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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROGER SCRIPTER and

DONNA SCRIPTER, 

Plaintiffs, 

v. 

FIRST STATE BANK MORTGAGE 

COMPANY, LLC, 

Defendant. 

Case No. 14-13461 

SENIOR UNITED STATES DISTRICT 

JUDGE ARTHUR J. TARNOW

 / 

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [12] 

 Plaintiffs Roger and Donna Scripter submitted at least one unsuccessful 

credit application to Defendant First State Bank Mortgage Company for the 

purpose of refinancing their mortgage. They allege that Defendant violated the 

notice requirements of the Equal Credit Opportunity Act (ECOA). They also bring 

age and disability discrimination claims under the ECOA and several other statutes 

relating to discrimination in the credit and real estate context. Defendant has 

moved for judgment on the pleadings or for summary judgment. Since the 

discovery period has closed and the parties rely on exhibits beyond the pleadings, 

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the Court construes Defendant’s motion as a motion for summary judgment. 

Plaintiffs request that the Court order additional discovery if it is otherwise 

inclined to grant Defendant summary judgment. After a hearing held on 

November 13, 2015, the Court took the motion under advisement. 

 For the reasons stated below, Defendant’s Motion for Summary Judgment 

[Dkt. #12] is GRANTED. 

FACTUAL BACKGROUND

 Plaintiffs are a married couple living in Macomb County. Mrs. Scripter is 

seventy-seven years old and Mr. Scripter is sixty-two. Mr. Scripter used to work 

for Defendant First State Bank Mortgage Company. Plaintiffs obtained a mortgage 

from Defendant in December 2002. 

 Plaintiffs met with an agent of Defendant in September 2013 to discuss a 

credit application for the purpose of refinancing their mortgage to lower its 

monthly payment. During the meeting, Mr. Scripter informed the agent that he 

would soon be taking leave from his job at Flagstar Bank under the Family and 

Medical Leave Act to care for Mrs. Scripter, who had been treated three days 

earlier for a possible stroke and who had been diagnosed with dementia. He also 

informed the agent that Mrs. Scripter received Social Security Income and that Mr. 

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Scripter would soon be eligible to receive it as well. The Scripters provided 

requested information and documentation for the credit application. 

 Defendant took no action on the application for several months, despite a 

couple of calls from Mr. Scripter. In January 2014, Plaintiffs spoke with a 

different agent of Defendant by phone. They provided requested information for 

the credit application. Mr. Scripter noted that he was now Mrs. Scripter’s 

caregiver. The agent wrote in her notes that Mrs. Scripter was ill. She told 

Plaintiffs that she was concerned their credit application would not be approved 

due to their income; Mr. Scripter responded that he could increase his monthly 

pension payments. The parties dispute whether this agent subsequently sent 

Plaintiffs a letter requesting proof of the discussed increase in income by March 9, 

2014. Aside from the alleged letter, Defendant took no action on Plaintiffs’ 

application. 

 Plaintiffs continued to complain and ultimately secured a meeting with a 

third agent of Defendant on February 13, 2014. They provided requested 

information and documentation and completed a written application. Plaintiffs 

allege that Defendant misrepresented Plaintiffs’ income when it submitted the 

application to an underwriter—specifically, it omitted their investment income and 

Mrs. Scripter’s Social Security income. Defendant claims that it sent Plaintiffs a 

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letter on March 10, 2014, advising them that their credit application was denied 

because their income was too low in comparison to their debt. Plaintiffs claim they 

never received such a letter. 

SUMMARY JUDGMENT STANDARD

 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 a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving 

party has the burden of establishing that there are no genuine issues of material 

fact, which may be accomplished by demonstrating that the nonmoving party lacks 

evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 

U.S. 317, 322 (1986). The Court must construe the evidence and all reasonable 

inferences drawn therefrom in the light most favorable to the nonmoving party. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

A genuine issue for trial exists if “the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). 

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ANALYSIS

I. Discovery 

 Plaintiffs ask the Court to defer ruling on summary judgment until after 

Defendant has complied with certain interrogatories and a notice of deposition. 

Federal Rule of Civil Procedure 56(d)—formerly Rule 56(f)—provides that if a 

party opposing summary judgment “shows by affidavit or declaration that, for 

specified reasons, it cannot present facts essential to justify its opposition,” the 

Court may deny the motion for summary judgment, defer ruling on it, allow time 

for discovery, or issue any other appropriate order. “Court after court has made 

clear that the protection that Rule 56[(d)] provides is not intended to shield counsel 

who were dilatory in conducting discovery.” Mallory v. Noble Correctional 

Institute, 45 F. App’x 463, 469 (6th Cir. 2002) (citing Schaffer v. A.O. Smith 

Harvestore Prods., Inc., 74 F.3d 722, 732 (6th Cir. 1996); York v. Tenn. Crushed 

Stone Ass’n, 684 F.2d 360, 363 (6th Cir. 1982)). 

 Plaintiffs’ counsel was dilatory in conducting discovery. On November 6, 

2014, the Court issued a Scheduling Order [9] providing that discovery motions 

were due by February 16, 2015, and that all discovery must be completed by 

March 16, 2015. Defense counsel served discovery requests and deposition notices 

in the specified period, but Plaintiffs’ counsel failed to respond or to produce 

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Plaintiffs for their depositions. Plaintiffs’ counsel claims that he served 

interrogatories and a notice of deposition on February 17, 2015. Defense counsel 

claims that she received discovery requests on February 27, 2015, and promptly 

notified Plaintiffs’ counsel that they were untimely, since the responses were due 

after the discovery cut-off date set by the Court’s Scheduling Order. According to 

defense counsel, she said that Defendant likely would not oppose a motion to 

extend the discovery deadlines. Plaintiffs’ counsel, however, never filed such a 

motion. The Court finds that he was dilatory in conducting discovery and 

therefore declines to grant relief under Rule 56(d). 

II. Notice Claim 

 The ECOA requires a creditor to provide written notice of its action within 

thirty days after receiving a completed application for credit. 15 U.S.C. § 1691(d). 

Applicable regulations define an “application” as “an oral or written request for an 

extension of credit that is made in accordance with procedures used by a creditor 

for the type of credit requested.” 12 C.F.R. § 1002.2(f). The regulations further 

define a “completed application” as one “in connection with which a creditor has 

received all the information that the creditor regularly obtains and considers in 

evaluating applications for the amount and type of credit requested,” which may 

include information from third parties. Id. “[T]he regulations make clear that an 

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application is considered ‘complete’ not when the applicant completes it ... but 

when the creditor has obtained verifying information and whatever other types of 

reports or information it ordinarily requires to evaluate a loan.” High v. McLean 

Financial Corp., 659 F. Supp. 1561, 1564 (D.D.C. 1987). 

 Plaintiffs argue that they first triggered the notice requirement via oral 

applications when they met with an agent in September 2013 and talked with 

another agent by phone in January 2014. It is undisputed that Defendant did not 

provide notice in response to these applications. However, Defendant argues that 

these requests did not constitute “applications” under the ECOA because they were 

not “made in accordance with” Defendant’s procedures. Defendant points to its 

written policy, which Plaintiffs have submitted as an exhibit, requiring credit 

applications to be signed. The Court agrees with Defendant that no reasonable jury 

could conclude that Plaintiffs’ discussions with agents of Defendant in September 

2013 and January 2014 constituted “completed applications for credit” triggering 

the ECOA notice requirements. 

 Plaintiffs submitted a written credit application on February 13, 2014. 

Defendant has submitted, as an exhibit, a written notice of adverse action 

addressed to the Scripters and bearing a signature attesting that it was mailed on 

March 10, 2014. Mr. Scripter claims in an affidavit that Plaintiffs never received 

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such a notice. Plaintiffs suggest that Defendant never mailed the notice it has 

submitted as an exhibit, and instead merely fabricated the exhibit for the purposes 

of this litigation. Without any corroborating evidence, the Court finds this 

allegation insufficient to raise a genuine issue of material fact. Accordingly, the 

Court will grant Defendant summary judgment on the ECOA notice claim. 

III. Discrimination Claims

 Plaintiffs claim that Defendant denied their credit application on the basis of 

their age and Mrs. Scripter’s disability. They bring age discrimination claims 

under the ECOA and Michigan Compiled Laws § 37.2504, which prohibits age 

discrimination against an applicant “for financial assistance or financing in 

connection with a real estate transaction or in connection with the construction, 

rehabilitation, repair, maintenance, or improvement of real property, or a 

representative of that person.” They bring disability discrimination claims under 

three statutes: (1) 42 U.S.C. § 3605, which prohibits disability discrimination in 

residential real estate-related transactions; (2) Michigan Compiled 

Laws § 750.147a, which prohibits disability discrimination “in extending credit or 

granting a loan” and “in the rating of a person’s creditworthiness;” and (3) 

Michigan Compiled Laws § 37.1504, which prohibits disability discrimination “in 

making or purchasing loans for acquiring, constructing, improving, repairing, or 

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maintaining real property, or in providing other financial assistance secured by or 

otherwise related to real property.” 

 Defendant argues that it denied Plaintiffs’ application for legitimate, 

nondiscriminatory reasons—specifically, their lack of income in relation to their 

total debt. Defendant argues that Plaintiffs have produced no evidence sufficient 

to raise a genuine issue of material fact as to whether those reasons are pretextual. 

Indeed, Plaintiffs’ evidence is limited. They rely only on (1) the fact that 

Defendant noted that Mr. Scripter was caring for his “ill” or “ailing” wife in notes 

from a phone conversation and in information provided to the underwriter, and (2) 

Mr. Scripter’s assertion in his affidavit that Defendant omitted Plaintiffs’ income 

from investments and Social Security when reporting to the underwriter. The 

second piece of evidence does nothing to tie the denial of Plaintiffs’ credit 

application to their age or Mrs. Scripter’s disability. The Court concludes that this 

evidence is insufficient to raise a genuine issue of material fact regarding whether 

Defendant’s explanations for its denial of Plaintiffs’ credit application are a pretext 

for age and/or disability discrimination. Accordingly, the Court grants Defendant 

summary judgment on the discrimination claims. 

CONCLUSION

 For the reasons stated above, 

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IT IS ORDERED that Defendant’s Motion for Summary Judgment [12] is 

GRANTED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: December 2, 2015 Senior United States District Judge 

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