Summary
stating that the obligation to notify an applicant about any adverse action or approval did not arise until the application is complete
Summary of this case from Cooksey v. Select Portfolio Servicing, Inc.Opinion
CIVIL ACTION NO. 1:04-CV-2258-CC.
September 18, 2006
ORDER
This matter is before the Court on SunTrust Bank's Renewed Motion for Summary Judgment and SunTrust Mortgage, Inc.'s Notice of Joinder [Doc. No. 54-1]. The Court heard oral argument on this motion on September 18, 2006. The Court has carefully reviewed the submissions of the parties and the applicable law. In accordance therewith, the Court finds that Defendants' motion for summary judgment is GRANTED in part and DENIED in part, as described herein.
I. FACTUAL BACKGROUND
On October 20, 2003, Lisa D. Wright, Plaintiff herein, filed suit against SunTrust Bank alleging violations of the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq., ("ECOA") and Federal Reserve Board Regulation B, 12 C.F.R. § 202, et seq. ("Regulation B"). Law Office of Lisa D. Wright, LLC v. SunTrust Bank, No. 1:03-CV-3184-JOF (N.D. Ga. filed Oct. 20, 2003). A settlement agreement was reached in that action, and the case was administratively closed in January 2004 [Doc. No. 14].
On June 29, 2004, Plaintiff Wright discussed a residential mortgage loan with SunTrust Mortgage, Inc. ("SunTrust Mortgage") loan officer J.D. Williams. (Deposition of Lisa Wright at 35.) Plaintiff contends that she provided authorization for Mr. Williams to obtain her credit report and that she provided Mr. Williams with her social security number, birth date, the requested loan amount, her current income, a detailed listing of her monthly obligations, and information regarding her current rental properties. (Wright Depo. at 37-38.) Plaintiff testified that Mr. Williams told her he would obtain her credit report and follow-up with her. (Wright Depo. at 40, 44.) Plaintiff testified that Mr. Williams did not request written authorization to obtain her credit report or tell her that an application fee was required. (Wright Depo. at 46.) Plaintiff states that she later telephoned Mr. Williams and left a message requesting an update on her application. (Wright Depo. at 55.) Plaintiff was not contacted again by Mr. Williams or SunTrust Mortgage.
Mr. Williams stated that he asked Ms. Wright to send him copies of her tax returns, sign a credit-release form and/or complete an online application, and provide the application fee. (Deposition of J.D. Williams at 28.) Mr. Williams testified that Ms. Wright was in the "inquiry stage," rather than the pre-qualification stage and that she told him she would follow-up with him regarding the loan. (Williams Depo. at 22-23, 33.) Mr. Williams stated that he was not aware of Plaintiff's prior lawsuit and that, to his knowledge, SunTrust Bank and SunTrust Mortgage do not share computer systems. (Williams Depo. at 54-55.) Mr. Williams testified that he did not enter Plaintiff's information into his computer system. (Williams Depo. at 47.) Plaintiff did not speak with anyone other than Mr. Williams at SunTrust Mortgage, and she never called SunTrust Bank regarding the June 2004 loan request. (Plaintiff's Response to Defendants Suntrust Bank and Suntrust Mortgage, Inc.'s Statement of Material Facts to Which There Is No Genuine Issue to be Tried [Doc. No. 69], ¶¶ 5-6.)
SunTrust Mortgage maintains policies to identify types of loan transactions. (Affidavit of JD Williams [Doc. No. 32-1], ¶ 10.) According to those policies, an inquiry transaction does not require any documentation and the consumer's credit report is not obtained. (SunTrust Bank's Memorandum of Law in Support of Its Motion for Summary Judgment [Doc. No. 32-1], Exh. D.) In a inquiry transaction, the consumer seeks general information about the loan and the loan officer explains basic product guidelines. (Id.) Information is provided about the application process and documentation required but a credit report is not obtained. (Id.) SunTrust Mortgage policies also address pre-qualification requests (where the lender opines whether a loan will be approved or denied), conditional approval, and preapproval. (Id.) SunTrust Mortgage's prequalification request policy permits credit applicants to apply by telephone. (Id.)
Plaintiff's instant suit alleges that SunTrust Mortgage did not consider and/or respond to her June 2004 loan application because she had previously filed suit against SunTrust Bank alleging violations of the ECOA and Regulation B. Plaintiff further contends that SunTrust Mortgage's failure to notify her of an approval, adverse decision, a counteroffer on her application or that her application was incomplete violated the ECOA and Regulation B. Defendants have moved for summary judgment.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). While the movant carries the initial burden of showing the absence of a genuine issue as to any material fact, the movant is not required to negate his opponent's claim, but rather, may discharge his burden merely by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When this burden is met, the non-movant is then required "to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324.
A court evaluating a summary judgment motion must view the evidence in the light most favorable to the non-movant. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988); Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986), reh'g denied, 815 F.2d 66 (11th Cir. 1987). However, Rule 56, "[b]y its very terms, . . . provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment, the requirement is that there be no genuine issue of material fact."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is not genuine if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50. Substantive law will identify which facts are material. Id. at 248.
III. LEGAL ANALYSIS
A. Retaliation Charges
Plaintiff alleges that SunTrust Mortgage failed to properly consider or respond to her credit request because she had previously filed a lawsuit against SunTrust Bank alleging violations of the ECOA and Regulation B. The ECOA provides that it is "unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction . . . because the applicant has in good faith exercised any right under the Consumer Credit Protection Act." 15 U.S.C. § 1691(a)(3) (emphasis added). Plaintiff's retaliation claim fails because she cannot identify any causal link between the alleged discrimination by SunTrust Mortgage and the 2003 lawsuit against SunTrust Bank.
Plaintiff does not dispute that SunTrust Mortgage and SunTrust Bank are separate legal entities. The evidence establishes that Mr. Williams is an employee of SunTrust Mortgage and has never been employed by SunTrust Bank. In addition, Plaintiff admits that she spoke only with Mr. Williams in connection with the June 2004 inquiry and did not contact anyone at SunTrust Bank.
To support her allegation that the entities share information, Plaintiff cites the SunTrust Privacy Policy, which provides that "information held by any Suntrust subsidiary is available to other members of the Suntrust corporate family for authorized purposes, unless a client has specifically requested otherwise." (Brief in Support of Plaintiff's Response in Opposition to Defendants Suntrust Bank and Suntrust Mortgage, Inc.'s Motion for Summary Judgment [Doc. No. 69], p. 5-6.) Plaintiff admitted at her deposition that she does not know "what information that SunTrust Mortgage had;" in other words, Plaintiff does not know if Mr. Williams knew about her suit against SunTrust Bank. (Wright Depo. at 50.) While Plaintiff contends that it is "logical to conclude that as of June 29, 2004 Suntrust Bank held information regarding the Plaintiff in their [sic] shared computer system" and that Mr. Williams "accessed the Suntrust family of computer companies computer system to begin the process of ordering the Plaintiff's credit report," Plaintiff cites nothing in the record to support this supposition. (Brief in Support of Plaintiff's Response in Opposition to Defendants Suntrust Bank and Suntrust Mortgage, Inc.'s Motion for Summary Judgment [Doc. No. 69], p. 12, 14.) Indeed, the record fails to reflect that the entities share computer systems or that information about Plaintiff was contained in any computer system used by either entity. In addition, Mr. Williams testified that he did not enter any of Plaintiff's information into any computer system.
The Court finds that Plaintiff's allegations are entirely speculative, conclusory, and without evidentiary support. It is axiomatic that a plaintiff cannot defeat summary judgment by relying merely on speculation. See Fed.R.Civ.P. 56(e). The Court accordingly grants summary judgment on all claims against SunTrust Bank and on claims of retaliation under 15 U.S.C. § 1691(a)(3) and 12 CFR § 202.4 against SunTrust Mortgage.
B. Failure to Notify
Plaintiff also alleges that SunTrust Mortgage violated the ECOA and Regulation B by failing to notify her of action taken on her application, or that her application was incomplete, within thirty (30) days of the telephone conversation. The parties dispute whether Plaintiff's June 2004 telephone conversation with Mr. Williams constituted an application under the ECOA. An application is defined as "an oral or written request for an extension of credit that is made in accordance with procedures used by a creditor for the type of credit requested." 12 C.F.R. § 202.2(f). According to the official staff commentary, "[t]he term `procedures' refers to the actual practices followed by a creditor for making credit decisions as well as its stated application procedures." 12 C.F.R. § 202 Supp. I.
1. Complete Application
SunTrust Mortgage's obligation to notify Plaintiff that her application was approved, that a counteroffer was made, or that an adverse action was taken, pursuant to 15 U.S.C. § 1691(d)(1) and 12 C.F.R. § 202.9(a)(I), arises only when an application is complete. An application is deemed complete once a creditor "has received all the information that the creditor regularly obtains and considers in evaluating applications for the amount and type of credit requested (including, but not limited to, credit reports [and] any additional information requested from the applicant)." 12 C.F.R. § 202.2(f).
In this case, the record fails to reflect that Plaintiff's application was complete at the end of the June 2004 telephone call, as Plaintiff admits that Mr. Williams never obtained her credit report and that she never provided written authorization to do so. In addition, Plaintiff did not pay the required application fee. Plaintiff furthermore cites nothing to indicate that SunTrust Mortgage had a general practice that differed from that set forth in the written policies — in other words, the record does not reflect that SunTrust Mortgage had received all information it regularly considers in evaluating applications such as Plaintiff's. Therefore, the Court finds that SunTrust Mortgage did not have any obligation to notify Plaintiff pursuant to 15 U.S.C. § 1691(d)(1) or 12 C.F.R. § 202.9(a)(i).
2. Incomplete Application
The fact that the notification obligations associated with complete applications were not triggered by the June 2004 conversation does not end the inquiry. Regulation B also requires that a creditor notify a consumer if an adverse action is taken on an incomplete application and must notify a consumer if his or her application is incomplete. 12 C.F.R. § 202.9(a)(ii) and (c)(ii). The Court finds that a genuine issue of material fact exists regarding whether SunTrust Mortgage violated Regulation B by failing to notify Plaintiff that it would not extend credit based on her incomplete application or that her application was incomplete.
The record reflects that SunTrust Mortgage accepts telephone loan applications. Plaintiff and Defendant dispute the contents of Plaintiff's conversation with Mr. Williams and resolving this dispute is critical to determining whether an application was in fact initiated by Plaintiff. According to Ms. Wright, Mr. Williams obtained all the information he needed for a standard credit application and stated that he would obtain her credit report and call her back to let her know which loan would be approved. (Wright Depo. at 44.) The Court finds that a reasonable trier of fact could infer that Mr. Williams indicated Plaintiff would be approved for at least one of the available options. Under these circumstances, the Court finds that a genuine issue of fact exists as to whether Plaintiff applied for a loan with SunTrust Mortgage such that SunTrust Mortgage had an obligation to notify her that her application was incomplete because she failed to submit the application fee and written authorization to obtain her credit report.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Defendants' motion for summary judgment as to all claims against SunTrust Bank. As to SunTrust Mortgage, the Court GRANTS summary judgment as to all claims of retaliation under 15 U.S.C. § 1691(a)(3) and 12 CFR § 202.4, and all notification claims arising under 15 U.S.C. § 1691(d)(1) and 12 C.F.R. § 202.9(a)(I), and DENIES summary judgment as to notification claims arising under 12 C.F.R. § 202.9(a)(ii) and (c)(ii).
The parties are DIRECTED to file a joint consolidated pre-trial order within twenty (20) days of the date of this Order.
SO ORDERED.