United States v. Lawrence

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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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
Judges.
JERRY E. SMITH, Circuit Judge:
Robert Lawrence appeals a summary judg-
ment for the United States in its suit to enforce
four promissory notes. Lawrence argues that
the district court erred in refusing to apply the
affirmative defense of laches, in finding that
the government had provided competent sum-
mary judgment evidence, and in concluding
that Lawrence’s affidavit did not raise genuine
issues of material fact precluding summary
judgment. Finding no error, we affirm.
I.
From 1975 to 1978, Lawrence executed
four promissory notes totaling $9,500 to ob-
tain student loans that initially were made by
Lake Air National Bank and then were as-
signed to the United States Department of

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

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III.
Lawrence contends that the copies of the
promissory notes and assignments were not
competent summary judgment evidence be-
cause they were not properly authenticated as
required by FED. R. CIV. P. 56(e) and FED. R.
EVID. 902(11). The point is moot. In his affi-
davit and answer, Lawrence concedes that he
applied for and was granted the loans and that
he signed the notes.
Lawrence further argues that the certifi-
cates of indebtedness were not competent evi-
dence because they were not based on per-
sonal knowledge and did not affirmatively
show that the affiant was competent as re-
quired by rule 56(e),3 and the statements that
the DOE’s records showed Lawrence was in
debt constituted “conclusory hearsay state-
ments.” If any such defects did exist, Gor-
ham’s supplemental affidavit cured them.
Gorham testified that as a loan analyst, she
is familiar with how the DOE maintains re-
cords related to student loans, that she was in
custody and control of Lawrence’s student
loan records, that these records are kept in the
course of DOE’s regularly conducted student
loan business, that the promissory notes are
“true copies of the documents transmitted to
DOE by the Lake Air National Bank,” and that
DOE took assignment of the loans. Gorham’s
affidavit satisfies the requirements of both rule
56(e)4 and the “business records exception” to
the hearsay rule, FED. R. EVID. 803(6).5
Lawrence does not contest the competency of
the affidavit, so the district court did not err in
relying on it in granting summary judgment.
IV.
Lawrence argues that summary judgment
was improper because his affidavit raised a
genuine issue of material fact as to whether the
loans had been paid in full. To recover on a
promissory note, the government must show
(1) the defendant signed it, (2) the government
is the present owner or holder, and (3) the
note is in default. FDIC v. Selaiden Builders,
Inc., 973 F.2d 1249, 1254 (5th Cir. 1993).
Because the government produced sufficient
evidence to satisfy its summary judgment bur-
den, the burden shifted to Lawrence to “set
forth specific facts showing that there is a gen-
3 Rule 56(e) reads, “Supporting and opposing
affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the af-
fiant is competent to testify to the matters stated
therein.”
4 Resolution Trust Corp. v. Camp, 965 F.2d
25, 29 (5th Cir. 1992) (holding rule 56(e) satisfied
by affidavit attesting to personal knowledge that
plaintiff took ownership of note, even though af-
fiant “had no precise personal knowledge of this
particular note”).
5 FED. R. EVID. 803(6) states that
the following are not excluded by the hear-
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-
larly conducted business activity, and if it
was the regular practice of that business ac-
tivity to make the memorandum, report, rec-
ord or data compilation, all as shown by the
testimony of the custodian or other qualified
witness . . . .

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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)).

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