerized loan records, tory, regulatory, or administrative limi-
and an affidavit from DOE loan analyst Deloris tation on the period within which debts
Gorham authenticating the submitted loan may be enforced. . . . [N]o limitation
records. Lawrence’s response argued that the shall terminate the period within which
notes and certificates were not competent suit may be filed, a judgment may be en-
summary judgment evidence. He asserted that forced, or an offset, garnishment, or
the notes were not authenticated, and the other action initiated or taken by . . . the
certificates were not based on personal knowl- Attorney General . . . for the repayment
edge and did not purport to show the affiant of the amount due from a borrower on a
was competent. Lawrence submitted only his loan made under this subchapter.
own affidavit in opposition to the gov-
ernment’s motion. In its reply, the govern- 20 U.S.C. § 1091a(a)(1), (2)(D).
ment supplemented Gorham’s statement with
a more detailed affidavit. Although we have never directly addressed
this question, several other circuits have held
II. that § 1091a negates any limitations defense.2
We review a summary judgment de novo, Today we follow those circuits that have de-
NCNB Tex. Nat’l Bank v. Johnson, 11 F.3d cided the issue and conclude that § 1091a
1260, 1264 (5th Cir. 1994), applying the same eliminates all limitations defenses for collection
standard as did the district court, Deas v. of student debts. Further, we adopt the dis-
River W., L.P., 152 F.3d 471, 475 (5th Cir. trict court’s holding that § 1091a also extends
1998). “Summary judgment is proper when no to eliminate the equitable defense of laches.
issue of material fact exists and the moving
party is entitled to judgment as a matter of
law. Questions of fact are viewed in the light
most favorable to the nonmovant and ques-
tions of law are reviewed de novo.” Id. 2
Millard v. U.S. Aid Funds, 66 F.3d 252, 252
(9th Cir. 1995); United States v. Phillips, 20 F.3d
1005, 1007 (9th Cir. 1994); United States v.
Glockson, 998 F.2d 896, 897 (11th Cir. 1993);
1
This consisted of $9,464.30 principal, $87.00 United States v. Hodges, 999 F.2d 341, 341-42
administrative costs, and $12,838.49 interest due (8th Cir. 1993); see also United States v. Durbin,
through November 2, 1999. 64 F. Supp. 2d 635, 637 (S.D. Tex. 1999).

2
III. 56(e)4 and the “business records exception” to
Lawrence contends that the copies of the the hearsay rule, FED. R. EVID. 803(6). 5
promissory notes and assignments were not Lawrence does not contest the competency of
competent summary judgment evidence be- the affidavit, so the district court did not err in
cause they were not properly authenticated as relying on it in granting summary judgment.
required by FED. R. CIV. P. 56(e) and FED. R.
EVID. 902(11). The point is moot. In his affi- IV.
davit and answer, Lawrence concedes that he Lawrence argues that summary judgment
applied for and was granted the loans and that was improper because his affidavit raised a
he signed the notes. genuine issue of material fact as to whether the
loans had been paid in full. To recover on a
Lawrence further argues that the certifi- promissory note, the government must show
cates of indebtedness were not competent evi- (1) the defendant signed it, (2) the government
dence because they were not based on per- is the present owner or holder, and (3) the
sonal knowledge and did not affirmatively note is in default. FDIC v. Selaiden Builders,
show that the affiant was competent as re- Inc., 973 F.2d 1249, 1254 (5th Cir. 1993).
quired by rule 56(e),3 and the statements that Because the government produced sufficient
the DOE’s records showed Lawrence was in evidence to satisfy its summary judgment bur-
debt constituted “conclusory hearsay state- den, the burden shifted to Lawrence to “set
ments.” If any such defects did exist, Gor- forth specific facts showing that there is a gen-
ham’s supplemental affidavit cured them.

Gorham testified that as a loan analyst, she 4
Resolution Trust Corp. v. Camp, 965 F.2d
is familiar with how the DOE maintains re-
25, 29 (5th Cir. 1992) (holding rule 56(e) satisfied
cords related to student loans, that she was in
by affidavit attesting to personal knowledge that
custody and control of Lawrence’s student plaintiff took ownership of note, even though af-
loan records, that these records are kept in the fiant “had no precise personal knowledge of this
course of DOE’s regularly conducted student particular note”).
loan business, that the promissory notes are
5
“true copies of the documents transmitted to FED. R. EVID. 803(6) states that
DOE by the Lake Air National Bank,” and that
DOE took assignment of the loans. Gorham’s the following are not excluded by the hear-
affidavit satisfies the requirements of both rule say rule . . . Records of Regularly Con-
ducted Activity.SSA memorandum, report,
record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagno-
ses, made at or near the time by, or from in-
formation transmitted by, a person with
knowledge, if kept in the course of a regu-
3
Rule 56(e) reads, “Supporting and opposing larly conducted business activity, and if it
affidavits shall be made on personal knowledge, was the regular practice of that business ac-
shall set forth such facts as would be admissible in tivity to make the memorandum, report, rec-
evidence, and shall show affirmatively that the af- ord or data compilation, all as shown by the
fiant is competent to testify to the matters stated testimony of the custodian or other qualified
therein.” witness . . . .

3
uine issue for trial,” not just to “rest upon the
mere allegations or denials of the adverse
party’s pleading.” Camp, 965 F.2d at 29
(quoting rule 56(e)).

Lawrence’s only response was an affidavit
testifying that in “approximately 1981,” a third
party, Oscar Peterson, paid Lawrence’s debts
for him. Lawrence produced no evidence of
this payment. Peterson is now dead, and Law-
rence has no documentation confirming Peter-
son’s repayment of the loans; it does not seem
any such evidence exists. Such self-serving
allegations are not the type of “‘significant
probative evidence’” required to defeat sum-
mary judgment.6

AFFIRMED.

6
Munitrad Sys., Inc. v. Standard & Poor’s
Corp., 672 F.2d 436, 440 (5th Cir. 1982) (quoting
Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114
(5th Cir. 1978)).