The Hon. R obert R. Beezer, United States Circuit Judge for the Ninth Circuit, * sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3693EM

_____________ Samuel Ray Noland, * * Appellant, * * On Appeal from the United v. * States District Court * for the Eastern District * of Missouri. Commerce Mortgage Corporation, * * Appellee. *

___________ Submitted: June 13, 1997 Filed: August 8, 1997

___________ Befor e RICHARD S. ARNOLD, Chief Judge, BEEZER and WOLLMAN, Circui t * Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
Th is appeal presents the question of whether Samuel Noland’s response t o Commerce Mortgage’s motion for summary judgment was sufficient to withstand that motion. In July of 1994, Samuel Noland applied to Commerce Mortgage for a mortgage loan of about $41,000. Noland made his application to the bank’s “HomeThe higher amount reflected the inclusion of amounts necessary to pay off other 1 debts the bank thought Noland should pay, which i t had not counted towards its earlier estimate of $3700. The H on. Stephen N. Limbaugh, United States District Judge for the Eastern 2 District of Missouri. Nola nd proceeded pro se in the District Court. Although we will construe his 3 efforts be low charitably, Noland’s status does not alter either the substantive o r procedural burdens he must carry to survive summary judgment. -2- Pa rtnership Program,” which extends favorable mortgage terms — such as smalle r down paym ents, lower interest rates, and reduced closing costs — to lower-incom e home buyers. The bank sent Noland several requests for additional information about certain assets, adverse credit history, and his source of funds for closing. After this and otherinf ormation about the house had been gathered, the loan amount was raised t o $43,650. The bank then deter mined that Noland would need about $3700 to close. It later revised this estimate, d etermining that Noland would need $6100. At the end of 1 No vember, the bank rejected Noland’s application, giving as reasons concerns about his credit history and his failure to demonstrate where he would obtain the closin g money.

InJuly 1995, Noland filed a complaint against Commerce Mortgage, allegin g that it had rejected his application be cause he is black, in violation of the Fair Housing Act , 42 U.S.C. §§ 3601-31. After some discovery, Commerce Mortgage moved fo r
summary judgment. Shortly thereafter the District Court granted Commerc e 2 Mortgage’s pending motion to compel the production of additiona l documents. Noland sent documents and answers in responseto the motion to compel, and included a fourpage doc ument that could be construed as a response to Commerce Mortgage’ s summary-judgment motion. Tha t document asserted that Noland’s credit history was 3 respectable, and therefore could not be the reason for his application’s having bee n rejected. It was not signed or verified by Noland. Commerce Mortg age then requested that the Court rule on its motion for summary judgment. The Court shortly thereafter-3-

granted the motion, holding that “as [plaintiff] has not responded to this motion and as the motion and memo supporting it are persuasive, summary judgment is granted fo r the reasons set out in the motion and memo[randum].” Appellant’s App. 8. Nolan d appeals.

Evenwhen a defendant’s motion for summary judgment is not opposed by the plaintiff, a district court must satisfy itself that, on the record before it, there are n o genuine issues of material fact as to at least one of the necessary elements of plaintiff’s case. A housing-discrimination plaintiff’s prima facie case consists of evidence that the plaintiff was a member of a protected class, that he applied for and was qualified for a loan from the defendant, that the loan application was rejected, and that the defendant has approved loans for applicants with similar qualifications. See Ring v. Firs t Inter state Mortgage, Inc. , 984 F.2d 924, 926 (8th Cir. 1993). The parties agree tha t Noland is black, and his application was rejected. Commerce Mortgage contends that Noland w as not qualified, and that he had not presented evidence of others who , although similar in qualification, were not rej ected. We agree with the second of these contentions, and therefore hold that summary judgment was proper.

Some evidence was in the record from which a jury could reasonably conclude th at Noland was qualified. Commerce Mortgage told Noland initially that he needed to have $3700 in c ash to close. A letter from Noland’s bank reported that he had this much in his account on November 1. Commerce presented a bank statement that suggests Noland’s bala

nce did not reach $3700 until November 16. This discrepancy would be for a jury to re solve, but regardless of its resolution, Noland had the amount originally requested available on November 22, when Commerce Mortgage made the decisionto reject Noland’s application. Commerce Mortgage had raised the amount required by the time of its decision, but we do not think it can use that change alone to justify its rejection of Noland, since it did not inform Noland of the change until after the rejection of the application. To permit this justification would allow lenders t o change the rules of the game at any time so as to prevent an unwanted potential-4-

borrower from ever “qualifying,” and thus from being able to make out a prima facie case. Therefore , we conclude that the evidence created material issues of fact on this part of Noland’s prima facie case.

We also conclude, however, that there was no evidence in the record that nonblackapp licants otherwise similar to Noland had received loans from Commerc e Mortgage. In part, this derives from Noland’s not having inf ormation about Commerce Mo rtgage’s treatment of other applicants. But the blame for the absence of thi s evidence lies with Noland, for his discovery request sought all documents relating to applicants that Commerce Mortgage had approved or denied in the last five years, to which Co mmerce Mortgage objected on the grounds that it was overly broad an d burdensome. Appellant’s App. 142. Noland did not seek an order to co mpel discovery from the District Court, nor did he amend his request to limit its scope. Nolan d therefore cannot justify his lack of evidence about Commerce Mortgage’s approval of other similar applicants. Consequently, the District Court’s grant of summary judgment for defendant was correct, because the record contained no evidence that tended t o establish the fourth part of Noland’s prima facie case.

Affirmed.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.