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Becirevic v. Navient Solutions, LLC

United States District Court, E.D. Texas, Sherman Division

September 9, 2019

IZET BECIREVIC
v.
NAVIENT SOLUTIONS, LLC

          Nowak Judge.

          MEMORANDUM ADOPTING REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Came on for consideration the reports of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On May 30, 2019, the reports of the Magistrate Judge (Dkts. #70; #71) were entered containing proposed findings of fact and recommendations that Plaintiff's Motion for Partial Summary Judgment (Dkt. #39) be denied, Defendant Navient Solutions, LLC's Motion for Summary Judgment (Dkt. #45) be granted, and that Defendant's Motion for Sanctions (Dkt. #37) and Plaintiff's “Opposed Motion for Sanctions against Defendant Navient” (Dkt. #49) each be denied. Having received the reports of the Magistrate Judge, having considered Plaintiff's Objections (Dkt. #74), Defendant's Response (Dkt. #76), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's reports should be adopted.

         RELEVANT BACKGROUND

         The underlying facts of this case have been set forth previously; as such, the Court sets forth only those facts pertinent to Plaintiff's objections. Plaintiff's Complaint, filed on May 16, 2018, asserts claims for: (1) breach of contract; and (2) fraud (false misrepresentation) (Dkt. #1). Both of Plaintiff's claims relate to his student loans (Dkts. #1 at p. 2; #45 at p. 3; #45-2 at p. 3; #45-2 at p. 9). Defendant is the servicer of Plaintiff's loans and Educational Credit Management Corporation (“ECMC”) is the guarantor of the loans for all relevant times (Dkt. #45-2 at p. 3).

         In September 2016, Plaintiff sought temporary forbearance of his student loans (Dkt. #45-2 at pp. 4, 27). In connection therewith, Plaintiff submitted to Defendant a “Loan Discharge Application: False Certification, ” and a request for forbearance on September 18, 2016 (Dkt. #45-2 at pp. 4, 27). Defendant approved Plaintiff's request and sent Plaintiff confirmation on September 26, 2016, which explained that Plaintiff's loan payments would not resume until April 28, 2017 (Dkt. #45-2 at p. 30). On October 5, 2016, Plaintiff was further granted an administrative forbearance, which was retroactively set to begin on September 12, 2016, and end on September 11, 2017 (Dkt. #45-5 at p. 3).

         Plaintiff's false certification discharge application was denied by ECMC on November 28, 2016 (Dkt. #45-2 at p. 40). ECMC “instructed [Plaintiff] to either confirm the debt or appeal [ECMC's] decision within 30 days” (Dkt. #45-2 at p. 40). Plaintiff appealed the denial to the United States Department of Education (Dkt. #45-2 at p. 44). The Department of Education affirmed ECMC's determination to deny Plaintiff's discharge application on February 14, 2017 (Dkt. #45-2 at p. 44). Subsequently, ECMC sent Plaintiff a final acknowledgment of the debt and gave Plaintiff 30 days to return a form acknowledging the debt (Dkts. #45-2 at p. 44; #45-4 at p. 133). Plaintiff was warned that if he did not return the “False Certification Appeal Response” form within 30 days, the lender would be directed to file a default claim on Plaintiff's loans (Dkt. #45-4 at p. 133). Plaintiff failed to timely submit the False Certification Appeal Response form acknowledging his debt (Dkt. #45-4 at p. 93). No. evidence exists in the record to the contrary. On March 23, 2017, Defendant was notified by ECMC that it would create and pay a default claim as Plaintiff had not reaffirmed the debt (Dkt. #45-2 at pp. 4, 46). Shortly thereafter, on March 29, 2017, a default claim was posted to Plaintiff's account (Dkts. #45-2 at p. 5; #45-5 at p. 13). Plaintiff avers that he received a letter dated April 2, 2017, from Defendant stating that he was not required to make payments on his loans until September 11, 2017 (Dkt. #58 at p. 3). Defendant disputes the authenticity of such letter and denies ever creating and/or sending such to Plaintiff (Dkt. #45 at pp. 8-9).

         On May 16, 2018, Plaintiff initiated the instant lawsuit against Defendant. This is Plaintiff's second lawsuit related to these student loans. See Becirevic v. Educational Credit Management Corp., No. 4:17-cv-00632-RAS-CAN (E.D. Tex. 2018). On May 30, 2019, the Magistrate Judge entered a report (Dkt. #70) recommending that Defendant's Motion for Summary Judgment (Dkt. #45) be granted and Plaintiff's Motion for Partial Summary Judgment (Dkt. #39) be denied. The Magistrate Judge additionally entered a second report (Dkt. #71), on that same date, recommending that Defendant's Motion for Sanctions (Dkt. #37) and Plaintiff's “Opposed Motion for Sanctions against Defendant Navient” (Dkt. #49) each be denied. On June 18, 2019, Plaintiff filed Objections to the United States Magistrate Judge's Report and Recommendation (Dkt. #74). On June 26, 2019, Defendant filed its Response to Plaintiff's Objections (Dkt. #76). On July 3, 2019, Plaintiff moved for leave to file a reply (Dkt. #78); Defendant notified the Court on July 15, 2019 that it opposes the request for leave (Dkt. 79).[1]

         OBJECTIONS TO REPORT AND RECOMMENDATION

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3).

         Plaintiff makes no objections to the Magistrate Judge's second report (Dkt. #71) denying both Plaintiff's and Defendant's Motions for Sanctions. As such, the Court adopts the conclusions and recommendations of the Magistrate Judge denying the Parties' Motions for Sanctions and considers herein Plaintiff's objections to the remaining report.

         The Magistrate Judge recommended that Defendant's Motion for Summary Judgment be granted and Plaintiff's Motion for Partial Summary Judgment be denied (Dkt. #70). Specifically, the Report recommended that Plaintiff's breach of contract claim be dismissed because: (1) no breach exists and Plaintiff failed to proffer evidence of any breach; and (2) Plaintiff failed to allege that he suffered damages as a result of any purported breach (Dkt. #70 at pp. 9-13). The Report further recommended that Plaintiff's fraud claim be dismissed because Plaintiff had failed to create a genuine issue of material fact as to both the knowledge and damages elements of his fraud claim, and further, that Plaintiff's unsupported and conclusory allegations did not entitle Plaintiff to summary judgment (Dkt. #70 at pp. 14-20).

         Plaintiff raises objections regarding both his breach of contract and fraud claims (Dkt. #74). The bulk of Plaintiff's objections dispute the factual recitation of the case, including the statements that: (1) Plaintiff was granted an administrative forbearance set to end September 11, 2017; (2) Plaintiff failed to acknowledge his loans by the 30-day deadline of March 16, 2017, and as a result, his loans went into default; (3) Plaintiff's Loans were defaulted by ECMC; (4) ECMC initiated and paid a default claim on Plaintiff's Loans; (5) Defendant agreed only to temporarily postpone Plaintiff's student loan payments; and (6) Plaintiff's loans were defaulted because Plaintiff failed to acknowledge his student loan debt and not because he failed to make payments on his loans. Each of these objected-to factual recitations relate to Plaintiff's breach of contract claim. Plaintiff additionally objects, as to his fraud claim, to the statements contained in the Report that: (1) Plaintiff offers only conclusory allegations; and (2) Plaintiff has not offered evidence that Defendant acted willfully or recklessly.[2]

         Breach of Contract ...


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