thank you arm it please the court john dugan on behalf of valerie hawkins and janice patterson at the outset i think it's clear and can be shown easily from the case decisions that anybody any person who becomes primarily unconditionally and absolutely liable on a credit transaction is an applicant under the c e o way in this case my clients are unconditionally absolutely and primarily liable for the debt according to the bank allegations how do you interpret what do you think the you think of the logic and rational in the maureen case from the seventh circuit which takes a different perspective well i think what occurred in the seventh circuit was actually a different set of facts than what we have here and it wasn't elucidated in that case your honor the seventh circuit articulated that the guarantors were not applicants because they didn't apply for anything the record on appeal before this court in the arguments from the banks counsel are that the reason why and guarantor is not an applicant is because they have a secondary liability on the debt only of the borrower cannot pay with the app with the guarantor be required to pay which is not the facts here in this case the guarantees are unconditional absolute primary liabilities it's no different in this case that if my clients would assign the note with p h c development in their husbands another common manner in which structure them this statute clearly gives the regulators the authority directly exclusively to interpret the statute and regulate with the force of law under chevron the court looks at that been fact you echo the opinions of chevron and meet in a couple of decisions that you wrote judge collison in haskin in beaver and it hasn't in baylor you echoed the rationale that if there is a specific grant of authority to a regulator to pass regulations with the force of law that we will give deference to the regulators and less the regulation is arbitrary capricious in there that if the statute is ambiguous correct but in this in the analysis in both tests and baylor as well as in chevron the actual court didn't come to the conclusion and never said the statute was ambiguous in fact in chevron the supreme court said we are convinced as the court of appeals is that the congress never intended for these bubbles owns to be part of the initial clean air act however because congress granted express authority to the regulators to pass regulations with the force of law the regulation in our view furthers the purposes of the statute the clean air act and therefore we're going to grant chevron deference because we can't substitute our legislative interpretation or view of what is reasonable for the regulators if it's not arbitrary or capricious in my view this statute the e c away has never answered the question when a guarantor is in the exact same position as a co borrower on a no by their liability is absolute unconditional in primary does the record in this case show that the applicant would have qualified for the loan without the guarantors we believe it does clearly judge but we never got to the merits of the case because the very narrow issue presented to the district court was a pure legal issue of standing because they were nominated a guarantor under a document called a guarantee did they have standing to bring the cause of action in the district court relied on the miranda rationale and said we don't think a guarantor is an applicant without going through the chevron analysis that judge collets and went through and has and baylor saying wait a minute this is a bit of a different circumstance because we actually have a regulator this been granted an express of forty to regulate with the authority of a log in to interpret the statute and under those conditions even if the statute doesn't specifically address the question here we grant deference and in my view in this case that statute does not address the question if i have a guarantor that is specifically unconditionally primarily liable for the debt as the bank claims in this case the bank ensued arrey hoc ins and janice patterson without suing their husband without suing the borrower or without going after the collateral and they can collect the full amount of the debt the regulators in effort to further the purposes of the statute say we're going to define persons who become or are contractually liable to repay a debt as an applicant because it makes sense because there is an infinite number of ways that banks can structure these financial transactions in my clients in this case are no different position than if they had signed the no as a co borrower in fact the court in bold bolduc the bill bank the first circuit case one sixty seven fed thirty six sixty seven those were the exact facts the wife was a cobar and the court said we think they're standing as an applicant in this case to suggest that if my clients had actually signed the note so the bank could sue them directly for the liability here and that because my client signed a document that's called a unlimited commercial guarantee which says the exact same thing the bank business there's come to the clear evidence your honor is that valerie hawkins did not there is a factual dispute as to whether or not janice patterson did and that factual dispute was never briefed on summary judgment and never presented to the trial court on appeal we think the banks trying to move for summary judgment for the first time in their response brief and they suggested that in fact janice patterson was somehow interested in the business because chris patterson as trustee of a trust were janice patterson was a beneficiary was the owner but if you look at the actual trust documents and they're not all supplied to the court only have to trust docu was part of the appendix but if you look at article four of the trust that the of panics page eight zero eight zero nine at the very specifically says each trust maker shall also have the absolute right to remove his or her own separate or in part from the trust at any time chris paterson of the underlying state court litigation a news deposition made it very clear that that ownership in this p h c development was his and his alone that even though he put it into the trust the expressed provisions of the trust would permit him to pull it out anytime it's so that's the factual dispute that there is in the trial record but it's never been resolved on summary judgment your honor so with regard to valerie hawkins clearly no interest with regard to janice patterson a factual dispute we believe the bank has no right to tell us what our trust document was intended to do and we think that will be a subject for summary judgment on remain and i think in our favor let me get back to what i think are some really critical points the bank in its pleadings in this case as part of us being an applicant says in the counter claim that they filed this is appendix nine seventy two paragraph one thirty three appendix nine sixty two paragraph one fourteen the bank said unequivocally we would not have entered into this credit transaction unless janice patterson and valerie hawkins were unconditionally absolutely and primarily liable what page of the you said that's page nine so seventy two paragraph one thirty three page nine sixty two paragraph one fourteen the bank  out demand letters and they attach to those demand letters to their particular counterclaim that's at appendix eight ninety two and a ninety six in the demand letters of the bank sent to valerie hawkins and janice patterson they said you're unconditionally and primarily liable for the debt we don't have to sue the borrower or anybody else to collect the debt in full from you the banks very allegations in this case make it crystal clear that the bank says we entered into the credit transaction because the spouses were unconditionally in primarily liable there is no difference between the spouses signing the note as a cobar work or signing a guarantee that says we can sue you without suing anybody else it's the same legal premise what's your response to the to the argument i think the district court even even cited that your your theory here is turning the purpose of the e c only on its head in other words in the discrimination against married women was designed so that they wouldn't be turned down because they couldn't get their husband to cosign your theory seems to turn that upside down but let me just be as straight as i can it's really not my theory i'm simply following the regulations that were passed by the regulators in the regulators have said applicants have standing guarantors or applicants applicants can bring a cause of action for punitive damages for emotional distress for declaratory relief and for attorney's fees but isn't the fundamental purpose of a remedy for the denial of credit precisely and here's where i get back to you i think we can't substitute our judgment for the regulators they believe and i believe this to be united stated in and in this case valerie hawkins who now is straddled with a lawsuit where she's being sued for two point one million dollars who was nothing but a housewife at the time she signed together it's not been denied that she's not being denied credit but she probably will be denied credit in the future because she's now a defendant in a lawsuit and if she were to go see credit for her own independent purposes in the future i believe that in fact she will be denied credit because she won't be able to get it with a lawsuit pending against her for two point one million dollars and i believe at the end of the day that when the congress granted this authority and keep in mind they did a significant amendment to the e c away in two thousand and ten three years after the moran decision came down i read minded there are a number of changes throughout the e c l way the statute itself by congress in two thousand and ten they never changed the definition of applicant to two thousand and ten to reflect the concerns that were raised by moran in fact what they did if they made a fairly extensive modification to section six hundred ninety one b which is the problem of regulations by the bureau and they added specific sections under sections f and g and a those sections which i read mind of my copy they made it very clear that they wanted the board to be able to pass regulations with the authority of the law and in subsection g they said we want the courts to grant the regulators the most deference that can be granted as a regulator interpret in the statute the response to moran by congress wasn't to go back and change the definition of applicant that of the regulation and inaction by congress speaks loudly of the fact that the regulators have the interpretation correct in this case congress spoke twenty five years after the regulation and after the concerns were raised in moran and congress never changed the definition of applicant and never said the regulators had it wrong in fact they passed a law that said the regulators regulation should have the force of law and they should be given deference i like to reserve the remaining time for my  please the court greer lange appearing on behalf of the community bank of brain or the apple a the first round of i'd like to address this issue about mr duggan's principle argument all relate to and derived from the regulation ignores the fashion laws clear based on chapter on that this court obligation in determining whether or not a regulation is valid is the court has to start and stop he's saying that the unique documents in this case created such liability an obligation on the part of the guarantors that they were functionally applicants because their liability was in secondary but primary there's nothing unique about the guarantees that are at issue in this case your honor they're identical to a commercial guarantee is that he is by every bank in the country they provided that in the event there's a hit in the event there's a fault by the buyer  or by the borrower that once the make the band if the bank is not then obligated up on the ball to go look to the borrower in this case it wouldn't do any good it was a limited liability company that had no assets it can go directly to the borrowers and made man the payment doesn't have to execute against the collateral at the standard guaranty this used by every most banks in the country so it doesn't change the dynamic in in this case and under the statute congress said the applicant is the approach is person who apply for credit not the person who might be primarily or secondarily liable but the person who goes out and applies for credit congress' purpose in enacting this statute was clear it was to prevent discrimination against the applicant for credit not didn't seek to protect the other parties that may come into the credit transaction guarantors pledge or as a lateral a grant for under a deed of trust congress was very clear the purpose of the statute was to protect in the in the instance when the statute was an active back in one thousand seventy four was to protect women who were unfairly discriminated against by borrowers in trying to obtain credit their income was discounted bank bankers had concerns about whether or not they would have children and that would do you know deplete their earning ability that not the situation in this case valerie hawkins janice patterson didn't apply for anything they weren't tonight and think the borrowing and see here was a limited liability company ph d development al based on the testimony of mr hawkins himself is when when he went and asked the bank if it would consider making this loan the bank said who will you provide as guarantors mr hawkins that me and my wife and mr patterson and his wife will be the guarantor the guarantors they offered their wives that bank didn't ask them there is no evidence in the record in this case that valerie hawkins were janice patterson or ever and the only thing the statute provided that is requiring a guarantee there is no evidence in the record that either of these women were ever required to provide a guarantee and back to be look at the other ruling the judge will entered in this case the ruling striking the wives demand for a jury trial judge  made the determination and it's not been challenged on appeal that the wives knowingly and voluntarily agreed to waive their rights to a jury trial when they signed their guarantees those same guarantee also provide representations that were made by the wife in this case that they were providing their guarantees at the request of the borrower p h c development l l c and not at the request of the bank not even at the request let alone the bank with requiring that missouri laws quite clear person puts their signature on a document and these two women put their signatures on sixteen guarantees in this case over the course open two thousand  applicant because they're part of the group that is requesting that the bank provide the money that one of the bank required them to do i believe voluntarily join me into the request for the loan by signing a guarantee that was going to be furnished to the bank did they there's no evidence your honor that they made application for this one and they came into the transaction after the transaction had already been essentially approved by the bank they were not the ones going to the bank and asking for money it was p h p development what that was doing that the miranda case is by clear on this point the applicant is the borrower it's not the people that come in secondarily on the transaction and yes their liability might be primary but their liability only kicks into place after there's been a the fault and there's been a demand by the bank women each made affirmative representations to the bank that they were providing their guarantees at the request of the borrower not at the bank now mr dugan has indicated that these alternate grounds that we have raised up in the space are not pertinent and should not be considered because they want raised in there in the district court in fact they were argued in the district court but the standard of appeal is is quite clear in the  by the record whether that argument with ernst in the district court low or not the factual statements that were presented on summary judgment for the execution of each of the sixteen guarantees at issue in this case found that the wives voluntarily and knowingly mind their guarantees and agreed to the jury waivers that are contained in those the women those women cannot now come into court and try to refute the very representations that they made to the bank which the bank relied on when it extended two million dollars two million dollars that has been funded they all receive the benefit of this money and they simply don't want to pay it back gone on to say that that somehow implicitly give sports authority to go in and boy guarantee there's nothing if you were to go in and void the guarantees in this case the bank will not be able to recover its money there is no determined that there were a violation would be ten thousand dollars congress and didn't indicate and courts in fact involved uniformly found there's no intent to invalidate the underlying obligations if you invalidate the the guarantees in from speaking to recover from them your honor and in fact there's litigation pending on out would it prevent actual collection would it provide a windfall to the borrower it probably would prevent ultimate collection because in missouri most property is held as property is when you buy the entire piece so there would be an extremely difficult attempt of the billing need to recover on that here when i want to go try to step back and talk about the the statute again because there is nothing in the statute this says if your primarily or if you're if you are primarily or if you're contractually or you may be contractually liable to p to pay that we mean that's an applicant to congress was very clear congress said the person who is the applicant the person who we intend to protect the person who we granted remedies to the person who can go into court to seek remedies is the aggrieved applicant and that the person who applies for the credit and congress wanted to include those other parties it could have easily s going back in two thousand and ten when the amendments were done extending the statue of limitations in those kinds of things i don't think that that answers the question the case that mr duggan had referred to as standing for the eighth circuit said unequivocally congress chose to define who a borrower is that means you regulators can't step in and redefine that term for congress doesn't mean that there might be something ultimately within the definition that the regulators couldn't come in in touch but you can't redefine the term here when when the e c away with a nap did in one nine hundred seventy four the first regulations that came out were entirely consistent with what they didn't change until twelve years later in one nine hundred eighty five and to suggest that congress has some person sitting aside who is watching every right relation that comes through the federal right register and watching every case that comes down from a court to see whether or not there's some court or a regulation that disagrees with what the statute says and that congress actually has the time to go back and make those all of those revisions is is not realistic it doesn't show that that this that congress this violence in the wake of what's been going on has any significance at all in this case is the person who applies to not apply it indirectly maybe would include a guarantor in that group we mean that the applicant is the person who applies directly to the credit for credit the only entity in this case that applied for credit was ph c there is not just any allegation in this case that p h c was discriminated against by requiring asking for and in this case the wives at the request of the borrower provided their guarantees there's no allegation of discrimination in that regard did your summary judgment motion include an alternative argument to the effect that there was insufficient evidence of discrimination it did not your honor we did not have an opportunity to develop that i would suggest however that the three or four additional alternative arguments with that we've presented are clearly supported by the factual statements that were part of the summary judgment you so much with regard to the follow up to judge grounders comment yes in fact there was no alternative grounds and there is evidence in the record at appendix five seventy one paragraph three appendix five seventy four paragraph three  case the fact that a marvelous it's hard to imagine that there would be discrimination here where history is a tendency by the entire east day you know it's very common to require hearing teens from but you know both spouses agreed and there's nothing judge that prohibits the bank from requesting a guarantee from a spouse as long as they make a determination that the other spouse or the borrower is not independently credit worthy and if the case were to go back on the merits in the bank were to say you know what we look at the financial state means tenancy by the entirety as any of you sitting on a ten million dollar bank account all he's going to do is is the next day at his wife's name to live and then it's not collectible but gary  and they knew that from his financial statements he's a c p a a principal of the c p a firm of the w two wage if they're going to collect they're going to collect on his w two wage his wife had no way to come she had nothing to recover from she was not somebody that was going to add anything to the credit transaction and that's why the regulation says don't automatically ask for the spouse's guarantee because it is discriminatory on the basis of marriage the last point i want to make is judge collins opinion i think if you speaks volumes to what we're talking about because it's a financial regulation case has to be citibank and there was a six pressed delegation in the judge said creditors need sure guidance through the likely technical truth of lending act congress gave the authority of the board there needs to be uniform administrative decisions rather than piecemeal litigation if you're to affirm what the district court did here to give a judicial burial to the statute in the eighth circuit where a guarantor even on an unconditionally primarily liable guarantee cannot actually a certain affirmative defense seek declaratory relief or seek damages then we've got the third circuit in other circuits we have piecemeal litigation substituting our view as lawyers for what the regulator say should be uniform thank you so much for your time we simply ask that you reverse the district court and remit every man the case back for further proceedings thank you thank you mr dunne in court which is thank both sides for your presence this morning your participation in the argument the briefing