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Hoffmeister v. Navient

United States District Court, D. Colorado

March 14, 2019

COLEEN C. HOFFMEISTER, Plaintiff,
v.
NAVIENT, UNITED STUDENT AID FUNDS, and SALLIE MAE STUDENT LOAN AND STUDENT LOAN FORGIVENESS, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendants Navient Solutions, LLC (“NSL”) (erroneously sued as “Navient” and “Sallie Mae Student Loan”) and United Student Aid Funds, Inc.'s (“USA Funds”) (collectively, the “Defendants”) Motion for Summary Judgment. ECF No. 134. In the Motion, Defendants argue that summary judgment is appropriate on the five remaining claims Plaintiff asserts in her Second Amended Complaint (“SAC”).

         Plaintiff proceeds pro se. As such, I must construe her pleadings liberally but not act as her advocate. Jaramillo v. R & S Steel, Inc., No. 10-cv-00346-REB-BNB, 2011 WL 662778, at *1 (D. Colo. Jan. 20, 2011). The five claims are: Claim 3 under the Racketeer Influenced and Corrupt Organizations Act (“RICO”); Claim 4 for “Fail[ure] to Act in the Best Interest of Plaintiff[];” Claim 5 for “Fail[ure] in Their Fiduciary Duty to Account for Monies Not Due and Owing;” Claim 6 under the Fair Debt Collection Practices Act (“FDCPA”); and Claim 7 under the Fair Credit Reporting Act (“FCRA”).

         In the Motion, Defendants sufficiently meet their burden for summary judgment under Fed.R.Civ.P. 56, either by identifying the portions of the record that demonstrate there is no dispute of material fact, or by “‘showing' . . . that there is an absence of evidence to support [Plaintiff's] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This shifts the burden under Rule 56 to Plaintiff to “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324. Plaintiff's Response fails to meet her burden for two reasons. First, Plaintiff supports her Response with documents that are not authenticated and therefore cannot be considered on a motion for summary judgment. Second, Plaintiff does not specifically address Defendants' arguments by responding with evidence raising material factual issues for each claim. Without direction from Plaintiff, I am unable to determine whether, in the entirety of the record, material disputes of fact exist. A “district court [i]s not obligated to comb the record in order to make [a plaintiff's] arguments for h[er].” Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000); Duran v. LaFarge N. Am., Inc., 855 F.Supp.2d 1243, 1252 (D. Colo. 2012) (“The Court has no obligation to sift through [a plaintiff's] evidence to find support for h[er] arguments.”). These deficiencies are fatal to her claims, because it leaves me unable to identify where, if any, material disputes of fact exist. Accordingly, for the reasons that follow, I respectfully recommend that Defendants' Motion be granted.

         BACKGROUND

         I. Procedural History

         Plaintiffs Coleen C. Hoffmeister and her husband, Charles R. Hoffmeister, initiated this action on April 11, 2017. See ECF No. 1. They filed the operative SAC on November 8, 2017, against NSL, USA Funds, and, additionally, Secretary of the U.S. Treasury, U.S. Treasury Department, Secretary of the U.S. Department of Education, U.S. Department of Education, and U.S. Internal Revenue Service (collectively, the “Federal Defendants”). ECF No. 56. In the SAC, Plaintiffs brought nine claims for relief, asserting Claims 3-9 against NSL and USA Funds. See Id. at 7-26. On December 5, 2017, the Federal Defendants filed a motion to dismiss all claims against them, ECF No. 67; on March 27, 2018, I recommended that Judge Babcock grant the motion, ECF No. 89; and on May 30, 2018, Judge Babcock issued an order accepting the recommendation and dismissing the Federal Defendants from the suit, ECF No. 105. On June 20, 2018, Mr. Hoffmeister stipulated to dismiss his claims, leaving only Ms. Hoffmeister as a Plaintiff. ECF No. 111.

         On October 25, 2018, Plaintiff stipulated to the dismissal of Claims 8 and 9, leaving only the five remaining claims. ECF No. 133. Defendants filed this Motion on October 29, 2018, and the Motion was fully brief on January 22, 2019. ECF No. 141.

         II. Defendants' Objections to Plaintiff's Exhibits

         As a preliminary matter, Defendants object to ten of Plaintiff's exhibits submitted with her Response to the Motion: Exhibits G, I, J, K, L, M, R, S, T, and U. Reply 3. Of these, Exhibit G is titled “Timeline” and provides dates and a description of purported events related to this case, but it does not cite to portions of the record to support the stated events; Exhibits I, J, L, M, R, S, and U appear to be various internet printouts; Exhibit K purports to be a draft study by the U.S. Department of the Treasury; and Exhibit T purports to be a press release from the Department of the Treasury. None of these documents are accompanied by an affidavit of authenticity.

         Defendants argue these exhibits should be excluded, because they are not admissible evidence. “A court may not consider all proffered evidence when ruling on a summary judgment motion; only admissible evidence may enter the analysis.” Bullock v. Wayne, 623 F.Supp.2d 1247, 1252 (D. Colo. 2009). “While the party opposing summary judgment need not produce evidence in a form that would be admissible at trial, the content or substance of the evidence must be admissible.” Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1170 (10th Cir. 2009) (quoting Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir. 1998)). As for the attached documents, “[a]s a condition precedent to admissibility, Fed.R.Evid. 901 requires authentication or identification with ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.'” Strepka v. Jonsgaard, No. 10-cv-00320-PAB-KMT, 2011 WL 2883375, at *6 (D. Colo. July 18, 2011); see Jaramillo, 2011 WL 662778, at *3 (“The document is not authenticated; it is not sufficiently identified; it appears to be impermissible hearsay; and it contains no facial indicia of reliability. Therefore, the document is not appropriate for consideration on summary judgment.”).

         Here, Plaintiff has not accompanied the above-listed exhibits with an affidavit that authenticates the documents. Therefore, Plaintiff has not presented sufficient evidence to “support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). Therefore, I respectfully recommend that the documents may not be considered for the Motion.

         III. Findings of Fact

         The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.

         1. Plaintiff attended Washburn University in Topeka, Kansas, from 1980 to 1983 and 1993 to 1997. She graduated with a Bachelor of Arts in English in 1997. Resp. 1; see Mot. Summ. J. ¶ 1.

         2. Plaintiff financed her education, in part, with federal Stafford loans. From 1993 to 1996, Plaintiff completed five applications for federal loans. Resp. ¶ 1; Reply ¶ 2; see Aff. of Michelle Iorio (“Iorio Aff.”) ¶ 7, ECF No. 134-2. Plaintiff also worked full time to finance her college degree. Resp. ¶ 1; Reply ¶ 1.

         3. Plaintiff received six disbursements of student loans, which occurred as follows: (1) $1, 500 on October 6, 1993; (2) $2, 000 on September 30, 1994; (3) $2, 153 on October 2, 1995; (4) $747 on October 2, 1995; (5) $873 on August 7, 1996; and (6) $1, 000 on August 27, 1996 (the “Loans”). Mot. Summ. J. ¶ 4; Resp. ¶ 4.

         4. NSL, operating either as NSL, Navient Solutions, Inc., or Sallie Mae, Inc., serviced the Loans from the time they were first disbursed. Mot. Summ. J. ¶¶ 5-6; Iorio Aff. ¶¶ 9, 12.[1]

         5. NSL previously conducted business as “Sallie Mae, Inc.” Sallie Mae, Inc. changed its name to “Navient Solutions, Inc.” effective May 1, 2014. Navient Solutions, Inc. converted to a limited liability company and changed its name to Navient Solutions, LLC effective January 31, 2017.[2] Mot. Summ. ...


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