mortgages they were discriminated against the properties that they were tempted to purchase were in basically a all white area and they believe that applied every case in this case i think that we have a burden of showing well they have a burden of showing that well number one they could show that there was statistical disparities in the input in the application process we've course were not permitted to show that they had to show that now they don't have to show it i think that a prima facie case is like putting logs on a on in a pile and at some point in time the court says well that seems to be enough and i don't think there's any magic answer this is not a case where you have to compare their treatment to some other people who might have applied for similar mortgages the mcdonnell douglas framework applies in the context of one nine hundred eighty one not just in title seven but why why wouldn't we apply it here in this one i mean one case why should they have to bear some burden of who was the loan officer he was only supposed to take a loan processing papers and so you want to the underwriter the allegation is that he created criteria which were unnecessary different and much more difficult but those were my theory a worse set for i mean i could see it if they weren't set forth in certain guidelines but each of the criteria there was a a reason in terms of guidelines or regulations as to why those criteria were in prose was there not for instance the use of the credit card the deposit the ten percent versus the twenty percent the appraisal the livability aren't all those conditions actually l isn't that the sort of thing i mean that's let me ask you this it's not contested is that in fact it lacked heat on the second floor and it i'm talking about the one specific really that we hold and that stress this on the pipes in the basement and that these those as a factual matter those things are real right right ok well if those things are real doesn't a lack of heat  in a significant portion of the home go to the livability of the residence and something that a rational loan officer would want addressed before laying out a couple hundred thousand dollars in you and loan money well there was testimony in the record that at this particular unit we're talking about was livable and someone had been running it out and the second tier i understand the proposal was simply to putting heating units for the second floor the complaint really is that even if there was some criteria hoxton over doing all these criteria he made this process far more expensive than it should have been for example there was problems in the air isn't properly in the basement with water and hobson said he and the the great throughout is that hobson made things more difficult for these individuals to know that that's just hoxton this way of doing things that he just goes by the book we're do we know is there evidence that he made it more difficult than he made it for others we have evidence of that latter fact my clients who testified today have dealt with this bank or in other other transactions and even with talks and they never had this kind of treatment going in for loans separately right that's right ok in that in that context with the bank looking at each individual set of circumstances  out there being regulatory and underwriting guidelines that they're following i guess i'm trying to find out whether the fact that they that these individuals borrowing previously from the bank may not have run into this problem makes it odd that when you do show up and with significant water damage in your basement and then praised as a can't appraise it in this condition what's odd about the bank saying well you've got to fix that in order to get this low you may have gotten other loans in the past from the bank without a problem that's because you didn't show up asking to borrow a couple hundred thousand dollars a hole was sufficient enough water damage that you could get a because you say this bank has dealt with us here year after year and has treated us really well and given us money right so that goes against the fact that well the bank doesn't give money to you people the theory here i thought was that the conditions were being imposed so they wouldn't move into the white neighborhood what's right so i mean which is it and what evidence did you a deuce and what evidence did you ask for in discovery that was probative of these because most of the questions asked in discovery seemed to be geared towards approval ratings and dealings other than focused on conditions imposed on others and conditions imposed when you were going to moving into a black neighborhood versus white neighborhood it's a bunch of questions but right to have yourself to and i guess we could have asked a few more questions the questions that we did ask we got absolutely nowhere with seems to be a pool rates were are irrelevant issue well these lives these laws were approved they closed my door but we wouldn't find out if they're giving blacks a hard time getting mortgage and i don't think he has generally i mean generally the you give blacks hard time or is no the rule is the purpose was the purpose your claim to show you were discriminatory toward the what did you ask that went to that claim but we asked them their approval rates for poor blacks and whites if properly over two hundred fifty thousand dollars ok seemed to me that was a first step to find out this data was available we going to do it and it was a first step and from that we would have inquired possibly even more about what exactly is going on and we never got that far we didn't get to the point where they're going to say ask me what i think in in all these always discrimination cases the courts always say that evidence of the policy of a company which might be discriminatory is always relevant me ask let me ask this what what authority funny do you have for the proposition that you could forgo a rule fifty six affidavit  and still preserve an argument that you needed discovery before summary judgment was honored it's my understanding a rule fifty six affidavit is an affidavit which you produce when used when you tell the court basically now any more time to well we have a precedent that says to the contrary and i'm asking you if you've got precedent that is somewhere that rebuts our existing precedent that says if you want to preserve  for appeal the assertion that you were denied discovery you need it you need to follow the procedure set forth in rule fifty six i think the procedure that if you file a motion to compel which we did right in this case and establish their promise fisher case and it's clear under pricewaterhouse they were required to identify similarly situated individuals who were treated differently now even if you assume in this case that that that specific requirement doesn't apply it's clear in any discrimination case the plaintiffs have to prove a set of facts sufficient to create an inference that they were treated differently because of their race even if they have i mean even under other cases there has to be something unusual about the conditions imposed exactly and here i don't we have that with the requirement that before closing you have to totally you have to somehow get  properties mission to totally renovate it with no assurance that you're going to be able to close that pretty unusual your honor in this case it's not unusual that there's no dispute that the property had significant water damage and there's no dispute that the appraiser mr mullins could not appraise the property because of that damage there's there's no allegation that mr mullins was racist really was a little just viewed about that there's another could appraise and could you walk in and say you know i'm sorry if i can't appraises needs at least one hundred thousand dollars worth of damage so i got to praise it one hundred thirty eight thousand if you really wanted to say no to the borrowers you say i'm sorry approach we can't give you this loan because the appraiser says as it is it's worth nothing concluded that he could not do an appraisal now the fact that possibly another appraiser could have done an appraisal is is not relevant because the bank isn't required to to use an appraiser that the plaintiffs offer supposed to dress in a condition like that in and we understand that it would be frustrating in this situation to want to buy a home nearly it was frustrating clearly where there are problems identified in the appraisal but the evidence is clear and there's there's indisputable that mr hoxton didn't create the problem with the we property the appraisal went to the underwriter in connecticut the underwriter misfit xeno identified the problems in the appraisal denied the loan now at that point and there's no evidence that mr hudson any influence on the denial of the loan but at that point unfortunately the release had to make a choice they either had to give up and not buy the property or they had to try to address the issues to get the loan  how how close to closing that happened for the weeklies the at what point did the bill like go on a walk over and they say you know what you can't close unless you come up with twice the money for a down payment days to try to address the issue so i think by august sixth the we knew about this increased requirement and well and their closing was scheduled for when all three properties were scheduled to close on the six but the we that's right that's right and well is there any inference to be drawn from them there is not an inference to be drawn from that because the plaintiffs have not alleged that the underwriter fizzy know was racist or had any racial animus directed toward them and the evidence is clear that that was a problem flagged by the underwriter because the we were using business plans for the to purchase the home and they didn't have a c p a to verify those funds and the underwriting records are clear that they had to have that c p a there's no allegation that that there's no evidence that that requirement was in any way motivated by the we race what did the bank do to alleviate the problem if anything that was created by that last minute demand for a double doubling of the down payment well your honor the you know in terms of alleviating the problem there really was nothing that the bank could do at that point it was a problem it had to be address the we didn't have a c p a the underwriting requirements are clear that they had to have one and the bank alternately didn't have to give the wheatley's a loan under that under those circumstances but they worked with the we lease to make an exception but as a condition of their use that i could i'm asking right when i say they did in fact work make an exception i asked what did you do the exception officer terry ham in connecticut determined that you know her judgment an exception could not be made unless that we agreed to the twenty percent down payment because an exceptional one cannot be sold  mae it has to be held in the banks portfolio in an exception officers judgment to minimise the risk of that the down payment had to be increased to twenty percent and that was the exception officers judgment and there's no evidence that she was in any way motivated or even knew the weekly race when have they put the ten percent down i didn't somebody know before closing that there was a problem with the nature of the funds i think the issue is is that there were enough problems there were enough other problems with the we loan including the property condition issue that the underwriter didn't focus on the specific issue about the c p a until late in the process now that is unfortunate and there is no question that the wheatley's were put in a frustrating situation as a result but there is no evidence at all that the underwriter was motivated by the way he's raised and in fact the plaintiffs don't allege that she was there they make no allegation that anyone other than mr hoxton was racially motivated but had no involvement in any of these increased conditions well but he had communicate i mean clearly he was the one leading the show when he was talking to people and there was testimony that there's if that he was getting pressure because they didn't want people to move into this neighborhood i mean there was testimony looking at the at the case from the vantage point of the plaintiffs we have evidence from the plaintiffs of more than just that you people we have are getting pressure not to be able to move into the to the white neighborhood  we have the there's one other statement but i mean there are still a number of things that you know bankers talk to talk to the underwriter talk to other people and it was a very strange transaction with three three having to close the same time properties very unusual you know if you draw inferences there were some conversation  art there's no way a reasonable jury could infer from mr hoxton to use of the word pressure and he did say he conceded his deposition that he said i'm feeling pressure here but there's no way a reasonable jury could infer from that that people in the community around silver lake were putting pressure on mr hobson to deny the loan particularly when the decision making was going on in connecticut and there's no evidence that anyone in silver lake had any contact with underwriters in connecticut to influence their decision making process and and you know addition plaintiffs haven't even shown that the the silver lake community is a quote white work statement is hearsay and speak as a for a party as an admission well she's not she wasn't a party and her employer work over a bank and a is not a party and she wasn't speaking about a matter within the scope of her employment when she supposed of the matter not offered for the truth matter it's either is offered to show the truth of the allegation that was that there was discrimination that this was a racially motivated series of incidents but in addition it's not simply there's two pieces to the plaintiff's theory one is we weren't treated with difficulties when we bought in black neighborhoods as soon as we bought in white neighborhoods suddenly there were these problems and some of those two pieces to the what the condition of the properties were in those previous transactions they haven't established that those are in any way comparable loans are covered by the similar guidelines so that piece of the theory hasn't been shown and that's an essential part of their theory that there's differential there's no question the district had discretion however here when there has been three years of litigation and where the district courts analysis of the federal claim is also dispositive of the state claim because the district said everything that happened here was in accordance with standard underwriting guidelines standard business practice as in in that situation there simply can't be a good faith and fair dealing claim if the bank complied with standard guidelines  in making its decisions and so in that situation in this specific situation it is an abuse of discretion not to simply enter judgment on the state law claim when it can be disposed of in exactly the same way as the federal  you have to have an appraisal to get the law i forgot or a lawyer you need a decision maker but if you're not going complaining about the decision you're complaining about conditions imposed then isn't his status as an employee enter agent's efficient for good faith  argument would have to be that it was somehow unfair that the wheatley's had to rip that the andersons had to repair significant water damage to the property and there's no dispute that it was damaged and they haven't shown that it that they were entitled to the loan with the property in that state so there's nothing on receipt they'd have to show that it was in some way unreasonable that they had to repair the property and there's just no evidence to support that allegation we understand that they didn't want to do it and that they would have preferred to wait until after closing but there's no evidence that it's in some way unreasonable to expect the property to be repaired before praise all which had been made at least three weeks before that mention maybe some problems with the roof on the very day of the settlement my clients contention is that was one more in ok no certificate no settlement to bed i don't want to vacation now i think it's a very significant thing that if in fact you presell people thought it was a problem then surely they would have notified him before that mr grady one thing that's key seems in your case is the fact that silver lake is a little white community right i've looked at the pictures and the description that this is a commercial property or near commercial on to pont highway i mean i grew up in wilmington delaware for good or bad and while i can't take extra record well notice of anything oh there is and the demographic that's in here there's not very much proof that this is in fact the white bastion that you make it out to be what evidence is there that we're dealing with the invasion of a white you know lily white community by three black families we do have an affidavit by a mr hill who says as basically a way community he what does that mean it's basically a while that it's all white that this is all there's a silver lake demographic but if you look at a macro or something they will include for example they were clued that area up by dover state college which of course is not part of this area but as this is true what couple these houses which were involved they back up on one side to the lake and on the other side to the highway if you drove down a highway it looks like a highway if you're sitting in a boat in the lake you say all the neighbors are white is a commercial zon end of the case and that's how you appeal it and there's nothing in there just to suggest that you have to go through and it will forty six aphids so i but but there's a difference is there not between denial of a motion and appealing and saying that was wrongly decided and saying there was summary judgment granted without my opportunity for sufficient discovery and therefore because the lack of discovery that should be overturned is not a made life difficult for these people from the very beginning he was looking for excuses to turn down a mortgage and only through their perseverance and and where they were going to mortgage and it cost them more money we noticed that you were repairs needed the allegation is we had to spend more money because hobson one of them at a higher standard thank you ron thank you very much case as well argue take it under advisement call our next