Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 1 of 19

YvET-rESOrKrrr,
Plaintiff, v.

ORIGINAL
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

1k CLERK'S OFFICE ~ .D.C. Atlanta

NOV 114 Ill

Clerk l

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Deputy lerk

CIVIL ACTION FILE NO.

BANK OF AMERICA CORPORATION, d/b/a BANK OF AMERICA and its wholly-owned subsidiary, EQLTICREDIT CORPORATION. STATE OF NEW YORK EXECUTIVE DEPARTMENT, DIVISION OF HUMAN RIGHTS, and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

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Defendants.

COMPLAINT COMES NOW PLAINTIFF Yvette Boykin and files this Complaint against the abovenamed Defendants on the following grounds :
JURISDICTION AND VENUE 1.
This is an action for race and sex discrimination in violation of the 1968 Fair Housing Act (the Act), as amended, 42 U.S.C. §§ 3601, et seq., and noncompliance with the Act's regulations at 24 CFR Parts 14, 100. 103,104, 105, 106, 109, 110, 115, and 121 ; race discrimination under the Civil Rights Act of 1866, 42 U.S.C . §§ 1981 and 1982; noncompliance with Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S .C. § 2000d, et seq . and HUD regulations at 24 CFR Part 1 ; discrimination on the bases ofrace, sec, and age in violation of the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691, et seq.; and constitutional violations
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Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 2 of 19
of due process of law under the Fifth Amendment, and due process and equal protection of the laws vender the Fourteenth Amendment.
The jurisdiction ofthis Court is conferred pursuant to IS U.S.C § § S 1691e(fl and 42 U.S.C. §§ 3601, et seq. As the claim arose in this District and involves a federal question, venue is properly laid in this Honorable Court.
PARTIES 2.
Plaintiff (hereinafter "Plaintiff-Applicant") is an African American female resident of the State of Georgia, who was age 53 at the tune of the acts complained of, and having exhausted all administrative efforts, is entitled to bring actions ofthis kind and nature .
3. Defendant Bank of America Corporation (hereafter "Defendant Bank") is a corporation registered and doing business in the State of Georgia as Bank of America, and whose business through its wholly-owned subsidiary, EquiCredit Corporation, consists in whole or in part in the making ofreal estate loans to qualified persons. Defendant Bank is a member ofthe Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation. Defendant Bank is a recipient of federal financial assistance as defined in Title VI . Defendant Bank may 6e served with process pursuant to Rule 4 of the Federal Rules of Civil Procedure by service on its registered agent for service of process, CT Corporation System, 1201 Peachtree Street, Atlanta, GA 30303 .
4. Defendant State of New York, Executive Department, Division of Human Rights (hereinafter "DHR") is a State agency with its principal office at One Fordham Plaza, 4"' Floor, Bronx, New York
2

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 3 of 19
10458, and a local office at Walter J. Mahoney State Office Building-Suite 506, 65 Court Street, Buffilo, New York 14202 . Defendant DHR administers a human rights law that the U.S . Department of Housing and Urban Development has determined to be substantially equivalent to the Federal Fair Housing Act, and thereby processes complaints of housing discrimination under this Act. Defendant DHR is a recipient offederal financial assistance as defined in Title VI . Defendant DHR may be served with process pursuant to Rule 4 of the Federal Rules of Civil Procedure by service at its principal office on Michelle Donaldson, Commissioner of the New York State Division of Human Rights .
5. Defendant, U.S . Department of Housing and Urban Development (hereinafter "I-IUD") is a Federal agency that administers, among other laws and regulations, the Federal Fair Housing Act (the Act), Title VI, and their implementing regulations. HUD's Assistant Secretary of Fair Housing and Equal Opportunity (hereinafter "FHEO") is the responsible Department official in all matters relating to these statutes and regulations. Pursuant to 8100 of the Act, HUD refers complaints of housing discrimination to a State or local agency with a fair housing law that it has determined provides rights and remedies substantially equivalent to those provided in the Act. The Headquarters Office of the Secretary of HUD and Assistant Secretary for FHEO is located at 451 Seventh St. SW, Washington, DC 20410. Defendant HUD may be served with process pursuant to Rule 4 of the Federal Rules of Civil Procedure by service at its Headquarters Office on HUD's Secretary, Mel Martinez .
3

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 4 of 19
FACTUAL ALLEGATIONS 6.
On or about June 29, PlaintiffApplicant applied for a real estate refinancing loan from Defendant Bank to improve, repair, end maintain rental property she owns in Buffalo, New York. PlaintiffApplicant was an existing customer with Defendant Bank and her loan application was processed by Defendant Bank's office in Jacksonville, Florida. PlaintiffApplicant was told by telephone that she had been initially approved for the loan based on her credit report and that all paperwork would be sent to her home in Conley, Georgia. Defendant Bank advised PlaintiffApplicam ofadditional information needed to finalize the processing of her ban application, including an appraisal of subject property .
7. On July 20, 2001, PlaintiffApplicant mailed Defendant Bank all documents required to complete the processing of her loan application.
8. PlaintiffApplicant met all financial and credit requirements of Defendant Bank and was in all respects qualified to receive a real estate refinancing loan .
9. On July 25, 2001, Defendant Bank informed Plaintiff Applicant by telephone that her loan application had been denied because her loan was considered a high cost loan according to New York State Banking Regulations.
10. On August 31, 2001, PlaintiffApplicant received a form denial of her application, dated August 27, 2001, which stated as the reason for the denial "exceeds high cost for NY ."
4

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 5 of 19
Ii .
Plaintiff-Applicant was treated differently from similarly situated loan applicants not in the protected classes, despite her qualifications for the loan because of her race, sex and the location ofthe property in a predominantly African American neighborhood . Upon information and belief, persons who were not members of the protected classes received loans and were more favorably treated in the loan application process than Plaintiff-Applicant with regard to the same or similar types of properties owned by PlaintiffApplicant .
12 . Defendant Bank's articulated "business and policy decision" for the loan denial was pretextual for illegal discrimination, in violation of the Equal Credit Opportunity Act and the Fair Housing Act because: (a) Upon information and belief, Defendant Bank's "business and policy decisiod'
reason for the denial was not the actual reason for Plaintiff-Applicant's loan denial, but was based on other improper factors; and (b) After her loan was denied, Defendant Bank failed to provide information regarding the availability of procedures or standards for the review and approval of loans, and timely written notice of her loan denial ; under such circumstances, members of the non-protected class were provided counseling, guidance and other favorable treatment, which was not extended or offered to Plaintiff Applicant because of her race, sex and racial characteristics of the neighborhood where the property is located.
13 . PlaintiffApplicant was disparately impacted by Defendant Bank's "business and policy decision" ofdenying her loan application because it was considered a "high cost loan". Upon

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 6 of 19
information and belief Defendant Bank utilizes a formula, criterion, rationale, standard of acceptance or business policy of reviewing loan applications, which when applied in Plaintiff Applicant's case and possibly others, disproportionately denies loan applications for protected individuals and for the types of protected residential areas in which her property is located . The application of the "business and policy decision" is too broad and conflicts with requirements set out in the ECOA and Fair Housing Act.
14 . In response to her loan denial, Plaintiff Applicant filed a housing discrimination complaint with HUD, which was referred to Defendant DHR for administrative processing. After investigating the allegations of Plaintiff-Applicant's HUD complaint, Defendant DHR, issued a No Probable Cause determination and closed the case . Accordingly, Defendant HUD closed its complaint based on this information
15 . In response to her loan denial Plaintiff-Applicant also filed a discrimination complaint with the Office of the Comptroller of the Currency (OCC), alleging violations under the ECOA. OCC referred the complaint to HUD for processing pursuant to an agreement between OCC and HUD, wherein HUD's resolution of any factual issues relating to the alleged violation under the Fair Housing Act would permit OCC to resolve the ECOA allegation as well.
16 . Defendant DHR did not pursue conciliation activity ; conduct a fair, accurate, complete, and impartial investigation of PlaintiffApplicant's complaint, and issue a determination that was supported by sufficient evidence and facts. Defendant DHR did not obtain facts, including statements containing information about events, transactions, policies and practices,
6

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 7 of 19
circumstances, and where applicable, credibility that relate to the alleged discriminatory practice consistent with proving or disproving the elements of a prima facie case of discrimination and Defendant Bank's defenses.
17 . Defendant DHR failed to comply with HUD's certifications as a substantially equivalent fair housing agency and the non-discrimination requirements under Title VI, by utilizing criteria or methods of administration in processing Plaintiff- Applicant's complaint which had the effect of defeating or substantially impairing accomplishment of the objective of its program and subjecting PlaintiffApplicant to discrimination because ofher race . Upon information and beGeC Defendant DHR administers its program and processes fair housing complaints based on sex and other protected classes more favorably than those based on race .
18 . Defendant HUD failed to properly supervise Defendant DHR's final processing of Plaintiff Applicant's complaint according to HUD certifications, regulations, and other contractual terms to ensure that sufficient evidence and facts supported the determination of No Probable Cause prior to closing its file on the complaint and authorizing payment to Defendant DHR.
19 . Defendant HUD did not process Plaintiff Applicant's complaint pursuant to its agreement with OCC and investigation of any possible violations under the ECOA .
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Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 8 of 19
COUNT ONE: RACE AND SEX DISCRIMINATION IN VIOLATION OF THE FAIR HOUSING ACT, 42 U.S.C. S& 3601, ET SEO.
20 .
The preceding paragraphs of this Complaint are incorporated herein by this reference. Defendants denied PlaintiffApplicant's real estate loan application because ofher race and sex, and the racial concentration of the area where the property is located, in violation of the Fair Housing Act, 42 U.S.C . §§ 3601, et seq., thereby entitling her to all appropriate relief under that statute.
21 . As a result of Defendant's conduct Plaintiff Applicant has suffered compensable damages in the form of economic loss, humiliation, embarrassment, mental anguish, inconvenience, and the deprivation of civil rights.
22 . Defendant's discriminatory conduct was willful, intentional, and malicious, warranting the imposition of punitive damages.
COUNT TWO: RACE DISCRIMINATION IN VIOLATION OF
THE CIVIL RIGHTS ACT OF 1866 42 U.S.C. 64 1981 AND 1982
23 . The preceding paragraphs ofthis Complaint are incorporated herein by this reference.

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 9 of 19
24 . Defendants denied Plaintiff-Applicant's real estate ban application because of her race and the racial concentration of the area where the property is located, in violation of the Civil Rights Act of 1866, 42 U.S .C. §§ 1981 and 1982, thereby entitling her to all appropriate relief under that statute.
25 . As a result of Defendant's conduct Plaintiff-Applicant has suffered compensable
damages in the form of economic loss, humiliation, embarrassment, mental anguish, inconvenience, and the deprivation of civil rights .
COUNT THREE RACE DISCRIMINATION IN VIOLATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964,
42 U.S.C. & 2000D, ET SEO.. NON-COMPLIANCE WITH TITLE VI REGULATIONS AT
24 CFR PART 1 26 .
The preceding paragraphs of this Complaint are incorporated herein by this reference. 27 .
Defendant Bank denied PlaintiffApplicant's real estate loan application because of her race, thereby excluding her Gom participating in and receiving the benefits of programs or activities receiving federal financial assistance, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C . § 20004, et seq., thereby entitling her to all appropriate relief under that statute.
28 . Defendant DHR discriminated against Plaintiff Applicant because of her race and is in non-compliance with HUD requirements by utilizing criteria or methods of administration which
9

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 10 of 19
had the effect of defeating or substantially impairing accomplishment of the objective of its fair housing enforcement program, and by conducting a faulty investigation and issuing a deficient Determination of No Probable Cause on her complaint that gave rise to this action, in violation ofTitle VI ofthe Civil Rights Act of 1964, 42 U.S.C . § 2000d, et seq., and 24 CFR Part l, thereby entitling her to all appropriate relief under that statute.
29 . As a result of Defendants' conduct Plaintiff Applicant has suffered compensable damages in the form of economic loss, humiliation, embarrassment, mental anguish, inconvenience, and the deprivation of civil rights.
30 . Defendant's discriminatory conduct was willfiil, intentional, and malicious, warranting the imposition of punitive damages.
COUNT FOUR RACE, SEX, AND AGE DISCRIMINATION UNDER THE EQUAL CREDIT OPPORTUNITY ACT
15 U.S.C. 6 1691 The preceding paragraphs of this Complaint are incorporated herein by this reference.
31 . Plaintiff Applicant complied with and met all of Defendant Bank's financial and credit requirements for refinancing her existing loan. Defendant Bank's denial of PlaintifFApplicants loan application thus constituted discrimination on the bases race, sex, and age, in violation of the Equal Credit Opportunity Act, 15 U .S.C . § 1691 -1691 f, thereby entitling Plaintiff= Applicant to all appropriate relief under this statute.
10

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 11 of 19
32 . As a result of Defendant Bank's conduct Plaintiff Applicant has suffered compensable damages in the form of economic loss, humiliation, embarrassment, mental anguish, inconvenience, and the deprivation ofcivil rights .
33 . Defendant's discriminatory conduct was willful, intentional, and malicious, warranting the imposition of punitive damages.
COUNT FIVE VIOLATIONS OF FAIR HOUSING ACT, 42 U.S.C. &$ 3600 - 3620 and REGULATIONS
AT 24 CFR; DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ACT, 42 U,S.C.3535 (d), and FIFTH AND FOURTEENTH U.S.CONSTI'I'UTIONAL AMENDMENTS 34 .
The preceding paragraphs ofthis Complaint are incorporated herein by this reference. 35 .
Defendant DHR had a legal duty to comply with certifications to administer and enforce its fair housing law in a manner which provided rights and remedies for processing Plaintiff Applicant's complaint that were substantially equivalent to those under the Fair Housing Act. Defendant DHR failed to comply with it legal duty by not conducting a complete investigation of the complaint and obtaining facts to determine whether probable cause existed to believe that a discriminatory housing practice has occurred . Defendant DHR thereby deprived Plaintiff Applicant of due process and equal protection ofthe laws under the Fourteenth Amendment.
36 . Defendant HUD failed in its legal duty and contractual obligation to ensure that Defendant DHR adequately complied with certifications and regulations required for
11

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 12 of 19
administering and enforcing its human rights law in a manner which provided rights and remedies for processing Plaint iff=Applicant's complaint that were substantially equivalent to those under the Fair Housing Act. Defendant HUD also failed to ensure that sufficient facts and evidence supported Defendant DHR's determination, and that the complaint was investigated pursuant to Defendant HUD's obligation with OCC prior to closing Plaintiff-Applicant's HUD complaint. Defendant HUD thereby deprived Plaintiff-Applicant of her Fifth Amendment rights of liberty and property without due process.
37 . As a result of Defendants DHR's and HUD's violation of their legal duties under the aforementioned statutes, regulations and constitutional amendments, Plaintiff-Applicant has suffered compensable damages in the form of economic loss, humiliation, embarrassment, mental anguish, emotional distress, inconvenience, and the deprivation ofcivil rights .
38 . Defendants DHR and HUD willfully, deliberately and maliciously violated Plaintiff Applicant's constitutional rights to fair housing, thereby entitling Plaintiff-Applicant to all appropriate relief under federal laws . WHEREFORE, Plaintiff Applicant demands judgment as follows: (a) General damages for mental and emotional suffering caused by Defendants'
misconduct . (b) Punitive damages based on Defendants willful, malicious, intentional, and deliberate
acts, including ratification, condonation and approval of said acts ; (c) Special damages for economic loss proximately caused by Defendant's conduct; (d) Damages for the deprivation of Plaintiff-Applicant's statutory and common law
rights ;
12

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 13 of 19
(e) Reasonable attorney's fees and expenses of litigation pursuant to U .S .C . § 1691e; and 42 U.S.C . §§ 1988, 2000d-7, and 3613 .
(f) Trial by jury as to all issues; (g) Prejudgment interest at the rate allowed by law; (h) Declaratory relief to the effect that Defendants have violated Plaintiff-Applicant's
statutory and common law rights ; (i) Injunctive relief requiring Defendant HUD to conduct a assessment/compliance
review of the past and current practices of Defendant DHR's Buffalo, New York office under the appropriate authorities and prohibiting all Defendants from further unlawful conduct of the type described herein; (j) Grant such additional and further relief as this Court deems just and proper. Respectfully submitted this 14th day of November 2003.
I do declare under penalty of perjury that the foregoing is true and correct .
vette Boykin Pro Se Litigant 4045 Rocket' Valley Drive Comet', Georgia (404) 244-1742
13

Case 1:03-cv-03467-MHS Document 1 Filed 11/14/2003 Page 14 of 19
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 Case 1:03-cv-03467-MHS Document 17 Filed 06/15/2004 Page 1 of 6

ORIGINAL

FILED IN CLERK'S OFFIC
U.S D.C. Atlanta

AV,./
JUN 1 5 2004

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

LUTHER By:

D.

THOMAS

Gift

ATLANTA DIVISION

U~~',dL Deputy C*k

YVETTE BOYKIN,

Plaintiff,

CIVIL ACTION

v.

1 :03-CV-3467-MHS

BANK OF AMERICA, N.A.,
EQUICREDIT CORPORATION OF AMERICA, STATE OF NEW YORK DIVISION OF HUMAN RIGHTS, and U.S . DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants .

ORDER

This matter is before the Court on defendants' motions to dismiss . The

Court's rulings are set forth below .

Background On November 14, 2003, plaintiff, who is proceeding fro se, filed this action
pursuant to various federal statutes, regulations, and constitutional provisions . Plaintiff claims that defendants Bank of America, N.A. and Equicredit Corporation of America (collectively, the "Bank") denied plaintiffs loan refinancing application on the basis of her race, gender, and age and the

AO 72A (Rev .B/8 )

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Case 1:03-cv-03467-MHS Document 17 Filed 06/15/2004 Page 2 of 6
property's location in a predominantly African-American neighborhood . Plaintiff filed a complaint with defendant United States Department of Housing and Urban Development (HUD) . HUD referred the complaint to defendant State ofNew York Division of Human Rights (DHR) . Plaintiff contends that HUD and DHR "failed to ensure that the investigation of the subject complaint was complete and adequate prior to issuing a no probable cause determination and closing the complaint."
On March 15, 2004, the Bank waived service of summons, and on April 9, 2004, the Bank filed its motion to dismiss . HUD filed its motion to dismiss on April 19, 2004 . The record does not show that DHR has been properly served and DHR has not answered or otherwise appeared in this action .
Discussion The only concern of the Court at this stage is whether, construing the
complaint in the light most favorable to plaintiff, Hargrave v . McKinney, 413 F.2d 320 (5th Cir. 1969), plaintiff will be able to prove a set of facts in support of his claims which would entitle him to relief. Milburn v . United States , 734 F.2d 762, 765 (11th Cir . 1984) . The complaint need not, and indeed should not, plead
2
AO 72A (Rev .B/82)

Case 1:03-cv-03467-MHS Document 17 Filed 06/15/2004 Page 3 of 6
evidence . In Re BeefAntitrust Litie . , 600 F.2d 1148 (5th Cir. 1979), cert. denied , 449 U.S . 905 (1980). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v . Gibson , 355 U .S . 41, 45-46 (1957) .
In its motion to dismiss, the Bank argues that plaintiffs claims against the Bank under the Fair Housing Act, 42 U.S .C . §§ 3601 et sea ., (FHA), the Equal Credit Opportunity Act, 15 U .S .C . § 1691 et seq . , (ECOA), and 42 U.S .C . §§ 1981 and 1982 (Civil Rights Act) must be dismissed as time barred and that plaintiff's claim against the Bank under Title VI of the Civil Rights Act of 1964, 42 U .S .C . § 2000d, et sea . , (Title VI) must be dismissed because the Bank is not a recipient of federal funding and plaintiff is not an intended beneficiary of federal funding as contemplated by Title VI .
HUD argues in its motion to dismiss that (1) plaintiff cannot state a FHA claim against HUD because HUD did not make available loans or financial assistance as contemplated by the FHA ; (2) plaintiff cannot state a FHA claim based on HUD's determination that plaintiff lacked probable cause to proceed
3
AO 72A (Rev .B/82)

Case 1:03-cv-03467-MHS Document 17 Filed 06/15/2004 Page 4 of 6
because HUD did not issue a final order that is subject to review in a district court; (3) and all ofplaintiffs other claims should be dismissed because the United States is immune from suit for money damages arising from constitutional violations .
In her responses, styled as a motions to deny defendants' motions to dismiss, plaintiff concedes that she cannot recover from the Bank on her Title VI and ECOA claims and that she cannot recover any money damages from HUD . Plaintiff did not respond to the Bank's motion to dismiss plaintiffs Civil Rights Act claims . Plaintiff argues, however, that her FHA claim against the Bank is not time barred because the statute of limitations was tolled while HUD and DHR processed her administrative complaint and that she is entitled to injunctive relief against HUD because HUD violated her right to due process of law when HUD did not review DHR's determination that plaintiffs claims had no merit. Plaintiff filed a letter from HUD to plaintiff to support her arguments .
The Court concludes that plaintiff has alleged sufficient facts at this stage to support the timeliness of her FHA claim. The Court denies the Bank's motion to dismiss plaintiffs FHA claim as untimely without prejudice to the Bank's right
4
AO 72A (Rev .B/82)

Case 1:03-cv-03467-MHS Document 17 Filed 06/15/2004 Page 5 of 6
to raise the timeliness issue after discovery in a motion for summary judgment . The Court grants the Bank's motion to dismiss concerning plaintiffs ECOA, Title VI, and Civil Rights Act claims as unopposed .
The Court grants HUD's motion to dismiss . Plaintiff fails to state a claim against HUD because HUD is not a party to plaintiffs underlying claim of discrimination ; HUD was compelled by the FHA to refer plaintiffs complaint to DHR, see 42 U .S.C . § 3610(f) ; and plaintiff cannot seek judicial review of HUD's actions because she has an adequate alternative remedy, i .e . her private action against the Bank, see Godwin v . Sec'y of Housing and Urban Dev. , 356 F .3d 312 (D .C . Cir. 2004) .
Summary For the foregoing reasons, the Court GRANTS IN PART and DENIES IN
PART defendants Bank of America, N .A .'s and Equicredit Corporation of America's motion to dismiss [#5-1] ; DISMISSES all ofplaintiffs claims except her FHA claim against defendants Bank ofAmerica, N.A. and Equicredit Corporation ofAmerica ; GRANTS defendant United States Department of Housing and Urban Development's motion to dismiss [#6-1] ; DENIES plaintiff's motions to deny
5
AO 72A (Rev 8/82)

Case 1:03-cv-03467-MHS Document 17 Filed 06/15/2004 Page 6 of 6

motions to dismiss [#7-1, #9-1] ; GRANTS plaintiffs motion to amend motion to deny motion to dismiss [#8-1] ; and ORDERS plaintiff to show cause in writing within ten (10) days from the date of entry of this order why defendant State of New York Division of Human Resources should not be dismissed for plaintiffs failure to serve defendant in accordance to Fed . R. Civ . P . 4. The Clerk is DIRECTED to submit this matter at the expiration of ten (10) days.

IT IS SO ORDERED, this ~V day of June,

1

n

MNrvin Mqh b, Senior Judge United Statesdistrict Court Northern District of Georgia

AO 72A (Rev .8/82)

ENTERED ON DOM, ~uN ~ z Zno4
LUTHER E) .Ttiis"iAS By; pqpW (:k0K
6

 
 FIl.£D IN ClERK'S OFFlC€
u.s D.C. !\!I~nta

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MAY 23 2005
L}g.HER D. THOMAS, Cleric
~~Dtp..,CIIIIr

YVETTE BOYKIN,

Plaintiff, v. BANK OF AMERICA, N.A., et aI.,

CIVIL ACTION NO. 1:03-CV-3467-MHS

Defendants.

ORDER Presently before the Court are the parties' cross-motions for summary judgment. For the following reasons, the Court grants defendant's motion, denies plaintiffs motion, and dismisses this action.

A072A (Rev.8/82)

Background On November 14, 2003, plaintiff, an Mrican-American female who is
proceeding pro se, filed this action pursuant to various federal statutes, regulations, and constitutional provisions. Plaintiff claims that defendants Bank of America, N.A., and Equicredit Corporation of America (collectively, the "Bank") denied plaintiffs loan refinancing application on the basis of her race, gender, and age and the property's location in a predominantly AfricanAmerican neighborhood.

On June 29, 2001, plaintiff applied for the loan over the telephone by calling Equicredit's headquarters in Jacksonville, Florida.l She sought the loan to refinance a home in Buffalo, New York. Equicredit informed plaintiff over the telephone that her credit rating was sufficient to qualify for a loan but that she would need to send further documentation to receive final approval. Plaintiff did not disclose her race or the racial makeup of the neighborhood where the property was located to Equicredit. Plaintiffmailed the requested documentation to Equicredit. None of this information revealed plaintiffs race, sex, or the racial demographics of the area surrounding the property.

On July 25, 2001, Equicredit contacted plaintiff by telephone and informed her that it had denied her loan application based upon its determination that the loan would be "high cost" under New York law.2 In August of 2001, plaintiff received written confirmation of the denial of her

A072A (Rev.8/82)

1 Plaintiff submitted her loan application to Equicredit Corporation of America, a wholly owned subsidiary of Bank of America, N.A.
2 At the time of plaintiffs loan application in June of 2001, Equicredit had a written credit policy that it would not make a loan which was considered "high cost" under New York law. A "high cost" loan is one where the closing costs for the loan exceed five percent (5%) of the loan amount. Plaintiff applied for a loan in the amount of $28,000.00. The estimated closing costs were $1,784.50, or 6.4% of the loan amount.
2

loan and Equicredit's determination that the loan would be "high cost" as the reason for denial.
On August 8, 2001, plaintiff filed a complaint against defendant Bank with defendant United States Department of Housing and Urban Development (HUD). HUD referred the complaint to defendant State of New York Executive Department, Division of Human Rights (DHR). DHR determined that there was no probable cause to support plaintiff's allegations and that the investigation did not reveal any evidence of discrimination. DHR found further that plaintiff's loan application was denied because costs exceeded defendant Bank's guidelines, which DHR concluded was a legitimate non-discriminatory business reason. Plaintiffcontends that HUD and DHR failed to ensure that the investigation ofthe subject complaint was complete and adequate prior to issuing a no probable cause determination and closing the complaint.
On June 10, 2004, the Court dismissed all claims against the Bank except plaintiff's claim under the Fair Housing Act ("FHA"). The Court also dismissed plaintiff's claims against HUD. On September 29, 2004, the Court
3
A072A (Rev.8/82)

granted plaintiffs motion for entry of default against DHR for failure to answer or otherwise respond to the complaint.
Defendant Bank now moves for summary judgment arguing that its denial of plaintiffs loan was not based on any discrimination against her. Plaintiff also moves for summary judgment and partial summary judgment arguing that the bank's denial of her loan was pretext for illegal discrimination.
Standard for Summary Judgment Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence ofan element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no 'genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
4
A072A (Rev.8/82)

The movant bears the initial responsibility ofasserting the basis for his motion. Celotex, 477 U.S. at 323; Apcoa. Inc. v. Fidelity National Bank, 906 F.2d 610, 611 (11th Cir. 1990). However, the movant is not required to negate his opponent's claim. The movant may discharge his burden by merely "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. Mter the movant has carried his burden, the non-moving party is then required to "go beyond the pleadings" and present competent evidence designating "specific facts showing that there is a genuine issue for trial." Id. at 324. While the court is to view all evidence and factual inferences in a light most favorable to the non-moving party, Samples V. City ofAtlanta, 846 F.2d 1328, 1330 (11th Cir. 1988), "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).

A072A (Rev.8/82)

A fact is material when it is identified by the controlling substantive law as an essential element of the non-moving party's case. Anderson, 477 U.s. at 248. An issue is genuine when the evidence is such that a reasonable
5

jury could return a verdict for the nonmovant. Id. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 58687 (1986). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50. Thus, to survive a motion for summary judgment, the non-moving party must come forward with specific evidence of every element material to that party's case so as to create a genuine issue for trial.
The Rule 56 standard is not affected by the fuing of cross-motions for summary judgment: "The court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." lOA Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 at 335-36 (3d ed. 1998). Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general
6
A072A (Rev.8/82)

agreement by the parties as to the controlling legal theories and material facts. See United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984).
Discussion The FHA makes it unlawful for a person or entity whose business
includes engaging in residential real estate-related transactions to discriminate against any person because of race when making such a transaction available or in the terms or conditions of the transaction. 42 U.S.C. § 3605(a). A "real estate-related transaction" includes the making or purchasing of loans or providing other financial assistance for purchasing, constructing, improving, repairing, or maintaining a dwelling. 42 U.S.C. § 3605(b).
A claim brought under the FHA is governed by Title VII's analytical framework. See Sec'y. United States Dep't of Hous. and Urban Dev. v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990). Under this framework, a plaintiff can prove discrimination by direct evidence or circumstantial evidence. See Damon v. Fleming Supermarkets of Florida. Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). Plaintiff has presented no direct evidence of discrimination in this case, and therefore the Court will proceed under the
7
A072A (Rev.8/82)

three-step analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under the McDonnell Douglas analysis, first the plaintiff must establish a prima facie case of discrimination. Once the plaintiff has done this, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its adverse action. Once the defendant has met its burden, the plaintiff then has the burden of persuading the court that defendant's reason for its adverse action is a pretext for discrimination. See Tex. Dep't of Cmty. Mfairs v. Burdine, 450 U.S. 248, 254 (1981).

A072A (Rev.8/82)

In the credit and loan application context, to establish a prima facie case of discrimination, plaintiff must establish the following: 1) that the plaintiffis a member of a protected class; 2) that the plaintiff applied for and was qualified for a loan from the defendant; 3) that the loan was rejected despite plaintiffs qualifications; and 4) that the defendant continued to approve loans for applicants outside of the plaintiffs protected class with similar qualifications. Cooley v. Sterling Bank, 280 F. Supp. 2d 1331, 1339 (M.D. Ala. 2003). With regard to the fourth prong, plaintiff must present evidence that she was "similarly situated in all relevant aspects" to the non-
8

minority applicants defendant approved. Id. at 1340. A similarly situated person's and plaintiffs credit qualifications and loan details must be nearly identical and significantly parallel in every material respect. Id.
Even assuming that plaintiff has satisfied the first three elements, plaintiff has not produced evidence to show that defendant continued to approve loans for non-minority applicants with credit qualifications and loan details nearly identical and significantly parallel to plaintiff. Defendant avows that it is unaware of any other applicant whose credit qualifications and loan details are nearly identical to plaintiffs. Plaintiff states that she believes that defendant is not aware of any other similarly situated applicants because it has not provided her with information needed to make the comparison. Plaintiffs assertions are not sufficient to meet her burden. In addition, plaintiff submitted evidence of loan application information for the Buffalo, NY, area produced by defendant, but it fails to establish that certain non-minority applicants had a credit history, total assets, Beacon score, loan amount, or closing fees nearly identical to plaintiff. Cf. id. at 1341 (the plaintiffs evidence failed to establish an applicant similarly situated to the plaintiff in terms of prior credit relationship, existing lines of credit, and
9
A072A (Rev.8/82)

annual income). Thus, plaintiff has failed to establish a prima facie case of discrimination.

Even assummg that plaintiff could establish a pnma facie case, plaintiffs claims would fail at the pretext stage of the McDonnell Douglas analysis. Defendant argues that it denied plaintiffs loan because it determined that plaintiffs closing costs on the loan would exceed 5% of the proposed loan amount, resulting in a "high cost" loan under New York law in violation ofdefendant's underwriting policies. Because defendant articulated a legitimate non-discriminatory reason for denying plaintiffs loan, the burden shifts back to plaintiff to offer sufficient evidence for a reasonable factfinder to conclude that this was not the real reason defendant denied the loan. Cooley, 280 F. Supp. 2d at 1342.

A072A (Rev.8/82)

Plaintiff argues that her loan was not a "high cost" loan because it was for rental property. She claims that defendant knew the loan was for rental property because it asked her for lease information and was aware of her residence in Georgia. Also, plaintiffargues that defendant violated its policy by failing to note on her application that it had not asked for her race when completing her application. For these reasons, plaintiff argues that
10

defendant's explanation for denying her loan is illegitimate and a pretext for discrimination.
Even ifdefendant denied the loan on the mistaken beliefthat it was for non-rental property and failed to note the lack of plaintiffs race information on her application, this does not amount to evidence of discriminatory intent. See Cooley, 280 F. Supp. 2d at 1343-44 (proving pretext requires more than showing that a bank was wrong in its assessment ofunderlying facts or failed to follow its own internal procedures in denying a loan application). Most notably, plaintiff admits that defendant did not ask for her race or gender information and that none ofthe documents that defendant relied on to make the loan decision indicated plaintiffs race. Plaintiff also testified that she did not have any evidence that defendant discriminated against her because of her race, gender, or the racial makeup of the property's neighborhood, but instead she relied on her belief that discrimination occurred. The Court concludes that plaintiff has failed to meet her burden to produce evidence from which a reasonable jury could conclude that defendant was more likely motivated by a discriminatory intent in denying her loan application. See id. at 1344.
11
A072A (Rev.8/82)

Accordingly, defendant Bank is entitled to summary judgment. In addition, in light of the dismissal of plaintiffs claim against the Bank, plaintiffs related claim against defendant DHR must also be dismissed. Summary
For the foregoing reasons, the Court GRANTS defendant's motion for summary judgment [#39-1]; DENIES plaintiffs motion for summary judgment and partial summary judgment [#46-1, #46-2]; and DISMISSES this action as to all defendants.
~ arvin H. Shoob, Senior Judge
~ nited States District Court
Northern District of Georgia
12
A072A (Rev.8/82)

 
 FILED!N Gt
u.s D ,.

UNITED STATES DISTRICT COURT

FEB 1 0 2005

NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

l~HER D. THOMAS; Clfhrk

~V-~Ckm

YVETTE BOYKIN,

Plaintiff, v. BANK OF AMERICA, N.A., et aI.,

CIVIL ACTION NO. 1:03-CV-3467-MHS

Defendants.

ORDER This matter is before the Court on plaintiffs motion to compel discovery. For the following reasons, the Court denies plaintiffs motion.

Plaintiff alleges defendant denied her loan application based on her race, gender, and the location of the property in a predominantly AfricanAmerican neighborhood. Plaintiff seeks to compel further responses to her second interrogatories. In particular, plaintiff seeks estimated and actual closing costs for 410 loan applications and explanation of what the term "Other" means for 11 denied loans.

A072A (Rev.8/82)

The Court denies plaintiffs motion to compel. First, plaintiffs motion IS improper because plaintiffs second interrogatories were untimely as

defendant did not have thirty days to respond before the close of discovery. Bellerv. Credit Alliance Corp., 106 F.R.D. 557, 560 (N.D. Ga. 1985). Second, even ifplaintiffs second interrogatories were timely, defendant does not have the specific information from 2000 and 2001 that plaintiff seeks because defendant does not keep loan application files beyond 25 months. Moreover, despite plaintiffs untimely interrogatories, defendant has provided plaintiff with all of the responsive information in its possession.
Accordingly, the Court DENIES plaintiffs motion to compel [#37'1].
~ IT IS SO ORDERED, this day of February, 2005.
arvin H.Shoob, Senior Judge United Sta es District Court Northern District of Georgia
2
A072A (Rev.8/82)

 
 CLOSED

U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:03-cv-03467-MHS

Boykin v. Bank of America, et al Assigned to: Judge Marvin H. Shoob Demand: $0 Cause: 42:3610(d) Fair Housing Act-enforce civil rights in housing

Date Filed: 11/14/2003 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Yvette Boykin

represented by Yvette Boykin 4045 Rockey Valley Drive Conley, GA 30288 PRO SE

V.
Defendant
Bank of America Corporation and its wholly-owned subsidiary doing business as Bank of America

represented by Angela Slate Rawls Parker Hudson Rainer & Dobbs 285 Peachtree Center Avenue, N.E. 1500 Marquis II Tower Atlanta, GA 30303 404-523-5300 Fax: 404-522-8409 Email: arawls@phrd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles W. Lyons Parker Hudson Rainer & Dobbs LLP 285 Peachtree Center Avenue, N.E. 1500 Marquis II Tower Atlanta, GA 30303 404-420-5526

Fax: 404-522-8409 Email: clyons@phrd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Holley, II Parker Hudson Rainer & Dobbs 285 Peachtree Center Avenue, N.E. 1500 Marquis II Tower Atlanta, GA 30303 404-523-5300 Email: wholley@phrd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Equicredit Corporation

represented by Angela Slate Rawls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles W. Lyons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Holley, II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
State of New York Executive Department, Division of Human Rights

represented by Angela Slate Rawls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles W. Lyons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Holley, II

Defendant Department of Housing and Urban Development
Defendant Equicredit Corporation of America
Defendant

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alonzo H. Long Office of United States Attorney Northern District of Georgia 75 Spring Street, S.W. 400 United States Courthouse Atlanta, GA 30303 404-581-6067 Email: alonzo.long@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Slate Rawls (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles W. Lyons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Holley, II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Constance Melissa Ewing Parker Hudson Rainer & Dobbs 285 Peachtree Center Avenue, N.E. 1500 Marquis II Tower Atlanta, GA 30303 404-523-5300 Email: mewing@phrd.com LEAD ATTORNEY

Bank Of America, N.A.

represented by Constance Melissa Ewing (See above for address) LEAD ATTORNEY

Date Filed 11/14/2003
03/15/2004 03/15/2004 03/19/2004
04/09/2004 04/19/2004 04/19/2004 04/21/2004 04/28/2004 04/30/2004 05/06/2004

#

Docket Text

1 COMPLAINT filed and summons(es) issued. Consent form to proceed before U.S. magistrate and pretrial instructions given to attorney FILING FEE $ 150.00 RECEIPT # 513861 (er) (Entered: 11/18/2003)

2 WAIVER OF SERVICE Returned Executed as to Bank of America mailed 2/12/04 Answer due by 4/12/04 for Bank of America (er) (Entered: 03/19/2004)

3 WAIVER OF SERVICE Returned Executed as to Equicredit Corp. mailed 2/12/04 Answer due by 4/12/04 for Equicredit Corp. (er) (Entered: 03/19/2004)

4 Notice of filing by plaintiff via certified mail service of the complaint as to dfts: Bank of America Corp., State of New York Executive Dept.; and U.S. Department of Housing and Urban Dev.. (er) (Entered: 03/31/2004)

5 MOTION by defts to dismiss pla's claims against the Bank with prejudice with brief in support. (er) (Entered: 04/14/2004)

6 MOTION by defendant Housing and Urban Dv to dismiss the claims raised against HUD with brief in support. (er) (Entered: 04/21/2004)

7 MOTION by plaintiff to deny dft's motion to dismis with brief in support. (er) (Entered: 04/21/2004)

8 MOTION by plaintiff to amend [7-1] pla's motion to deny dft's motion to dismis (er) (Entered: 04/28/2004)

9 MOTION by plaintiff to deny the U.S. Department of Housing Urban's Motion to Dismiss with Memorandum of Law in support. (aaq) (Entered: 05/04/2004)

10 REPLY by defendant Housing and Urban Dv to plaintiff's response in opposition to the [6-1] motion to dismiss the claims raised against HUD (aaq) (Entered: 05/04/2004)

11 Defendant's REPLY to response to [5-1] motion to dismiss pla's claims against the Bank with prejudice (tcc) (Entered: 05/12/2004)

05/07/2004 05/10/2004 05/19/2004
05/20/2004 05/25/2004 06/15/2004 06/15/2004
06/25/2004 06/25/2004 06/28/2004

12 Defendants' Opposition to [9-1] motion to deny the U.S. Department of Housing Urban's Motion to Dismiss (tcc) (Entered: 05/13/2004)
13 ANSWERS TO INITIAL DISCLOSURES by defendant Equicredit Corp. (tcc) (Entered: 05/13/2004)
SUBMITTED to Judge Marvin H. Shoob on [5-1] defts' motion to dismiss pla's claims against the Bank with prejudice, [6-1] dft Housing and Urban Dv's motion to dismiss, [7-1] pla's motion to deny dft's motion to dismis, [8-1] pla's motion to amend [7-1] pla's motion to deny dft's motion to dismis, and [9-1] pla's motion to deny the U.S. Department of Housing Urban's Motion to Dismiss (er) (Entered: 05/19/2004)
14 ANSWERS TO INITIAL DISCLOSURES by plaintiff (er) (Entered: 05/21/2004)
15 Preliminary Report and Discovery Schedule by dft Equicredit. (to: MHS) (er) Modified on 05/27/2004 (Entered: 05/27/2004)
16 ENDORSED ORDER by Judge Marvin H. Shoob APPROVING [15-1] the Equicredit's preliminary report and discovery schedule. (cc) (er) (Entered: 06/16/2004)
17 ORDER by Judge Marvin H. Shoob GRANTING IN PART AND DENYING IN PART [5-1] defts Bank of America, N.A.'s and Equicredit Corporation of America's motion to dismiss; DISMISSING all of pla's claims except her FHA claim against dfts Bank of America, N.A. and Equicredit Corp. of America; GRANTING [6-1] dft United States Department of Housing and Urban Development's motion to dismiss; DENYING [7-1] [9-1] pla's motions to deny dft's motions to dismiss; GRANTING [81] pla's motion to amend [7-1] pla's motion to deny dft's motion to dismiss; and DIRECTING pla to show cause within ten (10) days from the date of entry of this Order why dft State of New York Division of Human Resources should not be dismissed for pla's failure to serve dft in accordance to FRCP4. [17-1] order to be submitted on 6/29/04 (cc) (er) (Entered: 06/17/2004)
18 MOTION by plaintiff for an enlargement of time to serve the summons and [1-1] complaint with brief in support. (er) (Entered: 06/28/2004)
19 RESPONSE by plaintiff to [17-1] order (er) (Entered: 06/28/2004)
SUBMITTED to Judge Marvin H. Shoob on [17-1] order (er) (Entered: 06/28/2004)

06/28/2004 07/13/2004 07/29/2004 08/03/2004 08/04/2004 09/17/2004 09/20/2004 09/27/2004
09/27/2004 09/27/2004 10/04/2004 10/08/2004

20 ANSWER to complaint [1-1] by Equicredit Corp. Discovery ends 11/25/04 (er) (Entered: 06/30/2004)
21 ORDER granting 18 Motion for Extension of Time to Serve dft State of New York Division of Human Resources (DHR) and to File a Return of Service on or before 7/30/04 . Signed by Judge Marvin H. Shoob on 07/12/04. (er) (Entered: 07/19/2004)
22 Return of Service Executed. State of New York Executive Department, Division of Human Rights served on 7/28/2004, answer due 8/17/2004. (er) (Entered: 08/04/2004)
23 CERTIFICATE OF SERVICE by Bank of America Corporation: First Continuing Interrogatories and First Continuing Requests for Production to pla. (er) (Entered: 08/09/2004)
24 CERTIFICATE OF SERVICE by pla: First Set of Interrogatories and First Request for Production of Documents. (er) (Entered: 08/09/2004)
25 MOTION for Default as to New York State Division of Human Rights by pla. (er) (Entered: 09/20/2004)
26 CERTIFICATE OF SERVICE by Equicredit Corporation's objections and responses to pla's first set of interrogatories and first request for production of documents to pla. (er) (Entered: 09/21/2004)
27 ORDER granting in part and denying in part 25 pla's Motion for Default Judgment against defendant State of New York, Executive Department, Division of Human Rights. Signed by Judge Marvin H. Shoob on 09/24/04. (cc) (er) (Entered: 09/29/2004)
Clerk's Entry of Default as to State of New York Executive Department, Division of Human Rights per Order 27. (er) (Entered: 09/29/2004)
28 CERTIFICATE OF SERVICE by pla: Responses to EquiCredit Corp.'s first continuing interrogs. and first continuing requests for production to attys. (er) (Entered: 10/01/2004)
29 Remark : Proposed confidentiality agreement and consent protective order by pla and dft Equicredt Corp. (to: MHS) (er) (Entered: 10/07/2004)
30 CONFIDENTIALITY AGREEMENT AND CONSENT PROTECTIVE ORDER Signed by Judge Marvin H. Shoob on 10/08/2004. (CC)(er) (Entered: 10/12/2004)

10/19/2004 10/22/2004 11/19/2004 11/19/2004 11/30/2004 12/27/2004 01/03/2005 01/10/2005 01/20/2005 01/20/2005
01/20/2005

31 CERTIFICATE OF SERVICE by deft Equicredit Corporation re: Second continuing interrogs. and second continuing requests for production to pla. (er) (Entered: 10/20/2004)
32 CERTIFICATE OF SERVICE by Yvette Boykin: Responses to EquiCredit Corp.'s second continuing interrogs. and second continuing requests for production to Bank of America/EquiCredit Corp. (er) (Entered: 10/26/2004)
33 MOTION for Extension of Time for Discovery by Yvette Boykin. (er) (Entered: 11/29/2004)
34 CERTIFICATE OF SERVICE by Yvette Boykin: Plaintiff's second set of interrogatories to defts Bank of America/EquiCredit Corporation. (er) (Entered: 11/29/2004)
35 ORDER granting 33 plaintiff's motion for an extension of time thru 12/20/04, to complete discovery. Discovery ends on 12/20/2004. Signed by Judge Marvin H. Shoob on 11/29/04. (er) (Entered: 12/01/2004)
36 CERTIFICATE OF SERVICE by Equicredit Corporation: Objections and responses to plaintiff's second set of interrogatories to plaintiff. (er) (Entered: 01/06/2005)
37 MOTION to Compel discovery by Yvette Boykin. (er) (Entered: 01/06/2005)
38 CONSENT ORDER AND STIPULATION extending time to 1/20/05 to file motions for summary judgment. Signed by Judge Marvin H. Shoob on 1/7/05. (jsr) (Entered: 01/10/2005)
39 MOTION for Summary Judgment with Brief In Support by Bank of America Corporation, Equicredit Corporation. (Attachments: # 1 Statement of Material Facts # 2 Brief)(Lyons, Charles) (Entered: 01/20/2005)
41 DECLARATION of Andrew Della Loggia in support of 39 MOTION for Summary Judgment filed by defendants Bank of America and Equicredit Corporation. (Attachments: # 1 Tab-A# 2 Tab-B# 3 Tab-C# 4 Tab-D# 5 Tab-E)(er) (Entered: 01/24/2005)
42 APPENDIX TO BRIEF in Support of 39 MOTION for Summary Judgment filed by defendants Bank of America Corporation and Equicredit Corporation of America. (Attachments: # 1 Tab-1# 2 Tab-2# 3 Tab-3# 4 Tab-A# 5 TabB# 6 Tab-C# 7 Tab-D# 8 Tab-E# 9 Tab-4# 10 Tab-5# 11 Tab6# 12 Tab-7# 13 Tab-8# 14 Tab-9# 15 Tab-10# 16 Tab-11# 17

01/20/2005
01/20/2005 01/20/2005 01/21/2005 01/25/2005 01/25/2005 01/25/2005 02/09/2005 02/09/2005
02/10/2005 02/10/2005

Tab-12)(er) (Entered: 01/24/2005)
43 NOTICE Of Filing original discovery materials (deposition of Yvette Boykin and declaration of Andrew Della Loggia) by defendants Bank of America Corporation and Equicredit Corporation of America re 39 MOTION for Summary Judgment (er) (Entered: 01/24/2005)
44 DEPOSITION of YVETTE BOYKIN taken on 11/05/2004 by defendants Bank of America Corporation and Equicredit Corporation of America.(er) (Entered: 01/24/2005)
46 MOTION for Summary Judgment and for partial summary judgment by Yvette Boykin. (Attachments: # 1 Memorandum of Law in support of motion# 2 Affirmation in support of motion# 3 Statement of Material Facts)(er) (Entered: 01/25/2005)
40 RESPONSE in Opposition re 37 MOTION to Compel discovery filed by Bank of America Corporation. (Attachments: # 1 Exhibit Declaration of Andrew Della-Loggia)(Lyons, Charles) (Entered: 01/21/2005)
45 Clerk's Notice to Parties to Respond to [39 Motion for Summary Judgment by defendants Bank of America, N.A. and EquiCredit Corporation of America. (er) (Entered: 01/25/2005)
Submission of 37 plaitiff's MOTION to Compel discovery, submitted to District Judge Marvin H. Shoob. (er) (Entered: 01/25/2005)
47 Clerk's Notice to Parties to Respond to 46 Motion for Summary Judgment and for Partial Summary Judgment filed by plaintiff.(er) (Entered: 01/25/2005)
49 RESPONSE Brief in Opposition to 39 MOTION for Summary Judgment filed by Yvette Boykin. (dr) (Entered: 02/11/2005)
50 Affirmation in Support of her response in opposition to 39 MOTION for Summary Judgment filed by Yvette Boykin. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10)(dr) (Entered: 02/11/2005)
48 ORDER denying 37Plaintiff's Motion to Compel . Signed by Judge Marvin H. Shoob on 2/10/05. (jsr) (Entered: 02/10/2005)
51 STATEMENT of Material Facts for trial in support of 49 Response in Opposition to Motion for summary judgment filed by Yvette Boykin. (dr) (Entered: 02/11/2005)

02/14/2005
02/23/2005
02/28/2005 03/14/2005 03/22/2005 03/24/2005 05/23/2005
05/23/2005 05/24/2005 06/13/2005 06/14/2005 06/21/2005

52 RESPONSE in Opposition re 46 MOTION for Partial Summary Judgment MOTION for Summary Judgment filed by Bank of America Corporation, Equicredit Corporation, Equicredit Corporation of America. (Attachments: # 1 Statement of Material Facts)(Lyons, Charles) (Entered: 02/14/2005)
Submission of 39 MOTION for Summary Judgment filed by Bank of America Corporation and Equicredit Corporation, 46 MOTION for Summary Judgment and for MOTION for Partial Summary Judgment by plaintiff, submitted to District Judge Marvin H. Shoob. (er) (Entered: 02/23/2005)
53 REPLY BRIEF re 39 MOTION for Summary Judgment filed by Equicredit Corporation of America, Bank Of America, N.A.. (Ewing, Constance) (Entered: 02/28/2005)
54 RESPONSE BRIEF to 53 defendants' reply brief in support of motion for summary judgment filed by Yvette Boykin. (er) (Entered: 03/16/2005)
55 RESPONSE in Support re 39 MOTION for Summary Judgment Supplemental Brief filed by Equicredit Corporation of America, Bank Of America, N.A.. (Lyons, Charles) (Entered: 03/22/2005)
56 NOTICE of Appearance by Constance Melissa Ewing on behalf of Equicredit Corporation of America, Bank Of America, N.A. (Ewing, Constance) (Entered: 03/24/2005)
57 ORDER granting 39Defendant's Motion for Summary Judgment, denying 46Plaintiff's Motion for Partial Summary Judgment, denying 46Plaintiff's Motion for Summary Judgment, and DISMISSING the action as to all defendants . Signed by Judge Marvin H. Shoob on 5/23/05. (jsr) (Entered: 05/23/2005)
Civil Case Terminated. (dr) (Entered: 05/24/2005)
58 CLERK'S JUDGMENT in favor of defendant against plaintiff (dr) --Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist-- (Entered: 05/24/2005)
59 BILL OF COSTS and attached Supplement by Bank of America Corporation, Equicredit Corporation, Equicredit Corporation of America, Bank Of America, N.A.. (Lyons, Charles) (Entered: 06/13/2005)
60 Costs Taxed in amount of $710.94 against plaintiff. (er) (Entered: 06/14/2005)
61 NOTICE OF APPEAL by Yvette Boykin as to 58 Clerk's Judgment, 57 Order on Motion for Summary Judgment, Order

06/22/2005 06/22/2005 06/22/2005 06/23/2005 06/28/2005 06/28/2005 07/14/2005 07/15/2005 07/21/2005 09/15/2005

on Motion for Partial Summary Judgment. Fee not paid. Transcript Order Form due on 7/6/2005 (ckd) (Entered: 06/22/2005)
62 Transmission of Certified Copy of Notice of Appeal, Judgment, Order and Docket Sheet to US Court of Appeals re 61 Notice of Appeal (ckd) (Entered: 06/22/2005)
USCA Appeal Fees received $ 255 receipt number 538566 re: 61 Notice of Appeal filed by Yvette Boykin, (ckd) (Entered: 06/23/2005)
63 TRANSCRIPT ORDER FORM by Yvette Boykin (no hearing) re: 61 Notice of Appeal, Case Appealed to USCA Eleventh Circuit Case Number 00-000000. Certificate of Readiness due on 7/7/2005 (ckd) (Entered: 06/23/2005)
Certified copy of docket sheet forwarded to USCA reflecting payment of appeal fees re: 61 Notice of Appeal filed by Yvette Boykin,. Case Appealed to USCA Eleventh Circuit Case Number 00-000000. (ckd) (Entered: 06/23/2005)
64 USCA Acknowledgment of 61 Notice of Appeal filed by Yvette Boykin. Case Appealed to USCA - 11th Circuit Case Number 05-13494-G (kac) (Entered: 06/30/2005)
65 USCA Acknowledgment of appeal filing and docketing fees re: 61 Notice of Appeal filed by Yvette Boykin. Case Appealed to USCA - 11th Circuit Case Number 05-13494-G. (kac) (Entered: 06/30/2005)
CERTIFICATE OF READINESS of Appeal Record (4 volumes pleadings; 1 deposition) re: 61 Notice of Appeal filed by Yvette Boykin,. USCA Case Number 05-13494-GG (ckd) (Entered: 07/14/2005)
66 Certified copy of CERTIFICATE OF READINESS transmitted to USCA re: 61 Notice of Appeal. Case Appealed to USCA Eleventh Circuit Case Number 05-13494-GG (ckd) (Entered: 07/15/2005)
67 USCA Acknowledgment COR re: 61 Notice of Appeal filed by Yvette Boykin,. Case Appealed to USCA Eleventh Circuit Case Number 05-13494-GG. (ckd) (Entered: 07/22/2005)
68 FORTHWITH LETTER from USCA re 61 Notice of Appeal filed by Yvette Boykin,. Case Appealed to USCA Eleventh Circuit Case Number 05-13494-GG. Appeal Record due by 9/26/2005. (ckd) (Entered: 09/15/2005)

09/20/2005 09/23/2005 02/14/2006 02/14/2006 07/07/2006

69 Certified and Transmitted Record on Appeal to US Court of Appeals re: 61 Notice of Appeal. Case Appealed to USCA 11th Circuit Case Number 05-13494-GG. (4 Vols. of Pldgs and 1 Deposition) (kac) (Entered: 09/20/2005)
70 NOTICE of Docketing Record on Appeal from USCA re: 61 Notice of Appeal filed by Yvette Boykin. Case Appealed to USCA Eleventh Circuit Case Number 05-13494-GG. (ckd) (Entered: 09/26/2005)
71 Certified copy of JUDGMENT of USCA AFFIRMING the decision of the District Court re:61 Notice of Appeal filed by Yvette Boykin, Case Appealed to United States Court of Appeals Eleventh Circuit Case Number 05-13494. (ckd) (Entered: 02/15/2006)
72 Appeal Record Returned (4 volumes pleadings; 1 deposition) : 61 Notice of Appeal Case Appealed to United States Court of Appeals Eleventh Circuit Case Number 05-13494-GG. (ckd) (Entered: 02/16/2006)
73 THe Supreme Court has denied certiorari re 61 Notice of Appeal.Case Appealed to USCA Case Number 05-13494-GG. No further action will be taken by the Eleventh Circuit. (fem) (Entered: 07/11/2006)

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 Boykin v. Bank of America Corp., 162 Fed.Appx. 837 (2005)

162 Fed.Appx. 837 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Eleventh Circuit Rules 36-2, 36-3. (Find CTA11 Rule 36-2 and Find CTA11
Rule 36-3) United States Court of Appeals,
Eleventh Circuit.
Yvette BOYKIN, Plaintiff-Appellant, v.
BANK OF AMERICA CORPORATION, and its wholly-owned subsidiary d.b.a Bank of America,
Equicredit Corporation, State of New York Executive Department, Division of Human Rights, Department of Housing and Urban Development,
Equicredit Corporation of America, Bank of America, N.A., Defendants-Appellees.
No. 05-13494 | Non-Argument Calendar. | Dec. 21, 2005.
Synopsis Background: Minority loan applicant brought action against lender under Fair Housing Act (FHA) claiming discrimination. The United States District Court for the Northern District of Georgia granted summary judgment for lender. Applicant appealed.
Holdings: The Court of Appeals held that:
[1] minority applicant had to show that lender continued to approve loans to similarly situated non-minority applicants;
[2] non-minority applicants were not similarly situated; and
[3] legitimate, non-discriminatory reason that lender had for denying loan to minority applicant was not pretext for discrimination.
Affirmed.
Attorneys and Law Firms
*838 Yvette Boykin, Conley, GA, pro se.

Charles W. Lyons, William J. Holley, II, Parker, Hudson, Rainer & Dobbs, Atlanta, GA, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 03-03467-CV-MHS-1.
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
Opinion
PER CURIAM:

The district court granted summary judgment in favor of Bank of America and its wholly-owned subsidiary EquiCredit Corporation (collectively the “Bank”) on Yvette Boykin’s discrimination claim under the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq. Boykin now appeals, contending the following: (1) the district court applied the wrong prima facie elements in resolving her claim, and (2) to make out her claim, she did not need to show that the Bank continued to approve loans for non-minority applicants with credit qualification and loan details nearly identical and significantly parallel to hers, because that standard would be virtually impossible to meet; (3) assuming the court used the correct prima facie elements, she provided evidence sufficient to satisfy such elements; and (4) she proved that the Bank’s legitimate non-discriminatory reason-that her loan was a “high-cost” loan under New York state law and, as such, was in violation of the Bank’s written lending policy-was a pretext for discrimination.1

1

In determining whether the district court erred in

granting summary judgment-because a material issue of

fact remains to be litigated-we use the time-honored

standard. That is, we consider the evidence in the light

most favorable to the non-movant, here Boykin, and

give her the benefit of all reasonable inferences that

evidence yields.

The FHA makes it unlawful for “any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race[.]” 42 U.S.C. § 3605(a). A “residential real estate-related transaction” includes “[t]he making or purchasing of loans” “for purchasing, constructing, improving, repairing, or maintaining a dwelling[.]” Id. § 3605(b)(1)(A). In a case such as the instant case, where the plaintiff relies on circumstantial-rather than direct-evidence of discrimination, we use the
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Boykin v. Bank of America Corp., 162 Fed.Appx. 837 (2005)

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to evaluate the claim of discrimination under the FHA. See Sec’y, U.S. Dep’t of Hous. and Urban Dev. v. Blackwell, 908 F.2d 864, 870 (11th Cir.1990).
“[T]he elements of a prima facie case are flexible and should be tailored, on a case-by-case basis, to differing factual circumstances.” Fitzpatrick v. City of Atlanta, *839 2 F.3d 1112, 1123 (11th Cir.1993) (quotation marks omitted). In the credit discrimination context, a plaintiff can establish a prima facie case of discrimination by offering evidence showing: (1) that the plaintiff is a member of a protected class; (2) that the plaintiff applied for and was qualified for a loan from the defendant; (3) that the loan was rejected despite the plaintiff’s qualifications; and (4) that the defendant continued to approve loans for applicants outside of the plaintiff’s protected class with similar qualifications. See Cooley v. Sterling Bank, No. 03-14727, manuscript op. at 12, 116 Fed.Appx. 242 (11th Cir. July 16, 2004); see also Rowe v. Union Planters Bank, 289 F.3d 533, 535 (8th Cir.2002). “In order to meet the comparability requirement a plaintiff is required to show that [she] is similarly situated in all relevant aspects to the non-minority” comparator. Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001) (discussing racial employment discrimination). Comparators must be “nearly identical to prevent courts from second-guessing” reasonable decisions and “confusing apples with oranges.” Id. (quotation marks omitted) (discussing the similarity of misconduct needed for a comparator in discrimination claim based on an adverse discipline decision). In “the credit discrimination context, the Plaintiff must present evidence that [she] was ‘similarly situated in all relevant aspects’ to the non-minority applicants who received loans from [the lender]. In other words, a comparator’s credit qualifications and loan details must be ‘nearly identical’ to the Plaintiff’s in order to prevent this court from second guessing the bank’s business decision and confusing apples with oranges.” Cooley v. Sterling Bank, 280 F.Supp.2d 1331, 1340 (M.D.Ala.2003) (quotation marks omitted), aff’d, No. 03-14727, 116 Fed.Appx. 242 (11th Cir. July 16, 2004).
If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to provide a “legitimate, nondiscriminatory reason for its actions.” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998). If the defendant satisfies his burden, the plaintiff must establish that the employer’s reason was a “pretext to mask unlawful discrimination.” Id. In this final step, the plaintiff carries the “ultimate burden of establishing by a preponderance of the evidence that a discriminatory intent motivated the [lender’s] action.” Perryman v. Johnson Products Co., 698 F.2d

1138, 1142 (11th Cir.1983). “[T]he plaintiff must then present concrete evidence in the form of specific facts which show that the defendant’s proffered reason is mere pretext. Mere conclusory allegations and assertions will not suffice.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Federal courts do not sit as a court of appeals that reexamines a bank’s business decisions. See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.2000) (addressing age discrimination claim).

A plaintiff is not allowed to recast

[a

lender’s]

proffered

nondiscriminatory reasons or

substitute [her] business judgment

for that of the [lender]. Provided

that the proffered reason is one that

might motivate a reasonable

[lender], [a loan applicant] must

meet that reason head on and rebut

it, and the [applicant] cannot

succeed by simply quarreling with

the wisdom of that reason.

Id. Although “[d]epartures from normal procedures may be suggestive of discrimination,” Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir.1985), “the mere fact that [a bank] failed to follow its own internal procedures does not necessarily suggest that [the bank] was motivated by illegal discriminatory intent[,]” Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir.1995).
*840 [1] The district court applied the correct prima facie elements in granting the Bank summary judgment. While the elements of a prima facie case are not rigid and are applied on a case-by-case basis, requiring the plaintiff to demonstrate that other similarly situated non-minority applicants obtained loans from the defendant provides essential context to the defendant’s decisions, and, absent direct evidence of discrimination, there is no basis for a trier of fact to assume that a decision to deny a loan was motivated by discriminatory animus unless the plaintiff makes a showing that a pattern of lending suggests the existence of discrimination. The bank’s underwriting guidelines may be more stringent than the guidelines that generally “qualify” an applicant, and the mere denial of an application to a “qualified” minority applicant does not alone raise an inference of discrimination. Thus, one element of the prima facie case must be that the lender continued to approve loans to similarly situated non-minority applicants.
[2] Boykin failed to establish a prima facie case of discrimination because she did not demonstrate that similarly situated applicants were treated differently. Boykin’s evidence of similarly situated applicants included three white applicants whose loans were

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Boykin v. Bank of America Corp., 162 Fed.Appx. 837 (2005)

approved for property within the same geographic area as her property. However, the evidence provided no details regarding the relevant financial status of the applicants and showed that (1) two of the applicants applied for first mortgages, not refinancings, and (2) one of the applicants applied with a co-applicant. These comparators are not “nearly identical” to Boykin, as nothing is known about their relevant financial backgrounds or the costs or amounts of their loans. No other evidence in the record reveals any similarly situated applicants.
[3] Even if we were to assume that Boykin established a prima facie case, the Bank proffered a legitimate nondiscriminatory reason for its decision, and Boykin has not demonstrated that the reason was merely a pretext for discrimination. The Bank denied Boykin’s loan because it determined that the loan was “high-cost” under New York law and would be in violation of its written policy against such loans. Boykin contends that the reason was pretextual because (1) the “high-cost” regulations did not apply to her property because it was not owner-occupied, and (2) the Bank failed to follow its internal procedures

regarding “high-cost” determinations early in the application process. These arguments are unavailing: (1) we do not reexamine the Bank’s business decisions, and, because the “high-cost” loan decision was one that would motivate a reasonable lender, Boykin cannot simply contest the wisdom of the decision, and (2) the Bank’s failure to follow internal procedures alone is not evidence of pretext. Therefore, because Boykin failed to make out a prima facie case of discrimination or show that the Bank’s legitimate non-discriminatory reason was pretextual, the district court committed no error in granting the Bank summary judgment.
AFFIRMED.
Parallel Citations
2005 WL 3479878 (C.A.11 (Ga.))
	  

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 Boykin v. Bank of America Corp., 548 U.S. 919 (2006)

126 S.Ct. 2931 Supreme Court of the United States
Yvette BOYKIN, petitioner, v.
BANK OF AMERICA CORPORATION, dba Bank of America, et al.
No. 05-1211. | June 26, 2006.
Case below, 162 Fed.Appx. 837.
Opinion

Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.
Justice BREYER took no part in the consideration or decision of this petition.
Parallel Citations 126 S.Ct. 2931 (Mem), 165 L.Ed.2d 977, 74 USLW 3545
	  

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