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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EAST.
EASTERN DIVISION

GEORGE S. HOOD, Plaintiff,

Civil Action C’~ ~ 4 4 8 1

V.
MIDWEST SAVINGS BANK,

JUDGE SARGUS
JURY DEMAND ENDORSED HEREON

Defendant.

t~AGISTRATE JUDGE ABEL

COMPLAINT

Jurisdiction and Parties 1. This Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331 and 15 U.S.C,
§ 1691 e(f). This Court also has supplemental jurisdiction over a state law claim. 2. Plaintiff George S. Hood is a resident of Franklin County, Ohio. 3. Defendant Midwest Savings Bank is a licensed and regulated banking institution under
the laws of the United States and the State of Ohio and is doing business in the State of Ohio. Whenever the word "defendant" is used in this Complaint, it will refer to defendant Midwest Savings Bank, its agents, employees, and attorneys. Facts and Claim
4. Plaintiff intended to build a house on his property at f084 Franklin Avenue in Columbus. The property is located in the Old Towne East part of the Near East Side of Columbus, which has a large percentage of African American residents.
5. Plaintiff applied for a construction loan with defendant Midwest Savings Bank so that

he would have the funds to construct a house on his property. 6. Defendant contacted an appraiser in order to have an appraisal done on the plaintiffs
property. The appraiser stated that she could not conduct an appraisal on plaintiffs property because of where the property was located.
7. Defendant denied the construction loan based on the fact that the house was located in the predominantly black Olde Town East section of Columbus.
8. Defendant did not provided the plaintiff with the report of the appraiser, although he had made a written request for a copy of the appraisal report.
9. Defendant did not provide plaintiff with a statement that he had been turned down for the loan and the reasons for the rejection.
10. Plaintiff did not know that he had been rejected by Midwest Savings Bank for the loan and asked his mortgage broker what had happened to his application for a loan. The mortgage broker told him that he had been rejected because of a report submitted by the appraiser and sent plaintiff a copy of the appraisal report.
11. Plaintiff then sent a written complaint to the Ohio Department of Commerce, Division of Financial Institutions, complaining that he had been rejected,for a mortgage loan because of redlining of inner city neighborhoods. The Ohio Division of Financial Institutions sent plaintiff’s complaint to defendant. The president of Midwest Savings Bank in a letter to plaintiff denied plaintiff’s complaint and stated that he .was rejected for the loan at least in part based on the appraiser’s report. This was the first statement that Midwest Savings Bank made to plaintiff that he had been rejected for the loan.
12. Plaintiff suffered out-of-pocket expenses, emotional damages, and a loss of civil rights.

13. Defendant’s conduct violated 15 U.S.C. § 1691 and O.R.C. 4112.021, because it did not provide plaintiff within thirty days after receipt of his completed application for credit the action taken on the application, that there was adverse action, and the reasons for the adverse action.
WHEREFORE, plaintiff requests that he be awarded compensatory mad punitive damages, plus reasonable attorneys fees and court costs.

~’exand(er M. S~-ater (0031417) SPATER LAW OFFICE
565 East Town Street Columbus, OH 43215 (614) 222-4734 Fax (614) 222-4738 email-sspater@spaterlaw.com Trial Attorney for Plaintiff

JURY DEMAND

Plaintiff requests a jury to he

f fact.

Al~xander’~Spater

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GEORGE S. HOOD,

:

Plaintiff,

: Case No. 2:04-CV-481

v.

: Judge Holschuh

UNITED MIDWEST SAVINGS BANK,
Defendant.

: Magistrate Judge Abel : :

MEMORANDUM OPINION & ORDER

Plaintiff George Hood filed suit against United Midwest Savings Bank (“Midwest”)

alleging violations of the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691, and Ohio

Revised Code § 4112.021. This matter is currently before the Court on Defendant’s motion for

summary judgment. (Record at 11). For the reasons set forth below, Defendant’s motion is

granted in part and denied in part.

I. Background and Procedural History

In 1995, Plaintiff, who is African-American, purchased a vacant lot on Franklin Avenue

in a predominantly African-American neighborhood on the Near East Side of Columbus. He

wanted to build a house on that lot. Working through his mortgage broker, Tony Malone, he

applied to Midwest for a construction loan in November of 1995. (9/10/98 Hood Dep. at 23, 26-

27; Ex. A to Mot. Summ. J.). Brian Swope, a loan originator with Midwest, processed the

application, got preapproval from Kerri Coffman, Midwest’s underwriter, and ordered an

appraisal. (Swope Dep. at 56-63; Ex. B to Mot. Summ. J.).

On November 21, 1995, the appraiser, Barbara Roberts, wrote to Swope, stating that she was unable to complete the appraisal because there were no comparable sales in that area of town. (Ex. F to Mem. in Opp’n). Based on this report, Coffman told Swope that Plaintiff’s loan could not be approved as submitted. (Coffman Dep. at 52; Ex. D to Mem. in Opp’n). Normally, when Midwest rejected a loan application, it sent a letter to the applicant, as required by the ECOA, advising the applicant of the adverse action taken and the reasons for it. It is undisputed that Midwest did not send Plaintiff any such letter at that time. (Id. at 86). Swope contends that after Coffman told him that the loan could not be approved as submitted, Swope suggested to Plaintiff that if he altered the plans for the house, the loan application might be approved. Swope also contends that, based on this conversation, Plaintiff agreed to submit revised plans. (Swope Dep. at 129-30).
Plaintiff, however, denies that this conversation took place. Instead, Plaintiff contends that he contacted Malone early in December of 1995 to inquire about the status of his loan application. At that time, Malone told him that the application had been rejected because the appraisal could not be completed. Malone faxed Plaintiff a copy of the letter Roberts had sent to Swope. (9/10/98 Hood Dep. at 30; 6/30/99 Hood Aff. ¶ 7; Ex. D to Mot. Summ. J.). Plaintiff contends that he was appalled to learn that no appraisal could be done.
On January 8, 1996, Plaintiff filed a complaint with the Ohio Department of Commerce, Division of Financial Institutions, accusing Midwest of “redlining,” discriminating against him because the neighborhood was predominantly African-American. That agency sent a copy of the complaint to Midwest. On January 29, 1996, Midwest’s President, Thomas Pulfer, responded to Plaintiff’s allegations in writing. He denied that the bank had engaged in redlining, and stated
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that Plaintiff’s loan application was rejected for three reasons: (1) the appraiser could not qualify comparable values and sales; (2) Plaintiff was expecting the appreciation of the real estate to substantiate for a cash infusion of the required 20 percent down payment; and (3) Midwest had uncovered several credit deficiencies that had not shown up earlier. (Ex. H to Mem. in Opp’n).
Shortly after receiving Pulfer’s letter, Malone told Plaintiff that Midwest had reconsidered Plaintiff’s request, and agreed to approve Plaintiff’s loan application provided that he changed the architectural facade of the house to match the other houses in the neighborhood, and submitted a new loan application. (6/30/99 Hood Aff. ¶ 14). On May 8, 1996, Plaintiff submitted new plans and a second loan application, which was approved by Midwest. The closing was held on June 26, 1996, and Plaintiff immediately applied for a building permit. Plaintiff began construction of his house six weeks later, but because he immediately defaulted on the loan, Midwest did not disburse any money, and the house has not been completed. (Id. at ¶ 25).
Plaintiff filed suit against Midwest, and against two other parties who were later dismissed. See Hood v. Midwest Savings Bank, Case No. C2-97-218. The amended complaint alleged breach of contract, fraud, promissory estoppel, housing and credit discrimination and redlining, violations of the ECOA, Ohio Revised Code § 4112.021, and the Fair Debt Collection Practices Act. On September 24, 2001, the undersigned judge granted Midwest’s motion for summary judgment on all of Plaintiff’s claims except his claim that Midwest had violated the ECOA by failing to timely provide him with proper notification of the adverse action taken and the reasons for it. So that Plaintiff could appeal the Court’s decision with respect to the other claims, the parties agreed that the one remaining ECOA claim would be dismissed without
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prejudice. On April 8, 2004, the Sixth Circuit affirmed this Court’s decision. Plaintiff then filed the instant suit, reasserting the ECOA claim, along with a parallel claim under Ohio Revised Code § 4112.021. Midwest has now moved for summary judgment on both claims. II. Standard for Granting Summary Judgment
Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed “to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). The standard for summary judgment is found in Federal Rule of Civil Procedure 56(c):
[Summary judgment] . . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment will be granted “only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is . . . [and where] no genuine issue remains for trial, . . . [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944)). See also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). Moreover, the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). The court’s duty is to determine only whether sufficient evidence has been presented to make the issue of fact a proper question for the jury; it does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003).
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In a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issue as to any material fact exists and that it is entitled to a judgment as a matter of law. Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). All the evidence and facts, as well as inferences to be drawn from the underlying facts, must be considered in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Wade v. Knoxville Util. Bd., 259 F.3d 452, 460 (6th Cir. 2001). Additionally, any “unexplained gaps” in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-60 (1970).
“[T]he 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, 477 U.S. at 247-48 (emphasis in original). A “material” fact is one that “would have [the] effect of establishing or refuting one of [the] essential elements of a cause of action or defense asserted by the parties, and would necessarily affect [the] application of [an] appropriate principle of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). See also Anderson, 477 U.S. at 248. An issue of material fact is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. See also Leary, 349 F.3d at 897.
If the moving party meets its burden, and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will
5

bear the burden of proof at trial. Celotex, 477 U.S. at 322. The nonmoving party must
demonstrate that “there is a genuine issue for trial,” and “cannot rest on her pleadings.” Hall v.
Tollett, 128 F.3d 418, 422 (6th Cir. 1997).
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed. R. Civ. P. 56(e).
The existence of a mere scintilla of evidence in support of the opposing party's position
is insufficient; there must be evidence on which the jury could reasonably find for the opposing
party. Anderson, 477 U.S. at 252. The nonmoving party must present “significant probative
evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the material
facts.” Moore v. Phillip Morris Companies, Inc., 8 F.3d 335, 340 (6th Cir. 1993). The court
may, however, enter summary judgment if it concludes that a fair-minded jury could not return a
verdict in favor of the nonmoving party based on the presented evidence. Anderson, 477 U.S. at
251-52; Lansing Dairy, Inc., 39 F.3d at 1347.
III. Discussion
Plaintiff’s complaint alleges that Midwest violated the Equal Credit Opportunity Act, 15
U.S.C. § 1691, and Ohio Revised Code § 4112.021, when it failed to provide him timely notice
of its rejection of his completed loan application and the reasons for it. He claims to have
suffered “out-of-pocket expenses, emotional damages, and a loss of civil rights.” He seeks
compensatory and punitive damages, attorney fees and costs. (Compl. ¶¶ 12-14).
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A. Equal Credit Opportunity Act The Equal Credit Opportunity Act (“ECOA”) requires creditors, within thirty days after receipt of a completed application for credit, to notify the applicant of its action on the application. See 15 U.S.C. § 1691(d)(1). The applicant is also entitled to a statement of reasons for any adverse action taken. See 15 U.S.C. § 1691(d)(2). A creditor who violates these provisions is liable “to the aggrieved applicant for any actual damages sustained by such applicant.” 15 U.S.C. § 1691e(a). Actual damages may include “out-of pocket monetary losses, injury to credit reputation and mental anguish, humiliation or embarrassment.” Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 148 (5th Cir. 1983). The creditor may also be liable for punitive damages of up to $10,000, as well as attorney fees and costs. See 15 U.S.C. § 1691e(b) and (d). In the earlier lawsuit filed by Plaintiff, the Court determined that genuine issues of material fact precluded summary judgment on Plaintiff’s claim arising out of 15 U.S.C. § 1691(d). Specifically, the Court found factual disputes concerning when Plaintiff’s loan application was complete, whether Midwest requested additional information from Plaintiff and, if so, whether it acted with reasonable diligence. The Court also found factual disputes about whether Midwest took any “adverse action” on the loan application. (Sept. 24, 2001 Mem. & Order at 24-25). As discussed earlier, the parties agreed that Plaintiff would dismiss this claim without prejudice so that he could immediately appeal the Court’s decision with respect to all other claims. Now that the appeal has been resolved and the ECOA claim has been refiled, Midwest has again moved for summary judgment, albeit on different grounds. Midwest contends that,
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even if it violated the ECOA, Plaintiff’s claim fails because he suffered no actual damages as a
result of Defendant’s failure to provide timely notice of the reasons the loan application was
rejected. Defendant also contends that there is no basis for an award of punitive damages.
1. Actual Damages
The first question is whether, based on the evidence presented, a reasonable jury could
find that Plaintiff suffered any actual damages as a result of Midwest’s alleged violation of the
adverse action notification provision of the ECOA. Midwest notes that in the earlier lawsuit, in
response to written interrogatories, Plaintiff identified the following as ways in which he was
damaged:
a) Real property has been purchased which has not been able to be economically utilized. The property was purchased for the construction of a single family home that should have been completed and sold.
b) Approx. $5,000.00 was expended by Plaintiff as prerequisite payments to obtain the loan in question.
c) Subcontractors were hired, debts were incurred in the approximate amount of $7,000.00.
d) Lost profit upon the sale of the completed homes. e) Plaintiff’s credit has been damaged. f) Plaintiff’s reputation has been damaged. g) Plaintiff has lost the use of the money invested and the real
property as well. h) A judgment has been rendered against the Plaintiff. i) Plaintiff has incurred attorney fees and the costs of this
litigation. j) Plaintiff has suffered emotional distress, damage to his
reputation and humiliation.
(Ex. G to Mot. Summ. J.).
In its motion for summary judgment, Midwest argues that none of these alleged damages
flowed from the delay in sending the adverse action letter with respect to the first loan
application. Instead, the damages identified by Plaintiff were caused by his subsequent default
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on the loan. Plaintiff, in his memorandum in opposition, does not deny that most of the damages
he previously identified cannot be traced to the alleged violation of the adverse action
notification requirement.
However, in an affidavit dated June 7, 2005, Plaintiff states that Midwest’s failure to
comply with the ECOA’s adverse action notification requirement did cause him to suffer
emotional distress. He stated:
I was completely distraught . . . I suffered emotional distress because I believed that I had been discriminated against and because Midwest did not contact me and give me an explanation of why I was rejected. My belief that I had been discriminated against was based only on my conversation with Mr. Malone and by looking at the letter from Ms. Roberts. I received only a second hand and incomplete explanation for the rejection from a mortgage broker who, like me, was appalled by the rejection and did not believe that being rejected because of a failure to do an appraisal in Olde Towne East was a legitimate basis for the rejection. Midwest then did not give me an opportunity to change any problems that it saw with my application and did not give me a chance to obtain the loan. I had believed, based on my previous conversations with Mr. Swope, that I would get the loan. If Midwest, prior to my talking with Mr. Malone about the status of my application, had provided me with a written explanation such as what was contained in Mr. Pulfer’s letter of January 29, 1996 and had worked with me to eliminate what it considered to be deficiencies in my application, I would not have believed that I had been discriminated against.
(6/7/05 Hood Aff. ¶¶ 3-4; Ex. I to Mem. in Opp’n).
Plaintiff further states that he suffered “considerable emotional distress” because of the
ongoing uncertainty and the delays in beginning his building project. He contends that if
Midwest had complied with the requirements of the ECOA, he could have worked with Midwest
to remedy the deficiencies, and could have obtained approval much sooner than he did. But
Midwest made no effort to work with him to remedy the alleged deficiencies until the beginning
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of February 1996; the loan was not closed until June of 1996. (Id. at ¶6). In its reply brief, Midwest does not deny that Plaintiff may have suffered emotional
distress, nor does Midwest attempt to prove that he did not. Instead, Midwest examines statements made in Plaintiff’s June 7, 2005 affidavit, and challenges Plaintiff’s claims on grounds of collateral estoppel and lack of proximate cause. First, Midwest argues that Plaintiff “improperly seek[s] to reintroduce the claim of race discrimination that this Court and the Sixth Circuit have already rejected.” (Reply at 3). Midwest urges the Court not to allow Plaintiff to bootstrap this previously-dismissed claim “by reintroducing his subjective apprehension of what happened in the form of an emotional distress claim.” (Id. at 4).
In the Court’s view, Plaintiff’s claim of emotional distress is not barred by the Court’s earlier ruling, granting summary judgment in favor of Midwest on Plaintiff’s claims of race discrimination in housing and credit opportunities.1 Collateral estoppel applies when: (1) the issue in the subsequent litigation is identical to that resolved in the earlier litigation; (2) the issue was actually litigated and decided in the prior action; (3) the resolution of the issue was necessary and essential to a judgment on the merits in the prior litigation; (4) the party to be estopped was a party to the prior litigation (or in privity with such a party); and (5) the party to be estopped had a full and fair opportunity to litigate the issue. See Santana-Albarran v.
1 The Court held that Plaintiff failed to present any direct evidence “that Midwest denied his loan application because of his race or the racial composition of the neighborhood in which his property was located.” Absent direct evidence of race discrimination, the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972), applied. The Court held that summary judgment was warranted because Plaintiff had failed to present any evidence that Midwest had approved loan applications of non-minority applicants with qualifications similar to Plaintiff’s, and had, therefore, failed to establish a prima facie case of race discrimination. (Sept. 24, 2001 Mem. & Order at 28-38).
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Ashcroft, 393 F.3d 699, 704 (6th Cir. 2005). Midwest’s claim of collateral estoppel fails on the first prong. The issue in this case is
whether Plaintiff suffered emotional distress as a result of Midwest’s failure to comply with the ECOA’s adverse action notification requirement. Plaintiff claims that because Midwest gave him just one reason why his loan application was not approved, i.e., inability to complete an appraisal, and he found that reason to be incredible, he reasonably believed that he was a victim of race discrimination and suffered emotional distress as a result. In contrast, the issue in the earlier case was whether Midwest had actually discriminated against Plaintiff on the basis of race in rejecting his loan application. The issue of whether Midwest actually engaged in race discrimination is separate and distinct from the issue of whether Midwest’s failure to inform Plaintiff of all of the reasons why his loan application had been rejected led him to believe that he was a victim of race discrimination, and caused him to suffer emotional distress. Therefore, Plaintiff’s claim is not barred on grounds of collateral estoppel.
Midwest also argues that Plaintiff cannot show that the alleged ECOA violation was the proximate cause of his emotional distress. Plaintiff has stated that he believed that he was a victim of race discrimination solely because he did not believe that Roberts was unable to complete an appraisal of the property. With respect to the issue of proximate cause, Midwest contends that the relevant question is whether Plaintiff would have suffered the same emotional distress if Midwest had timely disclosed all three reasons why it would not provide the loan requested. Midwest argues that because Roberts’ inability to complete the appraisal was one of those three reasons, Plaintiff would have likely suffered the same emotional distress even if it had complied with the adverse action notification requirements of the ECOA.
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Plaintiff, however, appears to argue that if Midwest had notified him that his loan application had been rejected not only because Roberts could not complete the appraisal, but also because he had an insufficient down payment and outstanding tax liens, then he would not have jumped to the conclusion that he was a victim of discrimination. But he was told only that an appraisal could not be completed, an explanation he found completely unbelievable. Only after he filed a formal complaint, alleging that Midwest had engaged in redlining, was he provided with any other explanation for Midwest’s rejection of his loan application. Viewing the evidence in a light most favorable to the Plaintiff, the Court finds that a reasonable jury could conclude that Midwest’s failure to provide Plaintiff with all three reasons his loan application had been rejected was the proximate cause of his emotional distress.2
For the reasons set forth above, the Court concludes that a reasonable jury could find that Plaintiff suffered actual damages as a result of Midwest’s alleged violation of the adverse action notification provision of the ECOA.
2. Punitive Damages Midwest has also moved for summary judgment with respect to Plaintiff’s claim for punitive damages. The relevant statute reads, in pertinent part, as follows:
Any creditor . . . who fails to comply with any requirement imposed under this subchapter shall be liable to the aggrieved applicant for punitive damages in an amount not greater than
2 Midwest’s final argument concerns Plaintiff’s statement that instead of receiving an adverse action letter directly from Midwest, he “received only a second hand and incomplete explanation for the rejection from a mortgage broker.” (6/30/99 Hood Aff. ¶ 4). As Midwest correctly notes, the Court has already rejected Plaintiff’s claim that Midwest violated the ECOA by sending the appraisal report to Plaintiff’s mortgage broker instead of to Plaintiff himself.
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$10,000, in addition to any actual damages provided in subsection (a) of this section . . . In determining the amount of such damages in any action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor's failure of compliance was intentional.
15 U.S.C. § 1691e(b). Even if actual damages are not awarded, punitive damages may be
awarded “if the creditor’s conduct is adjudged wanton, malicious or oppressive, or if it is
deemed to have acted in reckless disregard of the applicable law.” Fischl, 708 F.2d at 148.
Midwest argues that punitive damages are not appropriate because: (1) Plaintiff suffered
no actual damages; (2) Plaintiff has submitted evidence of only this one isolated incident of
Midwest’s non-compliance with the ECOA’s adverse action notification requirement; and (3)
there is no evidence of an intentional violation. According to Midwest, because it is undisputed
that Swope believed that he made a counteroffer to Plaintiff when he suggested that Plaintiff
submit different house plans for approval, there could be no intentional violation; if Midwest
made a counteroffer, the adverse action notification requirement was not triggered. (Swope Dep.
at 131-32, 135-40, 145, 149).
Plaintiff, however, denies that Swope made a counteroffer. He argues that, viewing the
evidence in a light most favorable to him, there was either an intentional violation of the law, or
a reckless disregard for it. In light of this Court’s previous finding that genuine issues of
material fact exist concerning whether Midwest took any “adverse action” on Plaintiff’s loan
application that triggered the notification requirement, the Court cannot say, at this juncture,
whether Midwest intentionally violated the notification requirement or acted in reckless
disregard of it. Neither can the Court say, as a matter of law, that Plaintiff is not entitled to an
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award of punitive damages. The Court therefore denies Midwest’s motion with respect to this issue.
B. Ohio Revised Code § 4112.021 Count II of Plaintiff’s complaint alleges a violation of Ohio Revised Code § 4112.021. That statute reads, in pertinent part:
(B) It shall be an unlawful discriminatory practice: (1) For any creditor to do any of the following: . . . (f) Fail or refuse to provide an applicant for credit a written statement of the specific reasons for rejection of the application if requested in writing by the applicant within sixty days of the rejection. The creditor shall provide the written statement of the specific reason for rejection within thirty days after receipt of a request of that nature. Ohio Revised Code § 4112.021(B)(1)(f). Midwest contends that summary judgment is appropriate on three grounds: (1) res judicata; (2) the doctrine of claim splitting; and (3) statute of limitations. The doctrine of res judicata prevents parties from relitigating claims that were actually litigated, or could have been litigated, in a previous action. See Mitchell v. Chapman, 343 F.3d 811, 819 (6th Cir. 2003). There is no dispute that Plaintiff raised the same § 4112.021 claim in the previous litigation. The parties disagree, however, about whether it survived Midwest’s motion for summary judgment. Unfortunately, the Court’s Order is ambiguous. Plaintiff’s Fifth Claim for Relief, as set forth in the Amended Complaint in the earlier case, asserted violations of the “state and federal Equal Credit Opportunity laws (15 U.S.C. § 1691 and O.R.C. § 4112.021).” Plaintiff alleged that Midwest had violated these statutes by: (1) discriminating against him with respect to credit transactions on account of his race and the race of people who resided in the neighborhood where the property was located; (2) failing to
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promptly provide him a copy of the appraisal report, after he had made a written request for it; and (3) failing to notify him within 30 days that his loan application had been rejected and failing to notify him of the reasons it had been rejected.
The Court granted summary judgment in Midwest’s favor on the first two alleged violations. With respect to the third alleged violation, Midwest’s failure to provide timely notification concerning the rejection of Plaintiff’s loan application, the Court focused on the federal statute, 15 U.S.C. § 1691(d)(1). The Court held that genuine issues of material fact existed concerning when Plaintiff’s loan application was complete, whether Midwest acted with reasonable diligence in requesting additional information, and whether Midwest took any adverse action on the loan application. Unfortunately, the opinion does not make it clear whether Plaintiff’s parallel state law claim also survived summary judgment. In discussing the alleged violation of § 1691, the Court noted, in a footnote, that “Ohio Revised Code § 4112.021(B)(1)(f) is similar to 15 U.S.C. § 1691(d)(1), except that notice of an application’s rejection must be given in writing if the applicant requests the information within 60 days of the rejection.” (Sept. 24, 2001 Mem. & Order at 21 n.7). The opinion makes no further mention of the § 4112.021 claim.
Because the Court held that there were factual disputes concerning whether Midwest took any adverse action on the loan application, it could be argued that those same factual disputes precluded summary judgment on the parallel state law claim, i.e., if the loan application was not “rejected,” then the 60-day period during which Plaintiff could request a written statement of the reasons for the rejection was never triggered. Nevertheless, in the conclusion of the opinion, the Court granted “Defendant’s motion for summary judgment . . . on all of Plaintiff’s claims, except
15

for Plaintiff’s Equal Credit Opportunity Act claim that Defendant failed to provide Plaintiff with adverse action notification.” (Id. at 48).
Plaintiff did not move, pursuant to Fed. R. Civ. P. 60(b), to amend or set aside that Order to clarify whether the parallel state law claim also survived. A subsequent Order dated April 9, 2002, referring to the September 24, 2001 Memorandum and Order, again states that the Court “granted summary judgment in favor of defendant and against plaintiff on all claims other than the claim that defendant violated the adverse notification requirement of 15 U.S.C. § 1691.” (Record at 105). Again, Plaintiff failed to object concerning the scope of the remaining claims. Furthermore, the parties later stipulated that Plaintiff’s claim “that defendant violated the adverse action notification requirement under 15 U.S.C. § 1691" would be dismissed without prejudice; that stipulation makes no mention of the parallel state law claim. Under these circumstances, even if it could be argued that the § 4112.021 claim survived summary judgment in the earlier action, the Court finds that Plaintiff has waived his right to reassert that claim.
Even if Plaintiff had not waived his right to reassert the § 4112.021 claim, it appears that Midwest would nevertheless be entitled to summary judgment. Plaintiff, in his reply brief, acknowledges that “there is a question, that defendant did not raise, about whether plaintiff complied with the requirement under O.R.C. § 4112.021(B)(f) that the plaintiff give the defendant a written request for reasons of the rejection within sixty days of the rejection.” (Reply at 14). The Court construes this statement as an admission that Plaintiff cannot show that he requested, in writing, a statement of the reasons why Midwest rejected his loan application.
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Absent such a request, Midwest cannot be held liable for violating this statute.3 IV. Conclusion
For the reasons set forth above, Defendant’s motion for summary judgment (Record at 11) is GRANTED IN PART and DENIED IN PART. Defendant is entitled to summary judgment on Plaintiff’s state law claim. The Court denies Defendant’s motion for summary judgment with respect to Plaintiff’s ECOA claim, and reserves ruling on the issue of whether punitive damages may be awarded.
A Final Pretrial Conference will be held on March 24, 2006 at 1:00 p.m. A Conference Prior to Trial will be held on April 21, 2006 at 10:00 a.m. and Trial will commence on April 24, 2006 at 9:00 a.m.
Motion in limine, if any, shall be filed no later than March 6, 2006; response briefs shall be filed by March 13, 2006, and reply briefs by March 17, 2006.
IT IS SO ORDERED.

Date: December 16, 2005

/s/ John D. Holschuh John D. Holschuh, Judge United States District Court

3 Having found that Defendant is entitled to summary judgment on these grounds, there is no need for the Court to address Defendant’s alternative arguments concerning claim splitting and the applicable statute of limitations.
17

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GEORGE S. HOOD Plaintiff,
v. MIDWEST SAVINGS BANK, et al.
Defendants.

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Case No. C-2-04-481

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Judge Holschuh

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STIPULATED DISMISSAL ENTRY Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, the parties hereby stipulate that this case is dismissed with prejudice. Each party shall bear its own costs.

s/Alexander M. Spater Alexander M. Spater Spater Law Office 565 East Towne Street Columbus, Ohio 43215 (614) 222-4734 (614) 222-4738 (facsimile) sspater@spaterlaw.com Attorney for plaintiff

s/James A. Wilson James A. Wilson (0030704) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-5606 (614) 719-5039 (facsimile) jawilson@vssp.com Attorneys for Defendant

 
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CLOSED, JURY
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:97-cv-00218-JDH-MRA

Hood v. Midwest Savings Bank, et al Assigned to: John D. Holschuh Referred to: Mag. Judge Mark R. Abel Demand: $0 Case in other court: 02-03525 Cause: 42:1983 Civil Rights Act Plaintiff George S Hood
V. Defendant Midwest Savings Bank

Date Filed: 02/21/1997 Date Terminated: 04/09/2002 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexander Morris Spater 360 S. Grant Ave Columbus, OH 43215 614-222-4734 Fax: 614-222-4738 Email: sspater@spaterlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Lee Henderson Lerner Sampson & Rothfuss Co - 1 120 E Fourth Street 8th Floor Cincinnati, OH 45202-4007 513-241-3100 Fax: 513-412-6047 Email: thenders@lsrlaw.com TERMINATED: 03/22/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Allison Wilson, Jr Vorys Sater Seymour & Pease 52 E Gay Street PO Box 1008 Columbus, OH 43215 614-464-5606 Fax: 614-719-5039 Email: jawilson@vssp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Northwest Title TERMINATED: 01/20/1999
Defendant Jenny Tiffner TERMINATED: 02/18/1999

represented by John Curtis Albert Crabbe Brown & James - 2 500 S Front Street Suite 1200 Columbus, OH 43215 614-229-4528 Fax: 614-229-4559 Email: jalbert@cbjlawyers.com TERMINATED: 05/06/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Harrod Willard Harris & Mazza 941 Chatham Lane Suite 201 Columbus, OH 43221 614-457-9731 Fax: 614-457-3596 Email: robertwillard@harrismazzalaw.com TERMINATED: 01/20/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Allison Wilson, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/21/1997 02/21/1997 02/21/1997 02/27/1997 02/27/1997 03/12/1997

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Docket Text

1 COMPLAINT with jury demand (referred to Mag. Judge Mark R. Abel ) ( no. pgs: 16) (pl) (Entered: 02/28/1997)
Filing Fee Paid: on 2/21/97 in the amount of $ 150.00, receipt # 205105. (pl) (Entered: 02/28/1997)
Summons issued as to defendant Midwest Savings Bank, defendant Northwest Title, defendant Jenny Tiffner (pl) (Entered: 02/28/1997)
2 RETURN OF SERVICE executed upon defendant Midwest Savings Bank, defendant Northwest Title on 2/21/97 ( no pgs: 2) (pl) (Entered: 03/03/1997)
3 RETURN OF SERVICE executed upon defendant Jenny Tiffner on 2/27/97 ( no pgs: 1) (pl) (Entered: 03/03/1997)
4 ANSWER by defendant Northwest Title () (bw) (Entered: 03/13/1997)

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03/13/1997 04/07/1997 04/21/1997 06/09/1997
08/07/1997 11/06/1997
12/17/1997 12/19/1997 12/19/1997 12/19/1997 12/22/1997
01/07/1998
01/16/1998 01/28/1998
02/02/1998 03/18/1998
03/27/1998

5 ANSWER by defendant Midwest Savings Bank, defendant Jenny Tiffner (no pgs: 9) (gk) (Entered: 03/14/1997)
6 NOTICE setting this action for Preliminary PTC 10:00 6/5/97 no pgs: 1 (cc: all counsel) (pl) (Entered: 04/08/1997)
7 NOTICE rescheduling this action for Preliminary PTC 10:00 6/6/97 no pgs: 1 (cc: all counsel) (gk) (Entered: 04/21/1997)
8 ORDER by Mag. Judge Mark R. Abel ; Prelim pretrial conf held 6/6/97 ; Discovery ddl set 12/31/97 ; Mtn filing ddl set 1/30/98 ; Status report ddl set 7/18/97 ; jury demand (cc: all counsel) ( no pgs: 2) (pl) (Entered: 06/09/1997)
9 NOTICE of hearing ; Settlement conference set 9:00 9/19/97 before mediator John Adams (cc: all counsel) (pl) (Entered: 08/07/1997)
10 ATTORNEY SUBSTITUTION: terminating attorney David Lee Keister for Northwest Title and substituting attorney John Curtis Albert ( no pgs: 3) (pl) (Entered: 11/10/1997)
11 ORDER by Mag. Judge Mark R. Abel ; Joint Status report ddl set on or before 1/7/98 (cc: all counsel) ( no pgs: 1) (sem) (Entered: 12/17/1997)
12 MOTION by plaintiff George S Hood to disqualify counsel ( no pgs: 3) (sem) (Entered: 12/19/1997)
13 MOTION by plaintiff George S Hood for protective order ( no pgs: 3) (sem) (Entered: 12/19/1997)
14 ATTORNEY APPEARANCE as co-counsel for plaintiff George S Hood by Alexander Morris Spater ( no pgs: 2) (sem) (Entered: 12/19/1997)
15 ORDER by Mag. Judge Mark R. Abel denying or granting motion for protective order [13-1] depending on which conditions are met (cc: all counsel) ( no pgs: 3) (pl) (Entered: 12/23/1997)
16 Stipulation and ORDER by Mag. Judge Mark R. Abel : extending time to 1/19/98 for deft Northwest Title to respond re motion for Disqualification of Counsel (cc: all counsel) ( no pgs: 4) (pl) (Entered: 01/08/1998)
17 STIPULATION of ext to 2/2/98 for deft Northwest Title to respond re motion to disqualify counsel [12-1] ( no pgs: 3) (pl) (Entered: 01/21/1998)
18 ORDER by Mag. Judge Mark R. Abel granting stipulation [17-1] ext time to 2/2/98 for deft Northwest to respond to motion for disqualification of counsel (cc: all counsel) ( no pgs: 1) (pl) (Entered: 01/28/1998)
19 RESPONSE by defendant Northwest Title to motion to disqualify counsel [12-1] ( no pgs: 11 + exhibit) (pl) (Entered: 02/04/1998)
20 NOTICE by defendant Midwest Savings Bank of taking deposition of George Hood and Thomas Henderson on 3/20/98 and 3/31/98 respectively ( no pgs: 2) (pl) (Entered: 03/19/1998)
21 ORDER by Mag. Judge Mark R. Abel disc conf held 3/26/98; Discovery ddl reset 5/30/98 (cc: all counsel) ( no pgs: 2) (pl) (Entered: 03/27/1998)

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04/01/1998 04/06/1998 04/13/1998 04/13/1998
04/13/1998 05/06/1998
05/19/1998 06/16/1998
07/24/1998 07/24/1998 08/19/1998 10/06/1998 10/29/1998
11/06/1998 11/30/1998 12/04/1998 12/11/1998 01/08/1999

22 REPLY by plaintiff George S Hood to response to motion to disqualify counsel [12-1] ( no pgs: 5) (pl) (Entered: 04/02/1998)
23 MOTION by defendant Northwest Title for leave to file surreply instanter to pltf's reply memo ( no pgs: 4) (pl) (Entered: 04/07/1998)
24 ORDER by Mag. Judge Mark R. Abel granting motion to disqualify counsel [12-1] (cc: all counsel) ( no pgs: 6) (sem) (Entered: 04/13/1998)
25 ORDER by Mag. Judge Mark R. Abel granting motion for leave to file surreply instanter to pltf's reply memo [23-1] (cc: all counsel) ( no pgs: 2) (sem) (Entered: 04/13/1998)
26 SURREPLY by defendant Northwest Title re [12-1] ( no pgs: 5) (sem) (Entered: 04/13/1998)
27 ATTORNEY SUBSTITUTION: terminating attorney John Curtis Albert for Northwest Title and substituting attorney Robert Harrod Willard ( no pgs: 3) (pl) (Entered: 05/06/1998)
28 Stipulation and ORDER by Mag. Judge Mark R. Abel: Discovery ddl extended until 8/28/98 (cc: all counsel) ( pgs: 2) (gk) (Entered: 05/19/1998)
29 NOTICE by defendant Northwest Title of taking deposition of George S. Hood and Thomas L. Henderson on 7/1/98 at 9:00 ( no pgs: 2) (pl) (Entered: 06/16/1998)
30 NOTICE by defendant Northwest Title of taking deposition of Thomas L. Henderson, Esq. on 8/14/98 at 11:00 a.m. ( no pgs: 2) (pl) (Entered: 07/24/1998)
31 NOTICE by defendant Northwest Title of taking deposition of George S. Hood on 8/14/98 at 9:00 ( no pgs: 2) (pl) (Entered: 07/24/1998)
32 ORDER by Mag. Judge Mark R. Abel re Hood and Henderson depositions (cc: all counsel) ( no pgs: 2) (pl) (Entered: 08/19/1998)
33 NOTICE of hearing ; Status conference has been scheduled for 2:00 10/27/98 (cc: all counsel) (mc) (Entered: 10/06/1998)
34 ORDER by Mag. Judge Mark R. Abel ; Status conference held 10/27/98 ; Discovery ddl set 12/4/98 ; Mtn filing ddl set 1/8/99; Rule 26(e) discl ddl 11/13/98 (cc: all counsel) ( no pgs: 2) (pl) (Entered: 10/29/1998)
35 MOTION by plaintiff George S Hood to amend complaint ( no pgs: 17) (pl) (Entered: 11/09/1998)
36 RESPONSE by defendant Midwest Savings Bank to motion to amend complaint [35-1] ( no pgs: 7) (gk) (Entered: 12/01/1998)
37 DISCOVERY CONFERENCE ORDER by Mag. Judge Mark R. Abel (cc: all counsel) ( no pgs: 2) (sem) (Entered: 12/04/1998)
38 REPLY by plaintiff George S Hood to response to motion to amend complaint [35-1] ( no pgs: 18) (pl) (Entered: 12/14/1998)
39 DISCOVERY ORDER by Mag. Judge Mark R. Abel ; Mtn filing ddl set for 2/26/99 (cc: all counsel) ( no pgs: 2) (sem) (Entered: 01/08/1999)

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01/20/1999 02/18/1999
02/18/1999 02/19/1999 03/04/1999 04/20/1999 04/23/1999 05/07/1999 05/10/1999 05/10/1999 05/10/1999 05/10/1999 05/12/1999 06/02/1999 06/02/1999 06/25/1999

40 Stipulation and ORDER by Judge John D. Holschuh : dismissing party Northwest Title with prejudice (cc: all counsel) ( no pgs: 1) (pl) (Entered: 01/21/1999)
41 ORDER by Mag. Judge Mark R. Abel granting motion to amend complaint [35-1] tendered amended complaint to be filed dismissing party Jenny Tiffner , ; Mtn filing ddl reset 4/23/99 (cc: all counsel) ( no pgs: 12) (pl) (Entered: 02/19/1999)
42 AMENDED COMPLAINT by plaintiff George S Hood; jury demand ( no pgs: 17) (pl) (Entered: 02/19/1999)
43 Stipulation and ORDER by Mag. Judge Mark R. Abel : for protective order (cc: all counsel) ( no pgs: 4) (pl) (Entered: 02/19/1999)
44 ANSWER by defendant Midwest Savings Bank to amended complaint ( no pgs: 9) (pl) (Entered: 03/04/1999)
45 MOTION by defendant Midwest Savings Bank to extend time to 5/7/99 to file motion for S/J ( no pgs: 2) (pl) (Entered: 04/21/1999)
46 ORDER by Mag. Judge Mark R. Abel granting motion to extend time to 5/7/99 to file motion for S/J [45-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 04/23/1999)
47 MOTION by defendant Midwest Savings Bank to extend time to 5/10/99 to file motion for S/J ( no pgs: 3) (pl) (Entered: 05/10/1999)
48 MOTION by defendant Midwest Savings Bank for summary judgment ( no pgs: 19 + exh) (pl) (Entered: 05/11/1999)
49 MOTION by defendant Midwest Savings Bank to disqualify Thomas Henderson as counsel or in the alternative to exclude Mr. Henderson from testifying at trial and request for costs ( no pgs: 10) (pl) (Entered: 05/11/1999)
50 NOTICE by defendant Midwest Savings Bank of filing of depositions ( no pgs: 2) (pl) (Entered: 05/11/1999)
Deposition of Brian D Swope, George S Hood, Lyle E Plummer, Lora A Gregory, Thomas L. Henderson (pl) (Entered: 05/11/1999)
51 ORDER by Mag. Judge Mark R. Abel granting motion to extend time to 5/10/99 to file motion for S/J [47-1] (cc: all counsel) ( no pgs: 1) (sem) (Entered: 05/12/1999)
52 MOTION by plaintiff George S Hood to extend time to 6/25/99 to respond re motion for S/J and to disqualify pltf counsel ( no pgs: 3) (pl) (Entered: 06/03/1999)
53 ORDER by Mag. Judge Mark R. Abel granting motion to extend time to 6/25/99 to respond re motion for S/J and to disqualify pltf counsel [52-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 06/03/1999)
54 MOTION by plaintiff George S Hood to extend time to respond to motion for S/J ( no pgs: 2) (pl) (Entered: 06/28/1999)

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06/25/1999
06/28/1999 06/30/1999 07/01/1999 07/07/1999 07/07/1999 07/09/1999
07/13/1999 07/13/1999 07/23/1999 08/04/1999 08/05/1999 08/10/1999 08/24/1999
02/24/2000

55 RESPONSE by plaintiff George S Hood to motion to disqualify Thomas Henderson as counsel or in the alternative to exclude Mr. Henderson from testifying at trial and request for costs [49-1] ( no pgs: 4) (pl) (Entered: 06/28/1999)
56 ORDER by Mag. Judge Mark R. Abel granting motion to extend time to 6/30/99 to respond to motion for S/J [54-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 06/28/1999)
57 RESPONSE by plaintiff George S Hood to motion for summary judgment [48-1] ( no pgs: 50 + summary) (pl) (Entered: 07/01/1999)
58 MOTION by plaintiff George S Hood for leave to file exhibits instanter ( no pgs: 2) (sem) (Entered: 07/02/1999)
59 ORDER by Mag. Judge Mark R. Abel granting motion for leave to file exhibits instanter [58-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 07/07/1999)
60 Supplement (Exhibits) by plaintiff George S Hood re motion response [57-1] () (pl) (Entered: 07/07/1999)
61 REPLY by defendant Midwest Savings Bank to response to motion to disqualify Thomas Henderson as counsel or in the alternative to exclude Mr. Henderson from testifying at trial and request for costs [49-1] ( no pgs: 6) (pl) (Entered: 07/12/1999)
62 MOTION by defendant Midwest Savings Bank to strike affidavit of Fred Renault , and to extend time to file reply memo in supp of S/J motion until resolution of motion to strike ( no pgs: 6) (pl) (Entered: 07/14/1999)
63 MOTION by plaintiff George S Hood for leave to keep exhibits under seal ( no pgs: 2) (pl) (Entered: 07/14/1999)
64 ORDER by Mag. Judge Mark R. Abel granting motion for leave to keep exhibits Nos 21 & 22 to Pltf Memo Contra deft Motion for S/J under seal [63-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 07/23/1999)
65 MOTION by plaintiff George S Hood to extend time to 8/10/99 to repond to deft's motion to strike affidavit of Fred Renault ( no pgs: 2) (pl) (Entered: 08/05/1999)
66 ORDER by Mag. Judge Mark R. Abel granting motion to extend time to 8/10/99 to repond to deft's motion to strike affidavit of Fred Renault [65-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 08/05/1999)
67 RESPONSE by plaintiff George S Hood to motion to strike affidavit of Fred Renault [62-1] ( no pgs: 22) (pl) (Entered: 08/11/1999)
68 REPLY by defendant Midwest Savings Bank to response to motion to strike affidavit of Fred Renault [62-1], motion to extend time to file reply memo in supp of S/J motion until resolution of motion to strike [62-2] ( no pgs: 4) (pl) (Entered: 08/25/1999)
69 MEMORANDUM, OPINION, AND ORDER: by Mag. Judge Mark R. Abel denying motion to strike affidavit of Fred Renault [62-1], granting motion to extend time until 3/31/00 to file reply memo in supp of S/J motion until

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03/06/2000 03/07/2000 03/09/2000 03/13/2000 03/30/2000
04/03/2000 04/03/2000 04/13/2000
04/21/2000 05/10/2000 05/22/2000 05/22/2000
06/16/2000 06/16/2000
06/30/2000

resolution of motion to strike [62-2], granting motion to disqualify Thomas Henderson as counsel or in the alternative to exclude Mr. Henderson from testifying at trial and request for costs [49-1] ; Show cause ddl for atty Thomas L Henderson to withdraw due 3/6/00 (cc: all counsel) ( no pgs: 24) (gk) (Entered: 02/25/2000)
70 MOTION by plaintiff George S Hood to extend time to show cause to 3/13/00 ( no pgs: 3) (pl) (Entered: 03/07/2000)
71 ORDER by Mag. Judge Mark R. Abel granting motion to extend time to show cause to 3/13/00 [70-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 03/07/2000)
72 MOTION by plaintiff George S Hood for reconsideration of order [69-2] ( no pgs: 5) (pl) (Entered: 03/14/2000)
73 RESPONSE by defendant Midwest Savings Bank to 2/24/00 opinion and order [69-2] ( no pgs: 6) (sh) (Entered: 03/14/2000)
74 MOTION by defendant Midwest Savings Bank for order to set deadline for pltf to make Fred Renault available for deposition , and to extend time to file reply memo re motion for S/J ( no pgs: 3) (pl) (Entered: 03/31/2000)
75 RESPONSE by defendant Midwest Savings Bank to motion for reconsideration of order [69-2] [72-1] ( no pgs: 6) (pl) (Entered: 04/04/2000)
76 REPLY by defendant Midwest Savings Bank re response to show cause order [73-1] ( no pgs: 3) (pl) (Entered: 04/04/2000)
77 ORDER by Mag. Judge Mark R. Abel granting motion for order to set deadline for pltf to make Fred Renault available for deposition [74-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 04/13/2000)
78 MOTION by plaintiff George S Hood for reconsideration of order [77-1] ( no pgs: 3) (pl) (Entered: 04/26/2000)
79 ORDER by Mag. Judge Mark R. Abel denying motion for reconsideration of order [77-1] [78-1] (cc: all counsel) ( no pgs: 2) (sh) (Entered: 05/10/2000)
80 MOTION by plaintiff George S Hood for reconsideration of order [79-1] ( no pgs: 7 + exh) (pl) (Entered: 05/23/2000)
81 MOTION by plaintiff George S Hood to stay ruling on whether to strike Fred Renault's deposition until after pltf's counsel exhausts all attempts to local Mr. Renault ( no pgs: 3 + exh) (pl) (Entered: 05/23/2000)
82 RESPONSE by defendant Midwest Savings Bank to motion for reconsideration of 5/10/00 order [79-1] [80-1] ( no pgs: 3) (sem) (Entered: 06/16/2000)
83 RESPONSE by defendant Midwest Savings Bank to motion to stay ruling on whether to strike Fred Renault's deposition until after pltf's counsel exhausts all attempts to local Mr. Renault [81-1] ( no pgs: 2) (sem) (Entered: 06/16/2000)
84 REPLY by plaintiff George S Hood to response to motion for reconsideration of order [79-1] [80-1] ( no pgs: 2) (pl) (Entered: 07/03/2000)

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07/03/2000 08/16/2000 08/18/2000 08/18/2000 08/18/2000 08/18/2000 08/29/2000 09/25/2000 11/09/2000 11/09/2000 02/26/2001
03/22/2001
09/24/2001 10/22/2001

85 REPLY by plaintiff George S Hood to response to motion to stay ruling on whether to strike Fred Renault's deposition until after pltf's counsel exhausts all attempts to local Mr. Renault [81-1] ( no pgs: 2) (pl) (Entered: 07/05/2000)
86 MOTION by defendant Midwest Savings Bank for leave to withdraw motion to strike and for ext to file reply memo re motion for S/J , and to extend time to 8/18/00 to file reply memo (pl) (Entered: 09/28/2000)
87 MOTION by defendant Midwest Savings Bank for leave to file memo in excess of 20 pages ( no pgs: 2) (pl) (Entered: 08/21/2000)
88 NOTICE by defendant Midwest Savings Bank of filing of depo of Renault ( no pgs: 2) (pl) (Entered: 08/21/2000)
Deposition of Fred Renault (pl) (Entered: 08/21/2000)
90 REPLY by defendant Midwest Savings Bank to response to motion for summary judgment [48-1] ( no pgs: 31 plus Exhibits) (gk) (Entered: 09/27/2000)
89 ORDER by Mag. Judge Mark R. Abel granting motion for leave to file memo in excess of 20 pages [87-1] (cc: all counsel) ( no pgs: 1) (gk) (Entered: 08/29/2000)
91 MOTION by plaintiff George S Hood to file sur-reply memorandum ( no pgs: 3) (gk) (Entered: 09/27/2000)
92 ORDER by Judge John D. Holschuh granting motion to file sur-reply memorandum [91-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 11/09/2000)
93 SUR-REPLY MEMORANDUM by plaintiff George S Hood to motion for summary judgment [48-1] ( no pgs: 21 + exh) (pl) (Entered: 11/09/2000)
94 ORDER by Mag. Judge Mark R. Abel finding the motion to stay ruling on whether to strike Fred Renault's deposition until after pltf's counsel exhausts all attempts to locate Mr. Renault [81-1] moot., finding the motion to extend time to file reply memo re motion for S/J [74-2] moot. granting motion for leave to withdraw motion to strike and for ext to file reply memo re motion for S/J [86-1], granting motion to extend time to 8/18/00 to file reply memo [86-2] (cc: all counsel) ( no pgs: 2) (pl) (Entered: 02/27/2001)
95 MEMORANDUM AND ORDER: by Judge John D. Holschuh finding the motion for reconsideration of order [79-1] [80-1] moot., denying motion for reconsideration of order [69-2] [72-1] and ORDERING atty Thomas L Henderson to promptly withdraw from representation of George S Hood in this matter withdrawing attorney attorney Thomas Lee Henderson for George S Hood ; with respect to sanctions, the Court finds that the issue is not ripe for reconsideration because the mgst judge has not imposed the sanctions contemplated in the show cause order (cc: all counsel) ( no pgs: 11) (pl) (Entered: 03/22/2001)
96 ORDER by Judge John D. Holschuh granting in part and denying in part the motion for summary judgment [48-1] by defendant Midwest Savings Bank (cc: all counsel) ( no pgs: 48) (sem) (Entered: 09/24/2001)
97 NOTICE of hearing ; Settlement conference set for 1:30 12/14/01 with Mediator Richard Frye (cc: all counsel) (sem) (Entered: 10/23/2001)

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10/26/2001 01/11/2002 02/04/2002 02/04/2002 02/14/2002 02/14/2002 02/15/2002 04/09/2002
04/09/2002
05/08/2002 05/08/2002 05/09/2002 05/14/2002 04/09/2004 07/01/2004 05/09/2007

98 NOTICE of hearing ; Final pretrial conf set for 10:00 1/11/02 ; Conference prior to trial set for 10:00 3/29/02 ; Jury trial set for 9:00 4/1/02 (cc: all counsel) (sem) (Entered: 10/29/2001)
99 FINAL PRE-TRIAL ORDER approved by Judge John D. Holschuh : PTC held 10:00 1/11/02 ( no pgs: 11) (sem) (Entered: 01/11/2002)
100 Memorandum on the written notification requirement and damages filed by plaintiff George S Hood ( no pgs: 6) (sem) (Entered: 02/05/2002)
101 Pretrial memorandum regarding agent status of AM Mortgage and scope of damages by defendant Midwest Savings Bank ( no pgs: 6 + exh) (sem) (Entered: 02/05/2002)
102 RESPONSE by defendant Midwest Savings Bank to plaintiff's memorandum on the written notification requirement [100-1] ( no pgs: 5) (sem) (Entered: 02/15/2002)
103 RESPONSE (REPLY) by plaintiff George S Hood to defendant's memorandum on the adverse action notification and damages [101-1] ( no pgs: 3) (sem) (Entered: 02/15/2002)
104 NOTICE of hearing ; Settlement conference set for 11:00 3/25/02 with JDH (cc: all counsel) (sem) (Entered: 02/18/2002)
105 Stipulation and ORDER by Judge John D. Holschuh : dismissing case without prejudice as to the pltf's claim that dft violated the adverse action notification requirement; all other claims were dismissed with the Court's 9/24/01 Opinion and Order (cc: all counsel) ( no pgs: 2) (sem) (Entered: 04/09/2002)
106 Stipulation and ORDER by Judge John D. Holschuh : that the time for filing another lawsuit on the claim dismissed without prejudice is tolled until 60 days after the USCA issues a final decision on any appeal from this Court's dismissal of this case (cc: all counsel) ( no pgs: 2) (sem) (Entered: 04/09/2002)
107 NOTICE OF APPEAL by plaintiff George S Hood from Dist. Court decision [106-1] of 4/9/02 and from Dist. Court decision [96-1] of 9/24/01 ( no pgs: 2) (sem) (Entered: 05/09/2002)
APPEAL FEE pd in amount of $ 105.00 ( Receipt # 230523) (sem) (Entered: 05/09/2002)
APPEAL NOTIFICATION issued CA. (sem) (Entered: 05/09/2002)
RECEIPT OF USCA APPEAL NUMBER - Number Assigned: 02-3525 (sem) (Entered: 05/15/2002)
108 USCA INFORMATION COPY re [107] Notice of Appeal: the USCA affirms the district court's granting of the summary judgment to Midwest. (bab, ) (Entered: 04/12/2004)
109 MANDATE of USCA as to [107] Notice of Appeal filed by George S Hood (jm, ) (Entered: 07/15/2004)
***Pursuant to Local Rule 79.2: Exhibits & Depositions have been disposed of by the Clerk. (er ) (Entered: 05/09/2007)

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U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:04-cv-00481-JDH-MRA

CLOSED

Hood v. Midwest Savings Bank Assigned to: John D. Holschuh Referred to: Mark R. Abel Cause: 28:1331 Fed. Question Plaintiff George S Hood
V. Defendant Midwest Savings Bank

Date Filed: 06/07/2004 Date Terminated: 04/20/2006 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexander Morris Spater 360 S. Grant Ave Columbus, OH 43215 614-222-4734 Fax: 614-222-4738 Email: sspater@spaterlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Allison Wilson, Jr Vorys Sater Seymour & Pease 52 E Gay Street PO Box 1008 Columbus, OH 43215 614-464-5606 Fax: 614-719-5039 Email: jawilson@vssp.com ATTORNEY TO BE NOTICED

Date Filed 06/07/2004 06/07/2004 10/18/2004

#

Docket Text

1 COMPLAINT against Midwest Savings Bank (Filing fee $ 150.); filed by Plaintiff George S Hood.(bab, ) (Entered: 06/08/2004)
3 Filing fee: $ 150, receipt number 241839 (bab, ) Additional attachment(s) added on 6/8/2004 (bab, ). (Entered: 06/08/2004)
4 ANSWER to Complaint by Defendant Midwest Savings Bank.(Wilson, James) (Entered: 10/18/2004)

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11/10/2004 01/18/2005 01/26/2005 01/28/2005
01/31/2005 04/29/2005 04/29/2005
05/23/2005 05/24/2005 06/07/2005
06/08/2005

5 NOTICE of Hearing: Preliminary Pretrial Conference set for 1/27/2005 @ 10:30 AM before Mark R. Abel. (Attachments: # 1 Gen Order on Pretrial# 2 Order on Settl Wk# 3 Rule 26 F)(sh, ) (Entered: 11/10/2004)
6 RULE 26(f) REPORT of the parties by Plaintiff George S Hood. (Spater, Alexander) (Entered: 01/18/2005)
7 MOTION to Reassign Case by Defendant Midwest Savings Bank. (Wilson, James) (Entered: 01/26/2005)
8 PRELIMINARY PRETRIAL ORDER: Motions to Amend due by 2/11/2005; Primary Expert due by 2/28/2005; Rebuttal Expert due by 3/28/2005; Discovery due by 3/31/2005; Counsel are directed to review their clients' responses to written discovery on or before 4/15/05; Dispositive motions due by 4/29/2005; Settlement Week 3/05. Signed by Judge Mark R. Abel on 1/28/05. (jk) (Entered: 01/28/2005)
9 NOTICE of Hearing: Settlement Wk Conference set for 3/18/2005 @ 9:00 AM before Nelson E. Genshaft-mediator. (sh, ) (Entered: 01/31/2005)
10 NOTICE OF FILING DEPOSITION of George Hood, Brian Swope by Defendant Midwest Savings Bank by Defendant Midwest Savings Bank.(Wilson, James) - These depositions were manually filed w/the Clerk's office on 4/29/05. Modified on 5/2/2005 (jk). (Entered: 04/29/2005)
11 MOTION for Summary Judgment by Defendant Midwest Savings Bank. Responses due by 5/23/2005 (Attachments: # 1 Appendix Tab A: Pages from Hood 9/98 Deposition# 2 Appendix Tab B: Pages from Swope deposition# 3 Appendix Tab C: Pages from Hood 12/98 deposition# 4 Appendix Tab D: Hood Affidavit from Hood I# 5 Appendix Tab D Part 1: Hood I SJ Decision# 6 Appendix Tab E Par 2: Hood I SJ Decision# 7 Appendix Tab F: Agreed Dismissal of Hood I# 8 Appendix Tab G: Interrogatory Answers)(Wilson, James) (Entered: 04/29/2005)
12 First MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment New date requested 6/6/2005. by Plaintiff George S Hood. (Spater, Alexander) (Entered: 05/23/2005)
13 ORDER granting 12 Plaintiff's First MOTION for Extension of Time to File his memorandum in opposition to 11 Defendant's MOTION for Summary Judgment ext. to 6/6/05. Signed by Judge Mark R. Abel on 5/24/05. (jk) (Entered: 05/24/2005)
14 RESPONSE in Opposition re 11 MOTION for Summary Judgment filed by Plaintiff George S Hood. (Attachments: # 1 Exhibit Hood Affidavit I# 2 Exhibit Hood deposition excerpts# 3 Exhibit Swope deposition excerpts# 4 Exhibit Coffman deposition excerpts# 5 Exhibit Pulfer deposition excerpts# 6 Exhibit Roberts letter# 7 Exhibit Hood letter to Prior# 8 Exhibit Pulfer letter to Hood# 9 Exhibit Hood affidavit II)(Spater, Alexander) (Entered: 06/07/2005)
15 ORDER GRANTING Plaintiff's Motion to File Instanter. Signed by Judge Mark R. Abel on 6/8/05. (jk) (Entered: 06/08/2005)

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06/20/2005 09/13/2005
12/19/2005 12/19/2005
12/19/2005 12/19/2005 03/06/2006 04/20/2006

16 REPLY to Response to Motion re 11 MOTION for Summary Judgment filed by Defendant Midwest Savings Bank. (Attachments: # 1 Appendix A (cited pages of Swope deposition))(Wilson, James) (Entered: 06/20/2005)
17 ORDER granting 7 Motion to Reassign Case. Case reassigned to Judge John D. Holschuh for all further proceedings. Judge Edmund A Sargus no longer assigned to the case. Signed by Judge Edmund A Sargus on 09/13/2005. (dh) (Entered: 09/13/2005)
18 MEMORANDUM OPINION & ORDER Granting in part and Denying in part 11 dft's Motion for Summary Judgment . Signed by Judge John D. Holschuh on 12/16/2005. (sln, ) (Entered: 12/19/2005)
Set Hearings: Final Pretrial Conference set for 3/24/2006 01:00 PM in chambers before John D. Holschuh. Conference Prior to Trial set for 4/21/2006 10:00 AM in chambers before John D. Holschuh. Jury Trial set for 4/24/2006 09:00 AM in Courtroom 3 before John D. Holschuh. (sln, ) (Entered: 12/19/2005)
19 MOTION to Continue Final Pretrial Conference by Defendant Midwest Savings Bank. (Wilson, James) (Entered: 12/19/2005)
20 ORDER Granting 19dft's Motion to Continue the Final Pretrial Conf to 3/27/06 at 1:00. Signed by Judge John D. Holschuh on 12/19/05. (sln, ) (Entered: 12/19/2005)
21 MOTION in Limine by Defendant Midwest Savings Bank. (Wilson, James) (Entered: 03/06/2006)
22 STIPULATION of Dismissal of all claims by Defendant Midwest Savings Bank. (Wilson, James) (Entered: 04/20/2006)

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General Docket
US Court of Appeals for the Sixth Circuit
Court of Appeals Docket #: 02-3525 5/13/02 Nsuit: 3440 Civil Rights: Other Hood v. Midwest Savings Bank Appeal from: Southern District of Ohio at Columbus

Filed:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case type information:
1) Civil 2) private 3) civil rights - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0648-2 : 97-00218 Trial Judge: John D. Holschuh, Sr. District Judge Date Filed: 2/21/97 Date order/judgment: 4/9/02 Date NOA filed: 5/8/02 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None

Docket as of September 21, 2006 9:28 pm

Page 1

02-3525 Hood v. Midwest Savings Bank

GEORGE S. HOOD Plaintiff - Appellant

Alexander M. Spater FTS 222-4738 614-222-4734 [COR LD NTC ret] 360 S. Grant Avenue Columbus, OH 43215

v.

MIDWEST SAVINGS BANK Defendant - Appellee

James A. Wilson FTS 464-6350 614-464-5606 [COR LD NTC ret] Vorys, Sater, Seymour & Pease 52 E. Gay Street
P.O. Box 1008 Columbus, OH 43216-1008

614-464-5691 Docket as of September 21, 2006 9:28 pm

Page 2

02-3525 Hood v. Midwest Savings Bank GEORGE S. HOOD
Plaintiff - Appellant v. MIDWEST SAVINGS BANK
Defendant - Appellee Docket as of September 21, 2006 9:28 pm

Page 3

02-3525 Hood v. Midwest Savings Bank

5/13/02 S.

Civil Case Docketed. Notice filed by Appellant George Hood. Transcript needed: n (tmb)

5/13/02 appellant
appendix
3525]

BRIEFING LETTER SENT setting briefing schedule: brief due 6/24/02 ; appellee brief due 7/24/02 ; due 8/14/02 ; final appellant brief due 9/4/02 . [02final appellee brief due 9/4/02 ; . (tmb)

5/20/02 (trm)

Mediation Office is involved in this appeal. [02-3525]

5/20/02 7/5/02
3525] (trm)

Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due
; appellee brief due 8/5/02;reply due 8/19/02; joint appendix due 8/26/02; all finals due 9/16/02. [02-

5/28/02 Appellee

APPEARANCE filed by Attorney James A. Wilson for Midwest Savings Bank [02-3525] (tmb)

5/29/02

APPEARANCE filed by Attorney Alexander M. Spater for Appellant George S. Hood [02-3525] (tmb)

5/29/02 for

PRE-ARGUMENT STATEMENT filed by Alexander M. Spater Appellant George S. Hood [02-3525] (tmb)

5/29/02

TRANSCRIPT ORDER FORM filed by Alexander M. Spater for

Appellant George S. Hood: No hearings held in District Court. [02-3525] [2561629-1] (blh)

7/2/02
now briefs now

Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due 7/22/02 ; appellee brief now due 8/21/02 ; reply brief
due 9/4/02; appendix now due 9/11/02 ; all final
due 10/2/02. [02-3525] . (wjr)

7/16/02
now briefs now

Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due 7/26/02 ; appellee brief now due 8/26/02 ; reply brief
due 9/9/02; appendix now due 9/16/02 ; all final
due 10/7/02. [02-3525] . (wjr)

7/18/02 8/6/02
3525]

Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due
; appellee brief due 9/5/02; reply due 9/19/02; joint appendix due 9/26/02; all finals due 10/17/02. [02-
(trm)

7/19/02
now briefs

Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due 8/12/02 ; appellee brief now due 9/11/02 ; reply brief
due 9/25/02; appendix now due 10/2/02 ; all final
now due 10/23/02. [02-3525] . (wjr)

Docket as of September 21, 2006 9:28 pm

Page 4

02-3525 Hood v. Midwest Savings Bank

8/8/02 10/2/02;

Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due 8/19/02 ; appellee brief due 9/18/02; reply due
joint appendix due 10/9/02; all finals due 10/30/02. [02-3525] (trm)

8/19/02 9/3/02 joint 3525]

Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due ; appellee brief due 10/3/02; reply due 10/17/02; appendix due 10/24/02; all finals due 11/14/02. [02(trm)

8/29/02 at

Mediation Office is no longer involved in this appeal this time. (lmn)

9/4/02 Number

PROOF BRIEF filed by Alexander M. Spater for Appellant George S. Hood. Certificate of service date 9/3/02.
of Pages: 55. [02-3525] (vf)

9/4/02

Request to require oral argument filed by Alexander M. Spater for Appellant George S. Hood [02-3525] (vf)

10/4/02 Midwest
Number

PROOF BRIEF filed by James A. Wilson for Appellee Savings Bank. Certificate of service date 10/3/02 . of Pages: 45. [02-3525] (vf)

10/4/02 Wilson

Request to require oral argument filed by James A. for Appellee Midwest Savings Bank [02-3525] (vf)

10/16/02 brief .
George S.
(tmb)

Appellant MOTION filed to extend time to file reply Motion filed by Alexander M. Spater for Appellant Hood. Certificate of service date 10/15/02 [02-3525]

10/16/02 brief
(tmb)

RULING granting motion to extend time to file reply [2631835-1] filed by Alexander M. Spater [02-3525] .

10/16/02 schedule:

BRIEFING LETTER SENT setting reply brief briefing
reply brief due 10/31/02; appendix now due 11/8/02 ; appellant final brief now due 12/2/02 ; appellee final brief now due 12/2/02 [02-3525] . (tmb)

11/1/02 (vf)

PROOF REPLY BRIEF filed by Alexander M. Spater for Appellant George S. Hood. Certificate of service date 10/31/02. Final reply brief due 12/2/02 . [02-3525]

11/12/02 .
George S.
(tmb)

Appellant MOTION filed to extend time to file appendix Motion filed by Alexander M. Spater for Appellant Hood. Certificate of service date 11/8/02 [02-3525]

Docket as of September 21, 2006 9:28 pm

Page 5

02-3525 Hood v. Midwest Savings Bank

11/13/02 file 3525] due appellee due

LETTER SENT by tmb granting motion to extend time to appendix [2646629-1] filed by Alexander M. Spater [02resetting briefing schedule: [02-3525] appendix now 11/15/02 ; appellant final brief now due 12/6/02 ; final brief now due 12/6/02 . final reply brief now 12/6/02 ; (tmb)

11/18/02 George
11/15/02

APPENDIX filed by Alexander M. Spater for Appellant S. Hood. Copies: 5. Certificate of service date [02-3525] (lak)

11/18/02 Copies: 5
3525]

Corrected appendix filed by Alexander M. Spater. (Vol 1-2). Certificate of Service date 11/15/02 [02(vf)

11/19/02 from
counsel,
Corrections

BRIEFING LETTER SENT requesting appendix corrections Alexander M. Spater because need certificate of and certificate of service bound in appendix. due: 12/3/02 . (lak)

12/3/02 Judgment.

Appellee MOTION filed to supplement joint appendix by including Exhibit 13 to its Motion for Summary
Motion filed by James A. Wilson for Appellee Midwest Savings Bank. Certificate of service date 12/2/02 . [02-3525] (tmb)

12/3/02 Midwest

FINAL BRIEF filed by James A. Wilson for Appellee
Savings Bank. Copies: 7. Certificate of service date 12/2/02 . Number of Pages: 46. [02-3525] (vf)

12/3/02 Wilson

Request to require oral argument filed by James A. for Appellee Midwest Savings Bank [02-3525] (vf)

12/5/02 date

FINAL BRIEF filed by Alexander M. Spater for Appellant George S. Hood. Copies: 7. Certificate of service
12/4/02. Number of Pages: 56. [02-3525] (vf)

12/5/02

Request to require oral argument filed by Alexander M. Spater for Appellant George S. Hood [02-3525] (vf)

12/5/02

Request to require oral argument filed by Alexander M. Spater for Appellant George S. Hood [02-3525] (vf)

12/5/02 (vf)

FINAL REPLY BRIEF filed by Alexander M. Spater for Appellant George S. Hood. Copies: 7 Certificate of service date 12/4/02. Number of Pages: 27. [02-3525]

12/17/02 by
Judgment
(tmb)

RULING granting motion to file supplemental appendix including Exhibit 13 to its Motion for Summary [2657836-1] filed by James A. Wilson [02-3525] .

12/17/02 appellee

BRIEFING LETTER SENT resetting briefing schedule: final brief now due 1/4/03 [02-3525] . (tmb)

Docket as of September 21, 2006 9:28 pm

Page 6

02-3525 Hood v. Midwest Savings Bank

1/6/03 3525] (vf)

Substitute appellee briefs filed by James A. Wilson. Copies: 7. Certificate of Service date 1/3/03 [02-

8/11/03 room
(pjm)

Oral argument date set for October 24, 2003 in court 607. Notice of argument sent to counsel. [02-3525]

10/24/03

CAUSE ARGUED on 10/24/03 by Alexander M. Spater for Appellant George S. Hood, James A. Wilson for Appellee Midwest Savings Bank before Judges Kennedy, Gibbons, Aldrich. [02-3525] (me)

4/8/04
Ohio, dissenting

OPINION filed : AFFIRMED [02-3525], decision not for publication pursuant to local rule 28(g) [02-3525] . Cornelia G. Kennedy, Circuit Judge, Julia S. Gibbons, Authoring Circuit Judge, Ann Aldrich, United States District Court Judge for the Northern District of
sitting by designation, delivered a separate
opinion. (lak)

4/21/04 for

Appellant MOTION filed to extend time to file petition rehearing until 4/26/04 (additional four days). Motion

Hood.

filed by Alexander M. Spater for Appellant George S. Certificate of service date 4/21/04 [02-3525] (tmb)

4/21/04 file
M.
Alexander M.

LETTER SENT by tmb granting motion to extend time to petition for rehearing [2941017-1] filed by Alexander Spater. Petition to be filed by 4/26/04 for Spater [02-3525] (tmb)

4/26/04 Spater
date

PETITION for en banc rehearing filed by Alexander M. for Appellant George S. Hood. Certificate of service 4/26/04. [02-3525] (blh)

6/22/04 Ann

ORDER filed denying petition for en banc rehearing [2943396-1] filed by Alexander M. Spater [02-3525]. Cornelia G. Kennedy, Julia S. Gibbons, Circuit Judges;
Aldrich, District Judge. (blh)

6/30/04

MANDATE ISSUED with no cost taxed [02-3525] (lak)

Docket as of September 21, 2006 9:28 pm

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 Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)
95 Fed.Appx. 768 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 Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
George HOOD, Plaintiff-Appellant, v.
MIDWEST SAVINGS BANK, Defendant-Appellee.
No. 02-3525. | April 8, 2004.
Synopsis Background: Borrower brought action against lender alleging, inter alia, violations of Fair Housing Act and Equal Credit Opportunity Act. The United States District Court for the Southern District of Ohio granted summary judgment to lender. Borrower appealed.
Holdings: The Court of Appeals, Gibbons, Circuit Judge, held that:
[1] lender did not violate Code of Federal Regulation;
[2] borrower’s proof of civil rights violation in denial of loan application was insufficient; and
[3] lender did not violate Fair Housing Act.
Affirmed.
Aldrich, District Judge, sitting by designation, filed a dissenting opinion.
*769 On Appeal from the United States District Court for the Southern District of Ohio.
Attorneys and Law Firms
Alexander M. Spater, Spater Law Office, Columbus, OH, for Plaintiff-Appellant.
James A. Wilson, Vorys, Sater, Seymour & Pease, Columbus, OH, for Defendant-Appellee. Before KENNEDY and GIBBONS, Circuit Judges; and ALDRICH, District Judge.*

*

The Honorable Ann Aldrich, United States District

Judge for the Northern District of Ohio, sitting by

designation.

Opinion
GIBBONS, Circuit Judge.
Plaintiff-appellant George Hood seeks review of a district court decision which granted defendant-appellee Midwest Savings Bank’s (Midwest) motion for summary judgment. On February 21, 1997, Hood filed an action in the United States District Court for the Southern District of Ohio against Midwest alleging, inter alia, violations of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., and the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq. On May 10, 1999, Midwest filed a motion for summary judgment, which was granted as to all claims except one, which is not at issue here. Because we find that Hood has not been able to establish a prima facie case under the Fair Housing Act or the Equal Credit Opportunity Act with regard to either his first or second loan application, we affirm the judgment of the district court granting summary judgment to Midwest.

I.
In 1995, Hood, an African-American, purchased a vacant lot located on Franklin Avenue in the Olde Towne East section of the Near East Side of Columbus, a predominantly African-American neighborhood, for the purpose of building a house. *770 Hood is certified by the Federal Housing Administration (FHA) as a homebuilder and has built several houses in the past. He obtained plans for the house and intended to serve as the general contractor for the construction, as he had done eight or nine times previously. As the general contractor, Hood needed a loan to pay for supplies and the services of subcontractors.
To get financing for the construction of the house, Hood contacted AM Mortgage Company (AM Mortgage), an independent mortgage broker. Hood dealt with AM Mortgage employees Tony Malone and Heather Bogo. Hood and Malone discussed the types of loans for which Hood could apply and specifically discussed structuring the loan as a construction loan with an end mortgage.2

2

A construction loan is a loan which lasts for the term of

the construction and is paid off with a loan backed by a

1

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004) mortgage at the end of construction.

Malone then contacted Midwest regarding Hood’s potential loan. Midwest handled a large number of construction loans, which accounted for the majority of its loans. In about half of these construction loans, Midwest allowed the borrower to act as the general contractor. This practice is somewhat rare in the lending industry. Malone submitted Hood’s first completed loan application to Midwest in early November 1995. Malone used the Uniform Residential Loan Application form. The application indicated that Hood was applying for a conventional mortgage in the amount of $60,000. In addition, the application included information regarding Hood’s assets. Hood disclosed that he had owned property that had been subject to foreclosure within seven years of his application. The application also indicated that Hood is African-American.

Hood’s application was received by Midwest and processed by Brian Swope, a loan originator in Midwest’s Columbus office. Swope obtained preliminary credit reports for Hood. In Swope’s opinion, these reports indicated that Hood had “good credit.” After obtaining preapproval from Midwest underwriter David Turner, Swope informed AM Mortgage that Midwest would make the loan. Swope then received Hood’s plans for the house, which indicated that the house was to be stick built.3 Swope was informed that Hood planned to serve as the general contractor. Later, Swope received a “mortgage report,” which gave more detailed information regarding Hood’s credit history than had the preliminary credit report. This mortgage report revealed that Hood was subject to several tax liens. After reviewing this less favorable report, Swope determined that the loan would have to be done “in-house,” meaning that the loan would be of a quality that could not be sold on the secondary mortgage market.

3

“Stick built” means that the home was to be constructed

entirely on site from raw materials, as opposed to

prefabricated or modular homes, which are constructed

in whole or in part in factories and then transported to

the lot.

At the same time he requested the mortgage report, Swope also requested title work and an appraisal of the proposed construction. Swope contacted appraiser Barbara Roberts to order an appraisal for Hood’s application. According to Swope, Roberts later contacted him and told him that she was unable to complete the appraisal because she could not identify any “comparable sales” in the area. In a letter dated November 21, 1995, from Roberts to Swope, Roberts explained why she could not complete the appraisal as requested. That letter stated

in its entirety:
*771 The proposed dwelling refernced [sic] in the above, is to be situated within the Olde Towne East/Franklin Park district, on Columbus’ east side. The neighborhood is of historical interest, and is at this time in a period of transition. Existing residences of the neighborhood were constructed from 1890 to 1930, predominantly from 1905 to 1915.
A complete review of all available sales within the neighborhood, unfortunately did not vend any usable comparable sales for the purpose of the appraisal. The reason is the great variance in age between the existing structures of the neighborhood and the proposed new construction. The standards set forth within the Uniform Appraisal Code, limit such.
After a discussion with your institution’s head Underwriter [sic], Ms. [Kerri] Coffman, I was advised that due to the extreme deviations from normal standards and perimeters [sic] of the appraisal, the complete loan package would not result in a viable, sellable product on the secondary mortgage market. We further discussed the Borrower’s net equity, which would not meet standards for minimal requirements to be considered for portfolio investing.
In the best interest of conserving expenses incurred by Mr. Hood, the request for appraisal has been cancelled at this point. An invoice for expenses incurred is enclosed. Should you have any further questions, do not hestitate [sic] to contact me, or please refer to Ms. Coffman.
Swope said that this was the first time in his experience that an appraisal could not be completed because of a lack of comparable sales. Although Swope had already decided by this point that Hood’s loan would have to be done in house, he did not ask Roberts whether she could complete an appraisal if the loan would not be sold in the secondary mortgage market. In addition, Swope did not request an appraisal from another appraiser. According to Swope, Roberts told him that “if it were a different house” or had a “different floor plan” she could find comparables and complete the appraisal. Also according to Swope, he then called Hood and told him “I want to do a loan for you. I just can’t do it with this house.... You need to get another floor plan or different blueprints, different house.” Hood allegedly responded, “Okay, I’ll work on it.”
In December 1995, Hood called Malone, the mortgage broker, to find out the status of his loan application. Malone told him that his application had been rejected because Midwest could not appraise the house. Malone read Roberts’s letter, and then faxed a copy to Hood.
2

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)

On January 8, 1996, Hood filed a complaint with the Ohio Department of Commerce, Division of Financial Institutions, charging that Midwest was engaging in “redlining.”4 His complaint read, in part:

4

“Redlining” is generally defined as “mortgage credit

discrimination based on the characteristics of the

neighborhood surrounding the would-be borrower’s

dwelling.” See Town of Springfield v. McCarren, 549

F.Supp. 1134, 1142 (D.Vt.1982), aff’d mem., 722 F.2d

728 (2nd Cir.1983). “The term derives from loan

officers evaluating home mortgage applications based

on a residential map where integrated and minority

neighborhoods are marked off in red as poor risk

areas.” Simms v. First Gibraltar Bank, 83 F.3d 1546,

1551 n. 12 (5th Cir.1996).

Franklin Avenue is a [sic] inner city neighborhood in transition where greater than 50% of the existing homes have been or are under renovation. For the appraiser to conclude that there are no usable sales comparisons of new homes in this neighborhood with which to base *772 an appraisal is a thinly veiled effort to redline the project.
A fair approach would have been to take the plans and specifications and performed [sic] a square foot estimate appraisal of this home. I am therefore requesting from your department an advocacy posture in requesting Midwest Savings Bank to respond to fairness and observance of the commitment the financial institutions of Ohio have made against redlining of inner city neighborhoods. Your cooperation will be deeply appreciated. Thomas Pulfer, President of Midwest, responded to Hood’s complaint in a letter dated January 29, 1996:
Mr. John J. Prior forwarded to Midwest Savings Bank the correspondence you mailed to The Ohio Division of Financial Institutions. Let me start our response by emphatically denying that Midwest in any way was involved in any form of redlining. Our mortgage lending records will indicate that Midwest is actively involved in mortgage origination’s [sic] in all sectors of Franklin county [sic].
The first reason for the turn down of your loan request was based upon the inability of the appraiser to qualify comparable values and sales due to a new construction being built in an established historical area. Secondly you were expecting the appreciation of the vacant real estate to substantiate for a cash infusion of the required twenty percent down payment. Lastly upon receipt of a detailed mortgage report several credit deficiencies were listed that did not show on the in house credit report.

We regret circumstances are such that Midwest was not able to grant your loan request, however, we are confident our decision was based upon prudent underwriting criteria. If there are any further questions you can call me at 1-800-626-2913.
After receiving Pulfer’s response to his complaint, Hood received a telephone call from Malone, the mortgage broker, who told him that the bank had reconsidered his loan application and that it was a “done deal.” According to Malone, Midwest wanted Hood to change the architectural facade of the house to correspond with the historical architecture in the neighborhood. Bogo, an employee of AM Mortgage, told Hood that his original application had been lost, and that he would have to submit a new application, along with the necessary supporting materials. Hood submitted a second loan application dated May 8, 1996. On Hood’s second application, he indicated, contrary to his first application, that he had not been subject to foreclosure within the prior seven years.
Hood also submitted new house plans along with the second loan application. The extent to which the new plans had been revised is disputed. Hood asserts that his new plans differed from his old plans only in that the facade was altered. He says that no changes were made in the floor plan, and that both sets of plans called for a two-story stick built house. Midwest appears to dispute the exact nature of the plans. Pulfer has testified that Coffman told him that Hood’s first proposed home could not be appraised because it was going to be a pre-fabricated, or modular, house, while the second application called for a stick built house. Coffman testified that Hood’s initial plans could not be appraised because they called for a one story house. All parties agree, however, that the final plans submitted by Hood called for a two story stick built house.
After Hood submitted the second application with the altered plans, Swope was *773 able to obtain a satisfactory appraisal of Hood’s property. Appraiser Fred Renault appraised the property at $85,000. Swope left Midwest shortly after the appraisal. Coffman asked Jenny Tiffner, an originator in Midwest’s DeGraff office, to take over the application from the departed Swope. Midwest says this action was taken because, at the time, all the other loan originators in Midwest’s Columbus office were too busy to handle another loan application. Hood points out, however, that in a handwritten memo to Pulfer, Coffman wrote that she referred Hood’s application to Tiffner because the Columbus office manager “did not want” the loan for the Columbus office. According to Midwest, Coffman did not inform Tiffner about Hood’s redlining complaint, nor did she suggest to Tiffner that Hood’s application should be treated differently than any other loan application. According to Hood, Tiffner knew about his complaint because he told her about it.
3

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)

After completing all the necessary paperwork and “clearing up” Hood’s outstanding tax liens, Tiffner submitted Hood’s application to Coffman, who served as the underwriter, for final approval. The parties dispute the terms under which the loan was approved.
According to Midwest, Hood’s loan was approved as a “one-time closing” construction loan.5 Midwest asserts that Hood knew that he would be required to make both interest and principal payments from the beginning of the loan term on the full amount of the loan. Midwest says that Tiffner explained the terms of the loan, including payments and the “draw process” to Hood. Midwest specifically asserts that Tiffner explained to Hood that, because he was serving as the general contractor, all construction draw checks would be made jointly payable to Hood and the subcontractor, upon the presentation of receipts for work completed and the completion of satisfactory inspections of the work.

5

According to Midwest, it offers two types of

construction loans. The traditional type of construction

loan involves two closings. At the first closing, the

amount of the construction loan is put into escrow, and

disbursements are made as the construction proceeds.

The borrower is only required to make interest

payments on the amounts disbursed. At the completion

of the construction, a new mortgage loan is closed to

pay off the full amount of the construction loan.

Midwest then sells this new mortgage on the secondary

market.

The second type of loan is a “one-time closing”

construction loan. With this type of loan, the

borrower agrees to make both interest and principal

payments from the beginning of the loan term. The

amount of the loan is put into escrow and is

disbursed as the construction proceeds. One-time

closing loans are offered to individuals who meet

Midwest’s internal underwriting standards, but do

not meet the underwriting standards for sale of the

loan on the secondary market. Payments are required

on both interest and principal because of the

borrower’s higher credit risk. According to Midwest,

because of Hood’s history of credit problems, as well

as the fact that he was acting as his own general

contractor, he qualified only for a one-time closing

portfolio loan, instead of the standard construction

loan.

According to Hood, Midwest never told him how his construction loan would be structured. Hood argues that Midwest only told him before the closing that the bank would lend him $67,000 to build his house, that he would receive the money in three draws, and that he would pay interest plus principal on the entire amount of the loan starting immediately after closing. Hood asserts that he was treated differently from other borrowers in that his loan was structured differently. He says that Tiffner never

told him that in order to receive draws he would have to be current on both principal and interest payments, nor did she explain to him that he would *774 have to submit invoices for completed work and that the checks would be jointly payable to Hood and to the subcontractor or supplier.
According to Hood, he asked Midwest to provide the closing documents prior to the closing, and his attorney, Thomas Henderson, requested the settlement documents from the title company the day before the closing. Henderson was told that the settlement documents had not yet been prepared. Midwest provided neither the settlement documents nor any other closing documents prior to the closing.

The closing took place on June 26, 1996, at Northwest Title. Hood, Henderson, and a closing officer were present at the closing. In his deposition, Henderson testified that the closing documents did not reflect his understanding of how the loan was to be structured. Apparently, Hood’s understanding was that he would receive the full amount of the loan, $67,245, in three draws, the first of which would be disbursed upon the completion of the foundation, and that he would be compensated for serving as the general contractor. According to Henderson, Hood also understood that “there wouldn’t be any money initially.” According to Hood, “the documents appeared to indicate that the entire amount of the loan would be disbursed to [me] at the closing, rather than in three draws.” In addition, the closing documents were those typically used when a preexisting mortgage is being paid off or when money is being passed directly to the borrower.

Henderson voiced his concerns to the closing officer, who contacted Midwest in an attempt to alleviate Hood’s and his own confusion. After speaking with a Midwest employee, the closing officer explained that Hood and Midwest had agreed to separate terms regarding disbursements which were not reflected in the closing documents. According to Henderson, neither he nor Hood understood that the money would be put into an escrow account.6 In spite of the confusion, Hood decided to proceed with the closing because he “felt that his loan would not be approved unless he went forward on that day.” Hood knew that he did not qualify for a typical two-closing construction loan.

6

Hood asserts that he did not understand how the loan

was structured. However, he gave the following

testimony in a deposition:

Q. Well, did you understand that that amount of

money was not going to be paid to you at that

closing?

A. I didn’t receive the check, yeah. I understood I

was not going to get a check for $67,000 at the end

of the closing, but it simply meant the amount of

4

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)
money that was being lent to me for the construction of the home. Q: Okay. Had you previously taken out a construction loan in any of the other projects you’d worked on? A: Yes. Q. Okay. When you had taken out construction loans, had you signed a mortgage? A. There’s always a closing for the construction loan and another closing for the end loan. Q. Did you understand that in this case this was going to be the only closing? A. Correct. Q. And you understood that this was going to be handled differently than the construction loans you’d taken out in the past, correct? A. As I found out that morning when I got to the closing, yes. Q. Well, did you object to having only one closing? A. If I had, I don’t see where I would have gotten the loan.
Midwest presented a document that it says is an escrow agreement signed by Hood. The purported escrow agreement includes an acknowledgment that $67,245 was being placed in escrow for the completion *775 of the construction of a home. The document also states:
Midwest Savings Bank will release escrow monies upon certification of satisfactory work completion and the borrowers [sic] written authorization. Funds will be disbursed in 4 draws with work to be completed within 9 months of this agreement. Midwest Savings Bank has the sole discretion to inspect and pay out such funds as it deems necessary and proper.
Below this disclosure is a signature that Midwest asserts is Hood’s. Hood does not remember signing the document and believes that the signature may not be his. He admits signing all the loan documents except the escrow agreement. Neither Hood nor Henderson remembers the escrow agreement being presented for Hood’s signature at the closing. Hood argues that even if he signed the escrow document, it does not constitute an agreement, and he did not agree that Midwest could disburse money at its own discretion and according to its unstated terms. Hood did receive and acknowledge receipt of a “First Payment Letter,” which indicates that his first payment of principal and interest would be due on August 1, 1996.
Hood failed to pay the first payment on his loan and did not make any other payments, either. He obtained a building permit in August and began construction by

contracting to have the foundation poured. Pursuant to this contract, the footers were poured, the blocks were laid, and the plumbing was roughed in. After this work was completed, Hood contacted Tiffner to request the first draw. Tiffner told Hood that he would have to provide her with all the bills, and that Midwest would then issue a check payable jointly to Hood and the subcontractors. Hood had already paid the subcontractors in cash and therefore did not have any invoices to present. After learning this, Tiffner spoke with Coffman, who advised Tiffner that if Hood could provide evidence documenting that everything had been paid for, the bank would make an exception to its policy and make the check payable to Hood only.
Henderson, Hood’s attorney, contacted Tiffner regarding documentation for the disbursements. He told her that Hood’s position was that payment of invoices would not be sufficient because Hood needed money to frame the house. Also, he argued that by paying only invoices, Midwest was charging Hood interest on money that might never actually be disbursed. If the cost of constructing the house turned out to be less than the amount of the loan, Hood would pay interest on money that was not used, and the loan would have to be recalculated and money returned to Hood. Henderson also told her about Hood’s concern that Midwest’s payment of invoices would not compensate Hood for serving as the general contractor. Henderson agreed to provide documentation of completed work and copies of all bills paid by Hood. He then faxed copies of receipts totaling $3,607.20 to Tiffner.
At about the same time, Tiffner received a phone call from Frank Niven, an employee in Midwest’s collections department. Niven told Tiffner that Hood had not made his first loan payment, and was therefore delinquent on his payments. After learning this, Tiffner then contacted Hood and explained that Midwest would not make any disbursements until the loan was brought current. Niven also contacted Hood and Henderson to discuss Hood’s failure to make the first two payments. Niven was unaware that Hood had not received any of the loan money, and that the loan was for the construction of a house. Hood says that Henderson and Niven agreed that Midwest would disburse *776 a draw to Hood for one-third of the loan amount, and that Hood would then remit a portion of that draw to Midwest to bring his loan payments current. Midwest denies that such an agreement was approved. Niven testified in a deposition that this option was discussed, but he did not have the authority to approve such an agreement, and no such agreement was reached. According to both Coffman and Tiffner, such an arrangement is not permitted by bank policy, and they would never have approved it.
On October 10, 1996, Hood received a collection letter from Midwest employee Linda Trewartha informing him that he had breached his contract with Midwest. The letter
5

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)
also stated that if Hood did not cure the breach by submitting $2,811.62 by November 10, 1996, his loan would be accelerated and Midwest could pursue a variety of legal remedies. Henderson contacted Trewartha, who informed him that Hood’s loan was not “coded” as a construction loan, but rather as a regular mortgage on an existing property. She said that Hood’s difficulty in getting the money disbursed was caused by that error.
To date, Midwest has disbursed no money to Hood under this loan, and Hood remains in default on the loan. The house Hood intended to construct remains unfinished.
II.
This court reviews a district court’s order granting summary judgment de novo. Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir.2000). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “Rule 56(c) 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 of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment “bears the burden of clearly and convincingly establishing the nonexistence of any genuine issue of material fact, and the evidence as well as all inferences therefrom must be read in a light most favorable to the party opposing the motion.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986). The moving party can meet this burden, however, by pointing out to the court that the respondents, having had sufficient opportunity for discovery, have no evidence to support an essential element of their case. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The party opposing the motion must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A plaintiff may survive summary judgment by establishing a prima facie case and presenting evidence sufficient to reject the defendant’s explanation of its conduct. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

III.
The FHA provides:
It shall be 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 *777 such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.
42 U.S.C. § 3605(a). Similarly, the ECOA provides: “It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction ... on the basis of race, color, religion, national origin, sex or marital status, or age.” 15 U.S.C. § 1691(a).
A. First Loan Application For purposes of this appeal, Hood argues that Midwest violated the FHA and the ECOA with respect to his first application for a loan in two ways. First, he alleges that Midwest relied on an appraisal report in denying his application that it had reason to believe was based at least in part on the racial composition of the community surrounding the property. Second, he alleges that Midwest denied him the loan because of his race and color and the racial composition of the area where the money would be spent.
[1] Twelve C.F.R. § 528.2a prohibits lenders from using or relying on an appraisal of a dwelling which they know, or reasonably should know, “is discriminatory on the basis of the age or location of a dwelling, or is discriminatory per se or in effect under the Fair Housing Act of 1968 or the Equal Credit Opportunity Act.” Midwest did not violate this provision, for two reasons. First, Midwest could not have used a discriminatory appraisal because Roberts reported that she could not complete the appraisal. Midwest could not possibly have relied on an appraisal that did not exist. Second, the FHA provides that “[n]othing in this title prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.” 42 U.S.C. § 3605(c). Here, Roberts relied on the fact that there were no other houses in the area to which she could compare Hood’s proposed house. This explanation for Roberts’s failure to complete an appraisal is supported by the fact that Midwest was able to obtain an appraisal from another appraiser after Hood agreed to change the facade to conform to other houses in the area. There is no evidence in the record of any reason that the appraisal was
6

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)
not completed other than unavailability of comparable sales.
[2] Likewise, Midwest did not deny Hood’s first application for a loan based on his race or color or the racial composition of the neighborhood where the property was located. Hood could have presented either direct or circumstantial evidence of such a denial. See McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (allowing use of either direct or circumstantial evidence in employment discrimination cases). Hood has presented no direct evidence of discrimination by Midwest. Nowhere does Hood allege that Midwest overtly denied his application based on either his race or the location of his property in a predominantly African-American neighborhood. As noted, Hood does allege that, in deciding to deny his first loan application, Midwest relied on an appraisal report, or rather the lack thereof, which was based in part on the racial composition of the neighborhood in which the property was located. However, the letter (which is quoted in its entirety supra page three) does not mention race as a factor preventing Roberts, the appraiser, from completing an appraisal of the property. Rather, the letter says only that there are no comparable sales in the neighborhood to which to compare Hood’s proposed house. This is a problem that could arise regardless of the race of the applicant.
[3] Thus, there is no direct evidence of racial discrimination in Midwest’s denial of *778 the first loan application. In his appellate brief, Hood argues: “Plaintiff’s most compelling evidence is that Mr. Hood was denied the loan because he wanted to construct his house in a predominantly African American, but changing, neighborhood, a practice known as redlining.” This conclusory assertion does not constitute direct proof.
Because racial discrimination is rarely overt in the business context, however, discrimination can also be proved by circumstantial evidence. The prima facie case necessary to establish a claim under the FHA or the ECOA using circumstantial evidence is the same. Saldana v. Citibank, No. 93 C 4164, 1996 U.S. Dist. LEXIS 8327 at *5, 1996 WL 332451 (N.D.Ill. June 13, 1996). To establish a prima facie case of discrimination under the FHA or the ECOA, a plaintiff must demonstrate that: (1) he is a member of a protected class; (2) he applied for and was qualified for a loan; (3) the loan application was rejected despite his or her qualifications; and (4) the lender continued to approve loans for applicants with qualifications similar to those of the plaintiff. Michigan Prot. and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 346 (6th Cir.1994); Ward v. Union Planters Nat’l Bank, No. 95-5921, 113 F.3d 1236, 1997 U.S.App. LEXIS 8657 at *2 (6th Cir. Apr. 23, 1997). Despite the fact that he has no direct evidence of discrimination, Hood can defeat the motion for summary judgment if he can establish that a

genuine issue of material fact exists with respect to each element of his prima facie case. Ward, 1997 WL 201483, at ----, 1997 U.S.App. LEXIS 8657 at *8. If Hood can do this, the burden will then shift to Midwest to articulate a legitimate, nondiscriminatory reason for the denial. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (applying the burden shifting framework in the employment discrimination context).7 Hood bears the ultimate burden of establishing his claim of race discrimination by a preponderance of the evidence. See id.

7

Hood disputes this characterization of the prima facie

case. He argues that a plaintiff can establish a prima

facie case of credit discrimination by showing the

following four elements: (1) plaintiff was a member of

the protected class; (2) plaintiff applied for credit from

defendants; (3) plaintiff was qualified for the credit;

and (4) despite plaintiff’s qualifications, defendant

denied her credit application. Hood cites Mays v.

Buckeye Rural Elec. Coop., 277 F.3d 873, 877 (6th

Cir.2002), as authority for this statement of the

elements. This reliance, however, is misplaced. Mays

relies on a Tenth Circuit case, Matthiesen v. Banc One

Mortgage Corp., 173 F.3d 1242, 1246 (10th Cir.1999),

for this statement of the elements. The elements of the

test, however, had already been set forth by the Sixth

Circuit by the time Matthiesen was decided. See

Michigan Prot. & Advocacy Serv., Inc., 18 F.3d at 346.

Since the Matthiesen court did not acknowledge

Michigan Protection & Advocacy Service or attempt to

distinguish it in any way, it appears likely that an exact

statement of the elements was not critical to the

decision in Mays and that the court simply overlooked

the existing Sixth Circuit formulation.

Hood is able to meet his burden with respect to the first element. Both Hood and Midwest agree that Hood, as an African-American, is a member of a protected class, and that the property is located in a predominantly African-American community. Hood also arguably meets his burden with respect to element two. There is no dispute that Hood applied for a loan. While the parties dispute whether he was qualified for the loan, Swope, the first loan originator, gave the opinion that Hood’s credit was sufficiently good to obtain the loan.8 Hood meets his burden with respect to element three. The loan application was rejected.

8

Midwest asserts that Hood did not qualify for the loan

because the appraiser could not fix a value for his

property. The lack of an appraisal is undisputed and

could be a basis for finding that no genuine issue exists

as to the third element. We leave this issue unresolved

because the analysis of the fourth element is

straightforward and determinative of the prima facie

case inquiry.

7

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)

*779 [4] The critical issue for purposes of this appeal is element four: Did Midwest continue to approve loans for applicants with qualifications similar to those of Hood? We conclude that Hood has failed to present evidence from which a finding could be made that Midwest approved such applications. While Hood “does not have to show an exact match between his application and the applicants outside of the protected class who received a loan, the comparator loan files must be ‘significantly parallel in every material respect.’ ” Sallion v. SunTrust Bank, Atlanta, 87 F.Supp.2d 1323, 1330-31 (N.D.Ga.2000). Hood has produced several loan files for comparison. Yet Hood does not attempt to compare his own qualifications to these other applicants; he simply relies on the fact that these applicants received loans, while he did not. Of the applications Hood has advanced, only one can be said with certainty to be from an applicant outside the protected class.9 While this application, from Brien and Rhonda Malicote, did show “some past credit problems,” their past financial difficulties did not approach in severity the foreclosure that Hood had experienced. Hood has not created a genuine issue of material fact as to the fourth element of his prima facie case.

9

The dissenting opinion disagrees with our reliance on

this fact in determining whether Hood has created a fact

issue with respect to the fourth element of his prima

facie case. The dissent is correct in noting that

discrimination can on occasion motivate a decision,

even when a direct comparison to one outside the

protected class is unavailable. This observation,

however, does not assist Hood in any way. Hood

presents no evidence from which a trier of fact could

infer that racial discrimination motivated the denial of

his first loan application. Similarly, there is no evidence

that Midwest’s stated basis for denial was pretextual.

Even if we found that Hood had created a genuine issue

of fact with respect to his prima facie case, his evidence

is insufficient to permit a trier of fact to find that he has

carried his ultimate burden.

Hood meets element one. 42 U.S.C. § 3605(b)(1)(A) covers the making or purchasing of loans or providing other financial assistance for purchasing, constructing, improving, repairing, or maintaining a dwelling. Hood also meets element three. There was a causal connection between Hood’s exercise of his right to apply for a loan and Midwest’s conduct in processing his loan application and the administration of his loan. Hood fails, however, to raise a genuine issue of material fact with regard to element two. Midwest’s conduct did not constitute coercion, intimidation, threat, or interference.
As Hood points out, this Court has stated that interference “has been broadly applied to reach all practices which have the effect of interfering with the exercise of rights under federal fair housing laws.” *780 Michigan Prot. & Advocacy Serv. v. Babin, 18 F.3d 337, 347 (6th Cir.1994). However, the statute must not be given as broad an interpretation as Hood urges. Hood correctly points out that Midwest required him to pay both principal and interest on the full amount of the loan from the loan’s inception, rather than interest only (as with most other construction loans), and that after he missed the first payment, Midwest refused to disburse funds under the loan agreement. It may be the case that these actions “interfered” with Hood’s ability to borrow money to build his house within the common understanding of the word. However, we will not say that a bank “interferes” with a person’s rights under section 3617 every time it declines to grant a construction loan on terms favorable to the borrower. Midwest offered two types of construction loans, one of which was granted to Hood. The bank commonly offered exactly this kind of one time closing loan to other applicants whose loans would not be suitable for sale on the secondary mortgage market. Hood was required to make principal and interest payments from the beginning due to his history of credit problems and the fact that he was acting as his own general contractor, which posed additional risk to Midwest. Far from interfering with Hood’s rights under federal fair housing laws, Midwest was simply following its normal business practices in dealing with Hood’s second loan application.

B. Second Loan Application [5] Hood argues that Midwest violated the FHA with respect to his second application for a loan by discriminating against him in structuring the loan and by refusing to disburse any monies under the loan in violation of 42 U.S.C. § 3617. To state a claim under § 3617, the plaintiff in this case must establish (1) that he exercised or enjoyed a right guaranteed by §§ 3603-3606; (2) that the defendant’s intentional conduct constituted coercion, intimidation, threat, or interference; and (3) a causal connection between his exercise or enjoyment of a right and the defendant’s conduct.

IV.
For these reasons, the district court’s grant of summary judgment to Midwest is affirmed.
ALDRICH, District Judge, Dissenting.
I join the panel’s opinion in full with respect to its statement of the facts of this case. Because I believe that the panel articulates an unduly burdensome standard with regard to the establishment of a prima facie case of
8

Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)
discrimination under the Fair Housing Act and the Equal Credit Opportunity Act, I respectfully dissent.
It is clear, as the panel notes, that Hood did not present direct evidence of racial discrimination pursuant to Midwest’s denial of his first loan application. The success of Hood’s suit therefore rests on his ability to make out a prima facie case using circumstantial evidence. The panel is indisputably correct in its articulation of the first three prongs of the test for establishment of such a prima facie case, namely: (1) that Hood was a member of a protected class; (2) that Hood applied for credit from Midwest; and (3) that Hood was denied credit, despite his qualifications. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
I question the panel’s analysis, however, as it applies to the disputed fourth prong of the McDonnell Douglas test. Here, precedent offers only diminutive and muddled guidance. The panel relies upon Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 346 (6th Cir.1994) and a more recent unpublished decision, Ward v. Union Planters National Bank, 1997 WL 201483, 1997 U.S.App. LEXIS 8657 (6th Cir.1997), in requiring Hood to show that “(4) the defendants continued to engage in that type of transaction with other parties with similar qualifications.” Id.
However, merely articulating such a requirement does not dispose of the inquiry, or of Hood’s claims. Hood argues that he can show that defendants continued to engage in the relevant transactions. In dismissing this argument, the panel, like the District Court, reads “other parties” to mean other borrowers not in the protected class. (The District Court demanded a showing that “Midwest approved loans for nonminority applicants with similar qualifications.” (emphasis added))
*781 Yet the holdings relied upon by the panel do not necessitate such a reading of “other parties.” In Michigan Protection and Advocacy Services, we upheld a grant of summary judgment after determining that the plaintiffs failed to allege a proper “real estate-related transaction” under prong (2), and thus did not proceed to examine the records of any “other parties.” 18 F.3d at 346. And while our holding in Ward did rest upon the fourth prong, the opinion in that case similarly neglects to address the definition or proper qualifications of “other parties.” We held that Ward “had failed completely to introduce any evidence that Union Planters had awarded loan applications to persons of similar qualifications,” without pausing to address whether these qualifications must include membership in the relevant protected class. 1997 U.S.App. LEXIS 8657 at *7, 1997 WL 201483.
Yet the United States Supreme Court has joined several appellate courts in rejecting such a requirement in other discrimination contexts. With regard to age discrimination,

the Court has held, “[t]he fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age.” O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).

For purposes of Title VII, this Court has noted that “the plaintiff, as part of a prima facie case, [need not] show that he or she was replaced by a person outside the protected class.” Jackson v. Richards Med. Co., 961 F.2d 575, 587 n. 12 (6th Cir.1992) (citations omitted). See also Walker v. St. Anthony’s Med. Ctr., 881 F.2d 554, 558 (8th Cir.1989)(finding no “per se requirement” that female employee be replaced by a man). “Congress never intended to give an employer license to discriminate against some employees ... merely because he favorably treats other members of the employees’ group.” Brown v. Henderson, 257 F.3d 246, 253 (2d Cir.2001).

In treating cases in which discriminatory animus is alleged for the refusal to extend credit to an applicant, we should articulate a standard which takes note of these holdings, while also recognizing the unique nature of the real-estate lending context.10 This is precisely what the Fifth Circuit did in Moore v. United States Dep’t of Agriculture, 55 F.3d 991 (5th Cir.1995). In that case, the court upheld a District Court’s decision which “borrowed freely from the wealth of Title VII case law to craft the elements of an ECOA prima facie case,” and dropped the fourth requirement altogether. Id. at 993 n. 4.

10

For example, in an employment discrimination case,

courts can look at the applicant actually selected for a

position in order to determine the presence or absence

of discrimination. However, in credit cases, future

applicants do not apply for the same loan as a plaintiff

such as Hood. Instead, an almost infinite number of

persons apply for credit from the defendant’s reserve of

funds.

Better still, it seems, is the approach favored by courts, including this one, in other types of real estate cases. For example, in Selden Apartments v. United States Dep’t of Housing & Urban Dev., 785 F.2d 152, 159 (6th Cir.1986), a case involving discriminatory denial of housing, we required merely “[t]hat the housing or rental property remained available” after the denial. Id.
To fit the demands inherent in these kinds of circumstances, and in recognition of the often imprecise nature of available information regarding the “qualifications” of future approved applicants, this Court should follow these examples, and borrow freely from analogous cases to craft the elements of an ECOA prima facie case. I *782 would allow the burden to shift back to defendants following a showing that a creditor such as
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Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768 (2004)
Midwest simply remained in the real-estate loan business after denying credit.
If Hood could present satisfactory evidence that Midwest continued to engage in loan transactions after denying his application, then analysis of his claim should proceed to the next phase, during which Midwest would be given the opportunity to rebut the presumption of discrimination. See McDonnell Douglas, supra.
Because in granting Midwest’s motion for summary judgment, the District Court employed an overly burdensome standard for establishment of a prima facie

case, I would have remanded the case for further consideration under a more appropriate standard. Because the panel in its opinion affirms the holding of the District Court, I respectfully dissent.
Parallel Citations
2004 WL 771216 (C.A.6 (Ohio))
	  

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