# Appendix — Huyssen v. First Union Home Equity Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1051%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1990 - **Citation:** 494 U.S. 1057 ## Text | re tl 89 “2 y 9 _— | In the a Supreme Court of the United States OcToBEeR TERM, 1989 Lr ~ A ULRICH HUYSSEN, Petitioner, versus FIRST UNION HOME EQUITY CORPORATION (formerly, First Union Mortgage Corporation), Respondent. aff” ~ 4 PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FIFTH CIRCUIT APPENDIXES Attorneys for Petitioner: JOHNNIE A. JONES (Bar No. 8329), Avair D. Jones (Bar No. 7342), AND JOHNNIE A. JONES, Jr. (Bar. No. 1083) Co-Counsel of Record JONES & JONES Taylor Building, Suite 215 251 Florida Street Baton Rouge, Louisiana 70801 Telephone: (504) 383-8573 brawklon Preee lem Baton Rouge. Louimana la APPENDIX ‘A’ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 89-3232 SUMMARY CALENDAR ULRICH HUYSSEN, Plaintiff-appellant, versus FIRST UNION MORTGAGE CORPORATION, Defendant-appellee. Appeal from the United States District Court for the Middle District of Louisiana (86-77A) (October 18, 1989) Before REAVLEY, KING AND JOHNSON CIRCUIT JUDGES. PER CURIAM.* *Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the court has determined that this opinion should not be published. 2a Plaintiff Ulrich Huyssen appeals the district court's directed verdict in favor of First Union Mortgage Corporation and the denial of Huyssen’s motion for a new trial. For the reasons cited herein, we affirm. I. FACTS AND PROCEDURAL HISTORY Ulrich Huyssen (Huyssen), a self-employed businessman, applied for a loan in the amount of $30,900.00 from a Baton Rouge, Louisiana branch office of First Union Mortgage Com- pany (First Union) in late August, 1984. Huyssen’s application was denied because his income to debt ratio, as calculated by First Union’s North Carolina home office, did not meet applicable guidelines for extending credit. At the time of Huyssen’s loan application, First Union's policy when calculat- ing a self-employed loan applicant’s income to debt ratio was to treat depreciation as taxable income. Nevertheless, Huyssen, contended that the real reason he was denied credit was because he is German and a Christian minister. There- after, Huyssen filed the instant Equal Credit Opportunity Act (ECOA) claim against First Union seeking $1.5 million in actual damages. At the ensuing trial after both sides had rested, Huyssen and First Union each moved for a directed verdict. The district court granted First Union’s motion and dismissed Huyssen’s suit. Some time after trial in 1988, Huyssen, using an alias, pre- tended to apply for a loan at a First Union branch office in Oklahoma. The branch manager advised Huyssen that depreciation would be treated as non-taxable income in con- nection with Huyssen’s purported loan application. There- after, Huyssen moved the district court for a new trial on the basis of this “newly discovered” evidence. The district court, 3a after considering affidavits from First Union, determined that First Union's policy with regard to the treatment of deprecia- tion as taxable versus non-taxable income had indeed changed in 1987. Since that policy change was made well after Huyssen’s 1984 application, however, the district court denied Huyssen’s motion on the ground that the “newly discovered” evidence would not have been impeaching or material to the outcome of the case. Huyssen thereafter filed this timely appeal. II. DISCUSSION The ECOA, 15 U.S.C. § 1691 et seq., prohibits discrimina- tion on the basis of sex, marital status, age, race, color, religion, national origin, receipt of public assistance benefits, and the exercise of rights under the Consumer Credit Protec- tion Act. A plaintiff may establish unlawful discrimination under the ECOA under either the disparate impact theory or the disparate treatment theory. See Griggs v. Duke Power Co., 401 U.S. 424 (1971) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). On the facts presented by this record, it appears that Huyssen sought to recover under a disparate treatment theory rather than a disparate impact theory. In either event, Huyssen has not established a viable claim. Assuming arguably that Huyssen did, in fact, establish a prima facie case of discrimination against First Union, he has consistently failed to come forth with any evidence other than mere conjecture that First Union’s stated reason for denying him credit was pretextual. On appeal, Huyssen continues to argue that the “natural inference” to be drawn is that First Union discriminated against him because he is German and a 4a Christian minister. Remarkably, however, Huyssen does not contend that his application was treated differently than any other self-employed loan applicant. At best, the most we are able to discern from this record are Huyssen’s unsupported allegations of discrimination, and as First Union points out, assertions are no substitute for evidence. Accordingly, because there was no question of fact to be determined by the jury, we are unable to find error in the district court's directed verdict in favor of First Union. See Fed. R. Civ. P. 50(a). Huyssen also argues that the district court improperly denied Huyssen’s motion for a new trial. A district court is granted broad discretion in ruling on a motion for a new trial, and this Court will reverse only where there has been a clear abuse of discretion. On the facts presented by this record, we are unable to conclude that the district court abused its dis- cretion in denying Huyssen’s motion for a new trial. III. CONCLUSION Concluding that Huyssen’s claim that he was unlawfully denied credit because he is German and Christian is unsup- ported by the evidence, we affirm the district court’s directed verdict in favor of First Union. Further, because we find no abuse of discretion in the district court’s denial of Huyssen’s motion for a new trial, we do not disturb that ruling. The judgment of the district court is affirmed. AFFIRMED lb APPENDIX ‘B’ REASONS FOR JUDGMENT BY THE DISTRICT COURT (As dictated into the record at pp. 248-249 of the Trial Tran- script.) THE COURT: Okay. I understand your position. Don’t argue your jury argument to me, I’m just interested in the bare facts. ‘All right. We’ll take a recess; take a look at the jury charges, and I'll — we'll probably visit on the jury charges here, informally, if I do not grant the motion. (Reporter’s Note: At 5:37 P.M., a recess was taken; at 5:45 P.M., court reconvened, out of the presence of the jury.) THE COURT: All right. Counsel, I have thought about the motion for directed verdict, as I have done ever since plaintiff rested, and have carefully reviewed, in my mind, all of the evidence which has been presented to the court. And I con- clude that there is no evidence upon which a reasonable jury could conclude that plaintiff has established that, in the pro- cessing of this loan, that the defendant discriminated against him by reason of his being a German national, or by reason of his religious affiliation, and that, if this jury should come in with a verdict in favor of the plaintiff, it would be my duty to set it aside. Under those circumstanees, I grant the motion for a directed verdict on behalf of the defendant, and will take the case away from the jury. There is no probative evidence in this case of intentional discrimination on the part of this defen- 2b dant in the processing of this loan. The only thing the plaintiff has proved is that his loan was denied. The explanation offered by the defendant has been totally unrebutted, unchallenged, other than the calculation attempted by Dr. Duggar, whose testimony is not of great benefit to the jury. Because, as | commented a while ago, this is the defendant’s money that it’s dealing with, and it can lay down whatever rules and regula- tions, standards, requirements, that it wants when it lends its money, provided it does not apply those standards unequally and discriminate in the application of those standards, in the words of the statute, on the basis of race, color, religion, national origin, sex, or marital status, or age. | find no posi- tive evidence, in this record, of any sort, that the defendant has so discriminated. The motion is hereby granted. Get the jury, Jim; we’re going home. (Reporter's Note: The jury was returned to the courtroom at 5:47 P.M., and the proceedings continued. ) THE COURT: All right. Members of the jury, I’m going to discharge you, at this time, and send you home. le APPENDIX ‘C’ UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ULRICH HUYSSEN, VERSUS FIRST UNION MORTGAGE CORPORATION CIVIL ACTION NO. &6-77-A JUDGMENT This cause came on before the court for trial, the Honorable John V. Parker, Chief Judge, presiding, and the court having granted defendant’s oral motion for directed verdict, IT IS ORDERED ADJUDGE AND DECREED that there be judgment entered herein in favor of defendant, First Union Mortgage Corporation, and against plaintiff, Ulrich Huyssen, dismissing plaintiffs suit at plaintiffs costs. Baton Rouge, Louisiana, December 19, 1988. sJJIOHN V. PARKER John V. Parker, Chief Judge Middle District of Louisiana 1d APPENDIX ‘D’ UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ULRICH HUYSSEN VERSUS FIRST UNION MORTGAGE CORPORATION CIVIL ACTION NO. &86-77-A RULING ON MOTION FOR NEW TRIAL This matter is before the court on motion by plaintiff for new trial. Defendant opposes the motion. There is no need for oral argument. The thrust of plaintiffs motion for new trial is that he has newly discovered evidence which contradicts Ralph Richard- son’s testimony that rental depreciation was treated as taxa- ble income in calculating plaintiffs income-to-debt ratio in accordance with defendant's policy. It seems that after the trial plaintiff contacted a branch manager of one of defendant's offices in Oklahoma, using the “pseudonym” of Steve Starr and pretending to apply for a loan. The branch manager indi- cated that rental depreciation would be treated as non-taxable in connection with his proposed application for credit. In determining whether a new trial should be granted on the basis of newly discovered evidence, the court must con- sider whether the new facts (1) would probably change the outcome; (2) could have been discovered earlier with due dili- gence; and (3) are merely cumulative or impeaching. Johnston v. Lucas, 786 F.2d 1254 (5th Cir. 1986). Clearly, 2d plaintiffs motion must fall on all grounds. Moreover, the affi- davits submitted by defendant in opposition to the motion show that defendant's policy regarding the treatment of depreciation changed in 1987, well past plaintiffs application in 1984, which formed the basis for his ECOA action against defendant. Therefore, this “new evidence” would not be impeaching or material as to the outcome of the case. In his motion, plaintiff claims that the court's action in directing a verdict was contrary to the law and evidence. Plaintiff has failed to brief this issue and it does not appear that plaintiff has any grounds to support this broad conten- tion. It suffices to say that plaintiff failed to present any evi- dence (direct or circumstantial) to show that his national origin or religion had any impact on defendant’s decision to deny him credit, an essential element of his case. There is no need for oral argument. Accordingly, plaintiffs motion for new trial is hereby DENIED. Baton Rouge, Louisiana, February 21, 1989. sJOHN V. PARKER John V. Parker, Chief Judge Middle District of Louisiana le APPENDIX ‘E’ Supreme Court of the United States NO. A-495 ULRICH HUYSSEN. Petitioner, : FIRST UNION MORTGAGE CORPORATION ORDER UPON CONSIDERATION of the application of counsel for the petitioner, IT IS ORDERED that the time for filing a petition for a writ of certiorari in the above-entitled case, be and the same is hereby, extended to and including February 5, 1990. s BYRON R. WHITE Byron R. White Associate Justice of the Supreme Court of the United States Dated this 4th day of January, 19990. if APPENDIX ‘F’ 15 § 1691 CONSUMER CREDIT SUBCHAPTER IV - EQUAL CREDIT OPPORTUNITY § 1691. SCOPE OF PROHIBITION Activities consiituting discrimination (a) 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 (provided the applicant has the capacity to contract); (2) because all or part of the applicant's income derives from any public assistance program; or (3) because the applicant has in good faith exercised any right under this chapter. Activities not constituting discrimination (b) It shall not constitute discrimination “r purposes of this subchapter for a creditor— (1) to make an inquiry of marital status if such inquiry is for the purpose of ascertaining the creditor's rights and remedies applicable to the particular extension of credit and not to discriminate in a determination of credit-worthiness; 2f (2) to make an inquiry of the applicant’s age or of whether the applicant’s income derives from any public assistance program if such inquiry is for the purpose of determining the amount and probable continuance of income levels, credit history, or other pertinent element of credit-worthiness as provided in regulations of the Board; (3) to use any empirically derived credit system which considers age if such system is demonstrably and statistically sound in accordance with regulations of the Board, except that in the operation of such sys- tem the age of an elderly applicant may not be assigned a negative factor or value; or (4) to make an inquiry or to consider the age of an elderly applicant when the age of such applicant is to be used by the creditor in the extension of credit in favor of such applicant. Additional activities not constituting discrimination (ec) Itis not a violation of this section for a creditor to refuse to extend credit offered pursuant to— (1) any credit assistance program expressly authorized by law for an economically disadvantaged class of persons, (2) any credit assistance program administered by a nonprofit organization for its members or an eco- nomically disadvantaged class of persons; or (3) any special purpose credit program offered by a profit-making organization to meet special social needs which meets standards prescribed in regula- tions by the Board; if such refusal is required by or made pursuant to such program. 3f Reason for adverse action; procedure applicable; definition (d)1) 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 applica- tion for credit, a creditor shall notify the applicant of its action on the application. (2) Each applicant against whom adverse action is taken shall be entitled to a statement of reasons for such action from the creditor. A creditor satisfies this obligation by— (A) providing statements of reasons in writing as a matter of course to applicants against whom adverse action is taken; or (B) giving written notification of adverse action which discloses (i) the applicant’s right to a statement of reasons within thirty days after receipt by the creditor of a request made within sixty days after such notification, and (ii) the identity of the person or office from which such statement may be obtained. Such statement may be given orally if the written notification advises the applicant of his right to have the statement of reasons confirmed in writing on written request. (3) A statement of reasons meets the requirements of this section nly if it contains the specific reasons for the adverse action taken. (4) Where a creditor has been requested by a third party to make a specific extension of credit directly or indirectly to an applicant, the notification and statement of reasons required by this subsection 4f may be made directly by such creditor, or indirectly through the third party, provided in either case that the identity of the creditor is disclosed. (5) The requirements of paragraph (2), (3), or (4) may be statisfied by verbal statements or notifications in the case of any creditor who did not act on more than one hundred and fifty applications during the calen- dar year preceding the calendar year in which the adverse action is taken, as determined under regula- tions of the Board. (6) For purposes of this subsection, the term “adverse action” means a denial or revocation of credit, a change in the terms of an existing credit arrange- ment, or a refusal to grant credit in substantially the amount or on substantially the terms requested. Such term does not include a refusal to extend addi- tional credit under an existing credit arrangement where the applicant is delinquent or otherwise in default, or where such additional credit would exceed a previously established credit limit. (Pub. L. 90-321, Title VII, § 701, as added Pub. L 93-495, Title V § 503, Oct. 28, 1974, 88 Stat. 1521, and amended Pub.L. 94-239 § 2. Mar. 23, 1976, 90 Stat. 251). § 169la. DEFINITIONS; RULES OF CONSTRUCTION (1) The definitions and rules of construction set forth in this section are applicable for the purposes of this sub- chapter. (b) The term “applicant” means any person who applies to a creditor directly for an extension, renewal, or con- 5f tinuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit. (c) The term “Board” refers to the Board of Governors of the Federal Reserve System. (d) The term “credit” means the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or ser- vices and defer payment therefor. (e) The term “creditor” means any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or con- tinuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit. (f) The term “person” means a natural person, a corpora- tion, government or governmental subdivision or agency, trust, estate, partnership, cooperative, or asso- ciation. (g) Any reference to any requirement imposed under this subchapter or any provision thereof includes reference to the regulations of the Board under this subchapter or the provision thereof in question. (Pub. L. 90-321, Title VII, § 702, as added Pub. L. 93-495, Title V, § 503, Oct. 28, 1974, 88 Stat. 1522.) § 1691b. PROMULGATION OF REGULATIONS BY BOARD; ESTABLISHMENT OF CONSUMER ADVISORY COUNCIL BY BOARD; DUTIES, MEMBERSHIP, ETC., OF COUNCIL (a) (b) 6f The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may con- tain but are not limited to such classifications, differ- entiation, or other provision, and may provide for such adjustments and exceptions for any class of transac- tions, as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to faciliate or substantiate compliance therewith. In particular, such regulations may exempt from one or more of the provisions of this subchapter any class of transactions not primarily for personal, family, or household pur- poses, if the Board makes an express finding that the application of such provision or provisions would not con- tribute substantially to carrying out the purposes of this subchapter. Such regulations shall be prescribed as soon as possible after the date of enactment of this Act, but in no event later than the effective date of this Act. The Board shall establish a Consumer Advisory Council to advise and consult with it in the exercise of its func- tions under this chapter and to advise and consult with it concerning other consumer related matters it may place before the Council. In appointing the members of the Council, the Board shall seek to achieve a fair represen- tation of the interests of creditors and consumers. The Council shall meet from time to time at the call of the Board. Members of the Council who are not regular full- time employees of theUnited States shall, while attend- ing meetings of such Council, be entitled to receive com- pensation at a rate fixed by the Board, but not exceeding $100 per day, including travel time. Such members may be allowed travel expenses, including transportation and subsistence, while away from their homes or regular place of business. (Pub. L. 90-321, Title VII, § 703, as added Pub. L. 93-495, Title V, § 503, Oct. 28, 1974, 88 Stat. 1522, and amended Pub. L. 94-239, § 3(a), Mar. 23, 1976, 90 Stat. 252.) 7f § 1691c. ADMINISTRATIVE ENFORCEMENT Enforcing agencies (a) Compliance with the requirements imposed under this subchapter shall be enforced under: (1) Section 8 of the Federal Deposit Insurance Act, in the case of— (A) national banks, by the Comptroller of the Cur- rency, (B) member banks of the Federal Reserve System (other than national banks), by the Board, (C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System), by the Board of Directors of the Federal Deposit Insurance Corporation. (2) Section 5(d) of the Home Owners’ Loan Act of 1933, section 407 of National Housing Act, and sections 6(i) and 17 of the Federal Home Loan Bank Act, by the Federal Home Loan Bank Board (acting directly or through the Federal Savings and Loan Insurance Corporation), in the case of any institution subject to any of those provisions. (3) The Federal Credit Union Act, by the Administrator of the National Credit Union Administration with respect to any Federal Credit Union. (4) Subtitle IV of Title 49, by the Interstate Commerce Commission with respect to any common carrier subject to such subtitle. (5) The Federal Aviation Act of 1958, by the Secretary of Transportation with respect to any air carrier or foreign air carrier subject to that Act. Sf (6) The Packers and Stockyards Act, 1921 (except as provided in Section 406 of that Act), by the Secre- tary of Agriculture with respect to any activities subject to that Act. (7) The Farm Credit Act of 1971, by the Farm Credit Administration with respect to any Federal land bank, Federal land bank association, Federal inter- mediate credit bank, and production credit associa- tion; (8) The Securities Exchange Act of 1934, by the Securi- ties and Exchange Commission with respect to bro- kers and dealers; and (9) The Small Business Investment Act of 1958, by the Small Business Administration, with respect to small business investment companies. Violations of subchapter deemed violations of preexisting statutory requirements; additional agency powers (b) For the purpose of the exercise by any agency referred to in subsection (a) of this section of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (a) of this sec- tion, each of the agencies referred to in that subsection may exercise for the purpose of enforcing compliance with any requirement imposed under this subchapter, any other authority conferred on it by law. The exercise of the authorities of any of the agencies referred to in subsection (a) of this section for the purpose of enforcing compliance with any requirement imposed under this subchapter shall in no way preclude the exercise of such Of authorities for the purpose of enforcing compliance with any other provision of law not relating to the prohibition of discrimination on the basis of sex or marital status with respect to any aspect of a credit transaction. Overall enforcement authority of Federal Trade Commission (c) Except to the extent that enforcement of the require- ments imposed under this subchapter is specifically com- mitted to some other Government agency under subsection (a) of this section, the Federal Trade Com- mission shall enforce such requirements. For the pur- pose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade Com- mission Act, a violation of any requirement imposed under this subchapter shall be deemed a violation of a requirement imposed under that Act. All of the func- tions and powers of the Federal Trade Commission under the Federal Trade Commission Act are available to the Commission to enforce compliance by any person with the requirements imposed under this subchapter, irrespective of whether that person is engaged in com- merce or meets any other jurisdictional tests in the Federal Trade Commission Act, including the power to enforce any Federal Reserve Board regulation promulgated under this subchapter in the same manner as if the violation had been a violation of a Federal Trade Commission trade regulation rule. Rules and regulations by enforcing agencies (d) The authority of the Board to issue regulations under this subchapter does not impair the authority of any 10f other agency designated in this section to make rules respecting its own procedures in enforcing compliance with requirements imposed under this subchapter. As amended Pub. L. 95-473, § 3(b), Oct. 17, 1978, 92 Stat. 1466; Pub.L. 98-443 § 9(n), Oct. 4, 1984, 98 Stat. 1708.) § 1691d. APPLICABILITY OF OTHER LAWS Requests for signature of husband and wife for creation of valid lien, etc. (a) A request for the signature of both parties to a marriage for the purpose of creating a valid lien, passing clear title, waiving inchoate rights to property, or assigning earnings, shall not constitute discrimination under this subchapter: Provided, however, That this provision shall not be construed to permit a creditor to take sex or marital status into account in connection with the eval- uation of creditworthiness of any applicant. State property laws affecting creditworthiness (b) Consideration or application of State property laws directly or indirectly affecting creditworthiness shall not constitute discrimination for purposes of this sub- chapter. State laws prohibiting separate extension of consumer credit to husband and wife (c) Any provision of State law which prohibits the separate extension of consumer credit to each party to a marriage shall not apply in any case where each party to a mar- riage voluntarily applies for separate credit from the lif same creditor: Provided, That in any case where such a State law is so preempted, each party to the marriage shall be solely responsible for the debt so contracted. Combining credit accounts of husband and wife with same creditor to determine permissible finance charges or loan ceilings under Federal or State laws (d) When each party to a marriage separately and volun- tarily applies for and obtains separate credit accounts with the same creditor, those accounts shall not be aggregated or otherwise combined for purposes of deter- mining permissible finance charges or permissible loan ceilings under the laws of any State or of the United States. Election of remedies under subchapter or State law; nature of relief determining applicability (e) Where the same act or omission constitutes a violation of this subchapter and of applicable State law, a person aggrieved by such conduct may bring a legal action to recover monetary damages either under this subchapter or under such State law, but not both. This eiection of remedies shall not apply to court actions in which the relief sought does not include monetary damages or to administrative actions. Compliance with inconsistent State laws; determination of consistency (f) This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this sub- chapter from complying with, the laws of any State with respect to credit discrimination, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the incon- 12f sistency. The Board is authorized to determine whether such inconsistencies exist. The Board may not deter- mine that any State law is inconsistent with any provi sion of this subchapter if the Board determines that such law gives greater protection to the applicant. Ere mption hy requlation of credit transactions covered by State law: failure to comply with State lau ig) The Board shall by regulation exempt from the require- ments of section 1691 and 1691a of this title any class of credit transactions within any State if it determines that under the law of that State that class of transactions is subject to requirements substantially similar to those imposed under this subchapter or that such law gives greater protection to the applicant, and that there is adequate provision for enforcement. Failure to comply with any requirement of such State law in any transac tion so exempted shall constitute a violation of this sub chapter for the purposes of section 169le of this title (Pub. L. 90-321, Title VII, § 705. as added Pub. L. 93-495, Title V. § 508, Oct. 28, 1974, 88 Stat. 1523. and amended Pub. L 94-239, $5. Mar. 23. 1976. 90 Stat. 253.) > 169le. CIVIL LIABILITY Individual or class action for actua' damage . (a) Any creditor who fails to comply with any requirement imposed under this subchapter shall be liable to the aggrieved applicant for any actual damages sustained by such applicant acting either in an individual capacity or as a member of a class. 13f Recovery of punitive damages in individual and class actions for actual damages; exemptions; maximum amount of punitive damages in individual actions; limitation on total recovery in class actions; factors determining amount of award (b) Any creditor, other than a government or governmental subdivision or agency, who fails to comply with any requirement imposed under this subchapter shall be lia- ble to the aggrieved applicant for punitive damages in an amount not greater than $10,000, in addition to any actual damages provided in subsection (a) of this section, except that in the case of a class action the total recovery under this subsection shall not exceed the lesser of $500,000 or 1 per centum of the net worth of the creditor. In determining the amount of such damages in any action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor's failure of compliance was intentional. Action for equitable and declaratory relief ‘c) Upon application by an aggrieved applicant, the appro- priate United States district court or any other court of competent jurisdiction may grant such equitable and declaratory relief as is necessary to enforce the require- ments imposed under this subchapter. Recovery of costs and attorney fees (d) In the case of any successful, action under subsection (a), (b), or (c) of this section, the costs of the action, together with a reasonable attorney's fee as determined by the court, shall be added to any damages awarded by the court under such subsection. ; ‘ij ‘7; , r ; ; ; sj ; ; ; j ; ; ’ ’ ; , " r / ; j ; j ; ‘ ‘ J ’ ; ij ; ; fi : ; # | : ’ : ; ’ ’ ; 4 ’ j : ; 7 : , P . a cet re , 9 tort " ¥ ' * ,? : ; : j . : _— ‘ >) .% ‘4 r- rs a ’ " ; ahi ’ ’ : ‘ | : ' : : “AF . thor ‘ thy | art 7 ™ eh ry ’ " > ; : ey rootat . y ror. . , * ?? : , sf : "se : b/s : ’ _ «s , ; , . ; > " ; > ’ ’ ‘ rT ‘ rT : ' . : j ‘iy iu | +? ‘ , ry? rr ' oT ’ , rer sf ; : : : s) : ; : : ’ - | ’ Ali ‘ ’ ; ; r ria ryy gt ’ : j ir’ : ’ i? | : | ' ' ‘ fey Tr ¥ > ’ 7? oF 4 ; 4 | > > ” ° . : 4 7 ; , 4 4 | ry’ 2¢). : : : : ‘ . ” " ; ; : . ’ ; | 15f then any applicant who has been a victim of the discrimi- nation which is the subject of such proceeding or civil action may bring an action under this section not later than one year after the commencement of that proceed- ing or action. Request by responsible enforcement agency to Attorney General for civil action (g) The agencies having responsibility for administrative enforcement under section 169lc of this title, if unable to obtain compliance with section 1691 of this title, are authorized to refer the matter to the Attorney General with a recommendation that an appropriate civil action be instituted. Authority for Attorney General to bring civil action; jurisdiction (h) When a matter is referred to the Attorney General pur- suant to subsection (g) of this section, or whenever he has reason to believe that one or more creditors are engaged in a pattern or practice in violation of this sub- chapter, the Attorney General may bring a civil action in any appropriate United States district court for such relief as may be appropriate, including injunctive relief. Recovery under both subchapter and fair housing enforcement provisions prohibited for violation based on same transaction (i) No person aggrieved by a violation of this subchapter and by a violation of section 3605 of Title 42 shall recover under this subchapter and section 3612 of Title 42, if such violation is based on the same transaction. APPENDIX ‘G’ IN THE NITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA 17 r T 4a °T UNPrUNALIUN ACTION NO. &e wr . SECTION ‘A 4 ‘ 7 \ Vit ‘ ’ ‘+ ’ r a ' 2) r , ~ a bs ©c\ ccr ict sa lar i,t i’ { ’ r 4 ar ' . if ¥ eet pr Der Iu ‘ 4 » i ECOA i g denied Pla - > i ’ ‘ rs r 1 > wea « ‘ : ‘Dp - ‘| r p p) a i ; 1 i | 4 y ‘ iT ry re Vf 3g 8. For the purposes of this action, the plaintiff, ULRICH HUYSSEN, is an “Applicant” by definition under the provi- sions of 15 U.S.C. § 1691a(b). IV. DEFENDANT 9. The defendant, FIRST UNION MORTGAGE CORPO- RATION, is a business corporation, domiciled at Union Plaza Cont-1, Charlotte, North Carolina 28288, engaged in the busi- ness of lending money and/or extending credit, authorized to do [and at all times applicable to this action is doing] business in the Parish of East Baton Rouge, State of Louisiana, through its “Branch Office” at 3636 South Sherwood Forest Boulevard, Suite 690, Baton Rouge, Louisiana 70816; and, therefore, is subject to the jurisdiction and venue of this Court. 10. The defendant, FIRST UNION MORTGAGE CORPO- RATION, may be served with process through: Prentice-Hall Corporation System 1006 Hibernia Bank Building New Orleans, Louisiana 70112, its legally designated agent for service of process. 11. At all times relevant hereto, the defendant, FIRST UNION MORTGAGE CORPORATION, in the ordinary course of its business, regularly extended, offered to extend, arranged or offered to arrange the extension of credit to its customers for which a finance charge is or may be imposed. Therefore, for the purposes of this action, the defendant, FIRST UNION MORTGAGE CORPORATION, is a “cred- itor” by definition under the provisions of 15 U.S.C. § 169la(e). ig V. FACTUAL STATEMENT 12. Plaintiff, ULRICH HUYSSEN, after seeing and read ing several advertisements in the daily local newspapers b: which the defendant, FIRST UNION MORTGAGE CORPO RATION, advertised, under Classified Ads, to extend credit at 12.5% APR SECOND MORTGAGES, the plaintiff ULRICH HUYSSEN, responding to the Defendant's adver ; isements for customers appearing in the daily local news papers, on August 29, 1984, made an application to the defendant, FIRST UNION MORTGAGE CORPORATION through its Branch Office, for an extension of credit aggregat ing Thirty Thousand Nine Hundred and No/100 Dollars S30) GOO OO” to ne sect “ed hy cert In re: estate as en Tera . i Y ILaili i al a a Lida | a is Wlll more [Tully appear DY reference to |{( nN ‘ ‘ A” ‘ P a ‘TT A’ { { ) ' » { } i ° } y ‘ {)} { ) 4 i | {7y~ l? y y - f ‘ | ~ ’ " y ’ I t 7 7 a ’ ’ tal t | | | ‘ , ; ’ ‘ b 4 | ; mA! i ‘ 4 oP y r" 9g INS. COVERAGE: - 0 - PMT. VIA BANK DRAFT: ([) YES [kj NO Mrs. no S.S. # Blank Financial Stmt. GENERAL INFORMATION (FOR BRANCH’S COMPLETION) MAKE CHECK PAYABLE TO: Ulrich & Gisela Huyssen & H. Matthew Chambers, Attorney CONTINGENCIES > ~* > > rin tne essentlai eiel rs riy a j is a i ; . . + » { inder tne (le ’ tor cyt 15 I ~ | ~ 1bYlal« 1¢ ‘ L’ + + ‘ I + } ‘ ‘ . lr alt \ug ls 1934, Tiuyvssen contacted Dato vouye \f > >*? > > > ‘ 7 ' , y y | yiortgage Compal nan attemt] ) ODta i Sé m -+ + + 47 \ + f rtg ive ay! 7 Tne prope! cated 1 yi4 | : ‘ . Dd ' SLTete Hbaker, Loulslana ‘ | . | . + > ry lve Vi rtivgage Was al 4 iepel 1e7 i! ? - } > > LJ . 4s? . > > ‘ , rn Dasis nu ~I-¥ ~ a ra ng rorory J Loi pct , ’ 4 iT ’ ‘ L] ‘ ; ) i™ } " y\? | i ‘AUP U fo : 1U ~¢ 8) t rif T> T> ‘ . . D, . | £4 I I ry ly lisla i Dra s 7 ” ‘ ’ ' ry rt¢ ive ,7 , ay = 4 lred , = , ¥ ory? ris | 4 ] ‘ , AG ’ > , = r 41 7 17. 18. 19. 20. a | 10h Shortly after November 11, 1984, Huyssen received a second ECOA notice, stating that his application was denied for the basis of insufficient income to debt ratio. First Union Home Equity Corporation (“First Union”) was named “First Union Mortgage Corporation” until February 2, 1987, at which time the corporate name was changed. At the time of Huyssen’s application, and at the present time, Ralph E. Richardson (“Richardson”) is First Union’s Director of Credit. Richardson was the Director for First Union since 1975. VI. CONTESTED ISSUES OF FACTS: The contested issues of facts are: Whether the Plaintiff qualified, or met the require- ments, for the loan under the criteria, the “Standards of Creditworthiness,” spelled out in Defendant’s Lending Policy Manual? Whether the reasons given by Defendant for its failure of compliance, the denial of Plaintiffs second mortgage loan application and its refusal and failure of extension of credit to Plaintiff, were “pretext” for unlawful discrimi- nation? The amount of actual damages to which Plaintiff is enti- tled, including, but not limited to lost profits and lost appreciation. Whether Defendant's failure of compliance entitle Plain- tiff to recovery of punitive damages, in addition to actual damages, against the Defendant as provided by ECOA, 15 U.S.C. § 169le(b)? Whether Plaintiff tried or undertook any action to miti- gate his damages? llh VII. CONTESTED ISSUES OF LAW: The contested issues of law are: Whether the Defendant eluded to a method of calcula- tion of Plaintiffs income to debt ratio with the purpose of evading the requirements of ECOA, or whether in the absence of purposeful discrimination, equitable relief is necessary to enforce the requirements imposed by ECOA? Whether Defendant, in its failure of compliance, acted contrary to its own guidelines spelled out in its Lending Policy Manual and by so doing acted in reckless dis- regard of the requirements of ECOA even though there was no specific intention to discriminate against Plaintiff on unlawful grounds; but, nevertheless, Plaintiff is enti- tled to recovery of both actual and punitive damages as provided by ECOA under Section 169le(a) and (b)? Whether any specific intent to discriminate or statistical showing of adverse impact on protected class is neces- sary to establish prima facie case of violation under ECOA? Whether ECOA imposes a duty upon Plaintiff to under- take measures to mitigate his damages? VIIl. EXHIBITS AND WITNESSES: The parties attach the following as appendices to the pre- trial order: Lists or schedules of all exhibits that will be offered in evidence at the trial. 1. The lists shall describe the exhibits sufficiently for ready identification. 2. The lists shall indicate those exhibits agreed by the parties to be admissible at trial. ov 12h With respect to each exhibit on the lists, counsel shall either agree as to admissibility of the exhibit or reach such stipulation as to the exhibit are as possi- ble. If a party objects to an exhibit to be offered against him, he shall note his objection immediately under the listing of the exhibit, as part of the list. The notation shal! include citations to the Federal Rules of Evidence and other legal authorities supporting the objection. At trial should any party fail to introduce any exhibit on his list, any other party may introduce that exhibit, even if he did not place the exhibit on his exhibit list. (B)—List of witnesses, except impeachment witnesses but including rebuttal witnesses, with their addresses. l. The parties shall divide their witnesses into “Will Call” and “May Call” witnesses. Any party listing a person on his “ Will Call” list shall bear the responsi- bility of producing that witness at trial. At trial, should any party fail to call any witness on his “Will Call” list, any other party may call that person as his witnesses, even if he did not list the person on his list. 2. The following provisions shall apply to EXPERT wit- nesses: (a) With respect to expert witnesses. . . names and written reports of such experts Plaintiff intends to call will be furnished to opposing counsel at least sixty (60) days before the pretrial confer- ence; Defendant shall furnish to opposing coun- sel names and written reports of such experts it expects to call at least thirty (30) days before the pretrial conference. 13h (b) All expert witnesses, . . . who will testify must submit written reports so that the parties can comply with this order. (C) Each party shall submit a final list of “Will Call” wit- nesses. 1. A final list of “Will Call” witnessess should be for- warded to opposing counsel and filed with the clerk of Court ten (10) days before trial; all “May Call” witnesses will be deleted at that time. This restric- tion shall not apply to impeachment witnesses. IX. NO EXHIBIT OR WITNESS (except those for impeach- ment purposes) SHALL BE USED AT TRIAL UNLESS LISTED IN THE PRETRIAL ORDER, except for good cause shown. A “reservation of rights” to call witnesses or to introduce exhibits on the witness list or exhibit list of another party SHALL NOT CONSTITUTE A LISTING IN THE PRETRIAL ORDER. X. The following amendments to the pleadings are allowed: None. . XI. The following additional matters, to aid in the disposition of the action, were determined: None. XII. The probable length of the trial this case is four (4) DAYS. 14h APPROVED BY: Attorneys for Plaintiff: sJJOHNNIE A. JONES Johnnie A. Jones, Trial Attorney and Ann 8.B. Jones JONES & JONES, Attorneys at Law Taylor Building, Suit 215 251 Florida Street Baton Rouge, Louisiana 70801 Telephone: 504/383-8573 Attorneys for Defendant: sJOSE R. TARAJANO, JR. Kelly Wilkinson and Jose R. Tarajano, Jr. RUBIN, CURRY, COLVIN & JOSEPH A Professional Law Corporation One American Place, Suite 1400 Baton Rouge, Louisiana 70825 Telephone: 504/383-1400 15h APPENDIX ‘4’ JOINT LIST OF EXHIBITS: Exhibit 1. August 29, 1984, Credit Application, with no attach- ments. Exhibit 2. Calculation of Income-to-debt ratio accompanying orig- inal credit application. Exhibit 3. Original computerized Credit Report. Exhibit 4. Appraisal by Brian Hollenback of property at 514 Myrtle Street, Baker, Louisiana. Exhibit 5. Unsigned equity/value sheet entitled “Huyssen Rental Income.” Exhibit 6. | Copy of Ulrich Huyssen’s 1983 personal financial state- ment. Exhibit 7. Copy of list of rental property signed by Ulrich Huyssen. 16h Exhibit 8. | Copy of residential lease of 514 Myrtle Street, Baker, Louisiana. Exhibit 9. Copy of Lending Policy Manual, which applied to Huyssen’s application and was used by First Union dur- ing 1984. Exhibit 10. Deposition of Brian D. Hollenback, taken on Friday, February 26, 1987. The parties stipulated to the admissibility of the deposition, in lieu of live testimony, on the grounds that Mr. Hollenback is no longer an employee of First Union Mortgage Corporation; and, to the best of the parties’ knowledge, he now resides in Florida, outside the subpoena power of this Court. Exhibit ll. Copy of ECOA notice, dated October 8, 1984, Notice of adverse action. Exhibit 12. Huyssen letter dated November 5, 1984. Exhibit 13. Copy of November 12, 1984, second ECOA notice. 17h APPENDIX ‘B’ FIRST UNION LIST OF WITNESSES First Union will call the following witnesses at trial: Ralph E. Richardson (Affidavit does not give street address) Indian Trail, North Carolina 28079 Ms. Pamela Kinamore Business Address: 3636 South Sherwood Forest Boulevard, Suite 690 Baton Rouge, Louisiana 70816 Mr. Wendell Foushee Business Address: 4911 Bennington Avenue Baton Rouge, Louisiana 70808 Home Address: 1262 Glasgow Avenue Baton Rouge, Louisiana 70808 First Union may call the following witneses for trial: Lane Manning 7960 Wrenwood Baton Rouge, Louisiana David James Englund 14317 Royal Oak Avenue Baton Rouge, Louisiana 70816 or 18h Ms. Diane P. Furr Business Address: First Union Corporation Legal Division Charlotte, North Carolina 28288 Mr. Alan W. Martin c/o Richard M. Lawrence 4526 Pearl Road Prairieville, Louisiana 70769 Mr. Donald Ray Singleton and Ms. Lorraine Singleton c/o Raymond L. Simmons 1606 Scenic Highway Baton Rouge, Louisiana 70802 19h APPENDIX ‘C’ FIRST UNION’S LIST OF EXHIBITS: First Union plans to offer the following Exhibits into evi- dence at the trial: Exhibit 3 The following attachments to the August 29, 1984 credit application of Ulrich Huyssen: 1.1. First Union’s Loan Processing Report; 1.2 First Union’s Mortgage Verification to Fidelity National Bank; 1.3. A copy of excerpts of Ulrich Huyssen’s and Gisela P. Huyssen’s 1983 Federal Income Tax Return; 1.4