text:
- Condition:
- used
- Stock number:
- Category:
- Reactors in United Kingdom
- Subcategory:
- Glass lined agitators
Unused technoglass 3-blade retreat curve agitator to fit ce2500 glass lined reactor.
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text: Uma and Leopold, weaves the path of handcrafted pieces since its start in 2005. Timeless and feminine designs, simple silhouettes pared with a modern craft twist. Pieces can take a month for creation, the use of diverse handwork techniques as kerawang, embroidery, hand beading, leather weaving, reflect the brand's signature. Uma and Leopold as a label symbolizes "The Couple", the "Ying and Yang", Balance.

subset: commoncrawl


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"We stated here for a night whilst cycling from London to Paris. The hotel is very dated in terms of decor but it was fine for a nights sleep. The staff were very helpful. it is a mile or so from centre of town so very few eateries but we found a cheap pizza place just round the corner. The secure..."
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"Hostess was very nice but it was difficult as she only spoke French. It had a shared toilet and bathroom which fortunately for us no one was in the other bedroom. Buffet breakfast was Ok. We only chose this hotel as it was in close proximity to Monet's Garden and photos were good..better than a..."
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"nice welcome, clean and spacious family room, slept well and enjoyed a pleasant breakfast before departing. In whole a simple stop off hotel with a cheery host."
P, Aug 2016, GB
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"A charming converted cottage tucked away in a small village. Our room was huge, with private outdoor sittin area and an ensuite bathroom including spa bath. Decoration and furnishings were aesthetically pleasing and in keeping with the building. We were sorry not to be able to spend more time ..."
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"We arrived after an afternoons driver from the Channel Tunnel in the early evening, to be welcomed warmly. A lovely bedroom overlooking well tended gardens with a large mown grass area, surrounded by tree stretching away into the distance. Comfortable room, with ensuite facilities, of a more matu..."
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"We stayed for only a night. Our spacious room was modern with a well appointed bathroom. Our host was right there when needed. The breakfast was ample with quality regional products. The manor house is set in a large parkland which is essentially a game preserve for large and small game alike. Th..."
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text:
Jessica Lowndes Does Her Bikini Good On Instagram
I still don't know what the hell happened to Jessica Lowndes the last time we saw her, but I guess it must've just been a one-time thing. Because I just happened to be
creeping researching her Instagram recently and she's looking like just as much of an instant pants fire as she used to back during the good old days. So enjoy. And in case you're wondering how her booty looks this good, just check out the workout video below. Yow. I guess Jessica actually does work hard. And now, same here. Sorry. TMI?


text:
When Puff Daddy announced his Bad Boy Family Reunion concert–a show celebrating the late Notorious B.I.G. and acts past and present on Puff's long-standing label–most hip-hop fans seemed excited about the news. But B.I.G.'s daughter T'yanna Wallace blasted Diddy on Twitter for not giving her tickets to the show.
"The bad boy concert is for my dad's bday but I got NOT ONE TICKET," she tweeted. "Just wanna point that out." She also tweeted that Puff doesn't do anything to help her family, calling him lame.
T'yanna later deleted her tweet and said that she and Diddy resolved their issue. In an interview with Hot 97, Puff Daddy explained the situation between he and T'yanna.
"I had already put tickets to the side for the family of course," he said. "People were notified. They didn't notify her. We don't have no problem."
He also admitted that communication between he and Biggie's firstborn had dropped off in recent years and that he wanted to do better.
"I called her and I let her know that I love her and I know that she doesn't see me all the time. I told her like, I know I can get out of pocket but I also told her as a man, if I ever had made you feel like that where I haven't checked in on you, I apologize."
The Bad Boy Reunion is scheduled to kick off May 20 at the Barclays Center in Brooklyn, NY; and it was recently announced that there will be a second night of performances. Puff Daddy, Jay Z, Lil' Kim, Mary J. Blige, Faith Evans, Mase and Puff mentioned DMX–with more are expected to take the stage.


text:
Albertle are stamped cookies from South Germany, Bavaria. The Albert Christmas cookie is decorated with a design on top and stamping them is an innovative way to decorate these popular cookies. Get the recipe below with step by step … [Read more...]
62 Indian Food Recipes you should try!
I believe, we can never have enough Indian Food Recipes! Indian food is so versatile, the topic is so broad and there are so many dishes, that it would be a pity to miss out on any of those wonderfully prepared dishes. Because, finally Indian food … [Read more...]
Lebkuchen Recipe – Gingerbread Cookies from Germany & Austria
Lebkuchen are some of the most popular and known Christmas cookies in Europe. The spiced cookies are similar to gingerbread cookies from the English speaking countries. Find the Lebkuchen recipe with step by step pictures further … [Read more...]
Easy Pineapple Fried Rice – Indian Style Vegetarian Recipe
Pineapple Fried Rice is a delicious weeknight dinner idea. The fruity stir fried rice is vegetarian and an Indian version of the Thai fried rice. You can make this quick and easy pineapple fried rice at home with the step by step recipe further … [Read more...]
Munnar Hill Station Kerala – Majestic Tea Gardens of South India
Munnar is one unique place to visit in this world. The popular Hill station in South India is one of the tea hubs in this world. There is a good chance that, where ever you are in this world, you have had a hot tea, whose leaves where grown and hand … [Read more...]
Curry Powder Recipe – Madras Curry Spice Mix
You will need this Indian Madras Curry Powder Recipe if you are a serious spice lover. The subtle aromatic flavors of the Curry spice mix will fit perfectly into your kitchen and making your own is well worth it! Find the Curry Powder Recipe further … [Read more...]
German Red Cabbage Recipe with Apple – Braised Cabbage Side Dish
German red cabbage is a popular side dish in the German speaking countries. In fact it's a traditional side dish in Bavaria and Austria. This healthier side dish can be easily recreated at home, just follow the from scratch recipe with the step by … [Read more...]
Easy Pear Preserves – Pear Jam Recipe with Vanilla & without Pectin
Sweet pear preserves might turn you obsessed this season. This easy to prepare homemade pear jam recipe, with vanilla and without pectin, is my favorite winter jam. You can make this pear preserves and use it in so many ways. Read about it's uses … [Read more...]
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Singapore Noodles – Singapore Chow Mein – Stir fried Asian Noodles
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Orange Butter
Total Time
Prep 5 mins
Cook 0 mins
This recipe comes from a local newspaper dated 26 Nov 2003, & its the only one I've seen so far that includes brown sugar & orange juice CONCENTRATE. Great on my mom's pumpkin bread (with cranberries) & on other cranberry and/or orange breads!
Ingredients Nutrition
- 1⁄2 cup unsalted butter, room temperature
- 1⁄4 cup orange zest (from 1 orange)
- 2 tablespoons orange juice concentrate
- 2 tablespoons brown sugar
- Cream together all ingredients.
- Chill until ready to serve.
Most Helpful
Served with pumpkin bread and it was delicious! Thanks!
i love orange syrup with pancakes so this is right down my alley
I'm so glad I found this recipe. I made dried apricots scones last night was were way toooo tart for my family. Trying to find a way to salvage them, I remembered I had this recipe saved and had (most) all of the ingredients. Unfortunately I didn't have quite enough butter, so I added a few cubes of cream cheese. Heavenly! Next time I may try using only reduced fat cream cheese (instead of butter) to reduce the calories. My small orange only produced about 2 TBLS of zest but we all thought it was perfect. Can't wait for breakfast tomorrow! Thanks for posting.


text:
Join Chris Meyer for an in-depth discussion in this video Avoiding problems with switches, part of After Effects Apprentice 02: Basic Animation.
- Overview
- Transcript
- View Offline
I'm going to leave you with one good piece of advice, and that's about switches.…On my first day in a class, I always have a few students who just like to click switches.…They don't seem to do anything, but they click them anyway, and that's fine.…I like to make people explore and ask questions.…But I have one rule:…if you turn on the switch, and it doesn't seem to do anything, put it back in…the position it was originally in.…It will do something;…you just haven't created the right environment yet.…
Now, some switches are pretty obvious. A lock switch, well, that looks like a lock switch.…So when you try to move the layer, when you try to animate it, it's flashing at…you, and it will probably remember, oh yeah, maybe that lock switch locked the…layer and now I can't edit it.…But there are other switches that are not that obvious.…For instance, the shy layer, this little guy, Kilroy we call him, you turn that…on and nothing seems to happen.…It's like okay. And then the next day, you are working with your project and…
After Effects Apprentice is created by Trish and Chris Meyer and designed to be used on their own and as a companion to their book After Effects Apprentice.
- Starting a project from scratch
- Building a composition
- Arranging and transforming layers interactively and numerically
- Animating parameters including motion paths
- Applying and re-using effects
- Creating variations and rendering the final movie
- Importing layered Photoshop files
- Understanding alpha channels
- Avoiding common mistakes


text:
Click here!
The Sea Cobra Dive Boat
The Mongoose Snorkel Boat
Discover SCUBA Learn to Dive
Photo Gallery Destin Diving
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Destin Diving With ScubaTech
Come join ScubaTech and dive the beautiful waters of the Emerald Coast. The most popular SCUBA diving begins just a few miles from the Destin East Pass. Unlike anywhere in the Panhandle of Florida, Destin is unique in that the limestone outcroppings begin just a few miles off the beach, and are covered with soft corals, sponges, game fish, and an abundance of tropical fish. These ledges are also home to shovel-nose and spiny lobsters. The reefs range from 2-8 feet in height at a depth of 82-95 feet. The observant SCUBA diver will also notice many types of shells and the photographer will be surprised at the magnificent macro photography and underwater scenery.
The wreck diving is also excellent in this area, ranging in depths of 57-100 feet. Destin is home to four Barges, two Liberty Ships, LCM landing crafts, Tugboats, the old Destin Bridge, and much more! Grouper, cobia, snapper, flounder, and amberjack are some of the most common fish found on the reefs and wrecks.
We offer many types of classes on SCUBA diving to include Open Water and Advanced Open Water classes, just to name a few. If you're not sure you're ready to dive in and want to get your feet wet first, we also offer Discover SCUBA as well as snorkeling by the Destin Jetties. Discover SCUBA gives you the opportunity to try a dive before committing to a full open water class. No experience necessary and it is a lot of fun!
We usually dive March through late November, with water temperatures ranging from the mid 60's in early spring to the low 80's in the summer. Winter temperatures can get down to the low 50's, making it a great time for maintenance, repairs, and Caribbean travel trips. The visibility ranges from as low as 10-100 feet, with the average visibility in the summer and fall being approximately 40 feet.
Goliath Grouper and large Southern Stingrays are commonly seen and if you are lucky we have been blessed with Whale Sharks, Manta Rays, and once a Humped Back Whale. One never knows what mysteries the Gulf of Mexico has in store for the divers to see. So, don't waste another minute, come get certified with ScubaTech today!
Some reviews from our previous customers
My husband and I booked another dive trip with ScubaTech during our recent trip to Destin and again had a wonderful time. Thank you again Nancy, Tim, and Greg for being so caring and knowledgeable. The crew made sure we were safe and had a good time. I cannot say enough wonderful things about the staff. During both of our dives we had pretty rough currents, but the staff went out of their way to make sure we were safe and enjoyed ourselves. We requested Tim again for our Dive Master and as usual he was outstanding. We had a group of five divers and Tim made sure each and every one of us were safe and engaged in the dive and our surroundings. I highly recommend ScubaTech to anyone considering diving in Destin.
My father and I went on a couple dives with Scuba Tech and we had a great time! The captain was very informative about the area and answered our questions very thoroughly. The first mate was great about helping us get our gear set up. We had a dive-master named Tim take us down and he did a great job! He dressed in all bright colors so everyone could see him and he was great about interacting with each diver. Any time I am in the Destin area I will definitely be going to scuba tech for any gear, charter or information.
I dive with this outfit almost every week and am always 100 percent satisfied. The full-service store is well stocked with all the latest dive gear. The staff is knowledgeable and a pleasure to deal with. The dive masters are very professional. The captain puts you right on the dive sites so you don't waste air looking for the wreck/reef. If you want a great dive experience, stop by Scubatech. I won't dive with anyone else.
Because it is a Dive shop, you might overlook this little gem, but it is a great snorkeling trip. The people were great, both in the shop and on the boat. Our trip was longer than any of the other boats that were out that day and we received much more personal attention. Richard took the time to find a sea urchin and bring it to us. On the trip back in, we were treated to delicious pineapple. It was a great experience.


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decided: March 25, 1980.
WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER,v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND SECRETARY OF LABOR, RESPONDENTS .
Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Before Tone, Wood and Cudahy, Circuit Judges.
The issue in this case is the interpretation to be given two related standards regulating spray-finishing operations promulgated under the Occupational Safety and Health Act of 1970.*fn1 The two standards are 29 C.F.R. § 1910.94(c) and 29 C.F.R. § 1910.107.*fn2
Westinghouse Electric Corporation was cited by the Occupational Safety and Health Administration for an alleged non-serious violation of 29 C.F.R. § 1910.94(c)(2) as a result of an inspection on June 6, 1975 of its Muncie, Indiana, large transformer plant.*fn3
There is no substantial dispute about the facts. Just prior to shipment the large transformers manufactured at Muncie are painted by four painters on three shifts using electrostatic paint spray equipment.*fn4 In 1975, 134 transformers were painted and shipped. The painting of each transformer entails approximately 44 minutes. Following an employee complaint, an OSHA Compliance Officer inspected the Westinghouse premises and upon concluding that the painting was not confined to a spray booth or spray room the citation was issued,*fn5 but without an actual observation of the painting operation, or sampling the air for contaminates or inquiry as to the nature of the paint material being used.
The issue was joined before the administrative law judge. The position taken by the Secretary of Labor was that no proof of harmful or hazardous conditions was necessary to show a violation as the spraying operation in any event was required under 29 C.F.R. § 1910.94(c)(2) to be conducted either in a spray booth or a spray room, and it was not. At that point Westinghouse did not argue that the painting was not done in a spray room or spray booth, but did dispute that either type room was necessary unless it was first established that the spraying caused dangerous or hazardous conditions under 29 C.F.R. § 1910.107(a)(2).
Since the circumstances closely paralleled the situation in Secretary of Labor v. Bethlehem Fabricators, Inc., OSHRC Docket No. 7176, (1976-1977) O.S.H. Dec. (CCH) P 20,782 (June 11, 1976), published after the Westinghouse citation was issued, the administrative law judge relied on Bethlehem. He held that Section 1910.94(c) should not be considered in isolation but should be examined in relation to other standards on the same subject and in particular Section 1910.107(a)(2). It was incumbent, he held, on the Secretary when combustible materials were used, as in this case, to satisfy the requirements of Section 1910.107(a)(2). That section defines a spraying area as any area in which dangerous quantities of flammable vapors or mist, or combustible residues, dusts, or deposits are present due to the operation of the spraying process. Since the Secretary's evidence had not shown that there were hazards or dangers to the employees, the administrative law judge found that the company was not in violation of 29 C.F.R. § 1910.94(c)(2) requiring a spray booth or a spray room.
When the decision of the administrative law judge was reviewed by the full Commission, Bethlehem was overruled.*fn6 This time the Commission held that in spite of many cross references between Section 1910.94 and Section 1910.107, the standards need not be read in conjunction. The Commission relied upon what it perceived to be the plain reading of Section 1910.94(c)(2) which by its terms requires that all spray-finishing operations be enclosed or confined in a spray room or spray booth regardless of whether hazards exist or not, with an exception not applicable here. That view of the relationship of the two standards is sought to be justified by a discussion of the origin and adoption of the two sections derived from different sources. The Commission majority concludes that the drafters intended that all spray-finishing operations be enclosed or confined.*fn7 It is the Commission's conclusion that 1910.94(c) (2) and 1910.107 are addressed to different hazards and working conditions. Therefore it finds that Section 1910.94(c)(2) regulates the use of spray booths or spray rooms for all spray-finishing operations, whereas 1910.107 provides ventilation requirements for those operations otherwise governed by 1910.94(c) which employ flammable or combustible materials.
In dissent, Commissioner Baranko argues that the two standards cannot be so neatly divided, as he finds it obvious that the two standards are not only directed toward different hazards but also to similar aspects of the same hazard. He further argues that it cannot be shown that 1910.107 is directed only to fire hazards, as 1910.94(c) also has provisions directed toward fire hazards. Commissioner Baranko departed from his majority view in Bethlehem as he now agrees that the Secretary need not establish that dangerous quantities of emissions are produced by spray paint operations before a spray booth or spray room is required under 1910.94(c)(2). However, Commissioner Baranko does not agree that 1910.94(c) and 1910.107 are directed to entirely different hazards and working conditions and that the existence of hazards is totally irrelevant in determining whether 1910.94(c)(2) has been violated. Therefore, he argues that in order to establish a violation of 1910.94(c)(2) the Secretary must show precisely in what respect the spray painting operation was deficient.
Further, Commissioner Baranko disputes that the evidence showed that Westinghouse was not using a spray room as distinguished from a spray booth. A spray room "is a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas"*fn8 (emphasis supplied). The standard does not specify what "separately" means in terms of distance or other conditions. Therefore, Commissioner Baranko argues that the Secretary failed to establish that the spraying was not performed separately from other areas in the room because if sufficiently separated it would qualify as a spray room. He then concludes that since Westinghouse was not shown to be in violation of the definitional requirement of a spray room, a violation could result only from a violation of a design or mechanical specification for a spray room, which he finds not to exist in the record.
In coming to our own conclusion in this case, we shall not endeavor to pursue all the arguments on both sides. It is obvious that the two standards are not easily intelligible to those subject to them, to those who administer them, or to those of us who try to determine what they mean. It is not our task to rewrite the standards. We do regret, however, that the thought of rewriting the standards apparently has not occurred to the Secretary. Recognizing that the purpose of the standards is to protect the health and safety of employees, although confusingly attempted, we attempt a rational resolution of the problem.
As in Diebold, Inc. v. Marshall, 585 F.2d 1327, 1334 (6th Cir. 1978), given the "inartful drafting" of the two sections "neither interpretation can be branded as particularly unreasonable." Since some of the ambiguities resulting from deficient drafting will remain in spite of our decision, rewriting by the Secretary will remain worthy of consideration. Rewriting would be expected to avoid the Commission's own shifting interpretation as well as likely divergent views arising in the various circuits. We are mindful of the great deference we owe to the Commission's reasonable interpretation of the Secretary's regulations, at least under ordinary circumstances. That deference is dubiously bestowed, however, when the Commission's view taken of the tangle between the two sections is reversed within a short period of time seemingly with the change of a single commissioner, and each of the Commission's decisions has prompted a dissent.
No one claims that Westinghouse had even an inadequate "spray booth." The definition of a spray booth is set forth at 29 C.F.R. § 1910.107(a)(3) and is incorporated by reference at 29 C.F.R. § 1910.94(c)(ii), and provides:
Spray booth. A power-ventilated structure provided to enclose or accommodate a spraying operation to confine and limit the escape of spray, vapor, and residue, and to safely conduct or direct them to an exhaust system.
However, the Commission majority does not hold that the spray painting must be in a spray booth. It appears a spray room will also satisfy the requirements. A "spray room" is defined under applicable definitions in Section 1910.94(c) (iii) as follows:
A spray room is a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas.
Following, however, in Section 1910.94(c)(2), titled "Location and application," and also in Section 1910.94(c)(8), titled "Scope," appears language suggesting what may be additional or different requirements.
Spray booths or spray rooms are to be used to enclose or confine all operations. (Emphasis added.)
Being performed "separately from other areas" as required in the spray room definition section suggests a different interpretation than being "enclosed," one of the terms used in the "Location and application" and "Scope" sections. The other term used is "confined." The words "enclosed or confined," even if those terms are to be read into the definitions, are used disjunctively. It appears that either to be enclosed or to be confined will suffice. That the two terms refer to different means of limiting the spraying operation is suggested by the ordinary meaning of the terms and the use of the disjunctive "or." We interpret enclosed to suggest being "fenced in," but confined to suggest being kept within limits. Perhaps a mere space separation might serve to confine the spray painting within certain limits in relation to any other activities in the same room and thereby qualify as a spray room. Distance alone, however, would not be enough to qualify as enclosed in a spray booth.
It is also reasonable to infer that the use of the word "room" is intended to signify something different than the word "booth." As used, the word "room" suggests that activities other than spray painting may be in the same general room provided the spray painting is sufficiently separated from any other activities so that the spray painting causes no interference. The regulations require that both spray rooms and spray booths be ventilated. It is less likely that it was contemplated that a booth could have activities other than paint spraying present in the booth. A booth suggests that it is to be exclusively for spray painting.
The Commission majority opinion concludes that since the spray painting was not enclosed or confined by a spray booth or spray room the violation is established. The Commission majority opinion notes, however, that other production activities "took place as close as five feet from the spray finishing." In a footnote to the majority conclusion it is stated that a spray room is a room where spray painting is conducted with adequate physical separation from other areas as contrasted with spray booths which are physically enclosed structures made of steel or concrete, etc., and removed at least three feet from other operations. There is the additional footnote comment that there is no indication that spray rooms may be separated from other areas by as little as three feet. We believe that to some extent there may be some common ground for reconciling the differences between the Commission majority and the dissent as to the requirements. It is possible to read the majority opinion as grounding the alleged violation on the close proximity of the spray painting to other activities in the same room, and not on the absence of a physical partition between the two. If so, then there is no definition disagreement between us. If a steel and concrete barrier is not required as provided in 1910.107(b) for the construction of a spray booth, and we find no similar construction requirements for a spray room, perhaps, the separation can be achieved, for example, by the use of only a sliding fireproof curtain to be closed during painting so as to qualify as a spray room in the particular circumstances. How spray room separation may be achieved is a matter for the expertise of the agency. It seems to us that costly structural modification should not be required unless a reasonable need can be demonstrated.
The evidence offered by the Secretary as to the particular conditions found to exist near the paint spraying was characterized by the Secretary's own counsel as only a "crude" test. To determine the amount of overspray metal tags were placed on the floor from 10 up to 30 feet from the generators being sprayed. Some overspray was demonstrated. However, Westinghouse used a more sophisticated test which included a test of airborne matter and vapors. That test demonstrated that the operation was within the limits for employee exposure to air contaminants.*fn9 The record was not developed for the purpose and is not sufficient to support a determination of whether or not the location of the Westinghouse spray painting is sufficiently separated from other activities in the particular circumstances so as to qualify as being conducted in a spray room.*fn10
We find no merit to the other arguments of Westinghouse alleging a due process violation or that it is entitled to the "small portable spraying apparatus" exemption contained in 29 C.F.R. § 1910.94(c)(8).
The order of the Commission is vacated and the case is remanded for further proceedings consistent with this opinion to determine whether or not the spray painting is being conducted in a spray room.*fn11 Each party shall bear its own costs.
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1sa. 48dk. - Dram - Hong Kong, Güney Kore
Admist a rebellion during the Ching Dynasty in ancient China, a nurse flees the palace with a young prince. As an adult, he convinces the daughter of the usurper to betray her father and to assist in restoring him as the rightful monarch.
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Scotland Landmark The Kelpies Completed
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effect on Scotland in Middle Ages
...some control over the Scottish church; in the face of such a threat, the Scottish church was weakened through having no metropolitan see. But, probably in 1192, the papal bull Cum universi declared the Scottish church to be subject only to Rome, and in 1225 the bull Quidam vestrum permitted the Scottish church, lacking a metropolitan see,...


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United States District Court, Third Circuit
December 20, 2013
ADAMS MFG. CORP., Plaintiff,v.HORIZON GROUP USA, INC., Defendant.
MEMORANDUM ORDER Re ECF No. 38.
MAUREEN P. KELLY, Magistrate Judge.
Plaintiff filed this trademark infringement action on April 15, 2013, alleging, inter alia , that Defendant acquired suction cups manufactured by Plaintiff and sent them to China for use in designing and manufacturing suction cups sold by Defendant and that the suction cups sold by Defendant are copies of Plaintiff's suction cups. ECF No. 1, ¶¶ 38-48. Defendant responded to these allegations stating that it "is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph[s] [38-48] of the Complaint, and therefore denies same." ECF No. 15, ¶¶ 38-48.
On August 22, 2013, Plaintiff filed a Motion to Strike Paragraphs 38-48 of Defendant's Answer and Have Those Paragraph's Deemed Admitted ("Motion to Strike"), ECF No. 17, arguing that Defendant had three months to ascertain the information at issue and that because the information was within Defendant's exclusive knowledge and could be ascertained following a reasonable inquiry, that Defendant's responses were a "sham" and an attempt to avoid admitting potentially unfavorable facts. In its brief in opposition to Plaintiff's Motion to Strike, Defendant represented that the product manager responsible for the development of the suction cups is no longer employed by Defendant; that the product manager was terminated prior to the litigation for reasons unrelated to the allegations in the Complaint; that the product manager did not disclose any facts relating to the development of the suction cups to any current employee; that no current employee of Defendant is in possession of the information necessary to either admit or deny the allegations in the Complaint; and that it was otherwise unable to ascertain any information regarding the genesis of the products at issue. Finding that Plaintiff had failed to demonstrate any cognizable prejudice from Defendant's Answers to paragraphs 38-48 of the Complaint and that there was no clear showing of bad faith by Defendant, this Court denied Plaintiff's Motion to Strike on September 18, 2013. ECF No. 28.
In an e-mail dated Friday, December 6, 2013, however, counsel for Defendant indicated to Plaintiff's counsel that, although his contacts at Horizon originally believed that the employee had been terminated as part of a cost cutting and reorganization, it was determined after further investigation that the employee was not terminated but rather had merely changed positions. ECF No. 38-1, p. 2. The employee was identified as Jennifer Abele. Id . Plaintiff's counsel responded on that same date inquiring whether Defendant intended to amend its Answer to the Complaint given that Ms. Abele is still employed by Defendant. ECF No. 39-1, p. 17. Defense counsel indicated that he would "look back at the Answer and amend if appropriate." Id.
The next business day, on Monday, December 9, 2013, Plaintiff filed a Request for Reconsideration of Order Denying Plaintiff's Motion to Strike in View of Newly Discovered Evidence and for Plaintiff's Fees Associated Therewith ("Motion for Reconsideration"), ECF No. 38, which is presently before the Court.
A motion for reconsideration is granted only if one of three situations is shown: "(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice." Reich v. Compton , 834 F.Supp. 753, 755 (E.D. Pa. 1993), citing Dodge v. Susquehanna Univ. , 796 F.Supp. 829, 830 (M.D. Pa. 1992).
Because of the interest in finality, at least at the district court level, motions for reconsideration should be granted sparingly; the parties are not free to relitigate issues the court has already decided.... Stated another way, a motion for reconsideration is not properly grounded in a request for a district court to rethink a decision it has already made, rightly or wrongly....
Williams v. Pittsburgh , 32 F.Supp.2d 236, 238 (W.D. Pa. 1998) (internal citations omitted).
Here, Plaintiff contends that in light of the newly discovered fact that Jennifer Abele was and still is employed by Defendant that the information necessary to respond to the allegations set forth in paragraphs 38-48 of the Complaint was clearly in Defendant's possession and/or within its ability to ascertain. Plaintiff therefore concludes that Defendant's failure to admit or deny those allegations was in bad faith and requires that the allegations be deemed admitted. In its response to the Motion for Reconsideration, Defendant acknowledges the error but contends that it was an innocent mistake and not made with the intent to deceive or harm Plaintiff. Defendant notes that it voluntarily disclosed the information shortly after it was discovered and informed counsel for Plaintiff that it would amend its Answer if appropriate after defense counsel reviewed it. Indeed, Defendant has attached a proposed Amended Answer to its response which was filed on December 13, 2013, one week after it disclosed the error to Plaintiff. See ECF No. 39-1.
Under these circumstances, the Court will deny the Motion for Reconsideration. Initially, the Court reiterates that motions for reconsideration, like motions to strike, are not favored and should be granted sparingly. Id . See McInerney v. Moyer Lumber & Hardware, Inc. , 244 F.Supp.2d 393, 402 (E.D. Pa. 2002). Second, the Federal Rules of Civil Procedure permit a court to strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, " none of which are at issue here. Fed.R.Civ.P. 12(f). In addition, the mere fact that an error was made does not, by itself, suggest that Defendant acted in bad faith and Defendant has represented that the error was result of a reduction in personnel coupled with a change in Ms. Abele's position. More importantly, however, Plaintiff has not argued or demonstrated that it has suffered any harm or prejudice as a result of Defendant's error or because of Defendant's Answer to the Complaint. See McInerney v. Moyer Lumber & Hardware, Inc. , 244 F.Supp.2d at 402 (motions to strike will usually be denied unless the allegations may cause prejudice to one of the parties). Nonetheless, the Court will not tolerate any further conduct by Defendant in failing to provide accurate and complete information to Plaintiff during the course of this litigation. Accordingly, the following Order is entered:
AND NOW, this 20th day of December, 2013, upon consideration of Plaintiff's Request for Reconsideration of Order Denying Plaintiff's Motion to Strike in View of Newly Discovered Evidence and for Plaintiff's Fees Associated Therewith, ECF No. 38, IT IS HEREBY ORDERED that the Motion is DENIED.
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Previous Challenge Entry (Level 3 - Advanced)
Topic: Illustrate the meaning of "All that Glitters is Not Gold" (without using the actual phrase or literal example). (01/24/08)
TITLE: Satisfaction Not Guaranteed
By Linda Germain
I recognized the voice on the phone as shy Miss Myrtle who lived next door to the elderly twin sisters.
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"Oh you know -- big ones and little ones."
We weren't making much progress here so I promised to look into it. I called my happy-go-lucky widowed mother. She answered in her usual musical voice, like she had just heard a wonderful joke and was still chuckling.
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She just giggled like a young girl with a secret.
"Oh my…yes, we're having so much fun it ought to be illegal."
I arrived at their house the same time as the next mysterious delivery. I hollered to the fast-moving driver, "Excuse me…do you make a lot of stops here?"
He confirmed what Miss Myrtle had reported then loped back to his waiting truck.
After hugs all around, and two helpings of Momma's peach cobbler, I asked what was in the big boxes they had scooted into the corner in the hall.
"Jenny, did you know there are some amazing deals on that television day and night?"
"On what television, Aunt Mavis?"
"The one sitting right in the living room by the fireplace."
I had a sinking feeling where my inheritance was going.
After more chitchat and evasion, they clicked on to a loud infomercial and ignored me completely as they oohed and aahed over a set of bright yellow pots and pans with non-stick bottoms. Mavis was dialing the number on the screen before I could intervene.
"Oh fizzle sticks," she whined, "the line's busy. "
My mother chimed in with more excitement than a gambler with a stack of chips, "It's 'cause everybody wants 'em. It was just like when we almost missed that china service for twelve decorated with the reindeers and little snowmen."
I walked over and turned off the lure of the sale oozing through the airways and seducing these naďve octogenarians.
"Now Momma; Aunt Mavis. Talk to me."
They looked at each other and sighed, then opened the door into the huge dining room. It was stacked to the ceiling with unopened loot. I was stunned for a few seconds and then found myself speaking like a perplexed parent.
"What is this stuff, ladies?"
Momma began to laugh so hard she had to sit on one of the boxes that had this side up written upside down.
"Oh Jenny, I believe we did get a little carried away."
A cloud of puzzlement floated over her usual jolly countenance as she turned to her sister. "Mavis…what is here? I don't even remember."
Aunt Mavis wrinkled her forehead in a desperate attempt to think.
"There was something that chops, slices, and juliennes -- whatever that is -- and the man said we had to order before midnight and it was already after eleven and then we decided to get two."
"I thought that was the battery-operated flapjack flipper. It never did work."
Mavis muttered, "The combination drill/electric knife fell apart too."
These precious women were way out of their league in resisting the charm of what sparkled and beckoned in living color.
I was able to find most of the receipts and get the tacky merchandise sent back. When the two willingly went to Happy Acres Assisted Living, I kept the checkbook and credit card.
One night, after scrubbing the old house all day getting it ready to sell, I turned on the TV while I rested and had some supper. There was a devastatingly handsome man swabbing the nastiest floor I'd ever seen. He sounded so frantic.
You'll never buy another mop...I guarantee it. Folks, this is the cleaning phenomena of the future. Throw away that old junk you've been using. Look how easy this is, and you don't have to touch anything dirty. It does it all…blah, blah, blah.
I didn't hear what else he said; I had to hurry to be one of the first fifty callers to qualify for three easy payments.
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September 8, 2010
UNITED STATES OF AMERICA, PLAINTIFF,v.JOSEPH J. DE KELLIS, DEFENDANT.
Introduction and Summary
Although the complaint does not so allege, the United States has brought an action pursuant to the Federal Debt Collections Procedures Act, 28 U.S.C. 3001, to collect on a long ago defaulted student loan. Apparently, defendant De Kellis, a practicing attorney, took out substantial student loans for law school and then sought a consolidation loan from Sallie Mae in November of 1992. The government contends that the consolidation loan was a federally guaranteed type of student loan. He received those monies which paid off his former student loans, started payment on the consolidated loan in April of 1993, and soon defaulted in August of 1994 (according to De Kellis). Bankruptcy proceedings under Chapter 7 commenced soon thereafter; DeKellis sought to discharge his then young student consolidation loan obligations, ostensibly, because of a failed business venture. Whether the consolidation loan could be discharged is a prime issue in this case.
The guarantee process worked very slowly, and it was not until 2006 that the loan repayment rights were assigned to the Department of Education, which had payed off the entirety of the loan. This action was not brought until mid-2009.
De Kellis believes that his consolidation loan was a "private loan" fully dischargeable in bankruptcy. Without specific explanation, he asserts that he sought a private consolidation loan from Sallie Mae (at a higher interest rate and with other non-beneficial terms) to "extricate[] myself from government sponsored programs. " Of course, if truly a private loan, this extrication would open the door for this debt to be discharged in bankruptcy.
The undersigned finds for purposes of DeKellis' motion to dismiss and the government's cross-motion for summary judgment, that no issue of fact exists to controvert the government's showing that the loan consolidation sought by DeKellis was a FFELP loan, not dischargeable in bankruptcy. The government student loan program weaves a web from which it is difficult to extricate oneself unless the loans are actually paid back. The government is entitled to summary judgment on all issues save for the actual computation of what remains due and owing.
1. Whether the loan at issue was part of the a guaranteed student loan provisions of federal law, and hence non-dischargeable;
2. Whether any subjective or other wise erroneous belief about the loan predicates can change the nature of the loan received;
3. Whether, in any event, a material issue of fact exists concerning the nature of the loan;
4. Whether the Espinosa Supreme Court decision precludes the government from seeking to recover on the loan;
5. The amount due and owing on the consolidated loan.
Legal Standard for Motion to Dismiss
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Summary Judgment Standard Under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)).
Burdens on summary judgment motion differ depending on who will carry the burden of persuasion at trial. "As the party with the burden of persuasion at trial, the [moving party] must establish "beyond controversy every essential element of its' [ ] claim. [The non-moving party] can defeat summary judgment by demonstrating the evidence, taken as a whole, could lead a rational trier of fact to find in its favor." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). The moving party, United States, would bear the burden of proof.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Co. V. Zenith Radio Corp, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).
Procedural Facts
The United States filed its "Complaint for Non-Payment of Student Loan" on July 6, 2009. After counsel for DeKellis withdrew from representation, DeKellis, a lawyer himself, proceeded pro se. He filed a motion to dismiss which was based nearly entirely on his belief that the consolidation loan he received from Sallie Mae was legally not a FFELP loan, and in any event, he believed from representations made by an unnamed Sallie Mae representative that the loan he was receiving was a private loan. The latter point was not appropriate in a motion to dismiss as it relied on facts outside the complaint. The ultimate point of the motion to dismiss was that the government could not collect on a "private loan" that had been discharged in bankruptcy.
The government filed a cross-motion for summary judgment as its opposition to the motion to dismiss. Normally, a motion for summary judgment, which does rely on matters outside the pleadings, is brought prematurely if filed before an answer. However, where it is clear that the answer would not add issues which could be adjudicated in a defendant's favor, or a defendant does not object to the early filing, the court may adjudicate the motion. DeKellis has not objected to the filing of the government's cross-motion, and does not appear to desire to raise any issues on liability outside of his penultimate issue that the bankruptcy discharged his consolidation loan. Therefore, the court will proceed with the government's motion in addition to the motion to dismiss.
Substantive Facts Background
The government brings this action for non-payment of a type of student loan. The complaint, filed July 6, 2009, alleges that the consolidated loan, applied for by De Kellis on November 5, 1992, and which paid off DeKellis' separate student loans, was guaranteed by the California Student Aid Commission ("CSAC") and reinsured by the United States Department of Education ("DOE"). It is further alleges that De Kellis defaulted on the loan on July 13, 1996.*fn1
The holder of the consolidated loan promissory note, Sallie Mae, obtained payment on the note by CSAC which in turn obtained payment from the DOE, which is now the owner of the note.
De Kellis moves to dismiss the complaint, claiming that the subject loan was obtained through Sallie Mae, a for-profit corporation, which represented that the loan was a privately funded unsubsidized loan bearing the name, "SMART LOAN." In 1994, De Kellis defaulted on the consolidation loan, and believed it to be discharged when he filed for Chapter 7 bankruptcy that year. In November, 2008, De Kellis discovered for the first time that plaintiff alleged the consolidation loan was a Federal Family Education Loan Program ("FFELP") Loan, and that he was indebted to the government for unpaid sums. He now claims that the loan cannot be characterized as a government loan because when he scheduled it as a private loan in bankruptcy proceedings, neither the government nor Sallie Mae contested his characterization of the debt, which he claims was discharged in bankruptcy on August 23, 1995.
The declaration of the loan analyst for the DOE states that Joseph De Kellis is indebted to the United Sates in the amount of $62,471.19 which includes a principal of $31,090.93 and interest in the amount of $31,380.26 as of October 7, 2008, plus interest of $7.66 per day on the principal for every day after October 7, 2008. (Gorham Decl., Pl.'s Ex. 6.) She also states that the loan was a Federal Family Education Loan Program Consolidation loan from Sallie Mae Student Loan Marketing Association. This "loan obligation was guaranteed by California Student Aid Commission, and then reinsured by the DOE under loan guaranty programs authorized under Title IV-B of the Higher Education Act of 1965, as amended, 20 U.S.C. 1071 et seq. (34 C.F.R. Part 682)." (Id.) When plaintiff went into default, the holder of the note, Sallie Mae, was paid on the claim by CSAC, the guarantor, which was then reimbursed by the DOE. Therefore, De Kellis, the borrower, owes the United States the sums set forth above. (Id.)
De Kellis disputes the authenticity of the Gorham declaration, claiming lack of personal knowledge, lack of foundation, and double hearsay.
The Loan Documents
The Application/Promissory Note signed by De Kellis (and conceded by DeKellis as authentic) states above his signature, "[t]his application/promissory note will be governed by Federal law applicable in consolidation loans." (Def.'s Ex. 1 at ¶ 17.) The same Promissory Note states in Section II, "[t]o Sallie Mae: By means of the application, I am applying to have my loans consolidated into a SMART LOAN account at Sallie Mae, as allowed under Section 428C of the Higher Education Act of 1965, as amended (The Act)." (Def.'s Ex. 1.) The note further states, "To Whom It May Concern: I hereby authorize you to release to Sallie Mae, for purposes of verifying student loan information in order that I may consolidate my student loans into a consolidation loan... pursuant to the Higher Education Act of 1965, as amended, any information concerning my student loans that Sallie Mae requests in connection with such loan consolidation..." (Def.'s Ex. 1 at ¶ 18.) The second page of this exhibit, entitled "Statement of Rights and Responsibilities," states in the first sentence of the section entitled, "Deferment," "[t]o the extent authorized by federal statute, payments of principal will be deferred - but interest will accrue, in the following circumstances...." (Def.'s Ex. 1 at 2.) In the section entitled "Prepayments," it states, "[u]nder certain circumstances, military personnel may have their loans repaid by the Secretary of Defense, in accordance with Section 902 of the Department of Defense Authorization Act 1981 (10 U.S.C. 214)..." (Id.) Under the section entitled, "Credit Bureau Notification," the borrower is warned that if he defaults on the loan he will be "ineligible to receive assistance from any of the following Federal programs: Pell Grant, Supplemental Opportunity Grant, College Work-Study, State Student Incentive Grant, Byrd Scholarships, Perkins Loan (formerly called National Direct Student Loans), Guaranteed Student Loans, Supplemental Loans for Students (SLS), PLUS loans or Consolidated Loans...." (Id.) The Acceleration clause includes the statement, "and federal regulations require the lender to make a final demand for payment." (Id.) Under the section regarding "Eligibility for Additional Consolidation Loans," it states, "I understand that my status as an eligible borrower under this loan consolidation program under Section 428C of the Act terminates upon my receipt of this loan...." (Id.) The section entitled "Privacy Act Notice" provides that under the Privacy Act of 1974 (5 U.S.C. § 1974), an agency is required to provide the following notice, and that Sallie Mae provides information from loan applications regarding borrowers of SMART LOAN accounts to the U.S. Department of Education ("DOE"). This section states that the DOE has requested that Sallie May provide the following information:
1. The authority for collecting the requested information is found in section 428C(b) and 429(b)(1) of the Higher Education Act of 1965, as amended. Applicants are advised that the requested information is necessary for participation in Sallie Mae's SMART LOAN program.
Another disclosure under the Privacy Act section describes the circumstances under which an individual's social security number must be disclosed, when requested to do so by a federal, state, or local government. It adds that social security numbers are required for participants in the SMART LOAN program, as directed by the DOE. (Id.)
The government has provided a Lender Verification Certificate, allegedly signed by De Kellis, which states, "[t]his verification certificate will be relied on by Sallie Mae in paying off the loan(s) and by the U.S. Department of Education in insuring, or reinsuring, and by a guarantee agency in insuring, a consolidation loan which includes the stated payoff amounts on such loan(s)." (Pl.'s Ex. 2.) De Kellis disputes that he signed this form, submitting other forms indicating that his signature was affixed to the form. (De Kellis Decl., ¶ 6.) See Pl.'s Ex. 5; De Kellis' Ex. A (dkt. # 37.) He also disputes receiving the other Lender Verification Certificate. (Pl.'s Ex. 5.)*fn2
The Lender Verification Certificate, apparently signed by De Kellis, provides: Loan consolidation is a program authorized pursuant to the Higher Education Act of 1965, as amended, and offered by Sallie Mae under which borrowers may apply for a loan to consolidate outstanding Stafford Loans, Guaranteed Student Loans (GSL), Supplemental Loans for Students (SLS) [formerly called Auxiliary Loans to Assist Students (ALAS)], Perkins Loans [formerly called national Defense/Direct Student Loans (NDSL)] and Health Professions Student Loans (HPSL).
(Def.'s Exs. 2, 5.)
The Certificate also provides at the bottom of the document at paragraph 19: "[t]his verification certificate will be relied on by Sallie Mae in paying off the loan(s) and by the U.S. Department of Education in insuring, or reinsuring, and by a guarantee agency in insuring, a consolidation loan which includes the stated payoff amounts on such loan(s)." (Id.)
The Disclosure Statement states that the guarantor of the loan is the California Student Aid Commission. (Id. at Ex. 4.) De Kellis disputes having knowledge of this form prior to the commencement of this litigation. (De Kellis Decl., ¶ 5.)
The Smart Loan*fn3 Is A Non-Dischargeable Federally Insured Loan
DeKellis' attempts to manufacture factual disputes concerning the nature of his consolidation loan fails. The documents disputed by DeKellis are not needed to establish the government's right to summary judgment on the liability issues. DeKellis' argument is premised on his belief that if he did not think he was acquiring a student loan subject to government regulation, he therefore did not receive one. DeKellis does not attempt to rescind the loan (he would be liable to repay the principle and equitable interest if he did), or otherwise avoid it, he merely maintains that his belief that the loan had no governmental connection entitled him to have had it discharged in bankruptcy. This belief is in error.
As the loan documents suggest, although Sallie Mae may now be a private lender, (it was a governmental entity at the time of consolidation, see footnote 6 below), it is authorized by 20 U.S.C. § 1078-3 to make federally guaranteed consolidation loans. Those loans were insured by the DOE. A good explanation of the process is described in In re Lewis, 506 F.3d 927, 929 n.3(9th Cir. 2007):
Established by the Higher Education Act of 1965, the Guaranteed Student Loan Program (since renamed the Federal Family Education Loan Program) provides interest rate subsidies and federal insurance for private lenders to make student loans pursuant to 20 U.S.C.S. §§ 1078(a) and (c) (1994). Under 20 U.S.C.S. § 1078(c), original lenders sell loans to other lenders to raise funds to make, specifically to originate, additional loans. Guaranty agencies guarantee the loans, paying loan holders the amounts due and taking assignment of the loans if students default. The Secretary of Education reinsures the loans and ultimately reimburses guaranty agencies on a sliding scale pursuant to 20 U.S.C.S. § 1078(c)(1).
The Smart Loan, as a consolidation of student loans not dischargeable in bankruptcy, is what it is, and cannot be changed by subjective beliefs.*fn4 Smart Loans have overwhelmingly been found to constitute federally guaranteed student loans, as cited by the government. See Sheer v. Educational Credit Management Corp., 245 B.R. 236, 239-40 (D. Md. 1999) (citing numerous cases) (involved a Sallie Mae consolidation loan using the same language as appears in the DeKellis application); In re Shaffer, 237 B.R. 617, (N.D. Tex. 1999) (noting majority of courts find consolidation loans in general are educational guaranteed student loans and finding the Sallie Mae Smart Loan is such a loan; application therein contains the same language as appears in the DeKellis application); In re Levernier, 244 B.R. 458, 461(C.D. Cal. 1999) (finding Sallie Mae consolidation loan is educational loan under § 523(a)(8)); Hiatt v. Indiana State Student Assistance Com'n, 36 F.3d 21, 24 (7th Cir. 1994) (same with respect to another lenders' student consolidation loan).
Thus, all of DeKellis' recounting of the facts that an unidentified marketer for Sallie Mae consolidation loans told him this was a "private" loan is irrelevant.*fn5 Similarly, latter day protestations by DeKellis that he would never have entered into the more onerous "private loan," if it did not "extricate himself" from government student loans, aside from producing an unflattering inference of planning ahead for bankruptcy, is equally irrelevant. Finally, DeKellis' assertion that Sallie Mae was a completely private, "for profit" corporation when he obtained the consolidation loan, is not only totally erroneous as determined from facts of which the undersigned can take judicial notice,*fn6 but also irrelevant as the Smart Loan is a "student loan" as a matter of law regardless of the precise legal status of Sallie Mae.
Similarly, DeKellis' citation of various statutes and regulations which govern what is to be contained in applications, or when a lender must declare default are all irrelevant. If utilized to demonstrate that the violation of such, assuming they were violated, means that the Smart Loan could not have been a loan subject to non-dischargeability provisions applicable to federally guaranteed student loans, DeKellis cites no authority for the proposition. If DeKellis' argument is that the violation of such automatically negates the original "federal" aspect of the loans, he further cites no authority for that proposition, or that he has standing to raise these alleged violations when they deal with actions between the entities involved in the loan process.*fn7
For example, DeKellis faults Sallie Mae for failing to file a default claim within the period specified in "CFR 682.406(a)(5)." The regulation applies to the various entities which may be involved with the loan, and do not appear to give the loan recipient any rights in the timely notice of default. More importantly, nothing in the regulation would appear to transform the consolidation loan into a private loan simply because notices may have been delayed.
Even if there was no established authority providing that Smart Loans were to be treated as government student loans as a matter of law, the Application/Promissory Note indisputably signed by DeKellis, would have placed any reasonable person on notice that the consolidation Smart Loans were governed by federal education laws. The undersigned will not repeat all of the loan language set forth above, but as observed in the Sheer case, the language in the Application/Promissory note referencing "a Smart Loan Account at Sallie Mae, as allowed under Section 428C of the Higher Education Act of 1965, as amended," language which appeared in DeKellis' loan application, clearly would put a reasonable person on notice that one was receiving an education loan pursuant to the federal rules which govern such loans. Sheer 245 B.R. at 239 (n.4). A truly private loan, unconstrained by federal education law, would not contain such language. DeKellis proffers no evidence that Sallie Mae actually issued student consolidation loans, termed "Smart Loans" which were indeed unconstrained by the Higher Education Act, and what that application/promissory note might look like. The only evidence before the court is the Application/Promissory Note which DeKellis did admit to signing, and that loan is a non-dischargeable federal student loan as a matter of law. The other referenced paperwork such as the Loan Verification, again clearly showing the government controlled attributes of the loan, which DeKellis denied receiving or signing, is superfluous and will not create an issue of fact.
Nor does the span of time involved in the government's seeking to recover on DeKellis' defaulted loan preclude this action from proceeding. DeKellis understands that with respect to guaranteed student loans (includes consolidation loans), no statute of limitations exists for their collections. The statute of limitations for defaulted student loans prior to the Higher Education Act of 1965 was six years. When the Higher Education Technical Amendments of 1991 ("HETA") was enacted, it not only eliminated a statute of limitations, but revived all actions which would have been time barred. U.S. v. Phillips, 20 F.3d 1005, 1007 (9th Cir. 1994) (citing cases); 20 U.S.C. § 1091(a)(1).
The 1991 Amendment to the Higher Education Act states in relevant part that "no limitation shall terminate the period within which suit may be filed, a judgment may be enforced 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)(2)(D) (2009).
U.S. v. Tuerk, 317 Fed. Appx. 251, *1 (March 11, 2009).
In this case, De Kellis' student loan was never discharged, and there is no time bar for collecting on a student loan. U.S. v. Lawrence, 276 F.3d 193, 196 (5th Cir. 2001) (holding that 20 U.S.C. § 1091a "eliminates all limitations defenses for collection of student debts"). DeKellis intimates that the delayed nature of the government's collection efforts indicates that the Sallie Mae loan was really not a government insured loan, i.e., that Sallie Mae, CSAC, and/or the Department of Education made that up at a later time in order to obtain collection from DeKellis, but this rather baseless speculation does not overrule the fact that the original loan was constrained by federal law as demonstrated by the Application/Promissory Note.
Some Material Issues of Fact Exists Concerning the Data in the Gorham Declaration
Actions to collect federal debts owed are governed by the Federal Rules of Civil Procedure except where otherwise indicated in the Federal Debt Collection Procedure Act. 28 U.S.C. § 3003(f). One such different procedure is the ability of the United States to make declarations on "information and belief" if reliable and reasonably necessary. 28 U.S.C. § 3006. Thus, DeKellis' objection to the declaration based on lack of personal knowledge, even assuming that the declaration does not show personal knowledge, are not meritorious. Moreover, for the reasons set forth by the government, some of DeKellis' challenges to the declaration on the merits are based on a misreading of the declaration.
However, when it comes to the amounts of payments DeKellis made prior to declaration of default, and government forfeiture of other monies apparently due and owing DeKellis for the purpose of repaying the consolidation loan, DeKellis has raised issues of fact. De Kellis declares that he made several payments, and the government forfeited other monies owing to DeKellis. The Gorham declaration does not make any attempt to detail what DeKellis paid in the way of interest to Sallie Mae prior to his default, nor does it reflect any offsets which may have reduced the debt owed. Counsel's bald statement in the Reply brief that "CSAC credited those offsets before it made its demand on DOE," is not supported at all by evidence. Moreover, DeKellis does not have to prove his case at this juncture in terms of amount due and owing as the government demands; he need only raise issues of fact.
Therefore, the court will permit the government to file a supplemental motion for summary judgment detailing amounts owed and payments/offsets made; DeKellis may oppose it. Any such motion must be made no later than 28 days from the filed date of this Findings/Order.
The Espinosa Issue
At hearing, the government was ordered to file supplemental briefing addressing the principle behind one of the court's findings in United Student Aid Funds, Inc. v. Espinosa, ___ U.S. ___, 130 S.Ct. 1367 (March 23, 2010), that where a creditor in a student loan situation receives actual notice of an error pertaining to a Chapter 13 bankruptcy filing but fails to object or appeal in a timely fashion, the creditor is precluded from claiming obligations as non-dischargeable. It will be shown that the case has no applicability to a Chapter 7 discharge.
In Espinosa, a student loan creditor waited three years after the bankruptcy court's discharge order to attempt to collect on a student loan. The Supreme Court held that despite not receiving service of the summons and complaint, the creditor received actual notice of the bankruptcy plan and therefore its due process rights were satisfied such that it could not obtain Rule 60(b) relief from the Bankruptcy Court's confirmation order. Id. at 1378.
The government distinguishes Espinosa here by arguing that De Kellis can reopen his Chapter 7 proceeding at any time to seek discharge of his consolidated loan under 11 U.S.C. § 523(a)(8); however, the debtor in Espinosa could not do so as his proceeding fell under Chapter 13 which resulted in a final confirmation order although the discharged portion of his student loan was entered in disregard of § 523(a)(8). After finding that the creditor had actual notice of the bankruptcy's court's legal error in failing to assess undue hardship under § 523(a)(8) before confirming the debtor's plan, the Supreme Court found that the order remained enforceable despite the error because the creditor had actual notice of it and failed to timely object or appeal. Id. at 1380. The undersigned previously was inclined to agree with the underlying principle in Espinosa regarding actual notice and delay as Sallie Mae had actual notice of the student loan almost 14 years before this complaint was filed.
Nevertheless, as the government points out,
Section 523 (a)(8)'s exclusion of student loans from discharge is 'self-executing' in the sense that '[u]nless the debtor affirmatively secures a hardship determination, the discharge order will not include a student loan debt.' In other words, a debtor's obligation on a student loan remains until there has been an express determination that the loan is dischargeable because it imposes an undue hardship on the debtor and the debtor's dependents.
In re Walker, 427 B.R. 471, 476 (B.A.P. 8th Cir. 2010).
The Espinosa court acknowledged the difference between Chapter 13 and Chapter 7 proceedings. It noted that the undue hardship in paragraph 8 of § 523(a) was self-executing in that a lender was not required to file a complaint to determine whether an undue hardship exception applied to non-dischargeability of a student loan. Id. at 1379 n. 11. The court pointed out, however, that Espinosa filed a Chapter 13 proceeding and § 523(a) did not apply to such a case. It stated that § 523(a) provided for a discharge under § 727, inter alia, including § 1328(b), but not under § 1328(a) (Espinosa's case) which involves a different type of discharge on completion of the plan, via a final order by the bankruptcy court granting the debtor a discharge of all debts except those specified in certain sections, including § 523(a). "Section 1328(a) thus incorporates by reference paragraph (8) of § 523(a), including that paragraph's self-executing requirement for an undue hardship determination, but does not incorporate the 'does not discharge' text of § 523(a) itself." Id. (emphasis in original.)
The holding in Espinosa concerning the creditor's delay in moving for relief under Rule 60(b) is distinguishable because it involved a chapter 13 proceeding which requires a plan spanning over three to five years, a confirmation hearing involving creditors, and a final order before the discharge takes effect. Creditors have the opportunity to object to the plan before the order is final. The order confirming the plan is a final judgment. Espinosa, 130 S.Ct. at 1376. The creditor's delay in that case pertained to the Rule 60(b) relief sought to reopen the confirmation order.
De Kellis' bankruptcy proceedings, in contrast, were brought under Chapter 7, which involves no plan, no confirmation hearing, no final confirmation order, and is usually resolved in months, not years. The debtor is discharged, and has the onus to seek relief from non-dischargeable loans under § 523(a)(8) as applicable. The burden is on the debtor to specifically exempt certain loans from non-dischargeability by filing a request under § 523(a)(8). Without such a request which is approved by the court, the statute applies. The fact that De Kellis listed Sallie Mae as a "non-governmental non-priority unsecured obligation," (Def.'s Mot., Ex. B), is of no consequence because he never sought relief from the non-dischargeable nature of this loan. See In re De Kellis, 94-29828-B-7.
Therefore, the government is not barred by Espinosa in seeking collection of the loan.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendant's motion to dismiss, filed June 10, 2010, (dkt. #34), be denied;
2. The government's cross motion for summary judgment, filed June 30, 2010, (dkt. #36), be granted in all respects save for the amounts due and owing.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS HEREBY ORDERED that plaintiff may file a supplemental motion for summary judgment with respect to the amounts due and owing as a result of default on the Smart Loan at issue if filed within twenty-eight days of the filed date of this order.
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The brand engineers of VW want to fit components in the Up that would make it too costly for Skoda and Seat to vend. An insider at VW, who did not want to be named, said that the choices of VW are almost always too pricey for Seat and Skoda. At least half a million variants of Up is planned for global sales by VW group according the Martin Winterkorn, VW CEO. Initially showcased at the 2007 IAA in Frankfurt, the Up concept will form a new minicar range dubbed the New Small Family.
Although Skoda and Seat will be contributing high volumes to the production of the Up, VW does not involve them when it comes to deciding the components that goes into the car.
VW spokesperson would not comment concerning the disagreements among Up engineers, only referring to them as positive process intended to improve products.
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