### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1710

M ARIO L. S IMS and

T IFFINY S IMS

, Plaintiffs

‐ Appellants

,

v.

N EW P ENN F INANCIAL LLC, under its assumed name doing

business as S HELLPOINT M ORTGAGE S ERVICING

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:15

‐ cv

‐ 00263

‐ MGG

— Michael G. Gotsch, Sr.

, Magistrate Judge

.

____________________

A RGUED O CTOBER 2, 2018

— D ECIDED O CTOBER 18, 2018

____________________

Before B AUER

, K ANNE

, and S CUDDER

, Circuit Judges

.

P ER C URIAM

. Mario and Tiffiny Sims, an African

‐ American

couple, purchased a house in South Bend, Indiana, that they

later discovered was subject to a mortgage that the seller had

stopped paying. Ever since, they have tried to assume that

loan to avoid a foreclosure sale. They sued the loan servicer,

Shellpoint, under the Equal Credit Opportunity Act, 15 U.S.C.2 No. 18

‐ 1710

§§ 1691–91f, alleging that Shellpoint discriminated against

them based on race when it prohibited them from assuming

the loan. The district judge concluded that the Simses did not

produce enough evidence of discriminatory intent and

entered summary judgment for Shellpoint. Because the

Simses’ evidence of racial discrimination is too speculative to

establish a dispute of material fact, we affirm.

I. Background

The Simses purchased a house from John Tiffany in

October 2008 for $185,000. The Simses made a down payment

($12,000) and monthly payments ($1,400) to Tiffany for about

a year. To their surprise, Bank of New York Mellon notified

them in December 2009 that it was foreclosing on the

property. (Tiffany had stopped making mortgage payments

the prior May and still owed $126,000.)

To avoid a foreclosure sale and maintain possession of the

house, the Simses then launched what became an extended

effort to assume Tiffany’s debt and mortgage. The Simses first

offered to assume the debt when they wrote to the then

‐ loan

servicer, Resurgent, in January 2010. Tiffany followed up

months later, writing to Resurgent that he was “willing to

work toward a resolution in which Mr. and Mrs. Sims take

over his obligation with the bank” and asking what was

needed to “move this matter forward.” (Under Tiffany’s

mortgage agreement, any purchasers of the property may

assume the loan, so long as the loan servicer receives

information to evaluate them “as if a new loan were being

made” and determines that the assumption would not impair

its security.) Over the next four years, the Simses maintain,

they tried to assume Tiffany’s mortgage, but Resurgent never

advised them of what information it needed to evaluate theirNo. 18

‐ 1710 3

application. Meanwhile, in 2012 the Simses acquired a

quitclaim deed for the property from Tiffany, and in 2013

Bank of New York Mellon foreclosed on the house, which

then was scheduled for a foreclosure sale.

Shellpoint, which began servicing the loan in March 2014,

informed the Simses nine months later of what information

they needed to provide in order to apply to assume the loan.

To give the Simses an opportunity to submit the requisite

documentation, Shellpoint agreed to postpone a foreclosure

sale.

Over the next several months, the Simses tried to apply for

the loan without success. They maintain that they thrice sent

the required financial records to Shellpoint. According to an

affidavit prepared by one of Shellpoint’s representatives,

however, the Simses never submitted an application that

Shellpoint deemed complete enough to warrant review.

Shellpoint also informed the Simses in March 2015 that they

needed to bring Tiffany’s loan current before they could

assume it. This requirement proved to be a sticking point:

without Tiffany’s written consent to discuss the status of his

loan with a third party (here, the Simses), Shellpoint refused

to disclose information about his missed payments, and the

Simses assert that they could not bring his loan current

without knowing how much it would cost them to do so.

The Simses, based on a conversation with a Shellpoint

employee, believe that Shellpoint has not permitted them to

assume Tiffany’s loan because they are African

‐ American.

They assert that Shellpoint frequently rebuffed their inquiries

to Shellpoint about their application’s status. Shellpoint

personnel, they insist, sometimes hung up on them or sent

their calls to voicemail and did not call back. They eventually4 No. 18

‐ 1710

got through to a Shellpoint employee, K’tia Cox, who the

Simses believe is African

‐ American and who allegedly told

them, “These people, you know how they treat us.”

After several attempts to assume the loan without success,

the Simses filed this suit. Seeking damages and an injunction

preventing a foreclosure sale of the house, they sued

Shellpoint under the Equal Credit Opportunity Act, the Fair

Housing Act, the Fair Debt Collection Practices Act, and

Indiana state law. As relevant here, they alleged that

Shellpoint discriminated against them based on race by

delaying their effort to assume Tiffany’s loan and forcing

them to make all of Tiffany’s overdue payments as a condition

of assumption—a condition that, they say, Tiffany’s mortgage

agreement does not require.

In response to Shellpoint’s motion to dismiss the

complaint, the district court dismissed many claims but

allowed the Simses to proceed on their claim under the Equal

Credit Opportunity Act. The Act makes it “unlawful for any

creditor to discriminate against any applicant, with respect to

any aspect of a credit transaction, on the basis of race... .”

15 U.S.C. § 1691(a)(1)

.

After discovery, a magistrate judge, presiding by consent,

28 U.S.C. § 636(c), entered summary judgment for the

defendant. The judge first determined that the Simses

“probably were not ‘applicants’” under the Act because they

were seeking to assume a line of credit, rather than to

“exten[d], renew[], or continu[e]” one. See 15 U.S.C.

§ 1691a(b). But even if the Act applied, the judge continued,

the Simses failed to present evidence of discrimination under

either a disparate impact or disparate treatment theory. Cox’s

statement (“These people, you know how they treat us”), theNo. 18

‐ 1710 5

judge assessed, was ambiguous and lacked foundation, and

thus it was insufficient to show race discrimination. In the

end, the “dearth of evidence from the Simses” precluded

them from calling into question Shellpoint’s conduct or

conclusion that they did not complete the prerequisites for

assuming the loan.

II. Analysis

On appeal, the Simses argue that they presented enough

evidence to withstand summary judgment. They advance a

disparate treatment theory and assert that Cox’s

uncontroverted statement shows that Shellpoint

discriminated against them based on race by delaying the

assumption process and requiring them to bring the loan

current before assuming it.

The district court correctly entered summary judgment for

the defendants because no reasonable jury could find that

Shellpoint discriminated against the Simses based on their

race. For their suit to survive summary judgment, the Simses

needed to put forth enough evidence of discrimination to

establish a dispute of material fact. See Latimore v. Citibank Fed.

Sav. Bank

, 151 F.3d 712, 715 (7th Cir. 1998). But their only

evidence is Cox’s statement, which is vague and requires too

much speculation to conclude that their race motivated

Shellpoint to require them to satisfy Tiffany’s outstanding

loan payments. See Estate of Davis v. Wells Fargo Bank

, 633

F.3d 529, 540–41 (7th Cir. 2011). Rather, that requirement is

consistent with the loan agreement, which conditions

assumption on Shellpoint’s determination that its security

would not be impaired. Moreover, the Simses do not point to

evidence countering the Shellpoint representative’s statement

that they never produced a complete application.6 No. 18

‐ 1710

Because we conclude that the Simses failed to show

discrimination, we need not assess whether they qualify as

applicants under the Act. See Moran Foods, Inc. v. Mid

‐ Atl. Mkt.

Dev. Co., LLC

, 476 F.3d 436, 441–42 (7th Cir. 2007).

AFFIRMED