Appendix — Edwards v. Department of Education
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In The
SUPREME COURT of the UNITED STATES
ere ~~
BRUCE EDWARDS,
Petitioner-Appellant-Plaintiff,
Ve
UNITED STATES DEPARTMENT OF EDUCATION,
Respondent-Appellee-Defendant.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
--. ~~”
PETITION FOR WRIT OF CERTIORARI
APPENDIX (CONTINUED)
BRUCE EDWARDS
Petitioner, pro se
1001 Emporia Street
Aurora, Colorado 80010-3825
(303) 341-9433
(non-published, home)
2 of 2
——— eee ie ee ne —
APPENDIX (continued)
TABLE OF CONTENTS
#43 Motion (compel disclosures) 10/3/01............. 247
#44 Motion (enlarge disp. mtn. per.) 10/3/01....... 251
#47 Motion (extend disp. resp. ddl.) 10/10/01......253
#49 Order (deny enlarge (disp.) per.) 10/15/01....255
#51 Motion (strike #41 Ex. 2) 10/17/01................ 256
#52 Motion (strike #41 Ex. 2/A) 10/17/01............ 259
#53 Motion (strike #41 Ex. 2/B) 10/17/01 ............ 264
#54 Motion (strike #41 Ex. 2/C-D) 10/17/01........ 270
#55 Motion (strike #41 Ex. 2/E-F) 10/17/01......... 274
#56 Motion (enlarge disp. resp. ddl.) 10/17/01.....278
#59 Motion (strike #41 Ex. A) 10/22/01............... 279
_#62 Motion (strike #41 Ex. B) 10/23/01............... 295
#69 Response (mtn. to compel) 10/30/01.............. 325
#76 Response (dispositive motion) 11/20/01........ 327
Encl. 1 BE1-11: L102 Note Pad {US15-25} ....362
Encl. 2 BE12-15: EDUC Initial Discl. list......364
Encl. 3 BE17-18 Request for Review blank ....366
Encl. 4 BE19-20 L109 Debt Level {US71-2}....367
Encl. 5 BE21-2: Note, as received 6/6/01........ 368
Encl. 6 BE23-42: Review of CSAC, 7/10/92....368
Encl. 7 BE43-65: Review of CSAC, 6/10/94....371
Encl. 8 BE66-77: Review of CSAC, 8/14/98....374
Encl. 9 BE78-81: NSLDS printouts {US86-9} 377
Encl. 10 BE82-3: L108 (audit) {US69-70} ...... 380
Encl. 11 BE84: CSAC History {US14}............ 381
Encl. 12 BE85: Edwards’ 1999 diploma......... 382
Encl. 13 BE86-9: Rec. Disposition Sched. ...... 382
Encl. 14 BE90-108: Review of TTCI, 9/12/00 .385
Encl. 15 BE109-20: Audit of TTCI, 6/13/00....387
Encl. 16 BE121: TTCI “attendance” {US8} ....390
Encl. 17 BE122: TTCI production cover......... 390
Encl. 18 BE123-4: L106 (letters) {US26-7}.....391
Encl. 19 BE125-56: 1995+ dunning samples .391
Encl. 20 BE157-68: pre-1996 samples............ 394
Encl. 21 BE169: R111 (referrals) {US83}....... 396
Pet. App. 1
#83 Objections (to trial exhibits) 1/25/02 ............ 397
#91 Objections (to counsel’s misleading) 4/5/02... 408
#99 Administrative Record (AR) 5/15/02............. 410
GIR Cert CREIIR. ..cceseccccconsscascaccosncsccesesscescoss 410
WOO sisssiss siecle taanmneiamabanmaeetsasenane 411
#1-2 (see 8/31/00 DCS reply, p. 182 supra)..... 411
#3-4 (see promissory note, p. 133 supra)........ 411
#5 5/9/02 (R107) GSL Program Specific.......... 412
#6-11 5/9/02 (L106) Letter History ................. 413
#12-21 5/9/02 (L102) Collector Note Pad........ 418
#22 5/9/02 (R109) Account Profile................... 428
#104 Objections (to #99 AR) 6/7/02 ................006.. 429
#105 Supplement (to #99 AR) 6/7/02................... 436
TNEESEG. 0h DR CMe Poceseceemestcnsssescocscoscencccosee 436
SAR 51-3: 1/28/97 History letter..................... 445
SAR 100-2: 3/29/00 Colo. Admonition............. 447
SAR 104: 6/1/00 Admon’n Withdrawal ........... 451
SAR 153: 12/31/92 CSAC Contact Hist........... 452
SAR 170: 1/23/01 (L109) Debt Level Info. ...... 456
SAR 179: “R107” explanatory sheet................ 457
SAR 183: 1/23/01 (1100) Fed. Offset Info. ....... 458
SAR 379-80: Request For Review form... ....... 459
SAR 391-6: “L109” explanatory pages ............ 462
SAR 415: “1100” explanatory pages. ................ 464
#107 Objections (to Supp.) 6/21/02...................... 468
#108 Opening Brief 7/21/02 .....................ccccceeeeees 470
#109 Response (cf. #41 Brief) 8/30/02.................. 508
#110 Reply Brief 9/1°7/02................ccccccccccssssssseeees 517
Treasury Offset Program (TOP) information ......... 526
OWE VRIUT ...<:csnziaancnabeeatlieneeaalnaeimmaiKeaadactabaiines 526
TOP Law (pertinent components) ....................0+ 527
ii Pet. App.
#43 Motion (compel disclosures) 10/3/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT-3 2001 James R. Manspeaker Clerk s/KS}
Civil Action No.: 01-BB-36
Bruce Edwards,
PLAINTIFF
v.
United States Department of Education,
DEFENDANT
Motion for Production of Complete and Legible
Documents Presented as Defendant’s
Rule 26(A(Sic])(1)(B)A & B Exhibits
Plaintiff pro se Bruce Edwards hereby moves to com-
pel disclosure of the documents identified in paragraphs
6-9 herein, pursuant to Rule 37 of Federal Rules of Civil
Procedure (FRCP), by this Motion for Production of Com-
plete and Legible Documents Presented as Defendant's
Rule 26(a)(1)(B)A & B Exhibits, for the reasons described
below.
1. On June 29, 2001, Plaintiff filed a Motion and Brief
to Extend Leave to Amend the Complaint with three
enclosures. Enclosure 2 was comprised of the Originals of
14 Defendant Initial Disclosures—13 items from school,
TTCI and 1 item from state guarantor, CSAC; these were
consecutively numbered by Defendant as US000001-14 on
their faces. Plaintiffs brief, particularly in the last para-
graph on page 8 and all of page 9, noted the inadequacies
of those originals as disclosed by Defendant, described the
difficulty in working with them, and sought direction to
obtain production of documents supporting Defendant’s
claim against Plaintiff in reasonable condition and
completeness, so that Plaintiff could adequately address
Defendant’s foundation for the actions resulting in Plain-
tiffs cause of action when amending the Complaint.
2. For comparison of legibility with the original
U$000003 of Enclosure 2 referenced immediately above,
247 Pet. App.
Plaintiff supplied the original of the first legible copy of
the second page of the promissory note that Plaintiff ever
received from Defendant, as the third page of Plaintiffs
Enclosure 1 with the 6/29/01 Brief and Motion to Extend
Leave to Amend Complaint.
3. On July 27, 2001, Plaintiff served Defendant the
enclosed Requests for Documents and Complete/Legible
Initial Disclosure; on its first of seven pages, this request
identifies, by Defendant’s assigned number on each paper,
as incomplete or illegible “Defendant U.S.Department of
Education’s Initial Disclosures” §(a)(1(B)A Exhibits 1
through 7 inclusive (except for Exhibit 2, which had
recently been supplied to Plaintiff in reasonably legible
format).
4. On August 27, 2001, Defense counsel Peter J.
Krumbholz initiated telephone contact with Plaintiff to
seek a revision of Plaintiffs second set of interrogatories
under FRCP 33, at which time the parties agreed to an
extension until 9/4/01 for response to such amended
interrogatories; the parties subsequently teleconferenced
and agreed to an extension until 9/7/01 for response to the
amended interrogatories that would include the outstand-
ing production of documents for Plaintiffs 7/27/01 request.
During that subsequent teleconference, the Request for
Complete/Legible Initial Disclosures was identified and
agreed by both parties as included in the 9/7/01 extension.
5. Defendant’s 9/7/01 Responses to Plaintiffs Inter-
rogatories and Requests for Production of Documents/
Answers to Requests for Production of Documents (copy
enclosed), did not address in any manner the first page
REQUEST FOR COMPLETE/LEGIBLE INITIAL DIS-
CLOSURE of Plaintiffs Requests for Documents and
Complete/Legible Initial Disclosure.
6. Defendant’s Rule 26(a)(1)(B)A Exhibit 1: “Applica-
tion for California Guaranteed Student Loan signed on
May 6, 1985; loan amount $2,500.00 to attend the Travel
and Trade Career Institute (TTCI)” original was filed
with the Court as described in 1 above (Enclosure 2,
US000001). Because the bottom is cut off, the back side is
Pet. App. 248
missing and CSAC’s facsimile stamp across the top makes
it appear to have been mislabeled as a document from
TTCI, this is a failure to disclose under FRCP 37(a)(3)
substantial information related to Defendant’s activities
(for the “EDUC claim”) that resulted in Plaintiffs cause of
action in the matter before this Court.
7. Defendant’s Rule 26(a)(1)(B)A Exhibits 3-5:
“Receipti[s) for Pell Grant Check[s] from TTCI in the
amount of [3] $975.0[sic] signed on August 14, 1985; [4]
$656.00 signed on October 3, 1985; [5] $319.00 signed on
October 3, 1985” originals were filed with the Court as
described in 1 above (Enclosure 2, US000004-6). These
receipts are illegible as to the identity of the bank on
which they are drawn; they are also incomplete with re-
spect to establishing authenticity, genuineness and rele-
vance to the EDUC claim for such check receipts from
TTCI demonstrating its acceptance of a grant purportedly
made to Plaintiff after the first day of class that he
identified, more than once since 1998 without dispute
from Defendant, as the date he withdrew from enrollment
without further contact with the school. These receipts
are, therefore, incomplete and a failure to disclosure
under Rule 37(a)(3).
8 Defendant’s Rule 26(a)(1)(B)A Exhibit 6: “TTCI
Student Enrollment Agreement signed on May 7, 1985”
original was filed with the Court as described in 1 above
(Enclosure 2, US000007). Because this document is al-
most entirely illegible, and appears to reference a reverse
side for additional terms of contract that was not
disclosed, this document is incomplete and a failure to
disclose under FRCP 37(a)(3). \
9. Defendant’s Rule 26(a)(1)(B)B Exhibit 1: “Contact
History Report dated December 31, 1992” original was
filed with the Court as described in 1 above (Enclosure 2,
US000014). This document is not only difficult to read
and was not presented in a format understandable to
Plaintiff by provision of a key or description of the
information contained on it, but also Defendant has
advised Plaintiff it is not a very clear copy and is not a
249 Pet. App.
SS a ee
document that Defendant is familiar with and, therefore,
Defendant cannot definitively determine if there are any
notations showing Plaintiffs receipt of or response to
mailing or telephone call, nor answer to what the “bad
address” descriptions on it pertain to; this is a failure to
disclose under FRCP 37(a\3).
Having made good-faith attempts to address this issue
with Defendant, and without intending to limit address-
ing such other materials produced in the disclosure and
discovery phase of the matter before this Court should
permission be required and given to address them at a
later date, Plaintiff requests this Court to order Defen-
dant’s full-sized, legible, complete disclosure of all pages
of the items identified in paragraphs 6 through 9 above,
including such supporting documents as reasonably
necessary to understand their contents or as should, in
fairness to Plaintiff, be produced to demonstrate them as
relevant, geruine and timely for the -purpose of
supporting the EDUC claim or addressing Plaintiffs
Complaint for which they were introduced as exhibits in
the listing of Defendant’s Rule 26(a) disclosures.
s/Bruce Edwards 10.1.01
Bruce Edwards, Date
Plaintiff, pro se
1001 Emporia Street,
Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
* * *lenclosures identified in text above]
Pet. App. 250
#44 Motion (enlarge disp. mtn. per.) 10/3/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT-3 2001 James R. Manspeaker Clerk s/KS)}
Civil Action No.: 01-BB-36
Bruce Edwards,
PLAINTIFF
Vv.
United States Department of Education,
DEFENDANT
MOTION FOR ENLARGEMENT OF PERIOD
FOR DISPOSITIVE MOTIONS
Comes here now, Plaintiff pro se Bruce Edwards seek-
ing an extension of the Scheduling Order #7c, Dispositive
Motion Deadline of October 1, 2001, filed by this Court on
May 18, 2001 for Civil Action #01-BB-36 for the reasons
stated herein.
1. As a pro se litigant, Plaintiff has focused the major-
ity of his resources on producing a proper Amended
Complaint to ensure its relevance and earliest production
in this matter.
2. As a displaced employee at DIA, Plaintiff has
recently had to engage in involuntary work search activi-
ties to the detriment of time available to him to devote to
this matter.
3. Although the Certificate of Service accompanying it
was inadvertently mis-dated by having been pre-printed
as 9/10/01, but Plaintiff s Objections to Sufficiency of
Defendant's Answer to Plaintiffs Requests for Admissions
#1, 3, 4, 7, 8, 14, 20, 24 and 35 was signed on 9/12/01,
Plaintiff has received no acknowledgment or response
from Defendant.
4. While Plaintiff received responses to his second set
of interrogatories (#34-50) and responses to, but not
actual documents for, his requests for production of
documents after mutual agreement of the parties to
extend the deadline for requests to September 7, Plaintiff
251 Pet. App.
is still in process of assessing Defendant’s responses, for
conference related primarily to questions of sufficiency in
order to avoid the need for related motions to this Court,
such as resulted in the accompanying Motion for Produc-
tion of Complete and Legible Documents Presented as
Defendant’s Rule 26(a)(1)(B)A & B Exhibits.
5. Of the actual production of documents where Defen-
dant did not claim, for instance, a lack of possession,
custody or control, Requests #2 ,8, 13, 15, 17-22, and 24e-
k were posted on 9/18/01, and are an inches-thick stack
that Plaintiff has not finished reviewing for content in
order to address any issues with Defendant to avoid need
for related motions for production. As an example of why
this is necessary, please see #24(f) in each of the enclosed:
e Requests for Documents and Complete/Legible
Initial Disclosure,
¢« Defendant’s Responses to Plaintiffs Interrogatories
and Requests for Production of Documents/Answers
to Requests for Production of Documents, and
¢ Production for Request No. 24(f), which is enclosed
in its entirety (cover plus 1 page)
Plaintiff continues to work diligently on the discovery
process, but finds the quantity and quality of Defendant’s
responses require more time for adequate comm-inication
and completion than by deadlines previously set by the
Court, and respectfully requests an extension of the dead-
line for dispositive motions contingent upon completion of
the discovery process, but at least similar to the three
months provided for Final Trial Preperation Conference
and Trial dates., reset by motion of this Court filed
September 14, and amended September 24, 2001.
s/Bruce Edwards 10.1.01
Bruce Edwards, Date
Plaintiff pro se
(303) 341-9433 (non-published, home)
* * *(bulleted enclosures listed above]
ee ee 1. cee SOS ted O40.
#47 Motion (extend disp. resp. ddl.) 10/1 0/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT 10 2001 James R. Manspeaker Clerk s/DB}
Civil Action No.: 01-BB-36
Bruce Edwards,
PLAINTIFF
v.
United States Department of Education,
DEFENDANT
PLAINTIFF’S MOTION FOR APPLICATION OF
D.C.COLO.LR 7.1, OR IN THE ALTERNATIVE, FOR
APPLICATION OF FED.R.CIV.P. 12(C)
Upon October 2, 2001, Minute Order entered by Mag-
istrate Judge Royd N. Boland in this matter, Plaintiff, pro
se, hereby requests application of D.C.COLO.LR 7.1, “[a]n
opposing brief shall be filed within twenty days after
service of the motion or such additional time as the court
may set:..,” which does not require setting a lesser
amount of time for such response to a motion filed under
Fed.R.Civ.P. 56; Defendant’s subject Motion for Summary
Judgment or, in the Alternative, Motion to Dismiss Pur-
suant to Fed.R.Civ.P. 12(b)(1), its related brief, attached
declarations and exhibits (“the Motion”), although not
captioned as such, is in its first alternative a motion filed
under Rule 56 Summary Judgment.
In the alternative, Plaintiff, pro se, hereby requests
application of the same Local Rule cited above, under
Fed.R.Civ.P. 12(c), “[i]f, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to
and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided
in Rule 56...,” based on the Motion’s introduction of the
matter of student grant disbursals, alleged to have been
received by Plaintiff s signature in 1985, from the same
school as originated the subject loan request for Plaintiff;
the school’s generation of a grant purportedly received by
253 Pet. App.
Plaintiffs signature in 1985 is outside the original
pleadings on Defendant’s actions related to Plaintiffs
disputed, undocumented receipt according to a promissory
note for an advance, allegedly accepted by that school on
Plaintiffs behalf on June 21, 1985, for which Defendant
asserts a right to collect against Plaintiff on the basis that
valid payment against the Federal guarantee for the loan
request was made to a lender.
s/Bruce Edwards 10.8.01
Bruce Edwards, Date
Plaintiff, pro se
1001 Emporia Street,
Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
Pet. App. 254
ae
#49 Order (deny enlarge (disp.) per.) 10/15/01
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
MAY 15 2002 PM 1:37 James R. Manspeaker Clerk s/JU}
Civil Number: 01-BB-0036
BRUCE EDWARDS,
Plaintiff
v.
UNITED STATES DEPARTMENT OF EDUCATION,
Defendant
ORDER
This matter is before me on the following motions by
the plaintiff:
(1) Motion for Enlargement of Period for
Dispositive Motions (the “Motion for Enlargement”),
filed October 3, 2001; and
(2) Motion for Leave to Amend Complaint (the
“Motion to Amend”), filed October 4, 2001.
Neither motion contains a certificate of compliance
with local rule of practice 7.1A, D.C.COLO.LR, which
requires:
The court will not consider any motion, other
than a motion under Fed. R. Civ. P. 12 or 56,
unless counsel for the moving party, before
filing the motion, has conferred or made
reasonable, good faith efforts to confer with
opposing counsel to resolve the disputed
matter. Counsel for the moving party [or the
moving party if proceeding pro se] shall file a
certificate describing specifically the efforts to
comply with this rule.
Accordingly, IT IS ORDERED that the Motion for
Enlargement and the Motion to Amend are DENIED for
failure to comply with Rule 7.1A.
Dated October 12, 2001. BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
255 Pet. App.
;
:
#51 Motion (strike #41 Ex. 2) 10/17/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT 17 2001 James R. Manspeaker Clerk s/D}
Civil Action No.: 01-BB-36
Bruce Edwards, PLAINTIFF
v.
United States Department of Education, DEFENDANT
PLAINTIFF'S MOTION TO STRIKE EXHIBIT 2 OF
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, MOTION TO DISMISS
PURSUANT TO FED R.CIVP. 12(B{SIC])(1)
Comes here now, Plaintiff pro se Bruce Edwards,
pursuant to Fed.R.Civ.P.12(f), to move Defendant’s
Motion * * * Exhibit 2 attachment, as insufficient defense,
immaterial, and impertinent, be stricken on the grounds
described for each Federal Rule identified herein below.
"es GROUNDS to Strike
RULE: | EXHIBIT 2: Declaration of Glenda Rasca
FRCP# | Defendant did not disclose identify|sic] of Ms.
37(c)(1) | Rasca under Rule 26(a) or 26(e)(1) and, thus, ,
Declaration should be excluded * * * 7 ;
FRCP# | * * * not made on personal knowledge, does not |
56(e) set forth facts admissible in evidence, fails to
show competence in matters stated.
FRCP# | Introduction of issues related to school
56(g) performance/"records” and the inclusion of
allegations about which Ms. Rasca could not
possibly have personal knowledge is unrelated
to dispute of lender performance * * *
FRE# | * * * on the basis of stated experience at that
104(a) school since 1998 and, therefore, cannot
competently attest in those areas with respect
to 1985 issues in general or Plaintlffs
experience in particular.
ee ee eee es ee ee
Pet. App. 256
* * *
RULE:
GROUNDS to Strike
EXHIBIT 2: Declaration of Glenda Rasca
FRE#
402
* * * based on incomplete/uncertified “records”
from 1985 without personal knowledge of the
events and without addressing the disputed
consummation of the 6/17/85 Note agreement
with First Independent Trust * * * which prior
to the Consolidated Omnibus Budge
Reconciliation Act of 1985 (* * * effective for
loan disbursements on or after January 1, 1986)
did not require loan checks to be sent to schools
nor provide for the school’s endorsement of
checks without students knowledge/consent on
the basis of documenting attendance for part of
the loan period--are not germane to establishing
the existence an alleged obligation to Bank of
America * * *, nor were Ms. Rasca’s statements
under consideration in Defendant’s 3rd quarter,
2000, final agency action* * * and, therefore are
irrelevant and and{sic] not admissible.
FRE#
403
* * * attestations about the incomplete/indeci-
pherable enrollment contract, uncertified and
self-contradictory documents/records first
produced in 2001 * * * not relevant to existence
of a debt to Bank of America on Plaintiffs part
alleged by Defendant, nor was it part of Defen-
dant’s 3rd quarter, 2000, action* * * therefore
lends confusion of the issues and is misleading.
FRE#
602
* * * not supported by evidence of, nor does it of
itself indicate, Ms. Rasca’s personal know ledge
of Plaintiffs 1985 experience at TTCI.
257 Pet. App.
* * *
RULE:
GROUNDS to Strike
EXHIBIT 2: Declaration of Glenda Rasca
FRE#
613
* * * as relevant * * * to the EDUC claim or to
Defendant’s 3rd quarter, 2000, action * * * is
contradicted by Defendant’s Answer (9/4/01) to
Plaintiffs Requests for Admissions (7/27/01) #7
set forth here * * *:
Admission 7: Prior to Plaintiffs original 1/2001
filing with this Court in this matter, as far as
contact by other program participants with
Plaintiff after the alleged 6/21/85 disbursement,
Defendant did not provide Plaintiff with any
copies of school (TTCI), lender or state guaran-
tor (CSAC) records or documents related to the
EDUC claim against him. Answer: Admit that.
prior to this suit. Defendant did not have
possession of any documents nor was it required
to obtain possession of any such documents
from the school, lender or CSAC (besides the
promissory note that was obtained from CSAC
upon assignment of the loan to Defendant.
FRE#
106
* * * on the basis of 9 papers that do not
comprise the official institution records required
under applicable programs, see 34 CFR
668.24(c)(1)(i)-(vii), (c)(2)Gii), (d)(1), (d)(3)(aii)-
(iv) and §682.610(b), (c)(2) & (c)(2)*11i).
FRE#
901(b)
(2)
* * * includes assertions of Plaintiffs signing
documents in implied identification/
authentication of the genuineness of those
signatures without familiarity not acquired for
the purposes of this suit.
FRE#
901(a)
Defendant/Ms. Rasca have not offered evidence
sufficient to support a finding of admissibility
based on authentication * * *
Respectfully submitted,
s/Bruce Edwards
Bruce Edwards, Plaintiff, pro se
10.15.01
Date
1001 Emporia Street, Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
Pet. App.
258
#52 Motion (strike #41 Ex. 2/A) 10/17/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT 17 2001 James R. Manspeaker Clerk s/D}
Civil Action No.: 01-BB-36
Bruce Edwards,
PLAINTIFF
v.
United States Department of Education,
DEFENDANT
Plaintiff's Motion to Strike Exhibit 2/A of
Defendant’s Motion for Summary Judgment or, in
the Alternative, Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(B[sic])(1)
Comes here now, Plaintiff pro se Bruce Edwards, pur- ‘
suant to Fed.R.Civ.P.12(f), to move Defendant’s Motion
for Summary Judgment or, in the Alternative, Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) Exhibit 2/A
attachment, as insufficient defense, immaterial, and im-
pertinent, be stricken on the grounds described for each
Federal Rule identified herein below.
alindling GROUNDS to Strike EXHIBIT 2/A:
RULE: | “Enrollment Contract with TTCI”
FRE# * * * an almost entirely illegible copy of the
104(a) front side * * * at its bottom, “NOTICE: See
reverse side for additional terms of contract.”
* * * Plaintiffs agreement with the school
cannot be ascertained. Thus, Exhibit 2/A is
irrelevant.
FRE# * * * incomplete/illegible papers do not comprise
106 the entire official institution records required
under applicable programs, see 34 CFR
668.24(c)(1)(i)-(vii), (c)(2)(iii), (d)(1), (d)(3)(ii)-
(iv) and §682.610(b), (c)(2) & (c)(2)(iii) that
ought in fairness be considered
contemporaneously with Exhibit 2/A.
259 Pet. App.
atin GROUNDS to Strike EXHIBIT 2/A:
RULE: | “Enrollment Contract with TTCI”
FRE#- = * * * introduction of Exhibit 2/A is not made by
901 one shown to possess the knowledge to
(b (1) authenticate it.
FRE# The Motion’s supporting Brief states, at pp. 16-
402 17, “[t]he structure of the HEA clearly separates
the student’s enrollment contract, which
establishes and governs the performance of the
borrower’s relationship with the school, and the
borrower’s obligation under the loan programs
and the borrower’s repayment obligation under
the loan contract...the borrower’s loan contract
with the lender and the enrollment contract
with the school are two separate transactions;”
so Exhibit 2/A is not relevant to existence of a
debt to Bank of America * * *, nor was it ob-
tained by Defendant prior to 3rd quarter, 2000,
action * * * is thus not admissible as irrelevant.
FRE# * * * adds confusion of the issues and is
403 misleading.
FRE# * * * Glenda Rasca does not show experience at
602 TTCI earlier than February, 1998; * * * does not
connote knowledge of the illegible/missing
terms and subsequent amendment or handling
of that particular 1985 document.
FRE# # ** * does not meet school record retention
901(a) requirements under 34 CFR 668.24(d)(3)(ii)-(iii),
of reproduction of accurate, legible, and
complete copies, sized like originals, for
documents, and of original, hard-copy
maintenance of any document containing a
signature required to validate the authenticity ;
of its information; * * * so is not admissible. ;
FRE# Defendant establishes the separation of _ ;
613 enrollment versus loan contract liabilities * * * :
(quoted under FRE#402 objection herein). This
is extrinsic evidence of inconsistent admissions
of party-opponent/Defendant now asserting
Pet. App. 260
*x** *
ara |
GROUNDS to Strike EXHIBIT 2/A:
“Enrollment Contract with TTCI”
FRE#
901
(b)(2)
FRE#
901(b)
(8)(A)
FRE#
901(b)
(8)(B)
Exhibit 2/A is “evidence.”
Ms. Rasca (Exhibit 2 author) does not profess to
have known Plaintiff or to have worked at TTCI
in May of 1985, and so is not qualified to offer
the non expert opinion, based upon familiarity
not acquired for purposes of the litigation, “[o]n
May 7,1985, Mr. Edwards signed...” implying
knowledge/identification of the handwriting on
Exhibit 2/ A as genuine. (Note: this is not a
denial of limited participation including
enrolling at TTCI, but is an objection to
representations made by Ms. Rasca.)
Without authenticating documentation or
provenance accompanying Defendant’s 2001
introduction to Plaintiff of documents from
TTCI that were not disclosed to Plaintiff prior
to his filing suit in this matter, Exhibit 2/A is an
illegible/incomplete representation of the entire
relevant student record * * *, and is not
presented in such condition as to create no
suspicion concerning its authenticity.
* * * as revealed by Defendant’s 9/7/01 Answers
to Requests for Production of Documents
(7/27/01) for Request No. 11 set forth here:
“Request No. 11: All extant school documents,
records or reports in reasonably legible
condition, related to the EDUC claim against
Plaintiff to which Defendant, as program
authority, has access--but may not necessarily
have queried the existence or required the
production to date--so that the information,
authorization or records they contain may be
assessed for relevance to establishing the facts
of Plaintiff's involvement with the school, the
legitimacy of the alleged disbursement, and/or
the existence of the alleged debt and the
validity of Defendant’s claim against Plaintiff.
261 Pet. App.
a
* * *
RULE:
GROUNDS to Strike EXHIBIT 2/A:
“Enrollment Contract with TTC!”
FRE#
1001(3)
FRE#
1001 (4)
FRE#
1002
FRE#
1003
FRE#
1007
FRCP#
56(e)
Pet. App.
Response: See US0004-13. Defendant is not in
possession. custody or control of any other
documents that would satisfy this request;”
Exhibit 2/ A is not authenticated by evidence
that it was in a place where, if authentic, it
would likely be.
Exhibit 2/A is not an original/output readable
by sight, shown to reflect the data accurately;
not a duplicate/reproduction that accurately
reproduces the original; not presented as
excepted by Rules of Evidence/Act of Congress
from requirement of original to prove the
content of a writing/recording (particularly upon
the representation that it is a part of the
school’s record related to Plaintiff, when its
appearance violates 34 CPR 668.24(d)(3)(ii)-(iii);
not admissible as a duplicate equal to an
original because Plaintiff has raised a genuine
question as to amendment of the original which
may have been recorded on the back side so that
it would be unfair to admit Exhibit 2/ A in lieu
of the original
Plaintiffs acknowledgment of participating in
the enrollment process at TTCI included his
statements showing later amendment/cancella-
tion of that enrollment contract, upon his
fulfilling a requirement to submit his withdraw-
al in writing; since such cancellation may have
been recorded on the back side * * *, failure to
produce a complete and legible original is not
accounted for by Plaintiff's admission.
* * * production solely for [agency’s] own
defense in this suit; fails to show affirmatively
that Ms. Rasca is competent to testify to all the
matters stated in Exhibit 2 relative to Exhibit
2/A--which is not a sworn or certified copy * * *
[see 34 CPR 668.24(c)(1)(i)-(vii), (c)(2)(iii), (d)(1),
262
* * *
RULE:
GROUNDS to Strike EXHIBIT 2/A:
“Enrollment Contract with TTCI”
FRE#
401
(d)(3)(iii)-(iv) and §682.610(b), (c)(2) & (c)(2)(iii)
* * * institution record requirements related to
a student in the applicable program].
* * * Applicable terms of the Note/contemporary
regulations and Defendant’s statements
establish the limited school materials
introduced/disclosed as being irrelevant to
supporting Defendant’s claim that Bank of
America was the originating lender of an
advance to Plaintiff in 1985,
or reviewing Defendant’s related third quarter,
2002[sic], action/decision.
Respectfully submitted,
s/Bruce Edwards 10.15.01
Bruce Edwards, Date
Plaintiff, pro se
1001 Emporia Street,
Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
263 Pet. App.
#53 Motion (strike #41 Ex. 2/B) 10/17/01
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLCRADO
{Filed United States District Court Denver, Colorado BB
OCT 17 2001 James R. Manspeaker Clerk s/D}
Civil Action No.: 01-BB-36
Bruce Edwards,
PLAINTIFF
v.
United States Department of Education,
DEFENDANT
Plaintiff's Motion to Strike Exhibit 2/B of
Defendant’s Motion for Summary Judgment or, in
the Alternative, Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(B[sic])(1)
Comes here now, Plaintiff pro se Bruce Edwards, pur-
suant to Fed.R.Civ.P.12(f), to move Defendant’s Motion
for Summary Judgment or, in the Alternative, Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b\(1) Exhibit 2/B
attachment, as insufficient defense, immaterial, and
impertinent, be stricken on the grounds described for each
Federal Rule identified herein below.
series GROUNDS to Strike
RULE: | EXHIBIT 2/B:
FRE# * * * introduced in the Exhibit 2 Declaration of
104(a) | Glenda Rasca: “[p)rior to August 1985, TTCI
received $2,459.58 from student loans for
payment of Mr. Edward’s tuition and fees.
Exhibit B,” but since the origin/authenticity of
this exhibit has not been established, and since
it does not indicate from whom or how TTCI
received said “student loans,” it is irrelevant.
FRE# [Note: Exhibit 2/B is initial disclosure’s
106 US000004] Because Defendant’s (9/7/01)
Answers to Requests * * * for Production of
Documents * * *: “Request No.2: A complete
and legible copy of all contents of the Pell Grant
Pet. App. 264
***
RULE:
GROUNDS to Strike
EXHIBIT 2/B:
application, including any separate instructions
contemporaneously supplied to guide the
completion of this application, with Plaintiff s
1985 signature requesting the funds that
appear in the Pell Grant check receipts
Defendant submitted to Plaintiff with Initial
Disclosure (US000004-6). Response: Defendant
is not in possession, custody or control of any
such document. Defendant will uce under
separate cover, however, the Records Disposi-
tion Schedules. Revised as of December 1998.
with regard to how long the Department of
Education is required to maintain Pell Giant
Program Records;” Exhibit 2/B cannot be
compared to its application, which ought in
fairness be contemporaneously considered.
FRE#
401
* * * is the same initial disclosure document
“US000004,” for Defendant’s Answer (9/4/01) to
Plaintiffs Requests for Admissions (7/27/01) set
forth here: “Admission 15: The Pell Grant
Check receipt copies (US000004-6) provided to
Plaintiff no earlier than Defendant’s Initial
Disclosures in this matter, do not show
anywhere on their faces the exact amount of the
proposed loan on the promissory note as student
financial funds previously received bythe school.
Answer: Admit,” and “Admission 18: Defendant
did not offer Plaintiff copies of US000004-6 for
verification of his signature at any time prior to
Initial Disclosures in this matter, despite
Defendant’s experience with Plaintiffs non-
payment and disputes of the existence of the
alleged debts since Defendant a
assignment of the claim in 1993. Answe
Admit: Defendant did not obtain copies of
US000004-6 until February 2. 2001;” the
authenticity of the checks has not been
265 Pet. App.
* * *
RULE:
GROUNDS to Strike
EXHIBIT 2/B:
established through acknowledgment or
documents of provenance, and Defendant did
not examine them prior to 2/2/01, so Exhibit 2/B
is irrelevant * * *
FRE#
402
Based on lack of relevance described in the
FRE#401 objection herein * * * is not admissible
FRE#
602
* * * introduced (see p. 2 #5 of Exhibit 2
Declaration of Glenda Rasca* * *) under a lack
of personal knowledge as to its origin and
without introduction of evidence to support a
finding that Ms. Rasca has personal knowledge
of its history or authenticity.
FRE#
901
(b)(4)
It has not been established that Plaintiff's
signature is consistent and unique enough to be
authenticated/identified sixteen years after his
name is written by any particular distinctive
characteristics that would preclude the school’s
having signed his name without his consent,
which he filed statement with Defendant as a
belief with his 1997 request for review of the
claim against him, years prior to Defendant’s
2001 production of Exhibit 2/B * * *
FRE#
613
* * * Defendant’s Answer (9/4/01) to Plaintiffs
Requests for Admissions (7/27/01) set forth
here: “Admission 20: Defendant did not advise
Plaintiff of any investigation based on his
dispute to having received the alleged loan, or
make any inquiry of Plaintiff regarding details
of his involvement with TTCI outside offering to
accept Plaintiffs application to discharge an
existing loan in response to his 1997 request for
review. wer: Object to this admission as
including multiple statements. Subject to and
without waiving this objection, deny first
statement re ing investigation aus
there was no investigation; admit that Plaintiff
Pet. App.
LI APD LIE I ttn ADE eNO
nT
palettes GROUNDS to Strike
RULE: | EXHIBIT 2/B:
TTCI, prompting Defendant’s staff to send him
the discharge applications and negating the
need for further inquiry;” if investigation and
further inquiry were deemed unnecessary to the
determinations of the existence of debt and final
agency action/decision, on Plaintiffs dispute,
they should not be introduced on Defendant’s.
FRE# * * * there is insufficient evidence to support a
901(a) | finding of authenticity and that Exhibit 2/B is
what Defendant claims.
FRE# * * * the person under whose declaration
901 Exhibit 2/B was introduced * * * is one who, by
(b)(1) distance in time from relevant events, cannot
authenticate or identify it based on personal
knowledge.
FRE# Ms. Rasca, * * * can not know as a fact that
901 “Plaintiff signed. . .” as to the authenticity of
(b)(2) handwriting based upon familiarity that was
not acquired for this suit.
FRE# | Lacking authenticating documentation, not
901(b) | disclosed in response to Plaintiffs notice he
(8)(A) believed the school signed his name (fIled in
1997), without provenance accompanying 2001
introduction of “documents” * * * is not
authenticated/identified by evidence it is in
such condition as to create no suspicion
concerning its authenticity.
FRE# | Department of Education Records Disposition
901 Schedules (ED/RDS) dated 10/99, produced in
(b)(7)
reference to Defendant’s Admission set forth
herein under FRE#106 objection, includes: “Pell
Grant Program Records. * * * “a. Student
Records. * * *./ED/RDS, Part 10, Item 17a (N1-
441-92-1, Item la) “b. Institution Records. * * *
Disposition: Transfer to a Federal Records
Center after final payment to grantee. Destroy
15 years after final payment or audit, whichever
267 Pet. App.
* * *
RULE:
GROUNDS to Strike
EXHIBIT 2/B:
is sooner./ED/RDS, Part 10, Item 17b (N1-441-
92-1, Item Ib).” Exhibit 2/B is, therefor, not
authenticated or identified as having come from
a writing, in any form, authorized by law to be
recorded or filed as from the public office where
items of this nature are kept.
FRE#
901(b)
(8)(B)
See Federal Rules of Evidence #901(b)(8)(A)
objection herein; Exhibit 2/B is not evidenced as
in a place where, if authentic, it would likely be. |
FRE#
902(4)
* * * not certified as a correct copy of public
records * * * by the custodian/authorized by law
and recorded/filed in a public office, so is not
self authenticating.
FRE#
902(8)
Plaintiff does not acknowledge Exhibit 2/B; it is
not/cannot be a notarized acknowledged
document, so is not self authenticating as such.
* * *
* * *
FRE#
902(11)
* * *is not self-authenticating as a certified
domestic record of regularly conducted activity:
(A) made at or near the time of the occurrence of
the matters set forth by information from a
person with knowledge of those matters at TTCI
in 1985, (B) kept in the course of the regularly
conducted activity * * *; and (C) through
regularly conducted activity as a regular
practice: automatic grant processing as part of
loan origination was not instituted until
Consolidated Omnibus Budget Reconciliation
Act of 1985 [Pub. L. 99- 272, 4/7/86, § 16032(b)]
required determination of eligibility for a Pell
Grant prior to loan approval for periods of
enrollment on or after 1/1/86, and TTCI’s
marking the subject loan application (Motion
Exhibit A) “#29(A) FINANCIAL AID FOR
LOAN PERIOD: -0-” to indicate it was unaware
Plaintiff would be awarded such grant is the
sole/contradictory record related to Exhibit 2/B .
Pet. App.
268
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7o2 GROUNDS to Strike
RULE: | EXHIBIT 2/B:
FRCP# | Defendant was not substantially justified in
37(c)(1) | failing to disclose, under FRCP 26(e)( 1), the
information that Exhibit2/B would be offered
into evidence/by a declaration sworn under
penalty of perjury under the laws of the United
States of America stating “Plaintiff signed” the
“receipted by” name written on Exhibit 2/B, so
should not be permitted.
FRCP# | Exhibit 2/B is not a sworn or certified copy * * *
56(e)
FRCP# | The Exhibit 2 declarations related to Exhibit
56(g) 2/B were made in bad faith.
Respectfully submitted,
s/Bruce Edwards 10.15.01
Bruce Edwards, Date
Plaintiff, pro se
1001 Emporia Street,
Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
269 Pet. App.
#54 Motion (strike #41 Ex. 2/C-D) 10/17/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT 17 2001 James R. Manspeaker Clerk s/D}
Civil Action No.: 01-BB-36
Bruce Edwards,
PLAINTIFF
v.
United States Department of Education,
DEFENDANT
Plaintiff's Motion to Strike Exhibits 2/C-D of
Defendant’s Motion for Summary Judgment or, in
the Alternative, Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(B[Sic])(1)
Comes here now, Plaintiff pro se Bruce Edwards, pur-
suant to Fed.R.Civ.P.12(f), to move Defendant’s Motion
Motion for Summary Judgment or, in the Alternative,
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)
Exhibits 2/C-D attachment, as insufficient defense,
immaterial, and impertinent, be stricken on the grounds
described for each Federal Rule identified herein below.
nica GROUNDS to Strike
RULE: | EXHIBIT 2/C-D:
FRE# *introduced in the Exhibit 2 Declaration of
104(a) Glenda Rasca under assertions that, on October
3, 1985, Mr. Edwards signed for Pell Grant
checks, but Ms. Rasca does not profess to have
known Plaintiff or worked at TTCI on October
3, 1985. Since the declaration related to these
exhibits is not authenticating evidence, and
since neither it nor Exhibits 2/C-D indicate/
establish the origin of TTCI’s receipt of money
recorded by them, they are irrelevant.
FRE# [Note: Exhibits 2/C-D are initial disclosure’s
106 US000005-6 respectively] * * *[see same Rule in
motion to strike Exhibit 2/B}
Pet. App. 270
“—* GROUNDS to Strike
RULE: | EXHIBIT 2/C-D:
: FRE# |! Exhibits 2/C-D are the same initial disclosure
i 401 documents “US000005- 6,” * * *[see same Rule
i in motion to strike Exhibit 2/B}
; FRE# Based on lack of relevance * * * they not
402 admissible
i FRE# | * * * introduced * * * under a lack of personal
602 knowledge as to their origin and without
introduction of evidence to support a finding
; that Ms. Rasca has personal knowledge of their
: history or authenticity.
FRE# | It has not been established that Plaintiffs
: 901 signature is consistent and unique enough to be
: (b)(4) authenticated/identified (16 years after his
name is written) by any particular distinctive
characteristics that would preclude the school’s
having signed his name without his consent,
which he filed statement with Defendant as a
belief in his 1997 request for review of the claim
against him, years prior to 2001 production of
Exhibits 2/C-D.
FRE# | * * * the person under whose declaration
901 Exhibits 2/C-D were introduced as evidence is
(b)(i) one who, by distance in time from relevant
events, cannot authenticate or identify it based
on personal knowledge.
FRE# | Both subject exhibits contain the following on
613 their faces: “MUST HAVE COMPLETED 18 UNITS FOR
THIS CHECK, UNITS COMPLETED 0.00, AS OF 0/0,
UNITS VERIFIED BY ..am [commas added for
clarity],” showing the contemporaneous record
on this financial instrument/source document of
the number of units completed/verified at its
issuance does not meet the minimum
requirement established/recorded on it; so there
is no knowing if similar violations/liberties were
recorded with the remainder of data on its face.
* * * (see quote of admissions during discovery
271 Pet. App.
"oe GROUNDS to Strike
RULE: | EXHIBIT 2/C-D:
in this suit at FRE#613 objection in motion to
strike Exhibit 2/B). * * *
FRE# * * * there is insufficient evidenc. to support a
901(a) | finding of authenticity and that Exhibits 2/C-D
are what Defendant claims.
FRCP# | * * *not a sworn or certified copy thereof * * *
56(e)
FRE# Ms. Rasca, under whose declaration Exhibits
901 2/C-D were introduced * * * can not know as a
(b)(2) fact that “Plaintiff signed.. .” as to the
authenticity of handwriting based upon
familiarity that was not acquired for this suit.
FRE# | Lacking authenticating documentation, not
901(b) | disclosed in response to Plaintiffs notice he
(8)(A) | believed the school signed his name (fIled in
1997), without provenance accompanying 2001
introduction of “documents” * * * Exhibits 2/C-D
are not authenticated/identified by evidence
they are in such condition as to create no
suspicion concerning their authenticity.
FRE# * * *[see same Rule in motion to strike Exhibit
901 2/B) Exhibits 2/C-D are, therefor, not
(b)(7) authenticated or identified as having come from
a writing, in any form, authorized by law to be
recorded or fo;ed as from the public office where
items of this nature are kept.
FRE# * * * not evidenced as from a place where, if
901(b) | authentic, they would likely be.
(8)(B)
FRE# * * * not certified as a correct copy of public
902(4) | records * * * by the custodian/authorized by law
and recorded/filed in a public office, so are not
self authenticating.
FRE# Plaintiff does not acknowledge Exhibits 2/C-D;
902(8) | they are not/cannot be notarized acknowledged
documents/are not self authenticating as such.
Pet. App.
272
ARABS A GEE BAS A NDE ERE AD ORR Re id Ne titi 00 Es A Be A CeO
Sy naphdbueendadaeilgin ce
ible GROUNDS to Strike
RULE: | EXHIBIT 2/C-D:
FRCP# | * * * related declarations in Exhibit 2 were
56(g) made in bad faith.
* * * * * *
FRE# * * */see same Rule in motion to strike Exhibit
902(11) | 2/B)
FRCP# | Defendant was not substantially justified in
37(c)(1) | failing to disclose, under FRCP26(e)(1), the
information that Exhibits 2/C-D would be
offered into evidence/by declaration, sworn
under penalty of perjury under Federal laws,
stating “Plaintiff signed for” Exhibits 2/C-D (see
Exhibit 2, p. 2 ##6-7), so should not be
permitted.
Respectfully submitted,
s/Bruce Edwards 10.15.01
Bruce Edwards, Date
Plaintiff, pro se
1001 Emporia Street, -
Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
273 Pet. App.
#55 Motion (strike #41 Ex. 2/E-F) 10/17/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado
OCT 17 2001 James R. Manspeaker Clerk __}
Civil Action No.: 01-BB-36
Bruce Edwards, PLAINTIFF
v.
United States Department of Education, DEFENDANT
Plaintiff's Motion to Strike Exhibit 2/E-F of
Defendant’s Motion for Summary Judgment or, in
the Alternative, Motionto Dismiss Pursuant to
Fed.R.Civ.P. 12(B[Sic])(1)
Comes here now, Plaintiff pro se Bruce Edwards, pur-
suant to Fed.R.Civ.P.12(f), to move Defendant’s Motion
for Summary Judgment or, in the Alternative, Motionto
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) Exhibits 2/E-F
attachment, as insufficient defense, immaterial, and
impertinent, be stricken on the grounds described for each
Federal Rule identified herein below.
wiles GROUNDS to Strike
RULE: | EXHIBIT 2/E-F:
FRE# * * * contradict other exhibits also introduced
104(a) | by Exhibit 2 (see FRE#901(a) herein), and
Defendant did not receive them (see FRE#401
at Admission 7) prior to * * * Plaintiffs cause of
action * * *, so Exhibits 2/E-F are irrelevant.
FRE# * * * the entire official institution records
106 required under applicable programs, see 34
CFR 668.24(c)(1)(i)- (vii), (e)(2)(ii), (d)(1),
(d)(3)(iii)-(iv) and §682.610(b), (c)(2) & (c)(2)(iii)
that ought in fairness be considered contempo-
raneously with Exhibits 2/E-F, is unavailable,
according to Defendant (see Request and
Response #11 at FRE#901(b)(8)(B) herein).
FRE# | * * * introduction of Exhibits 2/E-F is not made
901 by one shown to possess the knowledge to
Pet. App. 274
** *
RULE:
GROUNDS to Strike
EXHIBIT 2/E-F:
(b)(1)
authenticate them.
FRE#
403
* * * add confusion of the issues and are
misleading.
FRE#
402
The Motion’s supporting Brief states, at pp. 16-
17, “[t]he structure of the HEA clearly separates
the student’s enrollment contract, which
establishes and governs the performance of the
borrower's relationship with the school, and the
borrower’s obligation under the loan programs
and the borrower’s repayment obligation under
the loan contract. . . the borrower's loan
contract with the lender and the enrollment
contract with the school are two separate
transacti°ns.” Thus, a transfer of liability from
the school to the lender is not established by
Exhibits 2/E-F and they are thus
irrelevant/inadmissible.
FRE#
602
The Exhibit 2 declaration of Glenda Rasca does
not show her experience at TTCI began earlier
than February, 1998. This does not connote
knowledge of events connected to the production
(before 1998?) of Exhibit 2/E-F printouts, and
Ms. Rasca lack of personal knowledge of 1985
events at TTCI does not provide for her
declarations about them. :
-FRE#
901(a)
Because Exhibits 2/E-F contain such self-
contradictions as “Agency Sales” score date
(Exhibit 2/E) on an “ANC, Absent No Call” date
(Exhibit 2/F), and Exhibit 2/F also records
“ANC, Absent No Call” on 10/3/85, in
contradiction of Exhibits 2/C-D, none of these
exhibits authenticates the other, and they are
not established to be what Defendant claims-
records related to Plaintiff.
FRE#
613
Defendant * * * did not have school documents
at the time of final agency action/decision prior
to this suit * * *. This is extrinsic evidence of
275 Pet. App.
* * *
RULE:
GROUNDS to Strike
EXHIBIT 2/E-F:
inconsistent admissions of party-opponent now
asserting Exhibits 2/E-F are “evidence.”
FRE#
901(b)
(8)(A)
Without authenticating documentation or
provenance accompanying Defendant’s 2001
introduction to Plaintiff of documents from
TTCI (that were not disclosed to Plaintiff prior
to his filing suit in this matter, despite
volunteered declarations related to attendance).
Exhibits 2/E-F were not timely obtained and
have not been presented in such condition as to
create no suspicion concerning their
authenticity.
FRE#
901(b)
(8)(B)
* * * Defendant’s 9/7/01 Answers to Requests for
Production of Documents (7/27/01) for Request
No. 11 set forth here: “Request No. 11: All
extant school documents, records or reports in
reasonably legible condition, related to the
EDUC claim against Plaintiff to which Defen-
dant, as program authority, has access—but
may not necessarily have queried the existence
or required the production to date—so that the
information, authorization or records they
contain may be assessed for relevance to
establishing the facts of Plaintiff's involvement
with the school, the legitimacy of the alleged
disbursement, and/or the existence of the
alleged debt and the validity of Defendant’s
claim against Plaintiff. Response: See US0004-
13. Defendant is not in possession, custody or
control of any other documents that would
satisfy this request;” Exhibits 2/E-F are not
authenticated by evidence that they were ina
place where, if authentic, it would likely be * * *
FRCP#
56(e)
The related Exhibit 2 declaration was not made
on personal knowledge; did ,not set forth such
facts as would be admissible in evidence in view
of Defendant’s lack of their possession/exclusion
Pet. App.
276
OO
* * %
GROUNDS to Strike
EXHIBIT 2/E-F:
of their existence from deliberations for its
action/decision related to Plaintiff. They have
been produced in relation to any claim against
Plaintiff, solely for Defendant’s own defense in
this suit. This fails to show affirmatively that
Ms. Rasca is competent to testify to all 1985 the
matters stated in Exhibit 2 relative to Exhibits
2/E-F—which is not a sworn or certified copy
* * * see 34 CFR 668.24(c)(1)(i)-(vii), (c)(2)(i1i),
(d)(1), (d)(3)(Gii)-(iv) and §682.610(b), (c)(2) &
(c)(2)(iii) * * * record requirements related to a
student in Defendant’s relevant programs].
* * *
* * *
FRE#
901
(b)(9)
Defendant’s Motion Exhibit 2 p. 3 #9 introduces
Exhibit 2/F: “[a]ttendance was recorded by the
instructors and entered into a computerized
attendance system.” The handwritten page for
May, 1985, Defendant submitted as initial
disclosure US00009 is not included in Exhibit
2/F. Using the initial disclosure numbers on the
lower right of each page of Exhibit 2/F, the
following may be confIrmed about the product
attributed to a “computerized attendance
system:”
US000010
¢ omits column headings
e omits class & student columns for 6/3-6/7 /85
e omits contract # & student columns
for 7/1-7/31/85
e omits May, 1985, from running tally
US000011.
e omits column headings
e no columns for contract # or name for 9/2-
9/30/85
e omits May, 1985, from running tally
US000012
e introduces column headings
277 Pet. App.
since GROUNDS to Strike
RULE: | EXHIBIT 2/E-F:
e name & class columns moved to right side of
printout
« begins June data with double-entry for
10/31/85
* repeats 6/12-7/31/85 & 9/2-9/5 with new
columns
e omits any monthly/running tallies
US000013
e omits column headings
¢ cuts off first entry
¢ 3rd repetition of 9/9-9/30
e omits monthly/running/final tallies.
There is no indication when these sheets were
created, or that they are indeed the product of a
vocational school (teaching airline computer
systems) and doing busi.\ess since May 2, 1967,
such as TTCI (#99 1713 27, LA County, CA,
County Recorder), keeping attendance records
by computer system: they are not self-
authenticating.
Respectfully submitted,
s/Bruce Edwards 10.15.01
Bruce Edwards, Plaintiff pro se * * *|add/ph.] Date
#56 Motion (enlarge disp. resp. ddl.) 10/17/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT 17 2001 James R. Manspeaker Clerk s/D}
Civil Action No.: 01-BB-36
Bruce Edwards, PLAINTIFF
v.
United States Department of Education, DEFENDANT
Plaintiffs Motion for Enlargement of October 15,
2001, Period in which to Respond to Motion for
Summary Judgment or, in the Alternative, Motion
Pet. App. 278
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1);
Set by Minute Order filed October 2, 2001
Pursuant to D.C.Colo.LR 7.1F, Plaintiff hereby
submits this motion as captioned above, due to the brevity
of the period originally allotted and the requirement to
produce responsive motions to strike because of the
content of the motion to which Plaintiff has been ordered
to respond. Plaintiff served/filed a similar request on
October 8, but has received no answer from the Court to
any motions he filed since October 1, 2001. Plaintiff is
working in good faith to complete his responsive brief as
close to the Court’s deadline as possible; Defendant’s
introduction of evidence not part of the third quarter,
2000, final agency action/decision, which both parties
agree as the time Plaintiffs cause of action arose, has
complicated the response incredibly. Further, Plaintiff
understood 20 days to be the standard deadline for
response briefs of this kind, and respectfully asks for that
full period to be applied in this case.
s/Bruce Edwards 10.15.01
Bruce Edwards, Plaintiff, pro se Date
1001 Emporia Street, Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
#59 Motion (strike #41 Ex. A) 10/22/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado
OCT 222001 James R. Manspeaker Clerk }
Civil Action No.: 01-BB-36
Bruce Edwards, PLAINTIFF
v.
United States Department of Education, DEFENDANT
Fed.R.Civ.P. 12(f) Motion to STRIKE as inadmissi-
ble for Defendant: Exhibit A of Defendant’s Motion
for Summary Judgment or, in the Alternative, Mo-
tion to Dismiss Pursuant to Fed.R.Civ.P. 12(6)(1);
and to RESTRICT related Fed. R. Civ.P. 26(a)(1)(B)
279 Pet. App.
A “Exhibit 1: Application for California Guaran-
teed Student Loan signed on May 6, 1985; loan
amount: $2,500.00 to attend the Travel and Trade
Career Institute (TTCI)” to appearance in this suit
without inference between 5/6/85 and 4/28/01:
Fed.R.Evidence 105
Pursuant to Fed.R.Civ.P. 12(f), Plaintiff pro se, Bruce
Edwards, hereby submits, as captioned above, this
“Motion to STRIKE Exhibit A/May 6, 1985 Guaranteed
Student Loan Application,” as for Defendant upon find-
ings of insufficient defense, immaterial, impertinent or
scandalous matter, on grounds set forth below with cor-
responding Federal Rules of Evidence (FRE) or Fed.R.Civ.
P. (FRCP) numbers to indicate the main rule intended for
those grounds, but not to limit consideration of other
applicable rules; with grounds to “RESTRICT related Fed.
R.Civ.P. 12(a1)B)A Exhibit 1, under Fed.R.Evidence
105” immediately following grounds “to strike:”
"ee GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
FRE# ~~ Exhibit A is not, and cannot be (due to its
902(4) incomplete condition) certified by CSAC, its
custodian, as a true and correct copy of
Plaintiff's student loan application from its
public records, which would also contain other
relevant documents and records; Defendant
initially disclosed Exhibit A as a school record,
so it is not admissible for Defendant’s purposes.
FRE# Because it is incomplete/missing the bottom
1001 signature and identification of the other natural
(4) person signing it on the face, and the entire
reverse side that the face says contains
additional terms and conditions included in
each party’s agreement, Exhibit A is not a
duplicate accurately reproducing the original, so
is not admissible for Defendant’s purposes.
FRE# Genuine questions arise as to the authenticity
1003 of Exhibit A as to “the lender” alleged to have
Pet. App. 280
velba GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
originated any related loan therefrom, as to
Defendant’ s dual identification/representation
of its source, and as to handling subsequent to
its signing—its complete terms are not even
available to verify through Defendant’s submis-
sion. Under these circumstances it would be
unfair to Plaintiff to admit Exhibit A in lieu of
the complete, legible original and documents to
support its valid use by a lender with whom
Plaintiff had a proposed agreement, so it is in-
admissible for Defendant’s purposes, as evidence
of the EDUC claim/support of Defendant’s
related decisions/actions against Plaintiff.
FRE# Exhibit A is not admissible as defense to
104(a) Plaintiff's cause of action (collection activities/
Treasury offset) even as to preliminary agency
decisions, because its relevance is conditioned
on actual connection to Defendant’s decisions/
actions related to a specific, alleged defaulted
student loan claim against Plaintiff. The “FOR
LENDER USE LOAN IDENTIFICATION” area of
Exhibit A bears only a check mark, and there is
no lender/loan identification on this submission
from Defendant.
The sole loan document Defendant provided
Plaintiff prior to this suit was a promissory note
he signed on June 17, 1985,! that identifies (on
the Motion’s Exhibit B, for example) the
proposed originating lender related to his 1985
AP Nik, Ae pet 68 eben Bet C ed A
ac he. ee
1 September 4, 2001, Defendant’s Answer to Plaintiffs Requests for
Admissions (7/27/01): Admission#6/Answer, each set forth in their
entirety here below:
[Requested Admission] “6. Prior to Plaintiff s original 1/200 1 filing
with this Court in this matter, as far as copies of actual loan
documents, Defendant only provided Plaintiff with copies of the
promissory note related to the account”
“Answer:: Admit”
281 Pet. App.
vit?
* * *
RULE:
GROUNDS to Strike EXHIBIT A: ”May 6,
1985 [***GSL-Loan] Application”
Pet. App.
application for a guaranteed student loan to
have been “First Independent Trust, O.E.
Lender Code Number 828374 8700766,” which
Defendant’s Brief (p. 4, #2) names immediately
after introducing Exhibit A under “FACTS...A.
Plaintiffs Loan,” in reference to the Navarro
Decl. 17. Neither the Navarro Decl. nor the
Brief names another fmancial institution in
relation to the EDUC claim at any point after
introducing that “fact,”"subsequently referring
only to “the lender.”
Defendant’s “GSL Program Specific Screen”
(Motion’s Exhibit C) records “LENDER: 801178.”
Defendant did not include, as a Motion or Brief
exhibit, disclosure of FRCP 26(a)(1)(B)C
“Exhibit 4: Debt Level Information Screen
[L109] and explanatory sheet” (L109 dated
1/23/01). That document identifies:
“ORIGINATING LENDER: 801178 B OF A TRUSTEE
C/O CMSC,” also appearing under its “CLAIMING
LENDER AND ADDRESS” entry. That “B of A”
801178 lender number also appears on
Defendant’s disclosure FRCP 26(a)(1)(B)B
“Documents from California Student Aid
Commission,” similarly not included as an
exhibit to subject Motion and Brief. In that one-
page 12/31/92 “Contact History Report,” CSAC’s
second earliest entry (3/19/27 contains
“801178;” the earliest entry dees not identify a
lender. Without information under “FOR
LENDER USE/LOAN IDENTIFICATION,” Exhibit A
fails to establish which of the two “originating”
lenders in this matter were connected with said
application. Not having received Exhibit A
282
a GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
prior to the filing of the Complaint,”
; 2 September 12, 2001, Plaintiff's Objections to Sufficiency of Defen-
dant’s Answer to Plaintiff's Requests for Admissions, Admission/
Answer/’Reason to amend Answer to Admission 7;” parties’
exchanges related to requested admission #7, offered only for the
truth of the assertion made in the main paragraph above at this
footnote, are set forth in their entireties here below:
[Requested Admission] “7. Prior to Plaintiffs original 1/2001 filing
; with this Court in this matter, as far as contact by other program
1 participants with Plaintiff after the alleged 6/21/85 disbursement,
; Defendant did not provide Plaintiff with any copies of school (TTCID),
; lender or state guarantor (CSAC) records or documents related to the
' EDUC claim against him.” “Answer: Admit that, prior to this suit,
Defendant did not have possession of any documents, nor was it
required to obtain possession of any such documents from the school,
lender or CSAC (besides the promissory note that was obtained from
CSAC upon assignment of the loan to Defendant.”
Reason to amend Answer to Admission 7: Defendant’s possession of
the documents that are the subject of the requested admission was not
necessarily prerequisite to providing copies of them to Plaintiff, by
request or order to the appropriate program participant(s). Good
faith does not require that the Answer to the requested admission be
qualified by a claim related to that limited aspect of logistics in not
having providing Plaintiff such records and documents. {{\ Also,
Defendant’s assertion, “nor was it required to obtain possession of any
such documents from the school, lender or CSAC (besides the
promissory note that was obtained from CSAC upon assignment of
the loan to Defendant),” neither fairly meets the substance of the
requested admission nor answers a good faith requirement to qualify
this Answer; Defendant apparently means for these matters to be
conclusively established upon admission under Rule 36 without this
Court’s decisions about required regulatory compliance with
administrative procedures on collection, use, maintenance,
dissemination and independent verification of information related to
Plaintiff with such accuracy, relevance, completeness and timeliness
as reasonably necessary to assure fairness in determinations adverse
to him about the EDUC claim. || As written, this Answer is an
effective denial of the requested admission without fairly meeting its
substance and substitutes an admission addressing Defendant’s
preferred perspective on thefact that Plaintiff did not receive any
copies of the subject documents prior to Defendant’s production of
those limited materials under Rule 26(a)(1) disclosure.
283 Pet. App.
* * *
RULE:
GROUNDS to Strike EXHIBIT A: ”May 6,
1985 [***GSL-Loan] Application”
FRE#
106
FRE#
401
FRE#4
02
FRE#4
03
Pet. App.
for reference in Defendant’s related preliminary
or final agency actions/decisions, Defendant
cannot establish its admissibility for its
purposes based on its consequence to the “facts”
of the EDUC claim
Exhibit A omits the identify[sic] of the TTCI
representative for that transaction; it contains
language indicating further terms and condi-
tions were part of the agreements, at #19
“conditions and authorizations given in the
‘student certification’ printed on the reverse of
this application” and at #22 “the conditions
given in the ‘educational institution certifica-
tion’ printed on the reverse of this application,”
which ought in fairness to be considered
contemporaneously with Exhibit A, requiring
the introduction of the remainder of its front
side and its entire back side, to quality([sic] for
admissibility for Defendant’s purposes.
Plaintiff has never disputed having participated
in enrollment/loan origination at TTCI—but
denies and disputes the extent Defendant
attributes to his involvement; including grounds
described under FRE#104(a) herein, presenta-
tion of Exhibit A (as a small portion of other-
wise absent “lender” documents, except for the
promissory note Plaintiff also signed during
TTCI’s loan origination for him) does not tend to
establish the disputed subsequent extent to
which each process or liability included Plain-
tiff, so is inadmissible for Defendant’s purposes.
Exhibit A is not relevant to the EDUC claim
(see grounds/FRE#104(a) and FRE#402 herein),
so it is not admissible for Defendant’s purposes.
Because Plaintiffs participation in TTCI’s loan
origination for him in 1985 is not in dispute,
presentation of Exhibit A only confuses the
284
diiiias GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
issues of whether First Independent Trust exe-
cuted/consummated the EDUC claim promis-
| sory note by an advance to Plaintiff according to
its express written terms, if that disputed ad-
vance actually lead to the EDUC claim for Bank
of America as the originating lender, and if
Defendant’s collection activities and actions/
decisions against Plaintiff were justified.
Exhibit A also tends to mislead by implying
subsequent lender action was taken for which
documentation and records were in Defendant’s
possession prior to this suit, possibly to imply
substantial justification for not exercising the
option tc preserve lender records‘ (if, indeed,
any ever existed) beyond regulatory retention
expirations® for the EDUC claim-despite the
3 See requested admission #7 exchanges between parties in this matter
set forth above in these footnotes.
4 See source of Defendant’s admissions identified in footnote 1 here
above, from which admission/answer [Plaintiff reserves right to
object] for Plaintiffs request #22 set forth here:
[Requested Admission] “22. Defendant did not exercise the option to
preserve school, lender and state guarantor records beyond
regulatory retention expirations.”
“Answer: Object to this admission as containing multiple
statements. Subject to and without waiving this objection, deny as to
the school and state guarantor records, deny that Defendant received
documents from the lender, admit as to lender.”
[Plaintiff does not waive right to object that in Answer to requested
admission #22, Defendant denies not exercising the option to preserve
records with respect to CSAC, but see record retention required of
CSAC cited where reserving right to object to Admission /Answer#7
versus single document listed in Defendant’s FRCP 26(a)(1)(B)B; and
institutional program-student record retention requirements of 34
CFR 682.604(g)(4), p. 731, and under 34 CFR 682.610(b), p735,
incorporates /references 34 CFR 668.24(c)-(e), pp. 422-3 versus
Defendant’s FRCP 26(a)(1)(BDA.
5 34 CFR 682.414(a)(4)(iii), p. 703
285 Pet. App.
* * *
RULE:
GROUNDS to Strike EXHIBIT A: ”May 6,
1985 [***GSL-Loan] Application”
FRE#
901
(b)(7)
FRE#
901(b)
(8)(A)
fact that Defendant was aware Plaintiff had not
made any voluntary payment for the alleged
loan at the time of accepting the default claim
against him.® so is inadmissible * * *
Where a Loan Application is normally a part of
public records/reports authorized by law to be
recorded or filed where items of this nature are
kept,’ and Exhibit A is implied to reflect that
,by Defendant’s inclusion of it as evidence in the
subject Motion/Brief to which Plaintiff has been
required to respond,® a version of Exhibit A was
originally disclosed by Defendant under the
FRCP 26(a)(1)(B)A section designating school
records/documents and it has not been authen-
ticated/identified as a true and correct recorded
or filed copy from the public office where items
of this nature are kept, so is inadmissible * * *
* * * the facsimile transmission stamp partially
appearing across the top of Exhibit A * * * [the
same incomplete document presented to Plain-
tiff as FRCP 26(a)(1)(B)A “Documents from
Travel and Trade Career Institute: Exhibit 1:
Application for California Guaranteed Student
Loan * * *”] was sent through “EDFUND POST-
DEFAULT SERVI 916 526 7209,” the facsimile
* * * stamp of CSAC’s servicer, appearing at the
top of the only document submitted for
Defendant’s FRCP 26(a)(1)(B)B “Documents
from California Student Aid Commission.”
6 See source of admissions identified in footnote # 1 above; requested
admission/answer #21 are set forth in their entirety here:
{Requested Admission] “21. Defendant was aware that Plaintiff had
not made any voluntary payment for the alleged loan at the time of
accepting the default claim against him.” “Answer: Admit.”
7 34 CPR 682.409(c)(4)(iv), p. 734
8 Minute Order Entered by Magistrate Judge Boyd N. Boland filed
October 2, 2001.
Pet. App.
286
*** | GROUNDS to Strike EXHIBIT A: May 6,
RULE: | 1985 [***GSL-Loan] Application”
Defendant’s * * * response to Plaintiff s request
for production of all extant school documents,
records or reports related to the EDUC claim?
revealed * * * the school’s “records” were not
supported by a complete student record related
; to him, and had been misrepresented as more
substantial than they are, by FRCP 26(a)(1)
(B)A disclosure listing. Defendant did not meet
FRCP 26(e)-(e)(1) duty to correct filing initial
disclosure of this * * * as a “school document/
record.” Even if not incorrectly attributed to
TTCI in Defendant’s subject Motion/Brief,
Exhibit A has been submitted or filed by
Defendant as originating from two sources,
which was misleading, so it is not in such
condition as to create no suspicion concerning
its authenticity for Defendant’s purposes.
FRE# * * * Exhibit A is not authenticated/identified
901(b) by evidence that it was in a place where, if
(8)(B) authentic, it would likely be, so is inadmissible
to establish validity for the EDUC claim * * *
9 On July 27, 2001, Plaintiff mailed Requests for Documents and
Complete/Legible Initial Disclosure; on September 7, 2001,
Defendant mailed Defendant’s Responses to Plaintiffs
Interrogatories and Requests for Production of Documents/Answers
to Requests for Production of Documents. The parties’ exchanges
with respect to item 11 are set forth here in their entireties:
11. All extant school documents, records and reports, in reasonably
legible condition, related to the EDUC claim against Plaintiff to
which Defendant, as program authority, has access—but may not
necessarily have queried the existence or required the production to
date—so that the information, authorizations or records they contain
may be assessed for relevance to establishing the facts of Plaintiff's
involvement with the school, the legitimacy of the alleged
disbursement, and/orthe existence of the alleged debt and the
validity of Defendant’s claim against Plaintiff.
Response: See US0U04-13. Defendant is not in possession, custody
or control of any other documents that would satisfy this request.
287 Pet. App.
ech GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
FRE# * * * Exhibit A is not admissible for Defendant's
1007 purposes as if Plaintiffs acknowledgment of
such limited participation at TTCI would
account for the failure to produce the loan
application that Defendant claimed to have
disclosed as Fed.R.Civ.P. 26(a)(1)(B)AExhibit 1.
FRCP# Without substantial justification, Defendant
37(c)(1) failed to correct, as required by Fed.R.Civ.P.
26(e)(1), identification of the source of Exhibit A
by initial disclosure of it as a document from the
school. This misidentification lent unjustified
weight to the school’s “records,” that turn out to
be self-serving “attendance” attributed to
Plaintiff to support grant checks also attributed
to Plaintiff much later than Plaintiff has long
been on record in identifying his withdrawal
without further contact with the school—
Defendant effectively falsified the “school
records” to lend credence to assertions by that
interested party (whom Plaintiff is long on
record as believing signed his name)!° of
“legitimate” receipt of loan and grant proceeds,
supported only by unauthenticated “attendance
records.” This was misleading to Plaintiff and
the Court. Failing required prompt correction
of its source, Exhibit A should is[sic]
inadmissible at trial, a hearing, or on a motion,
for Defendant’s purposes.
FRCP# Exhibit A is not a sworn or certified true and
56(e) correct copy of the application referred to in 417
of the Navarro Decl. submitted with
Defendant’s subject Motion and Brief as Exhibit
1, so is inadmissible for Defendant’s purpose of
supporting the EDUC claim/ related actions.
10 Exhibit E at 10/30/97 entry, “STATES HE DID NOT HAVE A HIGH
DIPLOMA/GED AND THT THE SCH SIGN HIS NAME”
Pet. App. 288
adit GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
* * * * * *
FRE# Defendant has disclosed that, as late as April
901 20-28, 1992 * * * CSAC allowed the guarantee
(b)(9) of “loans” based on receipt of applications from
loan-originating schools prior to, and sometimes
without, subsequent lender approval/advance of
the requested loans, and allowed third-party
transfer of loans from one lender to another.!!
11*** Finding 1: Administrative Cost Allowance Receipt on Loans
Prior to Lender Approval A participating school may transmit an
application electronically to CSAC for guarantee prior to the lender's
approval. If the lender never sends the application back to EDS, the
loan is reported as an undisbursed loan and ultimately canceled. In
this instance. Administrative Cost Allowance is paid on a “loan”
when there was never a lender to which to issue the guarantee. This
can occur because the school identifies the lender and CSAC cannot
commit the lender to make the loan and does not maintain a data
base which compares the loan application to the lender’s lending
policy. Thus, there is no assurance that the lender is willing to make
the loan when it is sent in by the school. Citation: 34 CFR
682.100(b)(1); 34 CFR 682.407 Required Action: A guarantee agency
guarantees lenders against losses. Thus, the agency may not receive
Administrative Cost Allowance (ACA) on a loan on which it issues a
“guarantee” unless the lender has decided to make the loan. The
agency may receive ACA on a loan only when the lender has notified
CSAC that the loan was accepted. In response to this report, the
guarantee agency must detail the procedures which have been
adopted to assure that CSAC does not bill for ACA on loans before
lenders accept those loans.
Findi 7: nt Holder Code: System Allows Third-part
Transfers of Loans The EDS System allows the transfer of loans
between two lenders by a third party (neither the buyer nor the
seller). The decision not to place an edit in the system to prevent
third-party transfers of loans between lenders was stated to have
been made to accommodate servicers so that loans could be
transferred on behalf of their clients. However, ED staff on site at
Lender “A” actually transferred loans on the CSAC system from
Lender “B” to Lender “C.” (It must be noted that, after this process,
the loans were transferred back to the correct holder so that
servicing would not be affected.) Citation: 34 CFR 682.401 (b) (10)
Required Action: Procedures * * * with the response to this report.
289 Pet. App.
ee GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
As late as February 18, 1994, [after Exhibit C’s
“DATE ENT: 05/25/93” ‘date ED accepted
assignment from guarantor’] Defendant found
CSAC policy allowed cancelling and reissuing of
loans by lender-override; Defendant was
concerned this was used without adequate
monitoring by CSAC, specifically if the correct
reason code (cancelled or unconsummated) was
not keyed in by the lender. !2
Defendant’s January 26-February 6, 1998, first
review finding includes, “(s]ome years ago, loans
tainted by fraud (held by Bank of America as
trustee for California Student Loan Finance
12 By September 10, 2001, production of documents for
Defendant’s response to Interrogatory #43 * * *:
Under cover of June 10, 1994, letter to Mr. Michael Carona,
Chairman, California Student Aid Commission, 1515 “S” St, Suite
500, P.o. Box 510845, Sacramento, CA 94245-0845 from Bonnie S.
Gonzalez, Acting Chief, Guaranteed Student Loan Branch; 1/31-2/4,
2/7-2/11 & 2/14-2/18/94 interim report:
FINDINGS AND REQUIREMENTS, items #19 set forth here:
Finding 19: Excessive Collection of Administrative Cost Allowance
It is the agency’s policy to allow lenders the option of cancelling and
reissuing loans in conjunction with their loan override functions.
The Administrative Cost Allowance (ACA) paid to the agency by the
Department is calculated by subtracting the unconsummated loans
from the total loans guaranteed. Since ACA is not paid for
unconsummated loans, the loan must be correctly identified as
cancelled or unconsummated by the lender.
The Department is concerned that lenders may be using edit
overrides without adequate monitoring by the Agency. If the correct
reason code (cancelled or unconsummated) is not keyed in by the
lender, the Agency may receive ACA to which it is not entitled.
Citation: 34 CFR 682.407
Required Action: The Agency must provide information as to the
extent of this activity on the agency’s complete loan portfolio. CSAC
stated that these loans can be identified through use of the “Y” code
in the “edit override” field. Upon receipt of documentation that will
provide an accurate estimate of the extent of this issue, the Agency
may be given further required action.
Pet. App. 290
eee GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
Corporation, serviced by United Education and
Software) were to be identified...”!%
13 * * * Under cover of August 14, 1998, letter to Ms. Jackie Tsang, Act-
ing Executive Director, California Student Aid Commission, * * *
from N. Rao Palagummi, Senior Guarantor & Lender Review
Specialist, Guarantor & Lender Oversight Service; 1/26-2/6/98 review
report: FINDINGS AND REQUIRED ACTIONS * * *:
Finding 1: Incorrect listing of outstanding loans by the Financial Aid
Processing System (FAPS): It appeared that the Financial Aid
Processing System listed many loans as outstanding when it is likely
they are paid in full. The Agency began its lender loan reconciliation
effort in approximately 1994; it is not yet completed. The Agency has
a listing of 215 LIDs[*] (approximately 500,000 loans) that are not
yet 100% reconciled as part of its reconciliation effort and has further
identified that many of the loans attributable to these LIDs have
been outstanding for over ten years. Some examples of the lenders
on this list include:
* * * 801178 Bank Of America, Trustee for CMSC # loans 11,342
828374 First Independent Trust, # loans 2,822
Additionally, the Agency has a report that compares the loans on
FAPS to the loan balances transmitted by the lenders for NSLDS
purposes (Lender NSLDS([*] Quarterly Data Compliance Report).
The LIDs and their associated loans on the NSLDS report largely
appear to be the LIDs on the list of lenders whose portfolios have not
yet been reconciled. It appears, therefore, that not only are the loans
paid-in-full greatly understated but also reported incorrectly to
NSLDS. Some years ago, loans tainted by fraud (held by Bank of
America as trustee for California Student Loan Finance Corporation,
serviced by United Education and Software) were to be identified; we
were unable to confirm whether any of the unreconciled loans should
have been marked unreinsurable. [Plaintiffs Note: emphasis added
to “flag” main paragraph quote.] Citation: 34 CFR 682.414 Required
Action: With the response to this request, the Agency must provide
(1) information on the action/steps it anticipates taking to conclude
the lender reconciliation to 1/1/95; (2) the procedures it will
implement to ensure that the data reflected on the FAPS and the
data reported to NSLDS for loans in repayment agree; (3) its plans
for lender reconciliation of loans guaranteed subsequent to 1/1/95;
and (4) assurances that the Bank of America fraud loans have been
properly coded.
[* Plaintiffs Notes: believe LIDs refers to Lender Identifications and
NSLDs refers to National Student Loan Data System.]
291 Pet. App.
nating GROUNDS to Strike EXHIBIT A: "May 6,
RULE: | 1985 [***GSL-Loan] Application”
Defendant’s earliest CSAC review report (April,
1992) provided as discovery in this matter also
mentioned these ‘B of A c/o CSLFC (UES)’
loans, in {2/Finding 32).
Plaintiff signed the application and the
promissory note at TTCI (loan-originator),
school code #007926 (see #25 on Exhibit A, and
between Borrower Name and SSN on Exhibit
B). No lender documents from any lender not
the loan originating school have been produced
** *
In the absence of optional/required
lender records, Exhibit A is not authenticated
by CSAC process/system producing accurate
results and proving the EDUC claim resulted
from guaranteed on application from TTCI only
after lender approval/advance, or that Bank of
America appearing as “originating lender” for
the EDUC claim is not the result of fraud; thus,
it is inadmissible for the purposes of supporting
the EDUC claim and Defendant’s reiated
actions. / decisions adverse to Plaintiff.
Grounds to RESTRICT corresponding initial
disclosure of Defense Fed.R.Civ.P.(12)(a)(1)(B)A
“Exhibit 1...” to Appearance in this Suit Without
Inference between 5/6/85 and 4/28/01
* * * it would not be just to infer or attribute more
than the facts of which BOTH parties can be certain:
a) Plaintiff acknowledges signing a loan application at
TTCI in May of 1985;
b) Fed.R.Civ.P. 26(a)(1B)A Exhibit 1 is believably a
copy of a portion of Plaintiffs 1985 application, but cannot
be deemed the copy of any “loan application,” and has no
merit as a legal document;
c) after Plaintiff s signing a loan application at TTCI,
neither he nor Defendant has certain knowledge of the
uses to which it was applied before this suit until after
Pet. App. 292
a
eee GROUNDS to Strike EXHIBIT A: "May 6,
RULE: | 1985 [***GSL-Loan] Application”
the turn of the century when Defendant “disclosed a
copy;
d) writing and printing can be discerned, and so would
be admissible for purposes of establishing the content of
those portions as disclosed to Plaintiff and the Court, but
inadmissible for purposes of establishing the valid
execution of the terms and conditions of the original
agreement that has not been entered into evidence,
e) this “loan application” was first introduced by
Defendant to Plaintiff with respect to the EDUC claim
against him, under Fed.R.Civ.P. in this matter on April
26, 2001, with expressed and implied representations, at
that time and since, about its source, content and
history—prometing presumptions about Plaintiff, TTCI,
“the lender,” CSAC, and Defendant performances
subsequent to its signing.
Limited to the scope of the above-listed “facts” and
their just inferences, as the certain knowledge of both
parties in this matter, a “partial loan application copy” is
admissible for:
¢ demonstrating its incompleteness;
¢ demonstrating its legible contents;
¢ demonstrating inclusion in “school records” that
Plaintifffirst received on April 28, 2001, introducing
(versus Plaintiffs previously undisputed
declared/recorded recollection of limited involvement
with TTCI) an implied more complete/genuine school
record to support the EDUC claim against Plaintiffs
years-old-memory than justified—only days prior to
required May 3, 2001, settlement statement
production by order of this Court;
e demonstrating probable impact of its first
introduction as part of “school records” on Plaintiffs
good-faith concession/settlement statement of May 3,
2001, that if Defendant does have evidence proving a
claim Plaintiff had no record, recollection, or belief of
incurring, Plaintiff should include its payment in any
293 Pet. App.
valiactns GROUNDS to Strike EXHIBIT A: ”May 6,
RULE: | 1985 [***GSL-Loan] Application”
settlement for his cause of action —-where the
impressions given the Court—voth by such
concession (in which Plaintiff did not acknowledge
remembering the involvement TTCI attributed him,
only that official records might prove his memory was
faulty), and by the inflated “authenticity” of that
“disclosure” from the TTCI implying a
complete/genuine set of 1985 records related to
Plaintiff—more likely than not had a detrimental
effect on the reception of Plaintiff s subsequent
statements and activities in this suit;
e demonstrating the lack or absences of facts on subject
copy with respect to reasonable conclusions upon
dispute related to the handling of the original
document; and
* comparison of the contents/condition of the subject
copy to legal and regulatory requirements related to
it by all involved institutions and agencies.
Respectfully submitted in its entirety, including footnotes
following, as signed and dated below:,
s/Bruce Edwards 10.19.01
Bruce Edwards, Date
Plaintiff, pro se
1001 Emporia Street,
Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
* NOTE: Unless otherwise indicated, all citations herein refer
to CFR Revised as of July 1, 1999, or USC Revised as of
January 6, 1999, upon which Plaintiff mainly relied in
developing his Complaint—before 6/6/01 receipt of the first
legible copy of the reverse side of the Note (Exhibit B) on which
Paragraph XII identifies interpretive code/regulations.
Pet. App. 294
#62 Motion (strike #41 Ex. B) 10/23/01
UNITED STATES DISTRICT COURT
FOR THE DISTIRICT OF COLORADO
{Filed United States District Court Denver, Colorado BB
OCT 232001 James R. Manspeaker Clerk DB}
Civil Action No.: 01-BB-36
oye pe eee ee
Bruce Edwards,
PLAINTIFF
v.
United States Department of Education,
DEFENDANT
Fed.R.Civ.P. 12(f) Motion to STRIKE as
Inadmissible for Defendant: Exhibit B of
Defendant’s Motion for Summary Judgment or, in
the Alternative, Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(6)(1);
and to RESTRICT related
Fed. R. Civ.P. 26(a)(1)(B)A
“Exhibit 2: Promissory Note and Disclosure
Statement for Loan signed on June 17, 1985” as
Defense Presented, Without Inference between
6/17/85 and 4/28/01: Fed.R.Evidence 105
Pursuant to Fed.R.Civ.P. 12(f), Plaintiff pro se, Bruce
Edwards, hereby submits, as captioned above, this
“Motion to STRIKE Exhibit B/June 17, 1985 Promissory
Note and Disclosure Statement,” as for Defendant upon
findings of insufficient defense, immaterial, impertinent
or scandalous matter, on grounds set forth below with cor-
responding Federa! Rules of Evidence (FRE) or
Fed.R.Civ.P. (FRCP) numbers to indicate the main rule
intended for those grounds, but not to limit consideration
of other applicable rules; with grounds to “RESTRICT
related Fed. R.Civ.P. 12(a)(1)(B)A Exhibit 2, under
Fed.R.Evidence 105” as for Plaintiff[sic], immediately
following grounds “to strike:”
295 Pet. App.
* *
RULE:
GROUNDS to Strike EXHIBIT B: ”Promis-
sory Note...signed on June 17, 1985”
FRE#
401
* * * Defendant’s claim turns out to be for a
different originating lender than Plaintiff had
any agreement with (see FRE#104(a) grounds);
Exhibit B does not tend to make the existence of
any fact of consequence to Defendant’s collec-
tion activities/final agency action for the EDUC
claim/ Bank of America more or less probable,
so is not relevant for Defendant’s purposes.
FRE#
402
As described herein under FRE#104(a),
FRE#106, and FRE#401 grounds, Exhibit B is
not relevant to the EDUC claim and Defendant’s
related actions/ decisions against Plaintiff and,
therefor, is not admissible for Defendant’s
purpose of supporting its defense.
FRE#
104(a)
Exhibit B identifies the party with whom
Plaintiff entered an agreement, contingent upon
the later advance to him of a student loan, as
“First Independent Trust, O:E. Lender Code ©
Number 828374 8700766.” Amid frequent
references in the Motion/Brief/Exhibit 1 to “the
lender,” Defendant did not simultaneously
present the Court with its FRCP 26(a)(1)(B)C
“Exhibit 4: Debt Level Information Screen
{LI09] and explanatory sheet,” which shows:
“ORIGINATING LENDER: 801178 B OF A TRUSTEE
C/O CMSC,” also appearing under the “CLAIMING
LENDER AND ADDRESS,” part of the record for
Defendant’s claim of an outstanding defaulted
student loan against Plaintiff “supported” by
Exhibit B. * * * Note’s Paragraph X. Transfer of
Loan to New Holder’), * * * does not make it
admissible for Defendant’s purposes.
1 See Plaintiffs Motion to Extend Leave to Amend Complaint and
attached Brief filed on July 2, 2001, Enclosure 1 p. 3.
Pet. App.
296
i
.
a ite Sioa ak iat ads ae re
SSR oa Sa aad
* * *
RULE:
GROUNDS to Strike EXHIBIT B: ”Promis-
sory Note...signed on June 17, 1985”
FRE#
106
The original agreement, only partially shown in
Exhibit B, was to be interpreted under code and
regulations expressly identified in its
Paragraph XII General provisions’, was subject
to all other provisions of the promissory note,
and depended on First Independent Trust’s
performance. All agreement terms, interpretive
code and regulations, and documentation of
alleged lender performance ought in fairness be
considered contemporaneously with Exhibit B
for it to be admissible as relevant for
Defendant’s purposes.
FRE#
403
Even if Exhibit B were relevant to Defendant’s
claim of a Bank of America-originated
loan/default (see FRE#104(a) grounds at quote
from Defense FRCP 26(a)(1)(B)C Exhibit 4),
without evidence that Plaintiff received any
advance/incurred any obligation according to
the terms of a promissory note, determinations
about Defendant’s collection activities and
formal agency action against Plaintiff
(Complaint 1{2-3) would not be addressed by
Exhibit B’ s contents. Exhibit B adds confusion
to the issues, misleading away from the lack of
evidence showing an obligation on Plaintiff s
part that would be prerequisite to proving the
validity of the EDUC claim and Defendant’s
related actions/ decisions; so Exhibit B is not
admissible for Defendant’s purposes.
FRE#
901(a)
Introduction of Exhibit B (Brief, p. 4. #2, refer-
encing the Navarro Decl. {17) is immediately
followed by, and obviously implied as based
upon First Independent Trust’s promised per-
formance/Plaintiffs resultant obligation, “Plain-
2 See Plaintiff s Motion to Extend Leave to Amend Complaint and
attached Brief filed on July 2, 200 I, Enclosure 1 p. 3
297 Pet. App.
adie GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
tiff defaulted on his loan on April 15, 1987”
(Heitef, ** * 5. 496). ** *:
Not only is there an absence of required lender
documents/records to support a loan/default
claim’ from Exhibit B for Bank of America as
originating lender (see FRE#104(a) grounds),
but also the original promissory note’s | V
Whole Loan Due, on the first day of non-
payment (after 10 day’s grace), as determined
by its {2 Date Note Becomes Due, six months
after Plaintiff stopped carrying at least one-half
TTCI s normal full-time workload (by
Defendant’s own Exhibit 2/F “attendance
records” produced for this suit by the loan-
originating school, which Plaintiff denies are
true and correct) on September 23, 1985.
This would set the alleged default date
at 3/23/86. Upon required timely-lender-
default-claim-filing within 90 days of default,‘
the resulting required timely payment within
90 days® would be (3/23/86 + 6 mo =) 9/23/86,
not the “ORGCLMPAYDTE: 4/16/87” of Exhibit C.
This “date guaranty claim paid” being the next
day after Defendant charges Plaintiff defaulted
cannot be read in either the Briefs “FACTS, A.
Plaintiffs Loan,” p. 4 #3, “...[t]hereafter, the
lender requested payment from CSAC, which
paid the lender.. .” or the identical phrasing
from Exhibit 1, p. 7 #18). Even if reading the
3 CSAC (state guarantor for EDUC claim against Plaintiff) shall
maintain, among other records, by 34CFR682.414(a)(1)(ii)(A), "All
documentation supporting the claim filed by the lender;" [=§682.511
(b), p. 723], "for at least five years after the loan is paid in full or has
been determined to be uncollectible in accordance with the agency's
write-off procedures," [§682.414(a)(2)].
4 34CFR682.406(a)(5), p. 679
5 34CFR682.406(a)(8), p. 679
Pet. App. 298
aiid GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
lender’s timely default-claim—filing to be with-
in 90 days of ‘the end of the 120 day® default
period,’ instead of “default,” and allowing 30
days for rejection/re-filing with proper documen-
tation,’ a timely payment would have been on
2/23/87, not 4/16/87. The default claim was paid
after CSAC recorded Bank of America’s lender
number, 801178, in the second entry (3/19/87)8
of its “History;” which demonstrates it was not
paid to the lender on Exhibit B.
These discrepancies, raised by Complaint {21a,
fail required authentication that Exhibit B is
evidence supporting the EDUC claim/ Defen-
dant’s collection activities and final agency
action against Plaintiff precedent to its
admissibility for Defendant’s purposes.
FRE# | Defendant initially disclosed Exhibit B as * * *
901 ‘A. Documents from Travel and Trade Career
(b)(7) Institute’ for Fed.R.Civ.P. 26(a)(1)(B). When
introducing that Plaintiff signed a promissory
note in “FACTS.. .A. Plaintiff s Loan” of the
Brief (p.4 #2), Defendant fails to make any
| connection between it and the school (“TTCY),
including the fact that the original of Exhibit B
(and of Exhibit A, loan application) were
completed, as part of enrollment, at TTCI’s loan
6 1984 Edition, 34CFR682.200 at Default: “(t]he failure of a borrower to
make an installment payment when due...provided that failure
persists for-(a) 120 days for a loan repayable in monthly
installments...”
7 34CFR682.406(a)(6), p. 679
8 Defendant’s Initial Disclosure, Rule 26(a)(I)(B)B “Documents from
California Student Aid Commission: Exhibit I: Contact History
Report dated December 31, 1992,” a singie page that chronologically
begins: “022687...CON...ADR...1000...PO BOX 9821...LONG
BEACH...CA 90410-21343263” followed immediately by
“031987...252...LC...1010...870316 801178 [emphasis added].”
299 Pet. App.
er GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
origination? for Plaintiff, certifying his applica-
tion (as an eligible student/borrower”? falsely,
unbeknownst to Plaintiff, and prohibited
whether done willfully or negligently!) and
submitting it to “a participating lender,”!? that
would appear from Exhibit B to have been First
Independent Trust, but from Defendant’s claim
to have been Bank of America.
* * * failure to promptly correct disclosure to the
Court and Plaintiff of Fed.R. Civ .P. 26(a)(1)(B)
A “Documents from Travel and Trade Career
Institute... Exhibit 2: Promissory Note and
Disclosure Statement for Loan signed on June
17, 1985,” as not having come from TTCI,
required by Rule 26( e), means that Exhibit B
has not been authenticated as from the public
office where items of this nature are
recorded/filed, so is inadmissible * * *.
9 1984 Edition, 34CFR682.200, p. 479, at “(a) [a] school determines who
will receive a loan and the amount of the loan; or (b) [t]he lender has
the school verify the identity of the borrower or complete forms
normally completed by the lender.”
10 Plaintiff did not receive his high school diploma until 1999—and did
not realize that, or its equivalent, was prerequisite for academic
eligibility in the FFEL programs (34CFR668.32(e), pp. 463-4); TTCI
neither determined whether he had a high school diploma nor that
his enrollment (not requiring a high schooi diploma/equivalent) in
classes at a community college “beyond the high school level” prior to
the 1984-5 school year (see Exhibit A, #12) did not meet the
definition of a first academic year in a qualifying educational
program (§600.2) to have waived applicable loan/subsidy limits [1982
Edition, 20USC: § 1075(a)(1)(A), p. 273 and §1078(b)(1)(A)(i), p. 282]
and first-year student/borrower handling-including prerequisite
commercial-lender denial of a loan [1982 Ed., 20USC1083(a)(1)(b), p.
306] and $1,500 single-disbursement limits [1982 Ed.,
§1078(b)(1)(A)(ii), p. 282).
11 34CFR682.609(a), p. 734
12 34CFR682.102(a), p. 591
Pet. App. 300
* * *
RULE:
GROUNDS to Strike EXHIBIT B: ”Promis-
sory Note...signed on June 17, 1985”
FRE#
901(b)
(8)(A)
Defendant’s contradictory record of the EDUC
claim originating lender being Bank of America
(Exhibit C, lender #801178); the 24-hour
borrower-default-to-guarantor-claim-payment
span (Exhibit C, 04/15/87 and 04/16/87,
respectively) attributed to alleged lender
performance for Exhibit B—which default date
is inconsistent with the original promissory
note’s terms (see FRE#901(a) grounds);
omission of mentioning the school’s role in
originating Exhibit B in the Brief; and
false/uncorrected disclosure as a document from
TTCI, all fail to show it in such condition as to
create no suspicion concerning its authenticity
for the purposes of supporting the EDUC claim
and Defendant’s related actions/decisions.
FRE#
901(b)
(8)(B)
See FRE#901(b)(8)(A) grounds herein. Exhibit B
is not authenticated as from a place where a
Federally-guaranteed and validly consummated
promissory would likely be, so is inadmissible
for the purposes of supporting the EDUC claim
and Defendant’s related actions/decisions.
FRE#
901
(b)(9)
* * *
There has been no disclosure of Plaintiff's
endorsement on a loan check either from First
Independent Trust (Exhibit B) or from Bank of
America (Exhibit C, lender #801178); * * *.
CSAC is required to retain!’ the
documents that must be attached to the lender’s
Claim for Reimbursement form (default-claim)
filing" for five years after the loan is paid in
full/written off;!5 but Defendant has never
provided Plaintiff with evidence of the alleged
13 334CFR682.414(a)(I)(ii(A), p. 702-3
4 34 CFR682.511(b)(1), p. 723
15 34CFR682.414(a)(2), p. 703
301 Pet. App.
ibd GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
loan advance/default!* (see Complaint 447, 10b,
11, 13, 15-20, 23/Exhibit H, 24/Exhibit I,
34/Exhibit K, and 37) and “is not in possession”
of such (or any) lender documents for the EDUC
claim.!7 Defendant has disclosed that /cont’d..../]
16 Dated / mailed September 4, 2001, Defendant’s Answer to Plaintiffs
Requests for Admissions (that was dated/mailed 7/27/01) for items #9
and #26 are set forth below:
9. Prior to Plaintiffs original 1/2001 filing with this Court in this
matter, Defendant did receive disputes and objections from Plaintiff
that included statements related to his attendance and withdrawa!
at the school, his not having received the alleged loan, his not
having received contact from the lender or state guarantor
about a loan or default, and his not having received verification of
debt in response to his 1993 verbal and written responses to an
initial demand re-ceived from Defendant at his California residence.
[emphasis added. Plaintiffs note: receipt of the initial demand in
1993 “at his Califor-nia residence” was the only instance of successful
postal forwarding to his then-current address-not tihe one in Defen-
dant’s records that was used without change for the next 2.5 years.|
Answer: Admit.
26. Defendant recorded Plaintiff s objections that the promissory
note had not been executed because he had not received a loan from
the lender, but Defendant did not provide other loan documents or
records in response to thhese objections. Answer: Admit
17 Mailed June 29, 2001, incorporating General Objections (to the ex-
tent each request seeks information subject to the attorney client, work
product doctrine or deliberative process privilege; producing all non-
privileged responsive information and reserving the right to supple-
ment in accordance with Fed.R.Civ.P.) without waiver in each specific
response; Defendant’s Responses to Plaintiff's Interrogato-ries, dated
6/25/01, preceded by each request as identified, are set forth * * *
Plaintiff Interrogatory #25 to Defendant on June I. 2001: What
evidence is or should have been available to Defendant demonstrat-
ing that the lender provided Plaintiff with a written statement of
required disclosures at or prior to the beginning of the repayment
period, including the scheduled dated the repayment period was to
begin, the due date of the first installment and the number, amount
and frequency of payments? RESPONSE NO. 25: Pursuant to 20
U.S.C. §1078(2)E)ii), the lender i ired to noti rrower of
the date on which the re nt peri ins. Under 20 USC
Pet. App. 302
§1083, the lender is required to provide the borrower with an
explanation of the terms of the loan and the terms of the repayment
of the loan. See also 34 C.F.R. §682.205. Defendant is not in
possession of any such documents.
Plaintiff Interrogatory #26 to Defendant on June 1. 2001: What
evidence is or should have been available to Defendant demonstrat-
ing the lender’s loan servicing, collection or due diligence activities
with regard to the subject claim? RESPONSE NO. 27{sic]: Defen-
dant may have been able to obtain such documents from the lender
or guaranty agency when he first defaulted on the loan, however
Defendant is not in possession of the lender’s [Claim for [Rleim-
bursement form which would have included its due diligence efforts.
Plaintiff Interrogatory #27 to Defendant on June 1.2001: Which, if
any, of the following did the lender attach to the subject claim: a col-
lection history; a copy of the final demand letter; originals or copies
of all correspondence addressed to, from, or on behalf of the borrower
that is relevant to the loan-whether that correspondence involved the
original lender, a subsequent holder, or a servicing agent; evidence, if
applicable, of requests by the lender to ED for skip-tracing or pre-
claims assistance; and/or any additional records documenting the
lender’s right to have received payment of the guarantee for the
subject claim? RESPONSE NO. 27: The lender’s Claim for Reim-
bursement form typically includes a completed form including date
and amount of disbursement of the loan, date repayment began, date
of default, collection efforts including a log of telephone calls and
letters sent and requests for skip-tracing or preclaims assistance,
amount of principal and interest outstanding an any other docu-
ments that the lender may choose to attach.
Also, dated /mailed September 7, 2001, incorporating General
Objections * * * without waiver * * * Defendant’s Responses to
Plaintiff's Interrogatories [** *} And Requests for Production of
Documents; preceded by corresponding request as identified * * *:
Request # 1. A copy of Plaintiff's 6/21/85 required signature of
endorsement, whether upon deposit in an account of his own or
TTCI’s, on the loan check allegedly advancing funds to him. j
Response: Defendant is not in possession custodv or control of any
such document.
Request # 12. All extant lender documents and records, in reasonably
legible condition, related to the EDUC claim against Plaintiff to
which Defendant, as program authority, has access-whether or not
previously sought from the lender by Defendant in relation to the
EDUC claim against Plaintiff or to the matter before this Court-
particularly those containing original writings and signatures, so
that the information, authorizations or records they contain may be
assessed for relevance to establishing the facts of the school’s receipt
303 Pet. App.
of the lender’s advance of funds attributed as a loan to Plaintiff, of
the lender’s loan servicing and collection activities, and of the -
existence of the alleged debt and the validity of Defen-dant’s-claim”
against Plaintiff. Response: Defendant is not in possession. custodv
or control of any such document.
* * * September 4, 2001, Defendant’s * * * Admissions * * *
Admission # 1. With regard to the EDUC claim against Plaintiff,
Defendant does not have, and has not provided to Plaintiff, a copy of
the alleged 6/21/85 loan disburse-ment showing Plaintiffs required
endorsement in receipt of the alleged loan check. Answer: Admit
that Defendant has not provided a copy of the endorsed loan check
but has provided Plaintiff with numerous copies of his signed
promissory note. * * *
Admission #2. With regard to the EDUC claim against Plaintiff, De-
fendant does not have, and has not provided to Plaintiff, a copy of the
original receipt from the school at the time of the alleged 6/21/85 loan
advance into the school’s account purportedly on Plaintiffs behalf.
Answer: Object to admission as unclear and ambiguous as to defini-
tion of “original receipt from the school.” Subject to and without
waiving this objection, admit that Defendant has not provided Plain-
tiff with a receipt of loan from school because no such receipt exists.
Admission #3. With regard to the EDUC claim against Plaintiff,
Defendant does not have, and has not provided to Plaintiff, any
copies of written contract[sic] of any kind between the lender and
Plaintiff either at the time of, or at any time following, the alleged
6/21/85 advance of loan funds, up to and including the 1987 lender’s
filing of a default claim. Answer. Deny. [* * *“written contact”* * *]
Admission #7. Prior to Plaintiffs original 1/2001 filing with this
Court in this matter, as far as contact by other program participants
with Plaintiff after the alleged 6/21/85 disbursement, Defendant did
not provide Plaintiff with any copies of school (TTCI), lender or state
guarantor (CSAC) records or documents related to the EDUC claim
against him. Answer: Admit that, prior to this suit, Defendant did
not have possession of any documents nor was it required to obtain
possession of any such documents from the school, lender or CSAC
besides the promissory note that was obtained from CSAC upon
assignment of the loan to Defendant. * * *
Admission #8. Prior to Plaintiffs original 1/21001 filing with this
Court in this matter, as far as verification of the debt either offered
for Plaintiff's timely written disputes to certain demands or indicated
as required by Plaintiff in writings to Defendant (or Defendant’s
agents), Defendant did not provide Plaintiff with a document or
record show-ing evidence of the alleged 6/21/85 disbursement for the
EDUC claim against him. Answer: Admit: Defendant provided
Plaintiff with a copy of the promissory note. * * * *
Pet. App. 7 304
ion OPO ey ee te, eee
Pant SIG 0 0 Tes I kar EE Pie ARE ARK BOR EA
tidings GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
[...cont.] that CSAC’s system has been found:
¢ to allow the guarantee of “loans” based on
receipt of an application from a loan-
originating school prior to and sometimes
without subsequent lender approval/advance
of the requested loan,
¢ to allow third-party transfer of loans from one
lender to another, and
e to allow lender-override of cancelled
unconsummated loan status. }8
‘8 Under cover of September 10, 2001, letter to Plaintiff from
Peter Krumholz, Assistant United States Attorney: “* * *
Enclosed please find copies of the documents referenced in
oor response to your interrogatory #43. Sincerely...;” the
“bulleted” items in the main paragraph appear, in the same
order as the three “findings” here below:
Under cover of July 10, 1992, letter to Dr. Samuel M. Kipp, III,
Executive Director, California Student Aid Commission, P.O. Box
510845, Sacramento, CA 94245-0845 from Linda M. Stoddard-
Tsutsui, Chief, Guaranteed Student Loan Branch; April 2028, 1992
review report: FINDINGS AND REQUIRED ACTIONS:
Finding 1: Administrative Cost Allowance Receipt on Loans Prior to
Lender Approval A participating school may transmit an application
electronically to CSAC for guarantee prior to the lender’s approval. If
the lender never sends the application back to EDS, the loan is
reported as an undisbursed loan and ultimately canceled. In this
instance, Administrative Cost Allowance is paid on a “loan” when
there was never a lender to which to issue the guarantee. This can
occur because the school identifies the lender and CSAC cannot
commit the lender to make the loan and does not maintain a data
base which compares the loan application to the lender’s lending
policy. Thus, there is no assurance that the lender is willing to make
the loan when it is sent in by the school. Citation: 34 CFR 682.100
(b) (I); 34 CFR 682.407 Required Action: A guarantee agency
guarantees lenders against losses. Thus, the agency may not receive
Administrative Cost Allowance (ACA) on a loan on which it issues a
“guarantee” unless the lender has decided to make the loan. The
agency may receive ACA on a loan only when the lender has notified
CSAC that the loan was accepted. In response to this ‘report, the
guarantee agency must detail the procedures which have been
305 Pet. App.
whine GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
adopted to assure that CSAC does not bill for ACA on loans before
lenders accept those loans.
a 7: ™ _y
Transfers of Loans The EDS System allows the transfer of loans
between two lenders by a third party (neither the buyer nor the
seller). The decision not to place an edit in the system to prevent
third-party transfers of loans between lenders was stated to have
been made to accommodate servicers so that loans could be trans-
ferred on behalf of their clients. However, ED staff on site at Lender
“A” actually transferred loans on the CSAC system from Lender “B”
to Lender “C.” (It must be noted that, after this process, the loans
were transferred back to the correct holder so that servicing would
not be affected.) Citation: 34 CFR 682.401(b\10) Required Action:
Procedures that will strengthen system security and that will
disallow transfers of loans between two lenders by a third-party must
be enacted. A descrip-tion of the new system controls, and a
certification that the controls have been enacted and tested for
reliability, must be submitted with the response to this report.
Under cover of June 10, 1994, letter to Mr. Michael Carona, Chairman,
California Student Aid Commission, 1515 “S” St., Suite 500, P.O. Box
510845, Sacramento, CA 94245-0845 from Bonnie S. Gonzalez. Acting
Chief, Guaranteed Student Loan Branch; 1/31-2/4, 217-2/11&
2/14-2/ 18/94 interim report: FINDINGS AND REQUIREMENTS:
Finding 19: Excessive Collection of Administrative Cost Allowance
It is the agency’s policy to allow lenders the option of cancelling and
reissuing loans in conjunction with their loan override functions. The
Administrative Cost Allowance (ACA) paid to the agency by the
Department is calculated by subtracting the unconsummated loans
from the total loans guaranteed. Since ACA is not paid for
unconsummated loans, the loan must be correctly identified as
cancelled or unconsummated by the lender.
The Department is concerned that lenders may be using edit
overrides without adequate monitoring by the Agency. If the correct
reason code (cancelled or unconsummated) is not keyed in by the
lender, the Agency may receive ACA to which it is not entitled. Cita-
tion: 34 CFR 682.407 Required Action: The Agency must provide
information as to the extent of this activity on the agency’s complete
loan portfolio. CSAC stated that these loans can be identified
through use of the “Y” code in the “edit override” field. Upon receipt
of documentation that wi!! provide an accurate estimate of the extent
of this issue, the Agency may be given further required action.
Pet. App. 306
a a i Oe a see
nding GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
Prior to this suit (see Complaint 4925-33, inclu-
sive), Plaintiff received one direct answer, “[y]ou
state that you did not receive the funds from
your student loan. The funds from student loans
are frequently applied by schools to enrollment
expenses... [s]tudents frequently do not directly
receive the funds.”!® Defendant’s postulations
“[blorrowers who have FFELP loans that were
disbursed prior to [1/1/86] are, according to
[Defendant’s] policy, eligible for...”2°
and “...[Plaintiff] received the loans in-kind at
least by attending the school.. .,”*! as relating to
a June, 1985 agreement/ loan, besides being
based on the absence—or only recent “produc-
tion”—of “evidence” to suggest that Plaintiff's
6/21/85 signature was not needed to transform
his liability from ‘to the school’ into ‘to a
lender’,?? ignore 1984 Edition 34CFR682.401(b)
(6)”(ii) [t]he borrower must personally endorse
19 Complaint-Exhibit-J, p. 1 95
20 Brief, p. 2-3 at bottom/top
21 Brief. p. 14 at bottom
22 * * * September 7, 2001, Defendant’s Responses to Plaintiff's
Interrogatories and Requests for Production of Documents—without
waiving general objections * * * and reserving the right to
supplement production in accordance with the Fed.R.Civ.P.—for
Plaintiffs Interrogatories #34-50 (* * *), interrogatory/answer for
item #38 are set forth below: ;
Interrogatory #38. Plaintiff attended orientation modules for four
calendar weeks before his 6/17/85 signature was required on the Note
prerequisite to contemplation of loan approval; what shows his
knowledge at the time, or within a similar 4 weeks, of the act alleged
to have changed his legal standing for attending modules from direct
liability to TTCI for tuition per US000007? [Motion to Strike Note:
US000007 is FRCP 26(a)(1B)A Exhibit 6 TTCI School Enrollment
Agreement signed on May 7, 1985 or subject Motion’s Exhibit 2/A]
RE NSE NO. 38: Defendant objects to this in atory as it
seeks information regarding Plaintiff's knowledge. Defendant could
not possibly assume what Plaintiffknew about his classes in 19%5.
307 Pet. App.
se os GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
the check and may not authorize anyone else to
endorse it on his or her behalf. (iii) Neither a
lender nor a school may obtain a borrower’s
power of attorney or other authorization to
endorse a check on behalf of a borrower
[emphasis added],” p. 492.
Exhibit B is not authenticated/identified
by process or system shown to accurately result
in lender advances of “loans” if guaranteed by
CSAC for applications from loan-originating
schools, or in legitimate obligation of students
because of “attendance records” and a school’s
receipt of funds. Thus, Exhibit B is inadmissible
for the purposes of supporting the EDUC claim
and Defendant’s related actions/decisions. _
FRE# | Because it was initially disclosed by Defendant
902(4) | as a “from the school” and half its contents are
illegible, Exhibit B is not certified/sealed as a
correct copy, by the custodian of its original as a
public record/official document authorized by
law and actually filed in a public office. Not so
self-authenticating, it is not admissible * * *.
FRE# Defendant has not presented a notarized ac-
902(8) | knowledgment by Plaintiff of consummation of
the agreement proposed in Exhibit B, so it is not
self-authenticating or admissible as such * * *
FRE# | Plaintiff has consistently requested verification
902(9) | of, and * * * defense of lender default/non-
consummation to, any obligation arising from
the lender’s alleged performance for the original
agreement suggested by Exhibit B.?° It is not
self authenticating as commercial paper, to the
extent of missing documents to answer lender
23 Complaint, 497, 0b, 11-13, 15-20, 22a, 37, 23 & Exhibit-H, 24 &
Exhibit-I, and 34 & Exhibit-K
Pet. App. 308
ainda GROUNDS te Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
default * * * Uniform Commercial Code”). * * *
FRE# | Exhibit B is not an original or output readable
1001(3) | by sight shown to reflect the original’s data
accurately, so is not admissible for Defendant.
FRE# Exhibit B is not a duplicate/reproduction that
1001(4) | accurately reproduces the original * * *.
FRE# | Exhibit B is not a duplicate admissible for
1003 Defendant’s purposes to same extent as its
original because a genuine question is raised as
to the authenticity of the original (demonstrat-
ing a loan originated by Bank of America, as
Defendant’s claim alleges) and in the
circumstances it would be unfair to Plaintiff to
admit it as such, in lieu of the original.
FRE# | Failure to produce the original of Exhibit B is
1007 not accounted for by Plaintiffs testimony/
written admissions of having participated to a
limited extent in enrollment/loan processing
with TTCI, the loan-originating school, that
would account for the existence of such agree-
ment, without necessarily having resulted in a
valid contract.
FRE# * * * Declarant Navarro is described as a Senior
902(11) | Loan Analyst in a branch of Defendant’s offices
“since [what date]”2> with student loan litigation
support duties not limited to ‘providing back-
24 UCC§3-305(1)(ii), as to nullification of obligation based on illegality
of TTCI’s receipt of funds * * * “on behalf of Plaintiff under then-
effective 1984 Edition 34CFR682.401 (b)(6)”(ii) -(iii), p. 492; UCC§3-
305(1)(iii) fraud by TTCI in having given Plaintiff to understand his
liability under the school enrollment contact was forgiven upon his
tender of written withdrawal notice without disclosure of any alleged
liability to any lender * * *
25 Exhibit 1, p. 1 #1 at end of last sentence. Plaintiff asserts this goes
to a lack of care in Mr. Navarro’s filling out the general prepared
portion of his “declaration,” that may also be reflected in any other
prepared/specific portions that follow.
309 Pet. App.
wheal GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
ground information on the individual’s loan his-
tory”® and testimony to the actual case either in
26 “Individual’s loan history,” Navarro “provides background
information on” under Specifics of Bruce Edward’s FFELP Loan
(Exhibit 1, pp. 6-11,##17-32, inclusive) is based * * *
¢ solely on “records” Defendant created on or after May 25,
1993, for an alleged 6/21/85loan without any supporting
documentation from any “originating lender” to ans wer the
defense of lender default/non-consummation of a promissory
note: see Defendant* * *’s Initial Disclosures Fed.R.Civ.P. 26(a)(1)
(B)C...Documents from Education’s Debt Management Collection
System Database and the National Student Loan Data System
(herein FRCP/C) [versus lack of disclosure of any lender documents/
records, with a single exhibit under 26(a)(1)(B)B...Documents from
California Student Aid Commission], and Exhibits C-H introduced as
“evidence” to support Navarro’s declaration, Exhibit 1...
..at p. 7 #18, Exhibit C is FRCP/C Exhibit 9
..at p. 7 #18, Exhibit D is falsely identified for CSAC
(Calif. Student Aid Comm.) collections
..at p. 7 #20, Exhibit D is FRCP/C Exhibit 2
..at p. 8 #21, Exhibit E is FRCP/C Exhibit 1
..at p. 10#31, Exhibit Fis FRCP/C Exhibit 7
..at p. 1 1 #32, Exhibit G is FRCP/C Exhibit 6
..at p. 11 #32, Exhibit His FRCP/C Exhibit 5: but aiso...
...see also FOOTNOTE #17 herein above, especially
second-to-last item, Admission/Answer#?7. * * *
¢ solely on the basis of “certification” by a State guarantor...:
addressed in discovery, by dated/mailed 9/7/01 Defendant’s Responses
to Plaintiffs Interrogatories and Requests for Production of
Documents—without waiver of general objections * * *:
Interrogatory #50. Does Defendant warrant that TTCI and all
holders of the California Guaranteed Student Loan Program
Promissory Note and Disclosure Statement signed by Plaintiff on
June 17, 1985, timely complied with all terms of related written
agreements and with all legal or regulatory requirements applicable
to the claim against Plaintiff? RESPONSE NO. 50 TTCI was never
a holder of Plaintiffs loan or promissory note. The contract between
Plaintiff and TTCI is separate and distinct from his contract with the
lender, First Independent Trust, or holder of his promissory note. Jn
accepting assignment of Plaintiffs loan, Defendant has accepted the
information transmitted on the loan from the guaranty agen
including its assertion that it and the lender engaged in due diligent
Pet. App. 310
efforts to collect the defaulted loan and that it has otherwise abided by
the terms of its agreement with Defendant, the Higher Education Act
and its implementing regulations [emphasis added].
e ..a State guarantor whose single “record” disclosed in this
case reveals it falsely certified its own required due diligence
efforts for the EDUC claim: This is revealed by comparison of
applicable due diligence requirements to the data contained on the
single-page, single exhibit of Defendant’s FRCP 26(a)(1) (B)B
disclosure (violations not necessarily limited to those described in the
following): By 34 CfR 682.413(b)(1) CSAC had to comply with
§682.406(a) to retain reinsur-ance. §682.406(a)(11) requires agency
due diligence under §682.410(b) (6) or (7). §682.410(b)(6)(ii)(A) sets
the claim payment (Exhibit C, CROCCDATE: 04/16/87) as the
beginning of required due diligence scheduling. Without any
recorded activity between April 3 and June 18, 1987, CSAC violated
§682.410(b)(6)(iii) and §(b)(7)(iii). With only two recorded activities
between May 17 and October 13,1987, CSAC violated §682.410(b)
(6)(iv) and §(b)(7)(Giv). CSAC also violated §682.410(b)(6)(v)
prohibition on collection activity “gaps” in excess of 60 days by
recording 63 days of inactivity to 6/19/87 followed by a gap of 100
days to 9/28/87. Therefore, §682.406(a)(14) required certification for
the EDUC claim relating to CSAC’s own (and “the lender’s”), diligent
attempts to locate Plaintiffthrough use of reasonable skip-tracing
techniques under §682.411(g) (which prohibits gaps over 45 days
between attempts to contact individuals on the loan application) was
falsely documented according to Defendant’s disclosure; Defendant
has never claimed to have obtained/vcrified “the lendwr” records and
documents that are supposed to show its due diligence that was
accepted under CSAC’s false certification.
¢ only otherwise supported by “school records” first and/or
falsely produced for 4/26/01 Fed.R.Civ.P. 26(a)(I)(B)A “initial
disclosure”: having more fully objected in motions to ‘trike
Exhibits 2 & 2/A-F in this matter, it is sufficient here to point out
that Defendant never claimed to have records from the school
contradicting Plaintiff s declarations related to attendance,
withdrawal, not having endorsed any check, and not having been
contacted by TTCI after the first day of class, when he wrote more
formal letters, beginning in 1998, to elicit “verification of debt” that
was not forthcoming for simple written statements of dispute, as
promised by various system letters from Defendant since 1993/1996
4 first and second initial demands. Not only did Defendant falsely
attribute (ar i fail to correct that) copies of the loan application and
t promissory 1 »te were “from TTCI” in initial disclosures, but also first
. produced and introduced only “Pell Grant checks” apparently
supported by a school record card and a 5-page mixture of
311 Pet. App.
ila GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
handwritten/computer-formats for “attendance calculations” (so
called in FRCP 26(a)(I)(B)A-Exhibit 8] that not only attribute activity
to Plaintiff far beyond the first day of class he identified at least 3
years earlier as his last contact with TTCI, but also have no
foundation in ED/RDS, Defendant’s own Records Disposition
Schedule, for existing so much beyond the normal date any of these
(and all required, but somehow not also surviving) records would
have been destroyed, considering Defendant had never required their
production/preservation before Plaintiff filed suit. That is to say,
Navarro’s ‘background information’ on ‘the individual’s loan
history’ related to the “Specifics of Bruce Edward’s FFELP
Loan” is not a loan history by an “originating lender”
regularly supplemented by “other holders.”
Plaintiff freely acknowledges participation/Ainvolvement in TTCI’s
enrollment/loan origination process up to the “first class, prior to the
transfer of any funds” (see Complaint-Exhibit H @ 2). He did not
identify “the first day of orientation” that Defendant wishes to
ascribe to his statements [but see FRE#901(b)(9) grounds herein, at
footnote for “.. .to suggest that Plaintiffs 6/21/85 signature was not
needed to transform his liability from ‘to the school’ into ‘to a
lender™|], which he did not count as “class” [current regulations also
exclude periods of orientation from “instructional time” (‘class’), in
34CFR668.2(b) “Academic Year”(2)(iii)].
Plaintiff attended May 20-July 12 orientation modules on the
strength of his enrollment contract with TTCI alone, demonstrably at
least for a full month before TTCI secured his acknowledged June 17,
1985, signature on the promissory note for a loan then estimated to
be disbursed on July 4, 1985 (recognizably July 8, after that holiday
weekend)—one week before the first day of “class,” Monday, July 15,
1985, —but, unbeknownst to him, the “loan” had been “disbursed” on
6/21/85 before TTCI’s administrator told him on the first day of class,
“all I needed was to submit my withdrawal in writing, which I did
before leaving his office.” At that time, under those circumstances,
Plaintiff understood his liability to TTCI under the enrollment
contact had been waived and that he had not incurred a loan liability
to any lender which is at issue in this case. Where it would be
unlikely that Plaintiff would have made/saved a copy of that written
withdrawal from 1985 to date, that does not negate Defendant’s
burden to prove/verify that Plaintiff received a loan as alleged by the
EDUC claim (nor can Defendant’s lack of supporting documents/
records be forgiven as simply not having made/saved household
records one didn’t know one might need in the future.)
Pet. App. 312
slinging GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
person or by submission of a declaration/affida-
vit.” Navarro claims familiarity with the vari-
ety of loans held/ collected by Defendant—how
related information is received and records are
created/maintained”’--and access to both Defen-
dant’s electronic records/computer database
records kept pursuant to relevant creation/
maintenance “at or near the time of transaction
/event—by/from “a person with knowledge of
the transaction” in Defendant’s regularly con-
ducted administration of said loans,?9 and the
national database on all such loans “derived
from regular reports *** from the holders of the
loans...based on *** regularly maintained*°
27 Exhibit 1, pp. 1-2, #2(1) & (4)
28 Exhibit 1, p. 2 #3(a)
29 Exhibit 1, pp. 2-3, summarizing/quoting#4
3° Navarro fails to advise the Court that, with respect to the general
description of the National Student Loan Database System * * * any
and all NSLDS information specifically related to Defendant’s
claim under Plaintiffs name/identifies(sic] (that is, those docu-
ments disclosed as US000086-89 under “FRCP/C Exhibit 13,” Defen-
dant’s Fed.R.Civ.P. 26(a)(1)(B)C Documents from Education’s Debt
Management Collection System Database and the National Student
Loan Data System) were entered by Defendant and not by any
other or prior “holders” (see Defendant’s * * * US000088, Data
Provider Loan ID: G199309030022801, which matches both Exhibit
C’s “debt no: G199309030022801 date ent: 05/25/93” and Exhibit B’s
“claim no 1993090300228...05-25-93” sticker accepting the promis-
sory note/claim). Contrary to Navarro’s implication by general
description that the prior “holders” for the EDUC claim—apparently
First Independent Trust/Bank of America and CSAC—regularly
contributed to this individual record, the only entries not showing a
198S date (besides Plaintiffs date of birth) are 9/22/00 Outstanding
Principal Balance and Outstanding Interest entries (US000088),
9/16/00 Status Change entry and, as the entire Guaranty Agency /
Lender/ Servicer Agent History: Start: 05/25/1993 End: Current
Code: 555 Name: FFEL assigned to ED (US000089). * * *
313 Pet. App.
a
aioe GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
records...”3! Navarro claims familiarity/access
of Defendant/prior holder defaulted student
loan records including non-electronic
documents: “application and promissory note,°?
guaranty claim,** correspondence,*4
31 Exhibit 1, p. 3 #5
32 Exhibit B introduction through Exhibit 1, then, implies Navarro’s
familiarity with and access to Exhibit’s A and B as nonelectronic
documents suitable to have met his responsibilities/litigation support
in this instance: for his expressed/Aimplied background information on
Plaintiffs “loan history,” as the basis for preparing responses to
discovery requests, especially responses to interrogatories and
requests for production of documents in relation to this case, and for
his testimony to this case by submission of his declaration/affidavit
(Exhibit 1). But see the actual Exhibit B (and A) currently subject to
this Court’s determinations as to pending motions to strike them
upon Defendant’s entering them into evidence.
33 Exhibit B introduction through Exhibit 1, then, implies Navarro’s
familiarity with and access to non-electronic documents of a
guaranty claim for the alleged defaulted student loan attributed to
Plaintiff. However, during discovery in this suit, Defendant advised
a lack of possession of lender documents/Claim for Reimbursement,
admitted to not having preserved and not currently possessing, and
failed to produce any such lender claim documents, as set forth in
discovery described in footnote #17 above. Also, Defendant’s
Fed.R.Civ.P. Rule 26(a) disclosure does not include a single document
originated by an originating lender.
34 With respect to correspondence between Plaintiff and an
originating lender: see both footnote #17 above and Complaint
14b; Plaintif was not in direct contact with a lender regarding the
EDUC claim at any time (even during TTCI’s loan origination * * *).
With respect to “correspondence between” Plaintiff and CSAC:
notwithstanding the US000014 “Contact History Report” that Defen-
dant failed to provide this Court (* * * see footnote #26 here above),
Plaintiff did not receive any of the “contact” CSAC shows * * *:
Plaintiff's Interrogatory #23 * * *: Which items, if any, in Defen-
dant’s disclosure document US000014 show Plaintiff's receipt of, or
Plaintiff's response to, any mailing or telephoning-as distinguished
from being a record of CSAC’s initiation of mailing or telephoning
that may or may not have resulted in a completed connection with
Plaintiff? RESPONSE NO. 23: The Contact History Report provided
Pet. App. 314
by CSAC is created and maintained by CSAC and is not a document
that Defendant is familiar with nor is the copy provided very clear.
Therefore, Defendant cannot definitively determine if there are any
notations showing Plaintiff's receipt of or response to mailing or
telephone call; CSAC may maintain another record, similar to Defen-
dant’s L102 Collector Note Pad, that shows telephone calls and
mailings from Plaintiff. /* * * Note: Defendant did not produce
“another record, similar to Defendant’s L102 Collector Note Pad.]
Plaintiff's Interrogatory #24 * * *: On Defendant’s disclosure
US000014, do the records described as “BAD ADDRESS” dated
12/27/90, 10/07191 and 11/20/91 refer to and define the immediately
previous address description of “623 E BROADWAY 1 LONG
BEACH CA90802” on 9/17190? RESPONSE NO. 24: As stated in
response to interrogatory number 23, this Contact History Report is
CSAC’s document. Defendant is not familiar with the specifics of
this document and thus is unable to definitively answer this
interrogatory. [* * * Answer to Plaintiffs Complaint...”14.(b),
“...Deny that Plantiff did not receive notice from the guaranty
agency; records from the California Student Aid Commission indicate
that notices and demands for payment were sent to Plaintiff as early
as February 26, 1987.” * * *
Admission #4. Defendant does not have, and has not provided to
Plaintiff, any copies of written communication between the [CSAC]
and Plaintiff to demonstrate successful contact by the state guaran-
tor with Plaintiff at any time. Answer: Admit that Defendant has
only provided Plaintiff with a “Contact History Report” but not
actually written collection letters or other written communications.
Reason to amend Answer to Admission 4: * * *
Admission #9. Prior to Plaintiffs original 1/2001 filing with this |
Court in this matter, Defendant did receive disputes and objections
from Plaintiff that included statements related to his attendance and
withdrawal at the school, his not having received the alleged loan,
his not having received contact from the lender or state guarantor
about a loan or default, and his not having received verification of
debt in response to his 1993 verbal and written responses to an
initial demand received from Defendant at his California residence.
Answer: Admit.
Admission #20. Defendant did not advise Plaintiff of any
investigation based on his dispute to having received the alleged
loan, or make any inquiry of Plaintiff regarding details of his
involvement with TTCI outside offering to accept Plaintiffs applica-
tion to discharge an existing loan in response to his 1997 request for
review. Answer: Object to this admission as including multiple
statements. Subject to and without waiving this objection, deny first
statement regarding investigation because there was not investiga-
315 Pet. App.
tion; admit that Plaintiff off ils of his involv nt with
TTCI, prompting Defendant’ nd hi i
applications and negatin n r i icy, 98
Admission #23. Defendant had access to the information that the
state guarantor, CSAC, filed the default claim against Plaintiff, not
under the last known address for Plaintiff, but under an address
appearing previously to his last known address. Answer: Deny.
* * * September 7, 2001, Defendant’s Responses to Plaintiff's
Interrogatories and Requests for Production of Documents /Answers
to Requests for Production of Documents * * * set forth here:
Request #24. A document or documents containing explanations or
descriptions of column headings, data labels, codes and abbreviations
that are not self-explanatory or otherwise accompanied by keys,
legends, related instruc-tions or explanatory texts in Defendant’s
disclosure materials to Plaintiff, as data given without the means to
understand it does not seem to be fair disclosure, such as for the
following appearances in materials Plaintiff has received thus far....
[] c) US000014 CSAC Contact History Report: [] for all abbreviations
under “CLK,” “CD” (or “CO”?) and “INDX” columns; [] as well as
“DESCRIPTIONS?” content for the following dates: 3/19/87, 4/2/87,
6/19/87, 10/3 & 10/13/88, 3/31/89, 4/30/90, 12/27/90, 9/29 & 9/30/92
and 12/2 & 12/8/92. Re : Defendant is not in sion
custody or control of any documents that pertain to (a)-(d)...
***[plaintiffs note] _
Plaintiff's Interrogatory #4 to Defendant on June 1. 2001: What were
ED’s responsibilities with regard to locating and ensuring contact
with Plaintiff upon having accepted the default claim against him,
and where are these responsibilities published in written form?
RESPONSE NO. 4: Education has no affi ive du ]
borrower, rather the borrower is requi ify the holder of i
loan of his or her curren , S.C. §107 1(P). In
the interest of collectin ion will ] available
means to locate a defaulted borrower. * * * [plaintiff's note]
Plaintiffs Requests for Admissions #24: Defendant had possession of
Plaintiff s California driver’s license number, but did not locate
Plaintiff through the Depart-ment of Motor Vehicles between
Defendant’s 5/93 acceptance of the claim against him and Plaintiff's
11/94 relocation to Colorado. Answer: Admit. Defendant uses Social
Security Numbers to conduct skip traces on borrowers, not driver’s
license numbers. [Reaon to amend Answer to Admission 24: * * *
Plaintiffs Request forAdmissions #5: With regard to keeping a
record of correspondence from an individual, a notation only of
having received a letter does not preserve any details of comments or
requests made in that correspondence. Answer: Admit
Pet. App. 316
iibadied GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
| payment records,*> and other records that
35 Defendant admits only having sent copies (of quaiity similar to
Exhibit B) of the promissory note to Plaintiff as “verification” of debt
prior to this suit; and has been supremely unconcerned that Plaintiff
did not receive more than one loan/default communication prior to
1996 (and that was Defendant’s own in 1993)—because Defendant
has “records” of CSAC and Defendant “sending” letters to Plaimtiff
since 1987, but doesn’t even claim to have lender records of commun-
ication before that. Collection by any entity of any voluntary pay-
ment by Plaintiff—as first/only claimed in Defendant’s Summary
Judgment/Dismissal Brief (at p. 5 #4, referencing Exhibit 1 118),
“CSAC was able to collect $211.85 from Plaintiff prior to the Depart-
ment of Education taking assignment of the loan on May 25, 1993”—
at any time is denied by Plaintiff (who did not receive contact from
CSAC at all) and Defendant’s new allegation is suspicious for several
reasons (one may note that Plaintiff thought the disclosure of that
same amount (on Exhibit C “AMTCOLBYGA: 211.85”) pertainec to some
fees collected by CSAC from Defendant, and one should note that
there is no related “paid” date following that entry, “LASTPDGA:___”): -
e Defendant did not send evidence of such alleged $211.85 payment
from Plaintiff to CSAC, as prior acknowledgment, and therefor
verification, of debt in response to Plaintiff's requests for
verification between 1993 and filing suit in 2001.
e Defendant has not produced a document to evidence such aileged
payment from Plaintiff to CSAC.
e A CSAC “payment history” resulting from, and showing record of
such alleged $211.85 payment by Plaintiff was not part of
Defendant’s Fed.R.Civ.P.Rule26(a)(1)(B)B Documents from
California Student Aid Commission initial disclosures
e Such $211.85 payment from Plaintiff is not recorded anywhere on
the single-page Fed.R.Civ.P.Rule 26(a)(1)(B)B Documents from
California Student Aid Commission “Contact History Report dated
December 31, 1993”—which only records dollar amoutns 3 times:
on 10/03/88/$2,666.94, on 3/31/89/$2,666.94, and on 4/30/90
($2,666.94)?
e Discovery in this suit includes requested admission,
"21. Defendant was aware that Plaintiff has not made any
voluntary payment for the alleged loan at the time of accepting the
default claim against him. Answer: Admit” as asked by Plaintiff
on July 27, 2001, and answered by Defendant on September 4,
2001—>prior to the Brief’s October 1, 2001, introducing this
allegation to Plaintiff when submtiting Exhibit B * * *
317 Pet. App.
aitiediins GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
evidence transactions between the borrower and
| the holders*¢ of [his] loan, including [Defendant]
and the originallender,*’ and, for guaranteed
loans, the loan guarantor.. .”%8
=
36 The Navarro declaration, that introduces Exhibit B (et al.) under the
umbrella of litigation support/experience that, by general mention,
implies the existence of such supporting materials for the EDUC
claim, fails to advise in Specifics of Bruce Edward’s FFELP Loan, pp.
6-11, ##17-32, the lack of those required records for the EDUC claim
that should evidence transactions between Plaintiff and “the holders”
during the period before Defendant accepted assignment of the claim
on May 25, 1993: * * *
37 By using the singular noun, “the original lender,” in this general
introduction (Exhibit 1, p. 3, #6 at second-to-last line), and the most
obviously coordinated identification of the bank shown on Exhibit B,
“First Independent Trust,” as “the lender” meant by all following
references, both in the Brief (“FACTS...A. Plaintiffs Loan...#2 at last
sentence and until the end of the Brief) and in Exhibit 1 (p. 7, #17 at
last sentence and until the end of Exhibit 1), Exhibit B is offered to
this Court as evidence supporting the Brief’s Argument “B. Plain-
tiff Has Failed to Show a Genuine Issue of Material Fact, and
Defendant Is Therefore Entitled to Summary Judgment As a
Matter of Law,” without once meutioning “iender #801178”
that is the only lender number shown (as the second entry,
3/19/87) on CSAC’s Contact History Report dated December 31, 1992
(Defendant’s Fed.R.Civ.P. 26(a)(1)(B)B-Exhibit 1), the only lender
on the NSLDS Loan History (p. 2; disclosed as US000087 under
Defendant’s Fed.R.Civ.P. 26(a)(1)(B)C-Exhibit 13), and the
originating lender: 801178 B of A Trustee c/o CMSC, as well as
the claiming lender (disclosed as US000071 under Defendant’s
Fed.R.Civ.P. 26(a)(1)(B)C-Exhibit 4) for Defendant’s EDUC claim
against Plaintiff—which is a genuine issue of material fact,
since the lender, First Independent Trust (see Exhibit B, for
example) for which Defendant cannot answer Plaintiffs
defense of default/non-consuummation of the 1985 promissory
note agreement that Defendant purports to be enforcing, is not
the originating/claiming lender, Bank of America #801178, of
Defendant’s records—supported by previously undeclared
“documents and information” that would not normally survive
program disposition regulations, and were “produced” in 2001
as indirect “evidence” for this suit.
38 Exhibit 1, p. 3 #6
Pet. App. 318
* * *
RULE:
GROUNDS to Strike EXHIBIT B: ”Promis-
sory Note...signed on June 17, 1985”
Exhibit B/Exhibit 1 provenance/ creden-
tials are thus falsely implied to be legitimate
basis for Defense/Brief representations as to
contents and meaning (but see footnotes for
above J, directly related to the EDUC claim
against Plaintiff not addressed in the
Brief/Exhibit |’ s self- described general
information about “relevant” records); Exhibit B
is not relevant/admissible under this Federal
Rules of Evidence #902(11).
Not only is Exhibit B (introduced into
evidence through Exhibit 1) not a self-
authenticating certified domestic record of
regularly conducted activity (A) made at/near
the time of occurrence of the matters set forth
by/information of a person with knowledge of
those matters, (B) kept in the course of the
regularly conducted activity; and (C) main-
tained by the regularly conducted activity as a
regular practice, but also, Defendant failed to
provide Plaintiff the prerequisite written notice
of the intention to introduce it as evidence
through Exhibit 1, and to make that declaration
available for Plaintiffs inspection sufficiently in
advance of such offering into evidence to provide
fair opportunity for his challenge; so. Exhibit B
is inadmissible as to Defendant’s purposes.
FRCP#
37(c)(1)
Defendant failed to correct initial disclosure of
Exhibit B as not from TTCI, required by
Fed.R.Civ.P 26(e)(1), without substantial
justification, compounded by Defendant’s
failure to identify, to the Court, TTCI’s status
as lender’s agent/loan-originator (interested
party/fiduciary to all other participants) in the
creation/signing of Exhibit B’s original. Also,
Defendant failed to signify, to the Court, that
First Independent Trust on Exhibit B is not the
319 Pet. App.
eas GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
lending institution that submitted the default
claim as originating lender. These failures are
not harmless, therefor Exhibit B/the promissory
note Plaintiff signed 6/17/85 should not be
permitted to be used by Defendant at a trial or
hearing, or on a motion.
FRCP# | Exhibit B is lacking the “parts” of that agree-
56(e) ment demonstrating its valid consummation to
meet Plaintiff s defense of lender default, or to
prove any obligation to Bank of America arose
from it on Plaintiff s part (including that of
reporting his address to a “holder”). Thus, it is
not a promissory note supporting the EDUC
claim against Plaintiff suggested by being
offered in the Brief through Exhibit 1—neither
of which mentions First Independent Trust is
not that originating/claiming lender. so is not
admissible for Defendant’s purposes to support
such affidavits. .
FRCP# | Exhibit B was submitted in bad faith as support
56(g) of Defendant’s claim against Plaintiff for the
originating lender, Bank of America, both by
Exhibit 1 an/ its covering Brief, so is
inadmissible for Defendant.
Grounds to RESTRICT corresponding initial
disclosure of Defense Fed.R.Civ.P. (12)(a)(1)(B)A
“Exhibit 2.. .” as Defense Presented,
Without Inference between 6/17/85 and 4/28/01
Plaintiffs participation in enrollment and loan
origination at TTCI is not in dispute, but the duration
and the results of his involvement with TTCI are. Based
on that and the foregoing Federal Rules of Evidence/Civil
Procedure objection grounds and Exhibit B’s condition,
content and initial disclosure receipt by Plaintiff on April
_28, 2001, (in similar condition, as Defendant’s
Pet. App. 320
1
slandint GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
Fed.R.Civ.P. 26(a)(1)(B)” A. Documents from Travel and
Trade Career Institute/Exhibit 2: Promissory Note and
Disclosure Statement for Loan signed on June 17, 1985,”
BOTH parties share only the following knowledge:
¢ Plainti‘f signed a promissory note with more terms
and conditions that appear in Exhibit B, at TTCI on
June 17, 1985;
¢ Exhibit B and Defendant’s Fed.R.Civ.P.
26(a)(1)(B)A/Exhibit 2 are believably copies, legible
on the front/illegible on the reverse, of a 1985
promissory note Plaintiff signed, but cannot be
deemed evidentiary copies of any legal contract;
e Defendant sent copies similar to Exhibit B to Plaintiff
from mid-1996, and at various subsequent times, as
“verification” of the EDUC claim;
e the legible writing and printing on the front/first
page of Exhibit B, and the CSAC endorsement to
Defendant on the back/second page, reflect what
Defendant provided to Plaintiff prior to his filing suit
and to the Court since the initiation of this suit, and
contain only a portion of a proposed agreement, but
not the entire writing nor any demonstration of the
lender’s performance prerequisite to any obligation
on Plaintiffs part for having signed the original
agreement (“Note”);
e Defendant’s disclosures and entering into evidence of
Exhibit B/Note were made with express or implied
representations about the validity of the original as a
contract under which Plaintiff was obligated in some
way connected to Defendant’s claim against him, to
promote presumptions about Plaintiff, TTCI, “the
lender,” CSAC, and Defendant performances
subsequent to its signing; and
*t£*s— | GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
e on June 6, 2001, by forwarded copy of internal
Defense counsel letter with 2-page attachment,
Plaintiff received the first/only legible copy of the
entire disputed Note (subsequently submitted to this
Court as Enclosure 1 (3 pp.), Plaintiff's Motion to
Extend Leave to Amend Complaint and attached
Brief filed on July 2, 2001)
First provision of a legible copy of subject
promissory note to Plaintiff six months after this suit was
filed, and failure to submit such legible copy to the Court
as Exhibit B:
¢ contradicted all previous failures to send legible
copies of the note’s reverse side as “verification of
debt” (particularly after express written requests:
Complaint-Exhibit-K: 11/11/99-]2,12/10/99-{2,
12/17/99-43, 1/21/00-{1, 1/28/00-1 &
Complaint{33);
e still failed to fulfill Plaintiffs requests for a document
showing his signature of endorsement on a loan
check showing his receipt of a loan or the alleged
disbursement according to the terms of subject
promissory note after he received Exhibit B-like
copies as “verification of debt,” (Complaint: {7, 10b,
11-13, 15-20,22, 22a, 23/Exhibit-H, 24/Exhibit-I,
34/Exhibit-K, 37); and, so, was not a valid response to
this Court’s permission at the May 17th Scheduling
Conference in this matter, for Plaintiff to seek to
extend leave to amend the Complaint contingent on
his failure to receive loan check endorsement or
disbursement signature disclosure related to the
EDUC claim;
e was not a Fed.R.Civ.P. 26(e) required correction of
26(a)(1)(B)A Exhibit 2; and
ee
Pet. App. 322
rattealias GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
* was not repeated for Defendant’s Summary-
Judgment/Dismissal Motion’s Exhibit B (unless the
Court’s version is greatly more clear that Plaintiff's).
In the limited context as described here above,
both the illegible and the legible copies of subject
promissory note are admissible for Plaintiffs purposes,
including, but not limited to:
¢ demonstrating their quality and legible contents
prior to this suit, as “evidence” in this matter, and as
they were actually available from Defendant;
e demonstrating inclusion in “school records” that
Plaintiff first received on April 28, 2001, (as against
his previously undisputed declarations®® based on
recollection of limited involvement with TTCI)
“demonstrating” a more complete/authentic school
record to “support” the EDUC claim than existed (see
“Defendant U.S. Department of Education’s Initial
Disclosures, II. SECTION (a)(1 )(B) DISCLOSURES:,
A. Documents from Travel and Trade Career
Institute:, Exhibits 1-8-first introduced only days
prior to required May 3, 2001, settlement statement
production by order of this Court;
¢ demonstrating possible impact of such false inclusion
in Defendant’s introduction of “school” documents,
described above, on Plaintiffs good-faith settlement
statement concession on May 3, 2001, that if
Defendant does have evidence proving a claim
Plaintiff had no record, recollection, or belief of
incurring, Plaintiff should include its payment in any
settlement for his cause of action-including likely
impressions given the Court both by inducing such
concession (albeit lacking any claim of recollection
39 See Complaint 7, 12, 13, 15-20,22, 22a, 37,23 & Exhibit-H, 24&
Exhibit-I, and 34 & Exhibit-K.
323 Pet. App.
7o% GROUNDS to Strike EXHIBIT B: ”Promis-
RULE: | sory Note...signed on June 17, 1985”
matching the “school records,” only acknowledging
that Plaintiffs memory might be faulty) of which all
but a specified part carried a release for Magistrate
Judge Watanabe to disclose, and by the false
“authenticity” lent “disclosure from the school” to the
Court, that might encourage detrimental or adverse
reception of Plaintiffs side in this suit;
e demonstrating the withholding of relevant terms of
Plaintiffs agreement with First Independent Trust,
including (but not limited to) interpretive code and
regulations; but
¢ not demonstrating the consummation of the
promissory note according to its express terms,
applicable code and regulations, and authentic
supporting documentation.
Respectfully submitted in its entirety, including footnotes
following, as signed and dated below:
s/Bruce Edwards 10.22.01
Bruce Edwards, Date
Plaintiff, pro se
1001 Emporia Street,
Aurora, CO 80010-3825
(303) 341-9433 (non-published, home)
* NOTE: Unless otherwise indicated, all citations herein refer
to CFR Revised as of July 1, 1999, or USC Revised as of
January 6, 1999, upon which Plaintiff mainly relied in
developing his Complaint—before 6/6/01 receipt of the first
legible copy of the reverse side of the Note (Exhibit B) on which
Paragraph XII identifies interpretive code/regulations.
Pet. App. 324
#69 Response (mtn. to compel) 10/30/01
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
{Filed United States District Court District of Colorado BB
2001 OCT 30 PM 1:33 James R. Manspeaker Clerk by s/JC Dep. Cik}
Civil Number: 01-BB-36
BRUCE EDWARDS
Plaintiff
Vv.
UNITED STATES DEPARTMENT OF EDUCATION
Defendant
** ¥RESPONSE TO PLAINTIFF'S “MOTION FOR PRODUC-
TION OF COMPLETE AND LEGIBLE DOCUMENTS”
Defendant United States Department of Education
(“Defendant”), by and through United States Attorney
John W. Suthers and Assistant United States Attorney
Peter Krumholz, hereby responds as follows to Plaintiffs
“Motion for Production of Complete and Legible Docu-
ments.”
1. Plaintiff Bruce Edwards (“Plaintiff”) filed a motion
pursuant to Fed. R. Civ. P. 37 on October 3, 2001. Plain-
tiff contends in the motion that Defendant produced
several documents that are incomplete under F ed. R. Civ.
P. 37(a)(3), including:
a. Application for California Guaranteed Student
Loan signed May 6, 1985;
b. Three receipts for Pell grant checks signed in
August and October 1985;
c. Student Enrollment Agreement signed on May 7,
1985; and
d. Contact History Report dated December 31, 1992.
2. Plaintiff ignores the fact that five of the documents
of which he complains are more than 16 years old. It
should not be surprising that the image quality of
documents pertaining to a loan signed for in May 1985 is
less than crystal clear.
3. More importantly, however, all six of the docu-
ments of which Plaintiff complains originally came from
325 Pet. App.
entities other than Defendant. As Plaintiff concedes, each
of the documents came from the files of either the Travel
and Trade Career Institute, the school for which Plaintiff
took the loan, or the California Student Aid Commission,
which guaranteed the loan. See Plaintiff's Motion, 1. De-
fendant duly produced those documents pertaining to
Plaintiffs loan which were in its possession, custody or
control. Having done so, Defendant fulfilled its obligation
under Rule 26. See Fed. R. Civ. P. 26(a)(1)(B).
4. Finally, Plaintiffs motion is an attempt to make a
substantive legal argument in the guise of a discovery
motion. For example, Plaintiff contends that the Pell
grant check receipts “are illegible as to the identity of the
bank on which they are drawn.” Plaintiffs Motion, 7.
From that observation, Plaintiff concludes that the
receipts are
incomplete with respect to establishing
authenticity, genuineness and relevance to
the EDUC claim for such check receipts from
TTCI demonstrating its acceptance of a grant
purportedly made to Plaintiff after the first
day ofclass that he identified, more than once
since 1998 without dispute from Defendant,
as the date he withdrew from enrollment
without further contact with the school.
Id. In other words, from the fact that the bank name on
the receipts is unclear, Plaintiff leaps to the self-serving
conclusion that they cannot possibly stand for what they
indicate on their face: that Plaintiff received and signed
for each Pell grant check on the dates indicated on each
receipt.! Plaintiff has made similar arguments to such
1 In addition, it is not true that Defendant has never disputed that he
withdrew from enrollment after the first day of class. As Defendant
indicated in its summary judgment papers, the school’s computerized
records indicate that he attended the school from May 20, 1985 until
November 11, 1985. Memorandum Brief in Support of Motion for
Summary Judgment at 5, 6 (filed Oct. 1, 2001).
Pet. App. 326
damaging documents in other pleadings. See, e.g. Fed. R.
Civ. P. 12(f) Motion to Strike as Inadmissible to Defen-
dant, etc. (filed Oct. 19, 2001). A motion una Rule 37 is
not the appropriate place for such arguments.
5. For the foregoing reasons, Defendant respectfully
submits that Plaintiffs motion should be denied.
Dated this 30th day of October, 2001.
Respectfully Submitted,
JOHN W. SUTHERS s/Peter Krmholz
United States Attorney Peter Krumholz
Assistant United States
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