1

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3153

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Anitra D. Davis, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

U.S. Bancorp, doing business as *

U.S. Bank National Association; *

John Doe; Mary Roe; Persons *

Unknown, *

*

Appellees. *

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Submitted: June 16, 2004

Filed: September 10, 2004

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Before WOLLMAN, HEANEY, and BOWMAN, Circuit Judges.

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WOLLMAN, Circuit Judge.

Anitra D. Davis appeals from the district court1

 order granting summary

judgment to U.S. Bancorp (U.S. Bank) in her lawsuit alleging violations of numerous
2

We briefly address the parties’ post-argument motions here. We deny Davis’s

July 26, 2004, motion to supplement the record, as well as her motion to strike U.S.

Bank’s 28(j) letter of June 16, 2004. We note, however, that 28(j) letters are to be

used only to call our attention to significant authorities unknown to the parties preargument, and should not contain argument. Fed. R. App. P. 28(j); Home Builders

Ass’n v. L&L Exhibition Mgmt., Inc., 226 F.3d 944, 951 (8th Cir. 2000). The

authorities cited should consist of “intervening decisions or new developments.” 8th

Cir. R. Appx. III(I)(2) (2004). We disregard the parties’ submissions insofar as they

include material outside these limitations.

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statutes, fraud, and negligent misrepresentation by the bank in its handling of her loan

application. We affirm.2

I.

We view the facts in a light most favorable to Davis. Davis met with U.S.

Bank loan officer Russ Douville in February 2000 to apply for a mortgage. She

informed the bank that she was participating in a Consumer Credit Counseling

Service (CCCS) payment plan. Davis filled out and completed an application packet.

Upon approval by Cendant Mortgage Services (Cendant), the underwriter for the

loan, she received a commitment letter for a 30-year FHA mortgage in the amount of

$77,330. As the homes Davis was interested in required more financing, she began

exploring additional financing options. She eventually found a home that would also

provide her income from a renter and intended to convert her FHA loan to a

Minnesota Housing Finance Agency (MHFA) conventional loan. Her real estate

agent, Tim Renn, contacted Douville on May 18, 2000 to request a pre-approval letter

for a specific piece of property, as he had done each time Davis desired to make an

offer on a home. Douville faxed a credit pre-approval letter that made the following

statements:

Based upon the information [Davis] has supplied . . . , the borrower

qualifies for an MHFA Conventional CASA loan amount sufficient to

purchase the property . . . .
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The above determination would be subject to full verification of the

items stated above . . . , as well as the selection of an approvable

property . . . .

This letter is not to be construed as a commitment letter but a credit preapproval based on an in-file credit report.

Appellant’s App. at 188. Davis successfully bid on the property and scheduled a

closing for July 20, 2000. Davis then paid U.S. Bank a $375 loan application fee and

continued to make preparations for moving.

Cendant, the processor and underwriter for Davis’s MHFA conventional loan

application, requested more information from Davis. Kim Parker, a Cendant

employee who worked on Davis’s case and with whom Davis had numerous contacts,

requested the final items in July 2000, and Davis faxed them on July 14. On July 18,

after Cendant had become aware that the application was for a conventional loan

instead of an FHA loan, it declined the conventional loan application, stating that

Davis was ineligible because of her involvement in CCCS. On July 21, Douville emailed Davis, explaining the situation and making other recommendations on how

to proceed. He told Davis that his bank was trying to process an FHA loan but

needed to address the seller’s concerns about such loans; he also mentioned the

possibility of a purchase rehab loan. In a later conversation, Douville offered Davis

a Home Advantage loan through U.S. Bank, for which the bank had agreed to

override the credit requirements. Davis declined the Home Advantage offer because

it was a market rate loan and would require a higher monthly payment. As a result,

Davis had to cancel the purchase agreement and quickly search for a new apartment

to rent.

Davis filed complaints with both the Office of the Comptroller of the Currency

and the Better Business Bureau of Minnesota on July 25. She received

communication from U.S. Bank in response to her complaint, and informed U.S.
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Bank of her change of address. On August 22, a notice of adverse action was sent

from Cendant on behalf of U.S. Bank, indicating that the loan was not granted on the

terms requested. Davis did not receive the notice, which was mailed to her former

address. 

Davis filed a claim in state court, which was removed to federal court.

Following discovery, U.S. Bank moved for summary judgment on all claims and

submitted several affidavits in support of its motion. Davis moved to strike one of

the affidavits. The district court denied the motion to strike and granted the motion

for summary judgment. 

II.

Davis argues that summary judgment is inappropriate on her claims because

material issues of fact remain as to whether a notice of adverse action was properly

and timely sent to her and whether U.S. Bank knowingly made misrepresentations to

her. We review a grant of summary judgment de novo. Evergreen Invs., LLC v. FCL

Graphics, Inc., 334 F.3d 750, 753 (8th Cir. 2003). Summary judgment is proper if,

after viewing the evidence and construing it in a light most favorable to the

nonmoving party, there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Id. Once the moving party meets its burden

to show that there is no issue of material fact, the plaintiff may not then simply point

to allegations made in her complaint, but must “provide evidence of ‘specific facts

creating a triable controversy.’” Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797,

800 (8th Cir. 2004) (quoting Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th

Cir. 1999)); Fed. R. Civ. P. 56(e) (2003).

As a preliminary matter, Davis argues that the district court erred in denying

her motion to strike the affidavit of Cendant Vice President Laurie Marrone and the

August 22, 2000, notice of adverse action that U.S. Bank submitted when it moved

for summary judgment. Davis contends that U.S. Bank violated discovery rules by
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not disclosing Laurie Marrone as a source of information in its initial rule 26

disclosure. Fed. R. Civ. P. 26(a)(1)(A). She therefore asserts that the district court

should have refused to consider the evidence in connection to the motion for

summary judgment. See Fed. R. Civ. P. 37(c)(1). We review a district court’s

discovery ruling for abuse of discretion. Land Inv. Club, Inc. v. Lauer (In re Lauer),

371 F.3d 406, 415 (8th Cir. 2004). We will reverse a decision to exclude or admit

only if the court based its decision on “‘an erroneous view of the law or a clearly

erroneous assessment of the evidence,’” Trost v. Trek Bicycle Corp., 162 F.3d 1004,

1008 (8th Cir. 1998) (citation omitted), such that to affirm would result in

“fundamental unfairness.” Lauer, 371 F.3d at 415.

Rule 37 does not provide for mandatory sanctions, and the district court may

find that a party’s failure to include a witness in the initial Rule 26(a)(1) disclosures

was substantially justified or harmless. Rule 37(c)(1); Trost, 162 F.3d at 1008. Here

the district court reasonably found that there was no unfair surprise because Davis

had knowledge of Cendant’s role in the processing of her loan and because U.S. Bank

was unaware of Laurie Marrone as a potential witness until May 2003. Davis has

failed to explain how an earlier disclosure of Laurie Marrone’s testimony “would

have enabled her to avoid summary judgment.” Tenkku v. Normandy Bank, 348 F.3d

737, 743 (8th Cir. 2003). The district court therefore did not abuse its discretion

when it denied the motion to strike. 

A.

Davis argues that the district court erred in granting summary judgment for

U.S. Bank on her claims under the Equal Credit Opportunity Act (ECOA), 15 U.S.C.

§ 1691 (2000). ECOA, along with the corresponding Regulation B, 12 C.F.R. § 202

(2000), is intended to curb discrimination by creditors. In addition to a generalized

prohibition of discrimination, it also establishes procedural requirements for

extending credit and communicating with applicants. See 12 C.F.R. § 202.1(b)
3

We conclude that the content of the August 22, 2000, notice of adverse action,

on its face, meets the requirements of 15 U.S.C. § 1691(d)(2).

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(outlining the purpose of the regulation). One such requirement is that of notice.

ECOA states:

Within thirty days (or such longer reasonable time as specified in

regulations of the Board for any class of credit transaction) after receipt

of a completed application for credit, a creditor shall notify the applicant

of its action on the application.

15 U.S.C. § 1691(d)(1). Davis argues that a material issue of fact exists as to whether

notice was sent to her because she never received it and that, even if notice was sent,

it was untimely.3

Davis asserts that Marrone’s affidavit alone provides inadequate evidence that

the notice was in fact sent to her. We disagree. We apply a presumption that a

properly mailed document is received by the addressee. Kerr v. Charles F. Vatterott

& Co., 184 F.3d 938, 947 (8th Cir. 1999). That presumption may arise based on

circumstantial evidence, including testimony by someone familiar with company

procedures and practices that the letter was sent. See Kennell v. Gates, 215 F.3d 825,

829-30 (8th Cir. 2000). The Marrone affidavit asserts that the notice conformed with

Cendant underwriting procedures used for U.S. Bank loan applications and was sent

“[o]n or about August 22, 2000.” Appellant’s App. at 320-21. Absent contradictory

evidence, the affidavit is sufficient to establish that the notice was sent, implicating

the presumption that it was also received.

Summary judgment was proper however, only if the notice that was sent was

timely. Davis asserts that the 30-day limit specified in 15 U.S.C. § 1691(d)(1) applies

in this context and that the notice was thus untimely sent. She states that she applied

for the conventional loan on May 18, 2000, and that the notice was not sent until 96
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days later. U.S. Bank asserts, however, that Davis’s application was not complete

until July. It argues that because it extended a counteroffer within thirty days, it had

an additional ninety days from the date of the counteroffer within which to send the

notice of adverse action. See 12 C.F.R. § 202.9.

The statute states that the thirty days begin to run once the application is

complete. 15 U.S.C. § 1691(d)(1). The application is deemed complete “[o]nce a

creditor has obtained all the information it normally considers in making a credit

decision.” 12 C.F.R. Pt. 202, Supp. I, comment 9(a)(1)-1 (2000) (Federal Reserve

Board official staff interpretation of Regulation B). An inquiry about credit may

become an application, but it “depends on how the creditor responds to the applicant,

not on what the applicant says or asks.” 12 C.F.R. Pt. 202, Supp. I, comment 2(f)-3

(2000).

No genuine issue of material fact exists as to whether U.S. Bank violated the

ECOA time frame. Having already secured approval for a $77,330 FHA loan, Davis

inquired into other loan options in April and May 2000. She began to seek a

conventional loan in May 2000, but U.S. Bank and Cendant did not have all the

information necessary to process her new application until mid-July 2000. The prequalification letter issued in May 2000 did not convert the conversation of May 18

into a completed application. The letter expressly stated that it was “not to be

construed as a commitment letter but a credit pre-approval” and that it was “subject

to full verification.” Appellant’s App. at 188. We therefore conclude that Davis’s

application for a conventional loan was complete in mid-July.

ECOA and Regulation B both state that, once the application for credit is

complete, a creditor has thirty days to either approve, deny or make a counteroffer on

the application. 12 C.F.R. § 202.9(a)(1)(i). In this case, undisputed testimony

establishes that, between July 19-22, shortly after U.S. Bank found out that Cendant

could not approve Davis for a conventional loan, it offered her a Home Advantage
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Davis’ complaint raised claims under the Minnesota Residential Mortgage

Originator and Servicer Licensing Act, Minn. Stat. § 58.13; the Minnesota Consumer

Fraud Act, Minn. Stat. § 325f.68; and the Uniform Deceptive Trade Practices Act,

Minn. Stat. § 325d.43.

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loan that included a higher interest rate and a waiver of certain credit requirements.

That counteroffer was made approximately one week after the application was

completed, well within the thirty-day limit.

Regulation B provides that, once a counteroffer has been made, the time limit

for sending a notice of adverse action begins anew, and the creditor then has ninety

days to send a notice of adverse action to the applicant if she does not accept or use

the new credit offered. 12 C.F.R. § 202.9(a)(1)(iv). The adverse action notice of

August 22, 2000, therefore satisfies the timeliness requirement, and summary

judgment was appropriate as a matter of law on the ECOA claim.

B.

We also affirm summary judgment on the remaining state statutory and

common law claims.

Davis may not bring claims under the Minnesota statutes she has addressed

unless she has prudential standing as a party intended to be included as a claimant

under the private attorney general statute, Minn. Stat. § 8.31, subd. 3a.4

 Prudential

principles of standing are statutorily imposed jurisdictional limitations separate from

and in addition to constitutional standing requirements. Friends of the Boundary

Waters Wilderness v. Dombeck, 164 F.3d 1115, 1125 (8th Cir. 1999). U.S. Bank

challenged Davis’s standing, and the district court concluded that Davis failed to meet

the threshold requirement “that her causes of action benefit the public.” D. Ct. Order

of July 23, 2003, at 7. Even if U.S. Bank had not raised the argument, it was

appropriate for the district court to determine whether each claim is properly before

it by asking “‘whether the interest sought to be protected by the complainant is
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arguably within the zone of interests to be protected or regulated by the statute or

constitutional guarantee in question.’” Bennett v. Spear, 520 U.S. 154, 163 (1997)

(quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153

(1970)). We look to “the language of the statutory provision at issue” to determine

the intended breadth of the provision, Dombeck, 164 F.3d at 1125, in this case as

interpreted by the Minnesota Supreme Court.

Minnesota’s private attorney general statute, Minn. Stat. 8.31 subd. 3a, allows

individuals to seek damages by standing in place of the attorney general to enforce

certain laws regarding “unfair, discriminatory, and other unlawful practices in

business, commerce or trade” that the state attorney general is charged with

enforcing. Minn. Stat. § 8.31 subd.1. The Minnesota Supreme Court has ruled that

such private actions may be brought only if they benefit the public. Ly v. Nystrom,

615 N.W.2d 302, 314 (Minn. 2000). Litigation over an alleged misrepresentation that

was made only to one person “does not advance state interests and enforcement has

no public benefit.” Ly, 615 N.W.2d at 314; see also Collins v. Minn. Sch. of Bus.,

655 N.W.2d 320, 330 (Minn 2003) (finding that, because the misrepresentations

about educational programs were made to the public at large in a television

advertisement, successful prosecution of the claims would therefore benefit the

public). 

Davis argues that her case is distinguishable from Ly because her experience

with U.S. Bank reflects its broad treatment of others. That argument, however, is the

very foundation for the limitation elaborated in Ly. 615 N.W.2d at 314. The class

of plaintiffs under the private attorney general statute would be limitless if we

assumed that one individual’s negative experience with a company was necessarily

duplicated for every other individual and on that basis treated personal claims as

benefitting the public. Such an assumption might well render nearly every private

suit alleging fraud a public benefit case. Davis had a private transaction with U.S.

Bank in which poor communication and confusion on both sides resulted in the
5

Insofar as Davis can be construed as having raised a promissory estoppel

claim, we hold that, as a matter of law, the facts as alleged do not rise to the level of

promissory estoppel. See Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d

732, 746 (Minn. 2000) (describing a prima facie case for promissory estoppel).

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cancellation of a purchase agreement. But Davis can complain only about her

individual experience with U.S. Bank, and she has not presented evidence that

misrepresentations were made to the public at large. She is therefore barred from

raising her claims under the particular state statutes she alleges were violated.

Davis’s common law fraud and misrepresentation claims also fail.5

 Summary

judgment was appropriate because Davis’s allegations and evidence after discovery

have left “a complete failure of proof concerning [ ] essential element[s]” in the torts,

entitling U.S. Bank to judgment as a matter of law. See Celotex Corp v. Catrett, 477

U.S. 317, 322-23 (1986). Summary judgment is appropriate when the nonmoving

party has failed to establish an element essential to the prima facie case on which she

will bear the burden of proof at trial. Id. at 322.

In order to make a fraud claim, a plaintiff must demonstrate:

[T]hat [the] defendant (1) made a representation (2) that was false (3)

having to do with a past or present fact (4) that is material (5) and

susceptible of knowledge (6) that the representor knows to be false or

is asserted without knowing whether the fact is true or false (7) with the

intent to induce the other person to act (8) and the person in fact is

induced to act (9) in reliance on the representation [and] (10) that the

plaintiff suffered damages (11) attributable to the misrepresentation.

Heidbreder v. Carton, 645 N.W.2d 355, 367 (Minn. 2002) (quoting M.H. v. Caritas

Family Servs., 488 N.W.2d 282, 289 (Minn. 1992)) (alteration in original). Davis has

failed to provide evidence that the representations on May 18 were false or that U.S.

Bank intended to induce her to act on a mistaken belief. U.S. Bank never said that
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Davis was approved for the loan, but merely indicated that she was qualified based

on the data it had at the time. It is undisputed that the May 18 letter stated that it was

not a commitment letter. Viewing the facts in Davis’s favor, they are insufficient as

a matter of law to support a claim of fraud.

“A misrepresentation is made negligently when the misrepresenter has not

discovered or communicated certain information that the ordinary person in his or her

position would have discovered or communicated.” Florenzano v. Olson, 387

N.W.2d 168, 174 (Minn. 1986). U.S. Bank owed Davis a duty of care because she

was already a client who had applied for a prior loan and U.S. Bank was providing

information for guidance in “a transaction in which [she had] a pecuniary interest.”

Id. at 174 n.3. Davis, however, has failed to provide evidence that the specific

information given to her was false or that she was justified in relying on her

perception that she was approved for the loan. The May 18 letter communicated to

Davis and her real estate agent that Davis was qualified for the conventional loan,

based on the information the Bank had at the time. The letter clearly stated, however,

that the request was not yet approved and was conditioned on “full verification” and

“the selection of an approvable property.” Appellant’s App. at 188. Based on the

undisputed facts, no reasonable jury could conclude that U.S. Bank committed fraud

or was guilty of negligent misrepresentation.

The judgment is affirmed.

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