concluding that spousal discrimination defense was inapplicable where husband and wife presented themselves as joint applicants on personal financial statement submitted with loan application
How later courts described this case
- concluding that spousal discrimination defense was inapplicable where husband and wife presented themselves as joint applicants on personal financial statement submitted with loan application
- lender does not violate ECAO where spouses are joint applicants or where credit applicant is not individually creditworthy without spouse’s signature
Written by the judges who cited it.
The opinion
BROSKY, J.,
Dissenting.
¶ 1 I respectfully dissent from the conclusion of the Majority that a new trial is warranted in this case.
¶ 2 Southwestern Pennsylvania Regional Council, Inc. contends in this appeal that the trial court erred when it found that Appellant violated the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 . The two specific issues presented in the “Statement of the Questions Involved” are:
A. Whether the joint financial statements of the [Gentiles] were voluntarily provided as part of a loan application to [Appellant].
B. Whether a lender, under the Equal Credit Opportunity Act, 15 U.S.C. § 1691 , et seq. may consider and rely upon assets owned by a husband and/or wife in extending credit when such assets are voluntarily provided as part of a loan application.
Brief for Appellant at 4.
¶ 3 It is well-settled that issues not presented in a party’s “Statement of Questions Involved” have been waived and are not preserved for review. Bailey v. Storlazzi, 729 A.2d 1206 (Pa.Super.1999); Pa. R.A.P. 2116(a). A fair reading of Appellant’s brief reveals its single argument: that the Gentiles were joint applicants and were treated as such by Appellant, and thus no violation of the ECOA could have occurred.
¶4 This action was filed by Appellant against Appellee and her husband, Charles C.Gentile, by a complaint in confession of judgment. Appellee Stephanie Gentile *285 successfully petitioned the trial court to open judgment entered against her, and a nonjury trial was held on September 24, 1998. The trial court concluded that the Guaranty Agreement executed by Appellee violated the ECOA, and consequently entered a verdict in her favor. 10
¶ 5 The ECOA provides, in relevant part, as follows.
§ 1691. Scope of prohibition
(a) Activities constituting discrimination. It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction'—
(1) on the basis of race, color, religion, national origin, sex or marital status, or age[.]
15 U.S.C. § 1691 (a)(l)(emphasis added). Additionally, the implementing federal regulations further provide that “a creditor shall not require the signature of an applicant’s spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor’s standards of creditworthiness for the amount and terms of the credit requested.” 12 C.F.R. § 202.7 (d).
¶ 6 Courts interpreting these provisions have concluded that “while an ECOA violation should not void the underlying credit transaction];,] an offending creditor should not be permitted to look for payment to parties who, but for the ECOA violation, would not have incurred personal liability on the underlying debt in the first instance.” Integra Bank/Pittsburgh v. Freeman, 839 F.Supp. 326, 329 (E.D.Pa.1993). Thus where a creditor has violated the ECOA, a party who would not otherwise be liable on the obligation may assert that violation as a defense. Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28 (3rd Cir.1995).
¶ 7 Following hearing, the trial court concluded that Appellant violated the ECOA because it required Appellee Stephanie Gentile to make a personal guarantee for her husband on the obligation, as was its policy and practice. The trial court also found that the lending institution had similar requirements of spouses of applicants. Additionally, the trial court specifically rejected Appellant’s argument that Appellee and her husband “voluntarily” provided joint financial statements or a joint application for the loan. Trial Court Opinion, 7/11/00, at 3-4.
¶ 8 The majority concludes that the trial court failed to determine, based upon the “totality of the circumstances,” whether the Gentiles were in fact joint applicants or whether Charles Gentile was individually creditworthy; and further that a new trial is required to give the trial court an opportunity to conduct a proper analysis of the issues presented. In this appeal, however, Appellant’s argument is limited to the single factual issue of whether the Gentiles were joint applicants. 11 The trial court determined that they were not. After review, I would conclude that this finding by *286 the trial court is supported by. the record. See N.T., 9/24/98, at 13-15; Plaintiffs Exhibits 2, 6; Defendant’s Exhibit 1. I find no merit to Appellant’s argument that certain other contrary evidence supports its position, because the trial court as fact-finder was entitled to evaluate and assess the evidence. It is the province of the trial court to choose to believe all, part, or none of the testimony, and our review is limited to a determination of whether the trial court’s findings are supported by the evidence or whether an error of law was committed.
¶ 9 The trial court thus disagreed with Appellant’s position that the Gentiles were joint applicants. As such, the Appellant’s ECOA violation was properly asserted as a defense to, and voided, Appellee Stephanie Gentile’s obligation on the loan. See Sil-verman, supra. Based upon the narrow issue presented on appeal, I would therefore conclude that the judgment entered on the nonjury verdict in favor of Appellee Stephanie Gentile must be affirmed. Accordingly, I must dissent.
. This court's scope of review of a verdict entered in a nonjury trial is limited to a determination of whether the findings are supported by the evidence and whether the trial court committed an error of law. Hester v. Pennsylvania Financial, 743 A.2d 926 (Pa.Super.1999). Additionally, "[t]he trial judge sits as the finder of fact. The weight to be assigned the testimony of the witnesses is within the exclusive province of the fact-finder.” Lou Botti Construction v. Harbulak, 760 A.2d 896, 898 (Pa.Super.2000). The trial judge thus assesses credibility, and may choose to believe all, part, or none of the evidence presented. Id.
. Indeed, Appellant asserts in its brief that Charles Gentile's creditworthiness as an individual is irrelevant, because Appellant has always considered the Gentiles to be joint applicants. Brief for Appellant at 15.