Laramore, Brenda v. Ritchie Realty ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1421
BRENDA LARAMORE,
Plaintiff-Appellant,
v.
RITCHIE REALTY MANAGEMENT COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1333—George M. Marovich, Judge.
____________
ARGUED NOVEMBER 12, 2004—DECIDED FEBRUARY 9, 2005
____________
Before BAUER, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. Brenda Laramore sued Ritchie
Realty Management Company (“Ritchie”) claiming that
Ritchie violated the Equal Credit Opportunity Act, 15 U.S.C.
§ 1691 (the “ECOA”) when it informed her that she could
not apply to rent an apartment it managed because she
received public assistance. The district court dis-
missed Laramore’s complaint on the ground that the rent-
al of residential property is not a credit transaction cov-
ered by the ECOA. We affirm.
2 No. 04-1421
I.
Laramore receives federal assistance pursuant to Sec-
tion Eight of the United States Housing Act, 42 U.S.C.
§ 1437f. “Section [Eight] is a federal program designed to
assist the elderly, low income, and disabled pay rent for
privately owned housing.” Allen v. Muriello, 217 F.3d 517,
518 (7th Cir. 2000). The assistance generally comes in the
form of a voucher (often called a “Section 8 Voucher”) that
the recipient can use to pay a portion of their rent.
In October 2002, Laramore began a search for a new
apartment for herself and her four children. She found a
prospective apartment in Chicago via a search on the
Internet. On October 21, 2002, after viewing the apart-
ment, Laramore telephoned Ritchie, the company responsi-
ble for managing the apartment, to request an applica-
tion for a lease. The woman who took the call initially
told Laramore that the apartment was available to rent.
After Laramore informed her that she intended to use
a Section 8 Voucher to pay a portion of the rent, however,
the woman told Laramore that the apartment was not
available to persons using Section 8 Vouchers.
On February 21, 2003, Laramore filed suit in the United
States District Court for the Northern District of Illinois
(Eastern Division). In her suit, Laramore claimed that
Ritchie and others not party to this appeal (the apartment’s
owners) violated the ECOA by denying her a rental ap-
plication because she receives public assistance. Ritchie
moved to dismiss the complaint pursuant to Fed. R. Civ. P.
12(b)(6) on the ground that a rental application is not a
credit transaction under the ECOA. The district court agreed
with Ritchie and dismissed the suit. This appeal followed.
No. 04-1421 3
II.
We review de novo the dismissal of a complaint pursuant
to Rule 12(b)(6). Cole v. U.S. Capital, 389 F.3d 719, 729
n.10 (7th Cir. 2004). “If the statute under which the plain-
tiff sued provides no relief in the circumstances alleged,
the district court’s decision was appropriate.” Pawlowski
v. N.E. Ill. Reg’l Commuter R.R. Corp., 186 F.3d 997, 1000
(7th Cir. 1999).
The ECOA makes it “unlawful for any creditor to discrim-
inate against any applicant, with respect to any aspect of a
credit transaction because all or part of the appli-
cant’s income derives from any public assistance program.”
15 U.S.C. § 1691(a)(2). The ECOA is Title VII of the Con-
sumer Credit Protection Act, 15 U.S.C. §§ 1601-1693r
(the “CCPA”).
A “creditor” is defined for the purposes of the ECOA as
“any person who regularly extends, renews, or con-
tinues credit.” 15 U.S.C. § 1691a(e). “Credit” is, in turn, de-
fined by the ECOA as “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 services
and defer payment therefor.” 15 U.S.C. § 1691a(d).
The question in this case, therefore, is whether Ritchie was
acting as a creditor when it denied Laramore an application
to rent the apartment she was interested in because the
apartment was not available to persons receiving Section 8
Vouchers. As can be seen above, whether Ritchie was acting
as a creditor is determined by whether Ritchie regularly
extends credit. Put more clearly, Ritchie is a creditor if a
residential lease amounts to the right of a lessee to defer
payment of a debt for the purchase of property or services
already purchased.
4 No. 04-1421
The district court found that a residential lease was not an
extension of credit because a lease is not a deferred payment
of a debt, “but prepaid advancement[ ] of a debt for contem-
poraneous use.” Laramore v. Ritchie Realty Mgmt. Co., No. 03
C 1333, 2003 WL 22227148, at *1 (N.D. Ill. Sept. 21, 2003).
The district court also noted that the Federal Reserve Board
(the “Board”) has stated that the ECOA should not be
construed to cover lease transactions.
Laramore argues that a residential lease is an extension of
credit. Laramore argues, in effect, that a residential lease is
an agreement for occupancy for a term (typically a year) and
that the agreement creates a debt as of the time of
the agreement and that the lessee pays off the debt over
the period of the term. In other words, when the lessor
and the lessee sign a lease, the transaction is complete—
the lessee has the right to use the premises for the dura-
tion of the term of the agreement and the lessee is paying off
the amount owed for the entire term on a month-by- month
basis. Another way of looking at it is that a tenant’s monthly
payments are not for the month’s occupation of the apart-
ment when the rent is paid (i.e., November’s rent) but
instead, simply 1/12th of the year’s rent.
Courts that have considered whether leases are credit
transactions are split. In Brothers v. First Leasing, 724 F.2d
789 (9th Cir. 1984), the Ninth Circuit held the ECOA applies
1
to consumer leases. The court concluded that applying the
1
Because the Ninth Circuit’s decision in Brothers concerned
consumer leases, a term defined for the purposes of that case
as personal property, see Brothers, 724 F.2d at 792 n.7, our decision
in this case, as it is concerned with residential leases, is not in
direct conflict and does not create, therefore, a split amongst the
circuits. To our knowledge, this court is the only circuit court that
(continued...)
No. 04-1421 5
ECOA to consumer leases “is essential to the accomplish-
ment of the [CCPA’s] anti-discriminatory goals.” Id. at 794.
The court did note that it was “unclear” that the ECOA,
when first enacted, applied to consumer leases. Id. at 793.
The court concluded, however, that amendments to the
Truth in Lending Act, 15 U.S.C. §§ 1601-1666j (“TILA”),
another title of the CCPA, extending TILA’s disclosure
requirements to consumer leases suggested that the same
should be done to the ECOA.
The Northern District of Illinois, in an unpublished
decision, held that the ECOA applied to a lease transaction
involving a mobile home. Ferguson v. Park City Mobile
Homes, No. 89 C 1909, 1989 WL 111916, at *3 (N.D. Ill. Sept.
18, 1989). The court, however, provided little analysis to
support its decision. It did note that it did not follow the
Ninth Circuit’s analysis in Brothers, but concluded that “the
language of the ECOA is certainly broad enough to
cover the lease of a mobile home lot.” Id. at *3. The court’s
decision also appears to have been motivated, at least
in part, by the poor performance by counsel opposed
to applying the ECOA. Id. (“[The defendant] has cited no
case authority whatever in bringing its motion to dis-
miss, and its argument is almost wholly conclusory with
no analysis of the interplay between the statutory provi-
sions.”).
The Western District of Washington, relying on Brothers,
has held that the ECOA applies to cellular phone ser-
1
(...continued)
has addressed the applicability of the ECOA to residential leases.
Although as we discuss below, we find persuasive for our inquiry
concerning residential leases the Board’s conclusion that the
ECOA does not cover leases, we save for another day the
question of whether the ECOA covers consumer leases.
6 No. 04-1421
vice agreements. Williams v. AT&T Wireless Servs., Inc., 5
F. Supp. 2d 1142, 1146-47 (W.D. Wash. 1998). The court held
that the application for a cell phone service agree-
ment involved an application for credit. Id. The court
determined that the agreement at issue gave the customer
the right to use AT&T’s phone services and pay for those
services later. Id.Other cases have held that leases are not subject to the
ECOA. In Liberty Leasing v. Machamer, 6 F. Supp. 2d 714(S.D. Ohio 1998), the district court held that an equip-
ment lease involving monthly payments was not a credit
transaction because the lease involved a contemporane-
ous exchange of consideration—the lessee made monthly
payments that allowed the lessee to continue to exercise
its rights under the lease. Id. at 717. The Northern District of
Illinois reached a similar conclusion in Head v. North Pier
Apt. Tower, No. 02 C 5879, 2003 WL 22127885, at *3 (N.D. Ill.
Sept. 12, 2003). We find these cases persuasive.
2
We hold that a typical residential lease does not involve a
credit transaction. The typical residential lease involves a
contemporaneous exchange of consideration— the tenant
pays rent to the landlord on the first of each month for the
right to continue to occupy the premises for the coming
month. A tenant’s responsibility to pay the total amount of
2
We say the “typical” residential lease because, even though the
terms of a residential lease are often constrained by state
and local laws, we do not foreclose the possibility that the parties
to such a lease may craft a lease that might, by its terms, come
under the terms of the ECOA. For the purposes of this case, we
are concerned only with leases that provide for the lease of
residential property for a term and roughly equal rental pay-
ments are due to the landlord at the beginning of each month
during that term.
No. 04-1421 7
rent due does not arise at the moment the lease is signed;
instead a tenant has the responsibility to pay rent over
roughly equal periods of the term of the lease. The rent paid
each period is credited towards occupancy of the property
for that period (i.e., rent paid November 1 is credited
towards the right of a tenant to occupy the premises in
November). As such, there is no deferral of a debt, the
requirement for a transaction to be a credit transaction
under the Act.
We also find persuasive, at least insofar as residential
leases are concerned, the conclusion of the Board that leases
are not covered by the ECOA. Congress has delegated to the
Board the authority to proscribe regulations concerning the
Act. 15 U.S.C. 1691b(a)(1). In response, the Board promul-
gated Regulation B (12 C.F.R. Part 202). In a Supplementary
Information issued in November 1985, as part of a periodic
review of Regulation B, the Board, responding to the Ninth
Circuit’s decision in Brothers, stated “that the Ninth Circuit
interpreted the ECOA’s definition of credit too broadly
when it concluded in the Brothers case that the granting of
a lease is an extension of credit.” 50 Fed. Reg. 48,018,
3
48,020. The Board then concluded that “Congress did not
intend the ECOA, which on its face applies only to credit
3
The parties spend a considerable amount of space in their briefs
debating the significance of this Supplementary Information.
Laramore argues that the Supplementary Information is entitled
to no deference while Ritchie argues that the Supplementary
Information is entitled to significant deference or, at the very
least, it is persuasive guidance in construing the ECOA. We need
not resolve this dispute, however. We are convinced that the
ECOA by its terms, and without need to resort to administrative
interpretations of the Act, does not cover residential leases. The
Supplementary Information is, however, at the least, persuasive.
8 No. 04-1421
transactions, to cover lease transactions unless the transac-
tion results in a ‘credit sale’ as defined in the Truth In
Lending Act and Regulation Z.” Id.III.
The ECOA prohibits discrimination against those who
receive public assistance when they enter into a credit
transaction. Because, however, a residential lease is not
a credit transaction as that term is defined in the ECOA,
Ritchie’s refusal to provide Laramore with a rental ap-
plication was not subject to the Act. The district court’s
decision to dismiss Laramore’s complaint was appropri-
ate and, therefore, that decision is
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-05