Decision Granting National Collegiate Trust's Motion for Summary Judgment

GUY R. HUMPHREY, Bankruptcy Judge.

I. Introduction

The matter before the court is whether a creditor should be granted summary judgment in a student loan dischargeability adversary proceeding because the plaintiff failed to respond to admissions.

II. Jurisdiction

This court has jurisdiction pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).

III. Summary Judgment Standard

The standard to address a motion for summary judgment is contained in Federal Rule of Civil Procedure 56 and is applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 7056 and states, in part, that a court must grant summary judgment to the moving party "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In order to prevail, the moving party, if bearing the burden of persuasion at trial, must establish all elements of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If the burden is on the non-moving party at trial, the movant must: 1) submit affirmative evidence that negates an essential element of the nonmoving party's claim or 2) demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. Id. at 331-32. Thereafter, the opposing party "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations and emphasis omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986) (same). All inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 586-88.

IV. Findings of Fact

Following the re-opening of the debtor's chapter 7 case, the debtor, Lindsay Kelly ("Kelly"), filed, pro se, a complaint to discharge student loans owed to National Collegiate Trust ("NCT") (doc. 1) under § 523(a)(8) of the Bankruptcy Code based upon an assertion of undue hardship. NCT filed an answer, denying the allegations (doc. 8). The court ordered the parties to file preliminary pretrial statements (doc. 21). NCT filed its statement (doc. 28), but the Debtor did not comply with this court's order. Nevertheless, in consideration of Kelly's pro se status, the court entered another order setting this matter for a pretrial conference on October 21, 2014 and listed all the issues to be addressed, including the completion of discovery (doc. 30). Kelly did not appear at the October 21, 2014 pretrial conference. The court re-set the conference for November 13, 2014 (doc. 36).

At the November 13, 2014 conference, Kelly and counsel for NCT appeared. At that conference, the court did not set a discovery cutoff or any other dates because Kelly stated she was considering hiring legal counsel to prosecute this litigation on her behalf. The court set a written status report deadline of December 19, 2014 (doc. 39).

Counsel for NCT spoke to Kelly on the telephone for the first time on December 15, 2014 (Exhibit A; Affidavit of Monette Cope, ¶ 1) and emailed her the loan documents, an updated joint preliminary pretrial statement and NCT's initial disclosures. NCT Exhibit B. In the updated joint preliminary pretrial statement (doc. 42), signed by Kelly, she states that "[o]nce I receive a response from the attorneys I will have a firm date on the discovery and initial disclosures as I am hoping they can be filed by the attorney." The court set another pretrial conference for February 17, 2015 and indicated again that it would address the completion of discovery (doc. 43). Kelly failed to appear, although in this particular instance the Clerk failed to use Kelly's notice of updated address that was filed in the estate case to serve the adversary proceeding order. Accordingly, the court re-set the pretrial conference for March 17, 2015 (doc. 52). Kelly moved to continue the March 17th conference (doc. 55). With the agreement of the parties, the court re-set the conference for March 19, 2015 (doc. 56).

At the March 19th conference, the court discussed with Kelly and NCT counsel discovery being overdue and confirmed Kelly's address. doc. 67 (March 19, 2015 Transcript at 3-7). When Kelly said she did not receive NCT's discovery requests (despite being sent to the correct address), the court ordered NCT to send it again and explained to Kelly what the written discovery was in lay person terms and the need to respond to it. Tr. at 6-7. Following the conference, the court entered a trial order (doc. 59). Included within that order is the following section:

Discovery

On March 20, 2015 counsel for NCT re-sent the discovery requests by email and also by certified mail to the same correct Centerville address. Cope Affidavit, ¶10 and NCT Exhibit F. See also NCT Exhibits C-E (requests for admissions, interrogatories and production of documents). The "green card" for the certified mailing was signed belatedly on June 3, 2015 (NCT Exhibit G) and Kelly did not respond to the discovery request by the deadline of April 30, 2015. Counsel for NCT mailed Kelly a letter on May 7, 2015 requesting the responses and also emailed the same letter. NCT Exhibits H and I. No response was received and counsel for NCT mailed a final letter on June 1, 2015. NCT Exhibit J.

On June 4, 2015, the day after the green card was signed, Kelly telephoned counsel for NCT. Counsel for NCT understood from this conversation that Kelly was stating that she did not receive the discovery requests sent by email. Cope Affidavit, ¶ 5. Kelly indicated that she had sent responses a "few weeks prior" to the June 4, 2015 telephone conversation but had not kept a copy of her responses. Cope Affidavit, ¶¶ 7-8. Counsel for NCT re-verified the email address of Kelly and sent the discovery again on June 4, 2015 and gave Kelly until June 18, 2015 to respond to those requests. NCT Exhibit L. The court notes that none of the emails counsel for NCT sent to Kelly were returned as undeliverable. Cope Affidavit, ¶ 34.

Counsel for NCT has never received any discovery responses from Kelly and on July 9, 2015 NCT filed its motion for summary judgment (doc. 61).

V. Analysis

Federal Rule of Civil Procedure 36, applicable by Federal Rule of Civil Procedure 7036, addresses requests for admissions. In pertinent part, it provides:

Under Rule 36, admissions not responded to within 30 days are deemed admitted and deemed admissions are admissible evidence for purposes of summary judgment. Davis v. North Amer. Mortgage Co. (In re Kenny), 276 B.R. 579, 581 (Bankr. S.D. Ohio 2002).

In order to discharge a student loan within the ambit of § 523(a)(8), the debtor must meet the burden of demonstrating undue hardship. Undue hardship is not defined in the Bankruptcy Code but the Sixth Circuit follows the three-part Brunner test: "1) that the debtor cannot maintain, based on current income and expenses, a `minimal' standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans." Olyer v. Educ. Credit Mgmt. Corp., 397 F.3d 382, 385 (6th Cir. 2005) (quoting Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir. 1987)).

In this instance, by failing to respond to the admissions, Kelly has admitted she cannot satisfy any of the required elements of the Brunner test. See Exhibit C (requests for admissions 14-22). The record shows that the admissions were not responded to within rule time or within any of the extensions granted by NCT or the court.

Kelly's response to the summary judgment motion is not admissible for any purpose. It is not in the form of an affidavit or a proper unsworn declaration. See 28 U.S.C. § 1746 (requirements for an unsworn declaration). Even if the response was admissible, nothing in the vague response creates a material issue of fact. Kelly states she mailed back a "packet of interrogatories." It is unclear if this packet even included the admission responses. In addition, Kelly failed to provide the date that the packet was mailed, how it was mailed, the address used, and Kelly does not have a copy of her responses.1 There is no presumption of receipt unless Kelly can provide evidence that the letter was properly addressed, had sufficient postage and was deposited in the mail. Bratton v. Yoder Co. (In re Yoder Co.), 758 F.2d 1114, 1118 (6th Cir. 1985). Despite the multiple chances given to her by the court and NCT, Kelly also fails to explain if or when she intended to ensure NCT received the responses despite the liberal extensions granted by the court and NCT counsel, including the final deadline of June 18, 2015 after the phone conversation of June 4th. Without her attachment of those purported responses to materials filed in response to NCT's motion for summary judgment, this court has no means to determine if those responses created any issue of material of fact sufficient for this court to deny NCT's motion for summary judgment.2

Kelly suggests that the merits of her claims are still valid and should be heard. Ordinarily, the court attempts to proceed to the merits of litigation despite procedural mistakes along the way. But, in order for Kelly's claim to be heard, she needed to comply with the basic rules of discovery before a trial could occur. McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted as to excuse mistakes by those who proceed without counsel."; footnote omitted); Grant v. Target Corp., 281 F.R.D. 299, 307 (S.D. Ohio 2012) ("Although [the plaintiff] is acting pro se without counsel, this does not excuse him from producing discovery."). Finally, it is important to recognize that Kelly was not trapped by a procedural error or a misunderstanding of the law. The court and NCT attempted to accommodate Kelly and gave her multiple chances to respond to NCT's discovery, but Kelly repeatedly failed to meet her basic obligations and the consequence under the Federal Rules of Civil Procedure and the Federal Rules of Bankruptcy Procedure is that the admissions are dispositive of this litigation.

VI. Conclusion

For the foregoing reasons, NCT is granted summary judgment, determining that NCT has established that it is entitled to judgment as a matter of law and Plaintiff Lindsay R. Kelly has failed to come forward with any evidence of a genuine issue for trial. The court will enter an order contemporaneously with this decision.

IT IS SO ORDERED.