Page 4
2009 U.S. App. LEXIS 17201, *; 2009 FED App. 0530N (6th Cir.)

4601372, at *3-8, we AFFIRM summary judgment in favor of the defendants.



Page 3

2009 U.S. App. LEXIS 17201, *; 2009 FED App. 0530N (6th Cir.)

as paid; most were delinquent or sent to collec-
tion. One of the paid accounts was an auto loan
through Mercedes-Benz Financial for $ 29,820.
The auto loan was the largest account listed on
the report and was paid off over sixty-one
months. Sutton had negative credit items both
before and after opening up and paying off that
auto loan, confirming that his credit problems
did not start after he had paid off that loan.
Sutton could have afforded to keep current on
some, most, or even all of his other accounts
had he gone with a less expensive mode of
transportation.

1 Although it is hardly clear from the
record, we assume arguendo that Sutton
was disabled prior to February 2006,
when he first applied for residency at
Freedom Square.

Even if his disability resulted in an inabili-
ty to work, thereby resulting in low income that
in tum caused him problems with his poor cre-
dit, Sutton also had to show that relaxing the
minimum credit requirement was a reasonable
accommodation to him. Again, a review of his
credit history confirms that the requested ac-
commodation was not reasonable. Sutton took
out his Mercedes-Benz loan in January 2002
and it remained open for [*6] just over five
years. During this time, Sutton opened several
housing-related accounts, including ones for
power and an apartment. Each of these ac-
counts was sent to collections, including $
4,971 on an account originating from The
Lakes Apartments. The only inference to be
drawn is that Sutton chose to pay off his Mer-
cedes-Benz loan but not his housing-related
debts.

Sutton relies in support on the Ninth Cir-
cuit's decision in Giebeler v. M&B Associates,
343 F.3d 1143 (9th Cir. 2003). In that case,
Giebeler sought accommodation for his disa-
bility from an apartment complex. Before he
became disabled, he had worked and earned an
adequate income. After he became disabled, he

supported himself through social-security disa-
bility and housing assistance. Giebeler had a
consistent record of promptly paying his rent
before and after his disability and "his credit
record contained no negative notations.” Id. at
1145. However, his disability and housing as-
sistance was not sufficient to meet the apart-
ment complex's minimum required income.
Based on her income and an "unblemished cre-
dit record" (including paying off the mortgage
on the home she lived in for twenty-seven
years), Giebeler's mother [*7] did satisfy the
standards, so he offered to have her cosign the
lease. Jd. at 1145, 1158. The apartment com-
plex declined, citing its policy against cosig-
nors. Jd. at 1145. The Ninth Circuit concluded
that the plaintiff had shown that his requested
accommodation was reasonable on the particu-
lar facts of the case and that the defendant had
failed to show that the accommodation would
cause it to suffer undue hardship. Id. at 1158.

Sutton's situation differs materially from
that of Giebeler's. Both persons had low in-
come, but Sutton also had a very poor credit
history while Giebeler's was good as was his
mother's. Importantly, Sutton had a history of
making timely payments on a relatively large
auto loan while defaulting on housing-related
expenses, including apartment rent. Sutton has
pointed to nothing in the record to suggest that
his proffered-but-unidentified cosignor had the
kind of solid credit that Giebeler's mother had.
His assertion in his appellate brief that his co-
signor had "a good credit history,” Appellant's
Br. at 9, is without citation to the record and the
letter in which he made the offer does not in-
clude anything about the cosignor's credit his-
tory, see ROA 625-26. Finally, [*8] Sutton's
poor credit history involving housing-related
expenses also undercuts the reasonableness of
his suggested escrow arrangement, which
would have lasted only one year.

Accordingly, for these reasons as well as
those set forth by the district court, Sutton,
2008 U.S. Dist. LEXIS 81600, 2008 WL



EXHIBIT
17



@ LexisNexis:

Page 1

FOCUS - 7 of 782 DOCUMENTS

DAVID SUTTON, JR., Plaintiff-Appellant, vy. ROBERT S. PIPER ET
AL., Defendants-Appellees.

No. 08-2377

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIR-
CUIT

0920530n.06; 2009 U.S. App. LEXIS 17201; 2009 FED App. 0530N
(6th Cir.)

July 30, 2009, Filed

NOTICE: NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION. SIXTH CIR-
CUIT RULE 28(g) LIMITS CITATION TO
SPECIFIC SITUATIONS. PLEASE SEE
RULE 28(g) BEFORE CITING IN A PRO-
CEEDING IN A COURT IN THE SIXTH
CIRCUIT. IF CITED, A COPY MUST BE
SERVED ON OTHER PARTIES AND THE
COURT. THIS NOTICE IS TO BE PROMI-
NENTLY DISPLAYED IF THIS DECISION
IS REPRODUCED.

PRIOR HISTORY: [*1]

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN.
Sutton v. Freedom Square Ltd., 2008 U.S. Dist.
LEXIS 81600 ( E.D. Mich., Oct. 15, 2008)

COUNSEL: DAVID SUTTON, JR., Plaintiff -
Appellant, Pro se, Farmington Hills, MI.

For ROBERT S. PIPER, Designed Offic-
er/Agent of Piper Realty Company, SUSAN
GAINES, Property Manager, MARY

O'BRIEN, On Site Property Manager, FREE-
DOM SQUARE, LIMITED, FCA SENIOR
CITIZENS HOUSING CORPORATION, PI-
PER REALTY, Defendants - Appellees: Beth
A. Andrews, Megan K. Cavanagh, Garan Lu-
cow Miller, Detroit, MI; Caryn A. Gordon,
Esq., Garan Lucow Miller, Detroit, MI, Roger
A. Smith, Garan Lucow Miller, Troy, MI.

JUDGES: BEFORE: GILMAN and
McKEAGUE, Circuit Judges; and SARGUS,
District Judge. *

* The Honorable Edmund A. Sargus,
Jr., United States District Judge for the
Southern District of Ohio, sitting by de-
signation.

OPINION

MEMORANDUM OPINION

PER CURIAM. David Sutton, Jr., acting
pro se, appeals a grant of summary judgment in
favor of the defendants on his claims of disa-
bility and race discrimination under the Fair
Housing Amendments Act, 42 U.S.C. § 3604



Page 2

2009 U.S. App. LEXIS 17201, *; 2009 FED App. 0530N (6th Cir.)

("FHAA"), and the Americans with Disabili-
ties Act, 42 U.S.C. § 12182. Having carefully
considered the parties' briefs on appeal, the
record of the proceedings below, and the ap-
plicable law, we are [*2] not persuaded that a
lengthy opinion is necessary.

Sutton applied for an apartment at defen-
dant Freedom Square, Ltd., a tax-subsidized
apartment complex. Freedom Square received
tax credits for renting a number of its units to
individuals who were sixty-two years or older
or who were fifty-five years or older with a
disability. When Sutton applied for an apart-
ment, he was fifty-five years of age and
claimed he was disabled.

Defendant Mary O'Brien, the apartment
manager, ran a check of Sutton's credit. The
apartment complex required a minimum credit
score of 160. Sutton's credit score initially
came back at 67; a subsequent score came back
at 59. Based on the low credit score, the apart-
ment complex rejected his application. (The
apartment complex also cited to a criminal
background report of Sutton, but Sutton dis-
puted the accuracy of the report and the defen-
dants concede that there was some confusion
about the accuracy of that report.)

In response, Sutton initially suggested that
he place into escrow three months’ advanced
rent. If his rent was "not paid through" the
vouchers that he received under the federal-
ly-funded housing program, then the apartment
complex would have the right to [*3] draw
funds from the escrow account and Sutton
would agree to vacate the apartment upon thirty
days’ notice. ROA 624. After twelve months,
Sutton would be released from these restric-
tions and any escrow funds would be returned
to him. Later, Sutton suggested "the use of a
co-signor or other alternative arrangements" as
a reasonable accommodation to him. ROA 625.
The apartment complex declined and this law-
suit ensued.

Upon de novo review, we agree with the
district court that summary judgment in favor
of the defendants was proper. While we affirm
for many of the same reasons set forth by the
district court, Sutton v. Freedom Square Ltd.,
No. 07-14897, 2008 U.S. Dist. LEXIS 81600,
2008 WL 4601372, at *3-8 (E.D. Mich. Oct.
15, 2008) (unpublished), we briefly highlight
several additional points. The FHAA requires
accommodation of a person's disability when
"the rule in question, if left unmodified, hurts
handicapped people by reason of their handi-
cap, rather than by virtue of what they have in
common with other people, such as a limited
amount of money to spend on housing." Wis.
Cmty. Servs. v. City of Milwaukee, 465 F.3d
737, 749 (7th Cir. 2006) (internal quotation
marks and ellipsis omitted, emphasis in origi-
nal). [*4] Stated a different way, "the FHAA's
accommodation requirement is limited only to
lowering barriers to housing that are created by
the disability itself." Jd at 749 n.5. If a dis-
abled person is able to satisfy this "necessi-
ty-causality" element, then the housing entity
must make a reasonable accommodation to that
person and such accommodation could include
some sort of economic-financial component. Jd.
at 749; see also Howard v. City of Beavercreek,
276 F.3d 802, 805-06 (6th Cir. 2002) ("When
analyzing whether an accommodation is re-
quired under this Act, the three operative ele-
ments are ‘reasonable,’ 'equal opportunity’ and
'necessary."").

A review of Sutton's credit report confirms
that his poor credit history resulted from his
own financial mismanagement and not his dis-
ability. ' There is no question that his income
was limited throughout the relevant time pe-
riod--he indicated on his application that be-
tween his son and him, the two had annual in-
come below $ 27,950. Yet, even though his
combined family income was quite modest, he
had a rather high outstanding credit balance of
almost $ 24,000, with approximately $ 10,500
of that past due. Of the twenty or so items listed
on his credit [*5] report, only three were listed