Davis v. U.S. Bancorp, 03-3153.

• Citation: 383 F.3d 761
• Decision Date: 10 September 2004
• Docket Number: No. 03-3153.,03-3153.
• Parties: Anitra D. DAVIS, Appellant, v. U.S. BANCORP, doing business as U.S. Bank National Association; John Doe; Mary Roe; Persons Unknown, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 761

383 F.3d 761

Anitra D. DAVIS, Appellant, v. U.S. BANCORP, doing business as U.S. Bank National Association; John Doe; Mary Roe; Persons Unknown, Appellees.

No. 03-3153.

United States Court of Appeals, Eighth Circuit.

Submitted: June 16, 2004.

Filed: September 10, 2004.

Appeal from the United States District Court for the District of Minnesota, Paul A. Magnuson, Senior District Judge.

COPYRIGHT MATERIAL OMITTED

Richard G. Nadler, argued, West St. Paul, MN (Harry A. Seiben, Jr., and Jeffrey M. Montpetit, Minneapolis, MN, on the brief) for appellant.

Vernle C. Durocher, Jr., argued, Minneapolis, MN (Thomas L. Nuss, Minneapolis, MN, on the brief), for appellee.

Before WOLLMAN, HEANEY, and BOWMAN, Circuit Judges.

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 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....

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 pre-approval 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. 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 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) (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 days later. U.S. Bank asserts, however, that Davis's application was not complete until July....