Nos. 21-2846 (L), 21-2999 

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT 

JOHN FRALISH, 

Plaintiff-Appellant, 

v. 

BANK OF AMERICA, N.A., 

Defendant-Appellee. 

On Appeal From the United States District Court 

For the Northern District of Indiana 

Hon. Robert J. Miller, Jr. 

Case No. 3:20-cv-418 

BRIEF OF AMICI CURIAE 

CONSUMER FINANCIAL PROTECTION BUREAU, 

DEPARTMENT OF JUSTICE, BOARD OF GOVERNORS OF THE 

FEDERAL RESERVE SYSTEM, and FEDERAL TRADE COMMISSION 

IN SUPPORT OF APPELLANT AND REVERSAL 

Kristen Clarke 

 Assistant Attorney General 

Erin H. Flynn 

Barbara Schwabauer 

 Attorneys

DEPARTMENT OF JUSTICE

CIVIL RIGHTS DIVISION

APPELLATE SECTION

Ben Franklin Station 

P.O. Box 14403 

Washington, DC 20044 

(202) 305-3034 

barbara.schwabauer@usdoj.gov 

Seth Frotman 

 Acting General Counsel

Steven Y. Bressler 

 Acting Deputy General Counsel

Kristin Bateman 

 Acting Assistant General Counsel

Kevin E. Friedl 

 Senior Counsel

CONSUMER FINANCIAL 

 PROTECTION BUREAU

1700 G Street NW 

Washington, DC 20552 

(202) 435-9268 

kevin.friedl@cfpb.gov 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
Mark Van Der Weide 

 General Counsel

Richard M. Ashton 

 Deputy General Counsel

Joshua P. Chadwick 

 Senior Special Counsel

Katherine Pomeroy 

 Senior Counsel

BOARD OF GOVERNORS OF THE 

 FEDERAL RESERVE SYSTEM

20th Street and 

 Constitution Avenue NW 

Washington, DC 20551 

(202) 912-4329 

katherine.pomeroy@frb.gov 

James Reilly Dolan 

 Acting General Counsel

Joel Marcus 

 Deputy General Counsel

Mark S. Hegedus 

 Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue NW 

Washington, DC 20580 

(202) 326-2115 

mhegedus@ftc.gov 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
TABLE OF CONTENTS 

INTEREST OF AMICI CURIAE ...................................................................... 1 

STATEMENT .................................................................................................. 2 

A. The Equal Credit Opportunity Act and Regulation B ...................... 2 

B. Factual and Procedural Background ............................................... 8 

SUMMARY OF ARGUMENT ....................................................................... 10 

ARGUMENT .................................................................................................. 11 

ECOA AND REGULATION B PROTECT THOSE SEEKING CREDIT BOTH 

BEFORE AND AFTER THEY RECEIVE IT ....................................................... 11 

A. ECOA’s Text, History, and Purpose Make Clear That the 

Act’s Protections Against Credit Discrimination Do Not 

Disappear the Moment Credit Is Extended .................................... 11 

B. Regulation B Removes Any Doubt That ECOA Reaches 

Existing Borrowers ......................................................................... 24 

1. Regulation B expressly defines “applicant” to include 

those who have received credit. .............................................. 24 

2. Regulation B is a reasonable means of implementing 

ECOA and as such is entitled to deference. ............................ 26 

C. The Bank’s Contrary Interpretation Is Incorrect ........................... 29 

CONCLUSION .............................................................................................. 32 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
ii 

TABLE OF AUTHORITIES 

Page(s) 

Cases 

Atlantic Richfield Co. v. Christian, 

140 S. Ct. 1335 (2020) ................................................................................ 31 

Barnhart v. Walton, 

535 U.S. 212 (2002) ................................................................................... 27 

CFTC v. Schor, 

478 U.S. 833 (1986) ................................................................................... 17 

Chevron, USA, Inc. v. NRDC, 

467 U.S. 837 (1984) ................................................................................... 26 

Chicago Bd. Options Exch., Inc. v. SEC, 

889 F.3d 837 (7th Cir. 2018) ..................................................................... 26 

Clark v. Capital One Bank, 

No. 1:07-cv-00393, 2008 WL 508440 (D. Idaho Feb. 19, 2008) ............. 21 

Estate of Davis v. Wells Fargo Bank, 

633 F.3d 529 (7th Cir. 2011) ...................................................................... 23 

Gorham-DiMaggio v. Countrywide Home Loans, Inc., 

592 F. Supp. 2d 283 (N.D.N.Y. 2008) ....................................................... 21 

421 F. App’x 97 (2d Cir. 2011) .................................................................... 21 

Hawkins v. Cmty. Bank of Raymore, 

761 F.3d 937 (8th Cir. 2014) ..................................................................... 22 

Hoskins v. Poelstra, 

320 F.3d 761 (7th Cir. 2003) ....................................................................... 9 

Kalisz v. Bank of America, N.A., 

No. 1:18-cv-00516, 2018 WL 4356768 (E.D. Va. Sept. 11, 2018) .............. 21 

Kinnell v. Convenient Loan Co., 

77 F.3d 492 (10th Cir. 1996) ...................................................................... 20 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
iii 

Kisor v. Wilkie, 

139 S. Ct. 2400 (2019) ............................................................................... 27 

Loja v. Main St. Acquisition Corp., 

906 F.3d 680 (7th Cir. 2018) ..................................................................... 12 

Miller v. American Express Co., 

688 F.2d 1235 (9th Cir. 1982) ................................................................... 20 

Moran Foods, Inc. v. Mid-Atlantic Mkt. Dev. Co., LLC, 

476 F.3d 436 (7th Cir. 2007) ..................................................................... 22 

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 

551 U.S. 644 (2007) .................................................................................... 12 

NLRB v. Bell Aerospace Co., 

416 U.S. 267 (1974)..................................................................................... 17 

Powell v. Pentagon Fed. Credit Union, 

No. 10-cv-785, 2010 WL 3732195 (N.D. Ill. Sept. 17, 2010) ......... 20, 21, 30 

Regions Bank v. Legal Outsource PA, 

936 F.3d 1184 (11th Cir. 2019) .................................................................. 22 

Rimini St., Inc. v. Oracle USA, Inc., 

139 S. Ct. 873 (2019) ................................................................................. 32 

RL BB Acquisition, LLC v. Bridgemill Commons Dev. Grp., LLC, 

754 F.3d 380 (6th Cir. 2014) ..................................................................... 25 

Robinson v. Shell Oil Co., 

519 U.S. 337 (1997) ......................................................................... 13, 16, 31 

Stefanowicz v. SunTrust Mortg., 

No. 3:16-cv-00368, 2017 WL 1103183 (M.D. Pa. Jan. 9, 2017) ................ 21 

765 F. App’x 766 (3d Cir. 2019) ................................................................. 21 

TeWinkle v. Capital One, N.A., 

No. 1:19-cv-01002, 2019 WL 8918731 (W.D.N.Y. Dec. 11, 2019) .............. 21 

Treadway v. Gateway Chevrolet Oldsmobile Inc., 

362 F.3d 971 (7th Cir. 2004) .............................................................. 6, 7, 19 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
iv 

Statutes 

15 U.S.C. ch. 41 ............................................................................................... 5 

15 U.S.C. § 1691 ................................................................................................ 1 

15 U.S.C. § 1691(a) ....................................................................... 2, 4, 5, 14, 20 

15 U.S.C. § 1691(d) .......................................................................................... 2 

15 U.S.C. § 1691(d)(1) ............................................................................. 30, 31 

15 U.S.C. § 1691(d)(2) .......................................................................... 5, 14, 31 

15 U.S.C. § 1691(d)(2)(B) ................................................................................ 5 

15 U.S.C. § 1691(d)(3) ..................................................................................... 5 

15 U.S.C. § 1691(d)(6) ...................................................................... 5, 9, 14, 29 

15 U.S.C. § 1691(e) .......................................................................................... 9 

15 U.S.C. § 1691a(b) ............................................................................. 3, 13, 31 

15 U.S.C. § 1691a(g) .................................................................................. 4, 25 

15 U.S.C. § 1691b .......................................................................................... 1, 8 

15 U.S.C. § 1691b(a) .............................................................................. 3, 4, 26 

15 U.S.C. § 1691b(f) .......................................................................................... 1 

15 U.S.C. § 1691c(a)(1) ..................................................................................... 1 

15 U.S.C. § 1691c(a)(9) ..................................................................................... 1 

15 U.S.C. § 1691c(c) .......................................................................................... 1 

15 U.S.C. § 1691e(a) ................................................................................. 15, 25 

15 U.S.C. § 1691e(b) ....................................................................................... 15 

15 U.S.C. § 1691e(c)........................................................................................ 15 

15 U.S.C. § 1691e(g)-(h) ................................................................................... 1 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
v 

Dodd-Frank Wall Street Reform and Consumer Protection Act, 

Pub. L. No. 111-203, 124 Stat. 1376 (2010) ............................................ 8, 17 

ECOA Amendments of 1976, 

Pub. L. No. 94-239, 90 Stat. 251 ................................................................. 5 

Equal Credit Opportunity Act, 

Pub. L. No. 93-495, § 503, 88 Stat. 1521 (1974) ......................................... 3 

FDIC Improvement Act of 1991, 

Pub. L. No. 102-242, § 223, 105 Stat. 2306-07 .......................................... 17 

Regulations 

12 C.F.R. pt. 202 .......................................................................................... 1, 4 

12 C.F.R. § 202.2(e) ...................................................................................... 23 

12 C.F.R. § 202.3(c) (1976) ..................................................................4, 16, 24 

12 C.F.R. § 202.3(k) (1976) ............................................................................ 15 

12 C.F.R. pt. 1002 ........................................................................................ 1, 8 

12 C.F.R. § 1002.2(c)(1)(ii) ............................................................................. 7 

12 C.F.R. § 1002.2(e) ................................................................................ 8, 24 

12 C.F.R. § 1002.2(m) .............................................................................. 15, 25 

12 C.F.R. § 1002.9(a) ...................................................................................... 7 

12 C.F.R. § 1002.9(a)(2)(ii) ............................................................................ 5 

12 C.F.R. § 1002.9(b) ...................................................................................... 7 

Other Authorities 

40 Fed. Reg. 49298 (Oct. 22, 1975) ................................................................ 4 

41 Fed. Reg. 29870 (July 20, 1976) ................................................................ 7 

42 Fed. Reg. 1242 (Jan. 6, 1977) .................................................................... 7 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
vi 

76 Fed. Reg. 79442 (Dec. 21, 2011) ................................................................ 8 

Black’s Law Dictionary (rev. 4th ed. 1968) .................................................. 14 

Consent Order, American Express Centurion Bank and 

American Express Bank, FSB, No. 2017-CFPB-0016, 

2017 WL 7520638 (Aug. 23, 2017) ........................................................... 28 

CFPB, Equal Credit Opportunity Act Examination Procedures 

(Oct. 2015), https://go.usa.gov/xekcN ..................................................... 28 

Interagency Fair Lending Examination Procedures (Aug. 2009), 

https://go.usa.gov/xeY37 ......................................................................... 28 

Policy Statement on Discrimination in Lending, 

59 Fed. Reg. 18266 (Apr. 15, 1994) ........................................................... 27 

S. Rep. No. 93-278 ........................................................................... 2, 3, 15, 18 

S. Rep. No. 94-589 ................................................................................ passim

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
1 

INTEREST OF AMICI CURIAE 

Amici are four federal agencies with responsibilities to implement 

and enforce the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 et 

seq. The Consumer Financial Protection Bureau interprets and promulgates 

rules under ECOA and enforces the Act’s requirements. See id. §§ 1691b, 

1691c(a)(9). Its rules implementing ECOA are known as Regulation B. 

See 12 C.F.R. pt. 1002. The Department of Justice also enforces the Act, 

either upon referral of a matter by certain federal regulatory agencies or 

when the Attorney General has reason to believe that a creditor is engaged 

in a pattern or practice of violating ECOA. 15 U.S.C. § 1691e(g)-(h). The 

Board of Governors of the Federal Reserve System enforces and supervises 

for compliance with ECOA, id. § 1691c(a)(1), and prescribes rules under 

ECOA with respect to auto dealers excluded from the Bureau’s authority, id.

§ 1691b(f). See 12 C.F.R. pt. 202. The Federal Trade Commission is the 

federal agency with principal responsibility for protecting consumers from 

deceptive or unfair trade practices. It enforces ECOA using all of the 

Commission’s functions and powers under the FTC Act. 15 U.S.C.

§ 1691c(c).

ECOA requires that when creditors revoke or change the terms of an 

existing extension of credit, they must provide the “applicant” whose credit 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
2 

account they have revoked or modified with a statement of reasons 

explaining the action. Id. § 1691(d). The Act’s core prohibition on 

discrimination in “any aspect” of a credit transaction likewise applies to 

“applicants.” Id. § 1691(a). 

The question presented here is whether ECOA and Regulation B 

protect individuals and businesses not only while they are requesting credit 

but also after they have received credit. The district court held that the Act’s 

protections apply only during the process of requesting credit and do not 

protect those with existing credit accounts. But that interpretation is 

contradicted by the text and structure of ECOA and Regulation B and would 

seriously undermine their important purposes. Accordingly, amici have a 

substantial interest in the Court’s resolution of the question presented. 

STATEMENT 

A. The Equal Credit Opportunity Act and Regulation B 

1. The Equal Credit Opportunity Act is a landmark civil rights law 

that protects individuals and businesses against discrimination in accessing 

and using credit—“a virtual necessity of life” for most Americans, S. Rep. 

No. 94-589, at 3-4 (1976). 

Congress enacted ECOA in 1974 to address “widespread 

discrimination ... in the granting of credit to women.” S. Rep. No. 93-278, at 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
3 

16 (1973). ECOA thus made it unlawful for “any creditor to discriminate 

against any applicant on the basis of sex or marital status with respect to 

any aspect of a credit transaction.” Pub. L. No. 93-495, § 503, 88 Stat. 1521, 

1521 (1974). Then as now, ECOA defined “applicant” to mean “any person 

who applies to a creditor directly for an extension, renewal, or continuation 

of credit, or applies to a creditor indirectly by use of an existing credit plan 

for an amount exceeding a previously established credit limit.” 15 U.S.C. 

§ 1691a(b). 

The drafters of these provisions emphasized that ECOA’s prohibition 

on discrimination “applies to all credit transactions including the approval, 

denial, renewal, continuation, or revocation of any open-end consumer 

credit account.” S. Rep. No. 93-278, at 27 (emphasis added). As an example 

of the discrimination against “applicants” that the Act prohibits, the Senate 

drafters described a lender requiring a borrower with an existing credit 

account to reapply for that account upon getting married. Id. at 16-17. 

Congress granted the Board of Governors of the Federal Reserve 

System (“Board”) authority to prescribe rules to “carry out the purposes of 

[the Act].” Pub. L. No. 93-495, § 503, 88 Stat. at 1522 (codified as amended 

at 15 U.S.C. § 1691b(a)). It provided that such rules could contain, among 

other things, “such classifications, differentiation, or other provision ... as 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
4 

in the judgment of the Board are necessary or proper to effectuate the 

purposes of [ECOA], to prevent circumvention or evasion thereof, or to 

facilitate or substantiate compliance therewith.” Id. And it provided that a 

violation of these rules is treated as a violation of ECOA itself. See 15 U.S.C. 

§ 1691a(g) (“Any reference to any requirement imposed under [ECOA] or 

any provision thereof includes reference to” the implementing rule and its 

provisions). 

2. The Board issued those rules, known as Regulation B, the year 

after ECOA was enacted and shortly before the Act’s effective date. See 40 

Fed. Reg. 49298 (Oct. 22, 1975) (promulgating 12 C.F.R. pt. 202). Then as 

now, Regulation B made clear that ECOA’s protections apply not only to 

those actively seeking credit but also to those who previously sought and 

have received credit. It did so by defining “applicant” to include, “[w]ith 

respect to any creditor[,] ... any person to whom credit is or has been 

extended by that creditor.” Id. at 49306 (codified at 12 C.F.R. § 202.3(c) 

(1976)). In explaining that provision, the Board noted that ECOA’s text and 

legislative history “demonstrate that Congress intended to reach 

discrimination ... ‘in any aspect of a credit transaction.’” Id. at 49298 

(quoting 15 U.S.C. § 1691(a)). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
5 

3. Two years after it enacted ECOA, Congress broadened the Act’s 

scope to prohibit discrimination on bases other than sex and marital status. 

See ECOA Amendments of 1976, Pub. L. No. 94-239, 90 Stat. 251. These 

bases now include: “race, color, religion, national origin, sex or marital 

status, or age”; the receipt of public-assistance income; and the exercise of 

rights under the Consumer Credit Protection Act, 15 U.S.C. ch. 41. Pub. L. 

No. 94-239, § 2, 90 Stat. at 251 (codified at 15 U.S.C. § 1691(a)). 

In what the Senate drafters called “one of [the amendments’] most 

important provisions,” S. Rep. No. 94-589, at 2, the amendments also 

provided that “[e]ach applicant against whom adverse action is taken shall 

be entitled to a statement of reasons for such action from the creditor” and 

that such statement must explain “the specific reasons for the adverse 

action taken.” 15 U.S.C. § 1691(d)(2)-(3).1 

The amendments defined “adverse action” as “a denial or revocation 

of credit, a change in the terms of an existing credit arrangement, or a 

refusal to grant credit in substantially the amount or on substantially the 

terms requested.” Id. § 1691(d)(6). Thus, since 1976, ECOA has provided 

1 In lieu of providing this statement of reasons, a creditor may instead 

disclose the applicant’s right to receive such a statement. 15 U.S.C. 

§ 1691(d)(2)(B); 12 C.F.R. § 1002.9(a)(2)(ii). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
6 

that “applicants” are entitled to an explanation when, inter alia, their 

existing credit accounts are “change[d]” or “revo[ked]” outright. 

This important disclosure requirement “serves two purposes: it 

discourages discrimination and it educates consumers as to the deficiencies 

in their credit status.” Treadway v. Gateway Chevrolet Oldsmobile Inc., 

362 F.3d 971, 977 (7th Cir. 2004). “Congress described this requirement as 

‘a strong and necessary adjunct to the antidiscrimination purpose of the 

legislation, for only if creditors know they must explain their decisions will 

they effectively be discouraged from discriminatory practices.’” Id. (quoting 

S. Rep. No. 94-589, at 4). In this way, ECOA’s information-forcing regime 

serves to “prevent discrimination ex ante.” Id. at 978. So too, it ensures that 

individuals and businesses that have been discriminated against will 

receive substantive information—to which they likely would not otherwise 

have access—that might help reveal whether the adverse action was taken 

on a prohibited basis. “[I]f an applicant never receives notice, it will be 

difficult for her to ever determine that she was the victim of discrimination. 

... [Lenders] could throw the credit report of every minority applicant in the 

‘circular file’ and none would be the wiser.” Id. at 977. 

The notice requirement “fulfills a broader need” as well: It allows 

applicants “to learn where and how their credit status is deficient,” 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
7 

something that Congress expected would “have a pervasive and valuable 

educational benefit.” Id. (quoting S. Rep. No. 94-589, at 4). “In those cases 

where the creditor may have acted on misinformation or inadequate 

information, the statement of reasons gives the applicant a chance to rectify 

the mistake.” Id. (quoting S. Rep. No. 94-589, at 4). In other cases, knowing 

the reason for the adverse action may allow applicants to take steps to 

improve their creditworthiness going forward. Id. In either scenario, the 

disclosure requirement ensures that applicants receive substantive 

information about the reason for the credit decision that they likely could 

not obtain otherwise. 

4. Following the ECOA Amendments of 1976, the Board amended 

Regulation B, including by adding provisions to implement the Act’s 

requirements for adverse actions. 42 Fed. Reg. 1242 (Jan. 6, 1977); see also 

12 C.F.R. § 1002.2(c)(1)(ii) (defining “adverse action”); id. § 1002.9(a)-(b) 

(describing requirements for notices, including that they “be specific and 

indicate the principal reason(s) for the adverse action”). The Board also 

included a “minor editorial change” to the definition of “applicant” to make 

that provision “more succinct[].” 41 Fed. Reg. 29870, 29871 (July 20, 1976) 

(proposed rule). The revised definition states that “applicant” includes “any 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
8 

person who ... has received an extension of credit from a creditor.” 12 C.F.R. 

§ 1002.2(e). 

5. The Dodd-Frank Wall Street Reform and Consumer Protection 

Act established the Bureau and transferred to it primary rulemaking 

responsibility under ECOA. Pub. L. No. 111-203, § 1085, 124 Stat. 1376, 

2083-84 (2010); see also 15 U.S.C. § 1691b. The Bureau subsequently 

reissued the Board’s ECOA regulations, including the definition of 

“applicant,” without material change. 76 Fed. Reg. 79442 (Dec. 21, 2011) 

(promulgating 12 C.F.R. pt. 1002). 

B. Factual and Procedural Background 

Plaintiff-Appellant John Fralish is an Indiana resident. Compl. ¶ 4. 

Defendant-Appellee Bank of America, N.A., is a national bank. Id. ¶ 5. 

Mr. Fralish had a credit card account with the bank. Id. ¶ 16. The 

bank closed that account. Id. ¶ 19. When it did, the bank sent Mr. Fralish a 

letter that did not include a statement of reasons for the closure or a notice 

of his right to receive a statement of reasons. Id. ¶¶ 20-22; id., Ex. A. 

Mr. Fralish thus was denied information that could reveal whether the bank 

closed his account for a prohibited reason, based on a mistake, or because 

of deficiencies in his credit he might take steps to repair. See id. ¶¶ 23, 30. 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
9 

Mr. Fralish sued the bank, alleging that it violated ECOA and 

Regulation B by failing to provide a statement of reasons for the adverse 

action. Id. ¶¶ 25-31. The bank moved for judgment on the pleadings. It did 

not dispute that it was a “creditor” under ECOA, see 15 U.S.C. § 1691(e); 

that its revocation of Mr. Fralish’s credit card was an “adverse action,” 

see id. § 1691(d)(6); or that it failed to provide a statement of reasons for 

that action. The bank’s sole argument was that, because Mr. Fralish did not 

allege he was actively applying for credit when the bank revoked his card, 

he was not an “applicant” under ECOA and could not pursue his claim. 

The district court agreed. See ECF No. 37 at 5-6. It held that “the 

statutory definition of ‘applicant’ is not ambiguous” and could not be read 

to include those who previously applied for and received credit. Id. at 6. 

It rejected the definition in Regulation B as not “based on a permissible 

construction of the statute.” Id. at 5. The court construed the bank’s request 

as a motion to dismiss and granted it.2

2 Although the dismissal was without prejudice, it is a final appealable 

order. See, e.g., Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003) (“[I]f 

an amendment would be unavailing, then the case is dead in the district 

court and may proceed to the next tier.”). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
10 

SUMMARY OF ARGUMENT 

The Equal Credit Opportunity Act and Regulation B prohibit 

discriminating against “applicants” with respect to “any aspect” of a credit 

transaction on the basis of sex, race, or other enumerated factors. They 

further require that creditors provide “applicants” with an explanation 

when they take certain “adverse actions,” including revoking or changing 

the terms of an existing credit account. These important protections do not 

end the moment an extension of credit begins. Instead, ECOA and 

Regulation B establish that the “applicants” they protect include both those 

currently seeking credit and those who previously sought and have since 

received credit. 

This is the best reading of the statute itself. While ECOA’s definition 

of “applicant,” read in isolation, could be susceptible to varying 

interpretations, the unduly narrow interpretation urged by Bank of America 

makes little sense when read alongside the rest of the statute. ECOA’s 

prohibition on discrimination, for example, applies “with respect to any 

aspect of a credit transaction”—not just during the process of applying for 

credit. ECOA also requires that creditors provide a statement of reasons to 

an “applicant” when the creditor revokes or modifies the applicant’s 

existing credit arrangement. Bank of America’s interpretation of 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
11 

“applicant” would render that requirement meaningless. In addition to its 

textual difficulties, the bank’s reading would seriously undermine ECOA’s 

protections by cabining them to only certain aspects of a credit transaction 

and opening broad avenues for creditor evasion. 

Any doubt regarding the scope of the term “applicant” is put to rest by 

ECOA’s implementing rule, Regulation B. For the 46 years that ECOA has 

been in effect, Regulation B has made explicit through its definition of 

“applicant” that the law protects those who have applied for and received 

credit. That provision resolves the statute’s ambiguity on this point and is a 

reasonable exercise of rulemaking authority by the expert agencies (first the 

Federal Reserve Board and now the Bureau) that Congress empowered to 

issue rules to carry out ECOA’s purposes, including by preventing evasion. 

Regulation B’s definition is thus entitled to substantial deference, and it 

requires reversal of the district court’s decision. 

ARGUMENT 

ECOA AND REGULATION B PROTECT THOSE SEEKING CREDIT BOTH 

BEFORE AND AFTER THEY RECEIVE IT

A. ECOA’s Text, History, and Purpose Make Clear That 

the Act’s Protections Against Credit Discrimination Do 

Not Disappear the Moment Credit Is Extended 

As used in ECOA, the term “applicant” includes not only those 

seeking credit but also those who sought and have since received credit. 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
12 

This interpretation is by far the best reading of the statutory text itself, 

including ECOA’s requirement that “applicants” receive an explanation 

when their existing credit accounts are revoked or modified. It finds direct 

support in Congress’s history of amending ECOA. It is consistent with the 

Act’s central purposes of preventing discrimination and educating 

consumers—while, in contrast, Bank of America’s interpretation would 

significantly undermine those purposes. And it has been adopted by the 

only court of appeals to have addressed the issue. 

1. Statutory text. “It is a fundamental canon of statutory 

construction that the words of a statute must be read in their context and 

with a view to their place in the overall statutory scheme.” Nat’l Ass’n of 

Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007) (quotation 

marks omitted); accord Loja v. Main St. Acquisition Corp., 906 F.3d 680, 

683 (7th Cir. 2018) (“A word or phrase in a statute should not be 

interpreted in a vacuum...”). Reading together the relevant provisions of 

ECOA makes clear that the term “applicant” includes those who applied for 

and received credit. 

ECOA defines “applicant” as “any person who applies to a creditor 

directly for an extension, renewal, or continuation of credit, or applies to a 

creditor indirectly by use of an existing credit plan for an amount exceeding 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
13 

a previously established credit limit.” 15 U.S.C. § 1691a(b). The Act thus 

designates persons who request credit as “applicants” without regard for 

how their requests are eventually resolved. Nor does it expressly limit that 

category to persons who are still in the process of applying. 

The Supreme Court’s analysis in Robinson v. Shell Oil Co., 519 U.S. 

337 (1997), is instructive. In that case, the Court held that the term 

“employees” in Section 704(a) of Title VII includes those who were former

employees when the discrimination occurred. Writing for a unanimous 

Court, Justice Thomas explained that although “[a]t first blush, the term 

‘employees’ ... would seem to refer to those having an existing employment 

relationship with the employer in question,” that “initial impression ... does 

not withstand scrutiny in the context of § 704(a).” Id. at 341. 

For one thing, the Court observed, there is “no temporal qualifier in 

the statute such as would make plain that § 704(a) protects only persons 

still employed at the time of the retaliation.” Id. The same reasoning applies 

to the term “applicant” in ECOA, which again is not expressly limited to 

those currently in the process of seeking credit. The Court further noted 

that “a number of other provisions in Title VII use the term ‘employees’ to 

mean something more inclusive or different than ‘current employees.’” Id. 

at 342. The same reasoning applies to the term “applicant” here. 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
14 

Reading ECOA’s definition of “applicant” alongside the Act’s other 

provisions makes clear that the term includes existing borrowers. For 

example, ECOA’s disclosure provision requires that creditors give a 

statement of reasons to “[e]ach applicant” against whom they take “adverse 

action.” 15 U.S.C. § 1691(d)(2). ECOA defines “adverse action” to include a 

“revocation of credit” as well as a “change in the terms of an existing credit 

arrangement.” Id. § 1691(d)(6). These are actions that can be taken only 

with respect to persons who have already received credit. That ECOA 

requires lenders to give such “applicants” a statement of reasons shows that 

the term “applicant” includes current borrowers. These provisions would 

make little sense if “applicant” was read to exclude them. 

Similarly, ECOA’s core anti-discrimination provision protects 

“applicant[s]” from discrimination “with respect to any aspect of a credit 

transaction”—not just during the application process itself. Id. § 1691(a) 

(emphasis added). The phrase “any aspect of a credit transaction” is most 

naturally read to include both the initial formation of a credit agreement as 

well as the performance of that agreement. See, e.g., Black’s Law 

Dictionary 1668 (rev. 4th ed. 1968) (defining “transaction” to include the 

“[a]ct of transacting or conducting any business” and defining “transact” as 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
15 

“equivalent to ‘carry on,’ when used with reference to business”).3 The 

expansive language of this provision shows an intent to sweep broadly, 

beyond just the initial process of requesting credit, to bar discrimination in 

all parts of a credit arrangement. Indeed, the main Senate report 

accompanying ECOA specifically noted that “[t]he prohibition applies to all 

credit transactions including ... revocation of any open-end consumer credit 

account.” S. Rep. No. 93-278, at 27. That observation makes sense only if 

the term “applicant” includes current borrowers. 

ECOA’s private right of action points in the same direction. It allows 

an aggrieved “applicant” to bring suit against creditors who fail to comply 

with ECOA or Regulation B. 15 U.S.C. § 1691e(a); see also id. § 1691e(b) (a 

“creditor, other than a government or governmental subdivision or agency,” 

shall be liable to the aggrieved “applicant” for punitive damages); id.

§ 1691e(c) (aggrieved “applicant” may seek relief in district court). These 

references to “applicant[s]” cannot be understood to refer only to those 

with pending credit applications. Otherwise, a person whose application 

3 Consistent with this ordinary meaning, Regulation B has always defined 

the term “credit transaction” to encompass “every aspect of an applicant’s 

dealings with a creditor,” including elements of the transaction that take 

place after credit has been extended. 12 C.F.R. § 1002.2(m) (defining 

“credit transaction” to include the “revocation, alteration, or termination of 

credit”); id. § 202.3(k) (1976) (defining “credit transaction” to include the 

“furnishing of credit information and collection procedures”). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
16 

was denied on a prohibited basis would have no recourse under ECOA’s 

private right of action, which Congress intended would be the Act’s “chief 

enforcement tool.” S. Rep. No. 94-589, at 13. Instead, these references 

further confirm that the term “applicant” is not limited to those currently 

applying for credit. Cf. Robinson, 519 U.S. at 343 (similarly concluding that 

the reference to aggrieved “employees” in Title VII’s private right of action 

shows that that term is not limited to current employees). 

2. Statutory amendments. Congress’s history of amending the 

statute strongly supports reading the statute to include existing borrowers. 

As noted, the Board issued Regulation B in 1975, shortly before ECOA took 

effect. The rule defined “applicant” to include “any person to whom credit is 

or has been extended.” 12 C.F.R. § 202.3(c) (1976). If Congress thought this 

definition an unreasonable departure from the statute it had just passed, it 

would surely have given some sign of that when it amended and expanded 

ECOA the following year. Nor is there any doubt that the drafters of those 

statutory amendments were generally aware of the new Regulation B, as 

they cited parts of it in explaining their bill. See S. Rep. No. 94-589, at 2 

(citing the Board’s rules and noting that the amendments expanded the 

Board’s rulemaking authority). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
17 

But the 1976 amendments did not limit the reasonable definition of 

“applicant” that the Board had promulgated just months before. To the 

contrary, the 1976 amendments added new provisions—such as the ones 

entitling “applicants” to a statement of reasons when their credit is revoked 

or modified—that make sense only if “applicant” is understood to include 

existing borrowers, as stated in Regulation B. Nor has Congress ever 

amended the statutory definition of “applicant” or otherwise expressed 

disapproval of the understanding of that term in Regulation B, despite 

revising the statute multiple times since 1976. See FDIC Improvement Act 

of 1991, Pub. L. No. 102-242, § 223, 105 Stat. 2306-07; Dodd-Frank Act, 

Pub. L. No. 111-203, §§ 1071, 1474, 124 Stat. 2056-57, 2199-2200. 

“[W]hen,” as here, “Congress revisits a statute giving rise to a 

longstanding administrative interpretation without pertinent change, the 

‘congressional failure to revise or repeal the agency’s interpretation is 

persuasive evidence that the interpretation is the one intended by 

Congress.’” CFTC v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell 

Aerospace Co., 416 U.S. 267, 274-75 (1974)). That maxim applies with 

particular force here: The first time Congress revisited the statute after the 

Board defined “applicant” to include existing borrowers, Congress enacted 

new provisions that implicitly approved the Board’s interpretation by 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
18 

requiring that creditors provide an explanation for adverse actions that can 

be taken only with respect to existing borrowers. 

3. Statutory purpose. Interpreting ECOA to protect “applicants” 

both before and after they receive credit is consistent with the clear 

purposes of the Act: to address discrimination with respect to “any aspect” 

of a credit transaction and to educate borrowers when, inter alia, their 

credit has been revoked or modified. 

The contrary reading of “applicant” urged by Bank of America is 

directly at odds with those purposes. Under the bank’s reading, ECOA 

would protect individuals and businesses only during the process of 

requesting credit. But once credit is extended, the Act’s protections would 

evaporate. Thus, Bank of America’s interpretation would mean that ECOA 

would not prevent a creditor from canceling an existing account because of 

a borrower’s race. It would not bar a creditor from modifying the terms of 

an existing account—perhaps by lowering the amount available on a line of 

credit—because of a borrower’s national origin. It would not stop a creditor 

from requiring women with existing accounts to reapply for their credit 

upon getting married. But see S. Rep. No. 93-278, at 17 (citing this very 

scenario as an example of the discrimination against “applicants” that 

ECOA prohibits). Nor, in Bank of America’s view, would a statement of 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
19 

reasons generally be required in any of these situations. This is not a 

plausible interpretation of the statute. 

Moreover, even where ECOA would otherwise apply under the bank’s 

interpretation of “applicant”—i.e., during the process of requesting credit—

the bank’s interpretation would open obvious paths to evasion. A creditor 

that wished to deny credit applications on a prohibited basis, or to offer 

credit on inferior terms for the same prohibited reason, could do so by 

simply extending credit on the terms requested and later revoking or 

amending the terms of the credit arrangement. By similar means, a creditor 

could avoid ever having to explain the reasons for an adverse action. The 

bank’s flawed interpretation of ECOA would, therefore, introduce a 

loophole that effectively swallowed most of the statute. Cf. Treadway, 362 

F.3d at 977-78 (rejecting interpretation of ECOA that “would run contrary 

to the purpose of the strict notice requirement” and “thwart[] the 

educational purpose of the statute”).

4. Judicial precedent. Those courts that have properly read the 

term “applicant” in its statutory context, including the only court of appeals 

to have addressed the issue, have agreed that the statute protects existing 

borrowers. Although some district courts have reached a contrary 

conclusion, their reasoning is not persuasive. 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
20 

In Kinnell v. Convenient Loan Co., 77 F.3d 492 (10th Cir. 1996) 

(unpublished table decision), the Tenth Circuit considered a claim that a 

creditor discriminated in violation of ECOA when it refused to accept a late 

payment on an existing loan and instead accelerated the remaining balance 

due. The court rejected the argument that the plaintiff was not an 

“applicant” under ECOA because he was no longer actively seeking credit. 

Id. at *2. ECOA, the court explained, prohibits discrimination “with respect 

to any aspect of a credit transaction,” id. (quoting 15 U.S.C. § 1691(a)), and 

was meant “to protect people from the ‘denial or termination of credit’” on 

a prohibited basis, id. (emphasis added) (quoting Miller v. American 

Express Co., 688 F.2d 1235, 1239 (9th Cir. 1982)). The lender’s reading of 

“applicant” would mean that “any sua sponte action on the part of the 

creditor ... would not be actionable. Such an interpretation improperly 

narrows the scope of the ECOA.” Id. The court noted that its reading of 

“applicant” was directly supported by Regulation B. Id.

At least one district court in this Circuit has reached the same 

conclusion. In Powell v. Pentagon Fed. Credit Union, No. 10-cv-785, 2010 

WL 3732195 (N.D. Ill. Sept. 17, 2010), the court held that the plaintiff, who 

alleged that his existing credit plan was terminated on a prohibited basis, 

was an “applicant” under ECOA. The court relied on ECOA’s requirement 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
21 

that “applicants” receive notice when their credit is revoked and on the 

longstanding definition in Regulation B. Id. at *4-5. The court observed 

that the contrary interpretation would be wholly at odds with ECOA’s 

purposes because it “would preclude a plaintiff with an existing account 

from bringing a claim for the discriminatory revocation of that account.” Id. 

at *4. The court found nothing to “suggest[] that Congress’ intent to 

discourage discrimination against applicants somehow ceases when the 

alleged discrimination is against existing credit customers.” Id. at *4 n.2. 

Bank of America has pointed to other district court decisions that 

interpreted “applicant” to include only persons actively seeking credit, but 

this Court should reject that interpretation.4 No court of appeals has 

endorsed these district courts’ narrow reading, and for good reason. These 

district court decisions, like the district court’s in this case, failed to heed 

the Supreme Court’s repeated instructions that statutory terms must be 

read in context. Instead, they read “applicant” in isolation. For example, 

4 See TeWinkle v. Capital One, N.A., No. 1:19-cv-01002, 2019 WL 8918731, 

at *4-5 (W.D.N.Y. Dec. 11, 2019); Kalisz v. Bank of America, N.A., No. 1:18-

cv-00516, 2018 WL 4356768, at *2-3 (E.D. Va. Sept. 11, 2018); Stefanowicz 

v. SunTrust Mortg., No. 3:16-cv-00368, 2017 WL 1103183, at *8 (M.D. Pa. 

Jan. 9, 2017), aff’d on other grounds, 765 F. App’x 766 (3d Cir. 2019); 

Gorham-DiMaggio v. Countrywide Home Loans, Inc., 592 F. Supp. 2d 

283, 291 (N.D.N.Y. 2008), aff’d on other grounds, 421 F. App’x 97 (2d Cir. 

2011); Clark v. Capital One Bank, No. 1:07-cv-00393, 2008 WL 508440, at 

*2 (D. Idaho Feb. 19, 2008). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
22 

these decisions did not attempt to square their interpretation with ECOA’s 

requirement that “applicants” receive an explanation when their existing 

credit is terminated or modified. Nor did they grapple with the clear 

loophole their interpretation would create or the degree to which it would 

frustrate the Act’s remedial purposes. These cases therefore shed no 

additional light on the question presented in this case. 

The Court has previously discussed the term “applicant” in two 

published opinions, but that discussion does not resolve this case. In 

Moran Foods, Inc. v. Mid-Atlantic Mkt. Dev. Co., LLC, 476 F.3d 436, 441 

(7th Cir. 2007), the Court expressed “doubt” that the term “applicant” could 

be read to include guarantors. The Court did not, however, resolve that 

issue because it held that the plaintiff had not shown she was discriminated 

against. See id. at 441-42 (“[E]ven if the Federal Reserve Board’s 

interpretation is authorized, [the plaintiff] must lose...”). Moreover, 

whether the term “applicant” includes guarantors is a very different 

question from the one raised here and turns on different statutory 

arguments.5 And in addition, the reason the Court gave for questioning 

5 For this reason, other cases involving guarantors that the district court 

cited are not germane here. See ECF No. 37 at 5 (citing Regions Bank v. 

Legal Outsource PA, 936 F.3d 1184 (11th Cir. 2019), and Hawkins v. Cmty. 

Bank of Raymore, 761 F.3d 937 (8th Cir. 2014), judgment aff’d by an 

equally divided Court, 136 S. Ct. 1072 (2016)). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
23 

whether “applicants” includes guarantors—i.e., that the consequence of an 

unlawful guaranty might mean an entire debt is uncollectible, whereas the 

damages for discriminating against persons requesting credit for their own 

use will be more limited, see id.—is not implicated by the different question 

in this case. In general, the damages available when a credit account is 

revoked or modified should not differ dramatically, if at all, from the 

damages available when an application for credit is denied. 

More recently, in Estate of Davis v. Wells Fargo Bank, 633 F.3d 529 

(7th Cir. 2011), the Court confirmed that Moran had not resolved any issue 

concerning the term of “applicant.” See id. at 538 (describing Moran as 

“finding no need to resolve [this] threshold issue”). Going on to apply “the 

broad regulatory definition[]” in Regulation B, the Court concluded that the 

plaintiff had sufficiently alleged she was an “applicant.” Id. Because she 

received an offer from the defendants to modify the terms of her loan, she 

had “‘received an extension of credit’ and thus became an ‘applicant.’” Id. 

(quoting 12 C.F.R. § 202.2(e)). Although Estate of Davis involved certain 

facts—such as the modification offer—not present here, its reasoning shows 

that a person need not still be requesting credit at the time of the violation 

to qualify as an “applicant” and that courts should apply the regulatory 

definition when facing similar questions. 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
24 

* * * 

ECOA’s text, history, purposes, and judicial interpretation thus all 

point the same way: As used in ECOA, the term “applicant” includes 

persons who applied for and have received credit. 

B. Regulation B Removes Any Doubt That ECOA Reaches 

Existing Borrowers 

Any uncertainty about ECOA’s protection for existing borrowers is 

dispelled by Regulation B. For decades, that rule has expressly defined the 

term “applicant” to include those who applied for and have received credit. 

Regulation B thus directly and definitively answers the question presented 

in this case. Its provisions represent a reasonable and consistent exercise of 

the Board’s and the Bureau’s expertise and authority under ECOA to issue 

rules to carry out the statute’s purposes, including by resolving ambiguities 

in the statute and preventing evasion. Regulation B is therefore entitled to 

substantial deference. 

1. Regulation B expressly defines “applicant” to include 

those who have received credit. 

Regulation B has always defined the term “applicant” to include those 

who applied for and have received credit. See 12 C.F.R. § 1002.2(e) 

(including in the definition “any person ... who has received an extension of 

credit from a creditor”); see also 12 C.F.R. § 202.3(c) (1976) (including in 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
25 

the definition “any person to whom credit is or has been extended by [a] 

creditor”). Other provisions reflect the same interpretation. See, e.g., 12 

C.F.R. § 1002.2(m) (defining “credit transaction” to mean “every aspect of 

an applicant’s dealings with a creditor regarding an application for credit 

or an existing extension of credit” (emphasis added)). Neither the Board 

nor the Bureau has ever amended the rule to reflect a contrary 

understanding of the term. 

There is thus no question that under Regulation B, Mr. Fralish is an 

applicant. It is equally clear that he can rely on this regulatory definition in 

pursuing his claim because ECOA expressly incorporates the requirements 

imposed by Regulation B into the statute. See 15 U.S.C. § 1691a(g) (“Any 

reference to any requirement imposed under [ECOA] or any provision 

thereof includes reference to” the implementing rule and its provisions). 

Thus, ECOA provides a private right of action for violations of the Act or of 

Regulation B. See 15 U.S.C. §§ 1691a(g), 1691e(a) (providing for civil 

liability against a creditor that fails to comply “with any requirement 

imposed under this subchapter”); see also RL BB Acquisition, LLC v. 

Bridgemill Commons Dev. Grp., LLC, 754 F.3d 380, 386 (6th Cir. 2014) 

(“A creditor who violates Regulation B necessarily violates ECOA itself.”). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
26 

2. Regulation B is a reasonable means of implementing 

ECOA and as such is entitled to deference. 

Congress tasked first the Board and now the Bureau to “prescribe 

regulations to carry out the purposes of [ECOA],” including by resolving 

ambiguities in the Act, and “to prevent circumvention or evasion thereof.” 

15 U.S.C. § 1691b(a). Regulation B’s definition of “applicant” is a reasonable 

exercise of that authority. It is entitled to substantial deference under 

Chevron, USA, Inc. v. NRDC, 467 U.S. 837 (1984). See, e.g., Chicago Bd. 

Options Exch., Inc. v. SEC, 889 F.3d 837, 840-42 (7th Cir. 2018). 

As described in Part A, the best interpretation of ECOA is that the 

term “applicant” includes existing borrowers. It was thus reasonable to 

adopt that interpretation in Regulation B. Adopting the contrary reading 

urged by the bank in this case would have led to the serious textual 

inconsistencies described above and run directly contrary to the statute’s 

purposes. Regulation B’s definition avoids those difficulties and, in the 

process, serves to “carry out” and “effectuate” the purposes of ECOA. 15 

U.S.C. § 1691b(a). And because the bank’s erroneous interpretation would 

open a glaring loophole in ECOA, Regulation B’s definition is “necessary or 

proper ... to prevent circumvention or evasion” of the Act. Id. Thus, even if 

the Court disagreed that the definition of “applicant” advanced here, and 

reflected in Regulation B, is the best way to read ECOA itself, the Court 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
27 

should conclude that the regulatory definition constitutes, at minimum, a 

reasonable and permissible exercise of the Bureau’s broad authority to 

issue rules to implement the Act. As such, it controls the outcome here. 

Notably, Regulation B has expressly included existing borrowers as 

applicants since the rule was first promulgated in 1975. Courts often 

“accord particular deference to an agency interpretation of ‘longstanding’ 

duration.” Barnhart v. Walton, 535 U.S. 212, 220 (2002) (citation 

omitted). Deference is especially appropriate in such circumstances 

because the regulatory provisions do not create any “unfair surprise to 

regulated parties.” Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019) 

(discussing the practice of deference in the context of ambiguous agency 

regulations) (quotation marks omitted). 

Indeed, the interpretation of “applicant” discussed here has been 

confirmed by numerous federal agencies for decades. For example, nine 

separate agencies or offices, including the Department of Justice, FTC, and 

the Board, previously published a statement confirming their view that 

ECOA prohibits discrimination in the treatment of existing borrowers, such 

as by “[t]reat[ing] a borrower differently in servicing a loan or invoking 

default remedies” or “[using] different standards for pooling or packaging a 

loan in the secondary market.” Policy Statement on Discrimination in 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
28 

Lending, 59 Fed. Reg. 18266, 18268 (Apr. 15, 1994). The same view is 

reflected in the manual used by the FDIC, Office of the Comptroller of the 

Currency, and other financial regulators to conduct examinations of 

financial institutions for compliance with fair lending laws. See Interagency 

Fair Lending Examination Procedures, at ii (Aug. 2009), available at

https://go.usa.gov/xeY37. The Bureau has consistently taken the same view 

of “applicant,” including by reissuing the Board’s original definition; issuing 

guidance that Regulation B “covers creditor activities before, during, and 

after the extension of credit,” CFPB, Equal Credit Opportunity Act 

Examination Procedures, at 1 (Oct. 2015), available at 

https://go.usa.gov/xekcN; and taking enforcement action to address 

violations of ECOA against existing borrowers.6

In short, the interpretation advanced here is longstanding and well 

established. The Court should reject Bank of America’s attempt to upend 

that established understanding and to radically restrict the protections that 

ECOA has provided to borrowers for nearly half a century. 

6 See, e.g., In re American Express Centurion Bank and American Express 

Bank, FSB, No. 2017-CFPB-0016, 2017 WL 7520638 (Aug. 23, 2017)

(consent order resolving claims that creditors discriminated against 

existing borrowers on the basis of race and national origin by, for example, 

subjecting certain borrowers to more aggressive collection practices). 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
29 

C. The Bank’s Contrary Interpretation Is Incorrect 

In the district court, Bank of America offered a number of arguments 

why ECOA does not protect existing borrowers. These arguments are 

mistaken, and regardless do not render Regulation B’s definition of 

“applicant” unreasonable. 

The bank argued that its reading of “applicant” as limited to those 

actively seeking credit could be reconciled with ECOA’s requirement that 

“applicants” receive an explanation when their credit is revoked or modified 

because it is possible for an existing accountholder to apply for additional 

credit or for a continuation of a current credit arrangement. As an example, 

the bank cited a credit card borrower applying for a credit-limit increase 

and the creditor responding to that request by closing the account 

altogether. In the bank’s view, ECOA requires that the borrower in that 

situation receive a statement of reasons for the revocation (the borrower 

would already be entitled to one for the denial of the application for a 

higher credit limit); but a borrower whose account is closed without the 

borrower having sought a higher credit limit would be left in the dark. 

That interpretation makes little sense. Congress defined “adverse 

action” in broad terms to include “a denial or revocation of credit” and “a 

change in the terms of an existing credit arrangement.” 15 U.S.C. 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
30 

§ 1691(d)(6). (And it did so just months after the Board adopted an 

interpretation of “applicant” in Regulation B that specifically includes 

current borrowers.) That would have been an exceedingly odd way for 

Congress to have targeted the specific scenario the bank describes. Nor is 

there any reason to think that Congress meant to so limit the scope of 

ECOA—particularly given the Act’s focus on discrimination in “any aspect” 

of a credit transaction, and the fact that the risk of discrimination against 

an existing borrower has no connection at all to whether the borrower is 

seeking additional credit. See Powell, 2010 WL 3732195, at *4 n.2 

(concluding that the statute “in no way distinguishes persons whose credit 

has been revoked upon the filing of a formal application with a current or 

different creditor from those who have their current credit revoked without 

the associated filing of an application”). 

The bank also noted that certain provisions in ECOA use the term 

“applicant” together with the term “application.” See, e.g., 15 U.S.C. 

§ 1691(d)(1) (within 30 days of receiving a “completed application for 

credit,” creditors must notify the “applicant” of its decision on the 

application). But there is no dispute that “applicant” includes, among 

others, those with pending applications for credit. The fact that some of the 

Act’s provisions provide specific rules for the handling of applications does 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
31 

not mean that the Act as a whole provides no protections for existing 

borrowers. Cf. Robinson, 519 U.S. at 343 (the fact that some provisions of 

Title VII provide specific rules for current employees does not mean that 

the statute provides no protections for former employees). Thus, 

Section 1691(d)(1) requires creditors to substantively respond to a credit 

application within 30 days. But that provision in no way limits the scope of 

the requirement in Section 1691(d)(2) that creditors provide a statement of 

reasons to an applicant when the creditor takes an “adverse action”—

including actions, such as revoking an existing credit account, that can be 

taken only against current borrowers. 

The bank further noted that ECOA’s definition of “applicant” includes 

those seeking a “renewal” or “continuation” of credit. 15 U.S.C. § 1691a(b). 

Thus, the bank argued, Congress meant to exclude those with an existing 

credit arrangement who have not expressly requested to renew or continue 

that arrangement. To the contrary, the definition’s sweeping language—

covering “any person” who applies for “an extension, renewal, or 

continuation of credit”—evinces an intent to include, not exclude. Given the 

statutory context, the part of the definition on which the bank focused is 

best understood as “Congress employ[ing] a belt and suspenders approach” 

to ensure that the definition is read broadly. See Atlantic Richfield Co. v. 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
32 

Christian, 140 S. Ct. 1335, 1350 n.5 (2020); see also Rimini St., Inc. v. 

Oracle USA, Inc., 139 S. Ct. 873, 881 (2019). 

The bank’s arguments in favor of its preferred reading of “applicant” 

are mistaken—and certainly do not demonstrate that the definition in 

Regulation B is unambiguously foreclosed by ECOA, as the bank would 

have to show to prevail. 

CONCLUSION 

 For these reasons, the Court should reverse the judgment in this case. 

Dated: December 16, 2021 Respectfully submitted, 

Kristen Clarke 

 Assistant Attorney General 

Erin H. Flynn 

Barbara Schwabauer 

 Attorneys

DEPARTMENT OF JUSTICE

CIVIL RIGHTS DIVISION

APPELLATE SECTION

Ben Franklin Station 

P.O. Box 14403 

Washington, DC 20044 

(202) 305-3034 

barbara.schwabauer@usdoj.gov 

/s/ Kevin E. Friedl 

Seth Frotman 

 Acting General Counsel

Steven Y. Bressler 

 Acting Deputy General Counsel

Kristin Bateman 

 Acting Assistant General Counsel 

Kevin E. Friedl 

 Senior Counsel

CONSUMER FINANCIAL 

 PROTECTION BUREAU

1700 G Street NW 

Washington, DC 20552 

(202) 435-9268 

kevin.friedl@cfpb.gov 

[continued on next page] 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
33 

Mark Van Der Weide 

 General Counsel

Richard M. Ashton 

 Deputy General Counsel

Joshua P. Chadwick 

 Senior Special Counsel

Katherine Pomeroy 

 Senior Counsel

BOARD OF GOVERNORS OF THE

 FEDERAL RESERVE SYSTEM

20th Street and 

 Constitution Avenue NW 

Washington, DC 20551 

(202) 912-4329 

katherine.pomeroy@frb.gov 

James Reilly Dolan 

 Acting General Counsel

Joel Marcus 

 Deputy General Counsel

Mark S. Hegedus 

 Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue NW 

Washington, DC 20580 

(202) 326-2115 

mhegedus@ftc.gov 

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42
CERTIFICATE OF COMPLIANCE 

 This brief complies with the type-volume limitation in Federal Rule of 

Appellate Procedure 29 and Circuit Rule 29. It contains 6,901 words, 

excluding the portions exempted by Federal Rule 32(f). 

 /s/ Kevin E. Friedl 

 Kevin E. Friedl

Case: 21-2846 Document: 18 Filed: 12/16/2021 Pages: 42