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LATIMORE v. CITIBANK

September 23, 1997

HELEN LATIMORE, Plaintiff,
v.
CITIBANK, F.S.B., MARCIA LUNDBERG, and ED KERNBAUER, Defendants.



The opinion of the court was delivered by: BUCKLO

 The plaintiff, Helen Latimore, sued Citibank, F.S.B. ("Citibank") and two of its employees, Marcia Lundberg and Ed Kernbauer, for racial discrimination in denying a mortgage loan application. The defendants have moved for summary judgement. For the following reasons, the motion is granted.

 I. *fn1"

 On August 16, 1993, Ms. Latimore, an African-American, submitted an application for a mortgage loan to Citibank. She sought $ 51,000, using her residence at 6150 South Ingleside, Chicago, Illinois as collateral. The racial population of Ms. Latimore's neighborhood was and is over 90 percent African-American. Citibank assigned Mr. Kernbauer, its in-house appraiser, to prepare an appraisal of Mr. Latimore's house. On August 26, 1993, Mr. Kernbauer prepared an appraisal report valuing the plaintiff's property at $ 45,000, yielding a loan-to-value ratio of 113 percent. For the type of loan Ms. Latimore was seeking, Citibank's lending criteria required a loan-to-value ratio of, at most, 75 percent.

  There followed several telephone conversations between the plaintiff and Ms. Lundberg, the Citibank's account executive responsible for Ms. Latimore's application. *fn2" Ms. Lundberg informed the plaintiff that the appraisal value of her property would not support the loan. Upon learning that Ms. Latimore had higher appraisals of her home, Ms. Lundberg asked that they be forwarded. Ms. Lundberg received an appraisal report, dated October 8, 1992 and reflecting a value of $ 82,000 ("October 1992 appraisal"), and submitted it, along with Mr. Kernbauer's appraisal, to the Citibank's Appraisal Review Department.

 Having reviewed Ms. Latimore's file, the Appraisal Review Department concluded that no change was warranted to Mr. Kernbauer's initial appraisal of $ 45,000. *fn3" After informing Ms. Latimore of that decision, Ms. Lundberg submitted the plaintiff's application to Underwriting, which denied the loan. As an African-American, Ms. Latimore was entitled to another level of review by the Community Reinvestment Act ("CRA") Committee. The CRA Committee examined the plaintiff's file and concluded that the denial of her loan application was consistent with the Citibank's underwriting criteria. Citibank mailed an adverse action notice to Ms. Latimore on October 12, 1993. On January 23, 1995, Ms. Latimore filed suit.

 In Counts I through IV, Ms. Latimore alleges that the defendants discriminated against her on the basis of her race or the racial composition of her neighborhood by denying her a loan, in violation of Sections 1981 and 1982 of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981, 1982, the Fair Housing Act ("FHA"), 42 U.S.C. 3605, and the Equal Credit Opportunity Act ("ECOA"). 15 U.S.C. 1691(a)(1). In Count V, Ms. Latimore alleges a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("Illinois Consumer Fraud Act"). 815 ILCS 505/1 et seq. (1993). The defendants move for summary judgment.

 II.

 To prevail on a claim under Sections 1981 *fn4" and 1982, *fn5" the plaintiff must prove intentional discrimination by the defendants. Phillips v. Hunter Trails Community Ass'n, 685 F.2d 184, 187 (7th Cir. 1982). In contrast, under the FHA *fn6" and the ECOA, *fn7" the plaintiff "must show that 'race was a motivating consideration in the [defendants'] decision' not to make the loan." Thomas v. First Fed. Sav. Bank, 653 F. Supp. 1330, 1338-39 (N.D. Ind. 1987) (quoting Kaplan v. 442 Wellington Coop Bldg. Corp., 567 F. Supp. 53, 57 (N.D. Ill. 1983)); Saldana v. Citibank, F.S.B., 1996 U.S. Dist. LEXIS 8327, No. 93 C 4164, 1996 WL 332451, at *2 (N.D. Ill. June 13, 1996).

 Adopting the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the courts have articulated the same prima facie case requirements for all four statutes. Selden Apartments v. United States Dep't of Hous. & Urban Dev., 785 F.2d 152, 159 (6th Cir. 1986) (§ 1982 and FHA); Saldana, 1996 WL 332451, at *2 (FHA and ECOA). Thus, in a case where the plaintiff alleges that her loan application was discriminatorily denied, she must prove (1) that she is a member of a protected class, (2) that she applied for and was qualified for a loan, (3) that the loan was rejected despite her qualifications, and (4) that the defendants continued to approve loans for applicants with qualifications similar to those of the plaintiff. Thomas, 653 F. Supp. at 1338 (FHA); Gross, 669 F. Supp. at 53 (ECOA); Bell v. Mike Ford Realty Co., 857 F. Supp. 1550, 1556 (S.D. Ala. 1994) (§ 1982). *fn8"

 There is no dispute that Ms. Latimore, an African-American, satisfies element one. The remaining elements are disputed. The defendants maintain that, although Ms. Latimore's credit history met the Citibank's underwriting guidelines, she was ultimately not qualified for a loan because she did not satisfy the Citibank's loan-to-value ratio of, at most, 75 percent. Ms. Latimore maintains that, due to race considerations, Mr. Kernbauer's appraisal did not reflect her home's true value, and that Ms. Lundberg assisted white applicants but not African-Americans during the appraisal review process.

 To withstand summary judgment, Ms. Latimore must provide evidence from which a reasonable factfinder could conclude that she meets the elements of the prima facie case. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Because the last three elements are intertwined, Ms. Latimore's task is essentially to show that the defendants treated her materially differently than similarly situated white loan applicants or loan applicants from non-minority neighborhoods.

 Mr. Kernbauer's Appraisal

 Mr. Kernbauer appraised Ms. Latimore's home at $ 45,000. Ms. Latimore offers the October 1992 appraisal of $ 82,000, which she forwarded to Ms. Lundberg; her expert's "reconstructive" appraisal of $ 62,000; *fn9" and a 1994 appraisal of $ 79,000, performed in connection with the plaintiff's receipt of a mortgage loan from the Household Bank. *fn10" A townhouse ...


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