REGIONS BANK, an Alabama state-chartered bank, Plaintiff-Counter Defendant-Appellee,
LEGAL OUTSOURCE PA, a Florida professional association, PERIWINKLE PARTNERS, LLC, a Florida limited liability company, CHARLES PAUL-THOMAS PHOENIX, individually, a.k.a. Charles PT Phoenix, LISA M. PHOENIX, individually, Defendants-Counter Claimants-Appellants.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 2:14-cv-000476-PAM-MRM
WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and MOORE,
WILLIAM PRYOR, CIRCUIT JUDGE.
main issue presented by this appeal has divided our sister
circuits: whether a guarantor constitutes an
"applicant" under the Equal Credit Opportunity Act.
See 15 U.S.C. §§ 1691(a), 1691a(b).
Compare Hawkins v. Cmty. Bank of Raymore,
761 F.3d 937 (8th Cir. 2014), aff'd by an equally
divided Court, 136 S.Ct. 1072 (2016) (holding that a
guarantor unambiguously is not an "applicant" under
the Act), and Moran Foods, Inc. v. Mid-Atl. Mkt. Dev.
Co., 476 F.3d 436 (7th Cir. 2007) (opining the same),
with RL BB Acquisition, LLC v. Bridgemill
Commons Dev. Grp., 754 F.3d 380 (6th Cir. 2014)
(holding that the term "applicant" is ambiguous and
applying Chevron deference to an agency
interpretation that a guarantor is an "applicant").
Legal Outsource PA, a law firm wholly owned by Charles
Phoenix, defaulted on a loan from Regions Bank, which
triggered the default of a loan and mortgage that Regions
issued to Periwinkle Partners, LLC, an entity wholly owned by
Charles's wife, Lisa Phoenix. After the obligors refused
to cure the defaults, Regions sued to enforce its rights
under the loans and mortgage. The obligors filed several
counterclaims asserting that Regions violated the Equal
Credit Opportunity Act by discriminating against Lisa and
Charles based on their marital status when it demanded that
they and Legal Outsource guarantee the Periwinkle loan. The
district court granted summary judgment in favor of Regions.
The district court ruled that Lisa Phoenix's
counterclaims failed because she lacked standing as an
"applicant" when she was instead a guarantor.
Because we conclude that a guarantor is not an
"applicant" under the Equal Credit Opportunity Act,
we affirm the summary judgment in favor of Regions. But the
parties agree that we must remand to correct an error in the
in 2005, Regions Bank extended a $450, 000 line of credit to
Legal Outsource PA, a law firm owned by Charles Phoenix.
Legal Outsource renewed the loan on a yearly or semi-yearly
basis, and it was last renewed in May 2013 with a maturity
date in February 2014. Charles Phoenix also guaranteed the
2013 Outsource loan.
2011, Regions lent nearly $1.7 million to Periwinkle
Partners, LLC, for the purchase of a shopping center on
Sanibel Island, Florida. At that time, the sole member of
Periwinkle Partners was a company owned by Charles
Phoenix's wife, Lisa Phoenix. Charles Phoenix, Lisa
Phoenix, and Legal Outsource all guaranteed the Periwinkle
loan. Under the Periwinkle loan, a default by any of the
parties, including the guarantors, on any other loans that
they had with Regions constitutes a default under the
August 2013, Regions concluded that the Outsource and
Periwinkle loans were in default based on the obligors'
failure to provide requested financial information and based
on Periwinkle's failure to pay its property taxes.
Regions then warned the obligors several times that it would
accelerate the loans if the obligors failed to cure the
default. In February 2014, the Outsource loan matured and
Legal Outsource, which was no longer in operation, failed to
pay it. Two months later, Regions declared the Outsource loan
in default and demanded its full and immediate payment.
According to the obligors, this declaration was a bad-faith
attempt by Regions to coerce Lisa Phoenix into securing the
Outsource loan with Periwinkle as collateral, but she refused
to do so. After the Outsource loan default, Regions also
declared the Periwinkle loan in default and demanded its full
and immediate payment. The obligors never cured any of the
August 2014, Regions filed a complaint against Charles and
Lisa Phoenix, Legal Outsource, and Periwinkle Partners for
breach of the Legal Outsource promissory note and guaranty,
breach of the Periwinkle promissory note and guaranties,
foreclosure of the Periwinkle mortgage, and receivership. The
obligors answered the complaint and interposed 73 affirmative
defenses and eight counterclaims.
obligors twice amended the answer and added four new
counterclaims that each asserted a violation of the Equal
Credit Opportunity Act. The counterclaims-three of which were
individually brought by Charles Phoenix, Lisa Phoenix, and
Legal Outsource respectively, and one of which was brought by
Lisa Phoenix and Periwinkle Partners-alleged that Regions
discriminated on the basis of marital status when it required
the Phoenixes and Legal Outsource to guarantee the Periwinkle
loan. Regions then moved to dismiss the newly added
counterclaims, and the district count granted that motion in
part. The district court ruled that the guarantors of the
Periwinkle loan all lacked statutory standing because they
were not "applicant[s]" under the Equal Credit
Opportunity Act. But the court also ruled that one of the
counterclaims, which was brought on behalf of Lisa Phoenix
and Periwinkle Partners, had sufficiently alleged that Lisa
Phoenix and Periwinkle Partners were "applicants"
under the Act, so it denied the motion as to that count.
Regions moved for summary judgment, the district court
granted summary judgment in favor of Regions both for its
claims for breach of the promissory notes and guaranties and
against the obligors' counterclaims. The district court
ruled that the obligors "do not dispute that they were
in default under the relevant notes and guaranties," and
it ruled that the counterclaims had "no merit."
With respect to the remaining counterclaim under the Equal
Credit Opportunity Act-the joint claim by Lisa Phoenix and
Periwinkle-the district court ruled that Periwinkle's
claim of discrimination was "frivolous" because, as
an entity, it had no marital status. And the district court
ruled that "[t]he claim fails as to Lisa Phoenix as well
because, aside from the lack of any evidence to establish any
alleged discrimination on the basis of marital status, she
was not an 'applicant' for the Periwinkle loan[;] she
was a guarantor." The district court referred to its
earlier order ruling that guarantors were not
district court later issued a second summary judgment order
granting foreclosure on the Periwinkle mortgage. The court
then dismissed the matter with prejudice and directed the
clerk to enter the judgment. The clerk entered the judgment,
and the obligors filed their notice of appeal.
moved to amend the judgment to state, among other things, the
amounts due to Regions from the obligors. The district court
granted Regions' motion in part, instructing the clerk to
enter an amended judgment providing for the following relief:
[T]he Court will order the Clerk to amend the Judgment to
provide that Regions Bank prevails on its claims against
Defendants. The Judgment will further provide that Regions
Bank is entitled to recover $540, 054.24 from
Defendants for the Legal Outsource loan . . . .
clerk then entered the amended judgment, and the obligors
amended their notice of appeal to include the order granting
Regions' motion to clarify and the amended judgment among
the items subject to their appeal.
STANDARD OF REVIEW
review a grant of summary judgment de novo.
Moore ex rel. Moore v. Reese, 637 F.3d
1220, 1231 (11th Cir. 2011).
appeal presents several issues about whether the obligors are
liable for the default of the Legal Outsource loan and the
Periwinkle loan and mortgage. Although the obligors raise a
host of issues that seek to obscure the nature of their
defaults, all but one of them lack any merit, and some border
on being frivolous. We decline to address them any further.
divide our discussion of the remaining issues in two parts.
First, we explain that Lisa Phoenix's counterclaims under
the Equal Credit Opportunity Act fail because a guarantor
does not qualify as an "applicant" under the Act.
Second, we explain that a limited remand to correct erroneous
language from the amended judgment is warranted.
The District Court Correctly Granted Summary Judgment Against
the Equal Credit Opportunity Act Counterclaims by Lisa
district court did not err when it granted summary judgment
against the counterclaims by Lisa Phoenix under the Equal
Credit Opportunity Act. As an initial matter, although the
obligors briefly mention Periwinkle's counterclaim in
their argument about the Equal Credit Opportunity Act, they
have failed to argue or cite caselaw in either the district
court or on appeal to rebut the conclusion that its status as
an entity defeats its claim, as the district court ruled, so
we consider that issue abandoned. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014)
("[A]n appellant must convince us that every stated
ground for the judgment against him is incorrect."). We
discuss only our reasons for concluding that the district
court correctly granted summary judgment against Lisa
Phoenix's counterclaims on the ground that a guarantor is
not an "applicant" for credit within the meaning of
the Act, see 15 U.S.C. § 1691a(b).
Equal Credit Opportunity Act makes it unlawful for "any
creditor to discriminate against any applicant, with respect
to any aspect of a credit transaction . . . on the basis of .
. . marital status." Id. § 1691(a)-(a)(1).
The Act defines an "applicant" as "any person
who applies to a creditor directly for . . . credit,
or applies to a creditor indirectly by use of an
existing credit plan for an amount exceeding a previously
established credit limit." Id. § 1691a(b)
(emphases added). The Act initially required the Federal
Reserve Board to promulgate regulations to enforce the Act.
See 15 U.S.C. § 1691b (1974). And the Federal
Reserve Board promulgated Regulation B, which defines an
applicant as "any person who requests or who has
received an extension of credit from a creditor," which
includes "any person who is or may become contractually
liable regarding an extension of credit." 12 C.F.R.
§ 202.2(e). That regulation further provides that the
term "applicant" includes
"guarantors, sureties, endorsers, and similar
parties." Id. (emphasis added). Regulation B
also prohibits a creditor from requiring the signature of an
applicant's spouse, other than a joint applicant, on any
credit instrument if the applicant independently qualifies as
creditworthy. Id. § 202.7(d)(1).
obligors rely on the definition of "applicant" in
Regulation B to argue that Lisa Phoenix has statutory
standing under the Act, so we must determine whether we
should defer to this regulation under the two-step framework
announced in Chevron, U.S.A., Inc. v. Nat'l Res. Def.
Council, Inc., 467 U.S. 837 (1984). See Arevalo v.
U.S. Att'y Gen., 872 F.3d 1184, 1187-88 (11th Cir.
2017). First, we ask whether, after applying the
"traditional tools of statutory construction," we
can determine whether Congress has spoken clearly on the
issue. Barton v. U.S. Att'y Gen., 904 F.3d 1294,
1298 (11th Cir. 2018) (quoting Fajardo v. U.S. Att'y
Gen., 659 F.3d 1303, 1307 (11th Cir. 2011)). If the
statute is unambiguous, we apply it according to its terms
and give no deference to the administrative interpretation.
Arevalo, 872 F.3d at 1188. Second, "if the
statute is silent or ambiguous with respect to the specific
issue presented, we must then determine whether the
agency's interpretation is reasonable or based on a
permissible construction of the statute." Id.
An interpretation is reasonable if it is "rational and
consistent with the statute." Id. (quoting
Sullivan v. Everhart, 494 U.S. 83, 89 (1990)).
applying the "traditional tools of statutory
construction," we begin "with the statutory text,
and proceed from the understanding that unless otherwise
defined, statutory terms are generally interpreted in
accordance with their ordinary meaning."
Barton, 904 F.3d at 1298 (quoting Sebelius v.
Cloer, 569 U.S. 369, 376 (2013)); see also
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts § 6, at 69 (2012)
("Words are to be understood in their ordinary, everyday
meaning-unless the context indicates that they bear a
technical sense."). And we interpret the words of a
statute based on their meaning at the time of enactment.
See New Prime Inc. v. Oliveira, 139 S.Ct. 532, 539
(2019); Scalia & Garner, Reading Law § 7,
at 78 ("Words must be given the meaning they had when
the text was adopted.").
Act, which was adopted in 1974, defines an applicant as
"any person who applies to a creditor directly
for . . . credit, or applies to a creditor
indirectly by use of an existing credit plan for an amount
exceeding a previously established credit limit." 15
U.S.C. § 1691a(b) (emphases added). English-language
dictionaries both before and after the enactment define the
term "apply" to refer to a request for something.
See Apply, 1 The Oxford English Dictionary
407 (corr. reprint 1961) (1933) ("To address oneself for
information or aid, to have recourse, to make application
to"); Apply, 1 The Oxford English
Dictionary 577 (2d ed. 1989) (same); Apply,
Webster's New International Dictionary of the English
Language (Webster's Second) 132 (2d ed.
1961) ("To make request; to have recourse with a view to
gain something; to solicit"); Apply,
Webster's New Collegiate Dictionary 55 (1977)
("[T]o make an appeal or request esp[ecially] in the
form of a written application."). So too do legal
dictionaries. See Apply, Black's Law
Dictionary 128 (rev. 4th ed. 1968) ("To make a
formal request or petition, usually in writing, to a court,
officer, board, or company, for the granting of some favor,
or of some rule or order, which is within his or their power
or discretion"); Application, id. at
127 ("The act of making a request for something").
The Sixth and Eighth Circuits have also both cited a
definition of the term "apply" as meaning "a
request . . . usually for something of benefit to
oneself." See Hawkins, 761 F.3d at 941
(alteration adopted) (emphasis added) (quoting
Webster's Third New Int'l Dictionary 105
(2002)); RL BB, 754 F.3d at 385 (quoting
Webster's Third New Int'l Dictionary 105
(1993)); see also Apply, Webster's Third New
Int'l Dictionary 105 (1971) (defining
"apply" as "to make an appeal or a request
esp[ecially] formally and often in writing and usu[ally] for
something of benefit to oneself"). So, taken together,
these definitions suggest that the ordinary meaning of the
term "applicant" is one who requests credit to
guarantor does not fit within this definition. At the time of
enactment, English-language dictionaries defined
"guaranty" to mean a promise by a guarantor to
answer for the payment of some debt if the person liable in
the first instance is unable to pay. See Guaranty, 4
The Oxford English Dictionary 477 (corr. reprint
1961) (1933) ("a written undertaking made by a person
(called the guarantor) to be answerable for the
payment of a debt or the performance of an obligation by
another person, who is in the first instance liable to such
payment or obligation"); Guaranty, 6 The
Oxford English Dictionary 912 (2d ed. 1989) (same);
Guaranty, Webster's Second 1110
("An undertaking to answer for the payment of some debt,
or the performance of some duty, of another, in case of the
failure of such other to pay or perform");
Guaranty, Webster's New Collegiate
Dictionary 509 ("[A]n undertaking to answer for the
payment of a debt or the performance of a duty of another in
case of the other's default or miscarriage"). Legal
dictionaries defined "guaranty" the same way.
See Guaranty, Black's Law Dictionary
833 (rev. 4th ed.) ("A promise to answer for payment of
debt or the performance of obligation if person liable in the
first instance fails to make payment or perform
obligation"); Guarantor, Black's Law
Dictionary 634 (5th ed. 1979) ("One who becomes
secondarily liable for another's debt or
performance"). Although a guarantor makes a promise
related to an applicant's request for credit, the
guaranty is not itself a request for credit, and certainly
not a request for credit for the guarantor. See
Hawkins, 761 F.3d at 942 ("We find it to be
unambiguous that assuming a secondary, contingent liability
does not amount to a request for credit.").
sure, as the dissent points out, a guarantor's promise
supports a would-be debtor's loan application and
ordinarily stems from the guarantor's desire that the
application be granted. See Dissenting Op. at 62-63.
But to say that a guarantor requests credit by supporting
another's request for credit is to push the bounds of
ordinary usage-at the very least, it is to use one word in
two obviously different senses. And to say that the guarantor
applies for credit by supporting
another's application is to leave ordinary usage
example should make this point clear. Suppose a high-school
senior is applying to her parents' alma mater, and her
parents-who happen to be wealthy donors-promise the school
that they will make a large gift if their daughter is
admitted. The parents' promise supports the
daughter's application for admission, just as a
guarantor's promise supports a loan applicant's
application for credit. The parents will be grateful if their
daughter is admitted, as a guarantor ordinarily is grateful
when the debtor's application for credit is granted. But
it would be unnatural to say that the parents have
"applied" for their daughter's admission or to
call them "applicants" for admission. Under any
ordinary use of the word, the student is the only
"applicant" in this scenario.
the whole-text and consistent-usage canons to the Act further
confirms that the term "applicant" excludes
guarantors. The whole-text canon refers to the principle that
a "judicial interpreter [should] consider the entire
text, in view of its structure and of the physical and
logical relation of its many parts," when interpreting
any particular part of the text. Scalia & Garner,
Reading Law § 24, at 167. "Properly
applied, it typically establishes that only one of the
possible meanings that a word or phrase can bear is
compatible with use of the same word or phrase elsewhere in
the statute . . . ." Id. at 168. Closely
related to the whole-text canon is the principle that
"[a] word or phrase is presumed to bear the same meaning
throughout a text" unless context requires otherwise.
Id. § 25, at 170; accord Atl. Cleaners
& Dyers v. United States, 286 U.S. 427, 433 (1932)
("Undoubtedly, there is a natural presumption that
identical words used in different parts of the same act are
intended to have the same meaning.").
Judge Colloton explained in his concurring opinion in
Hawkins, three aspects of the statutory text
strongly suggest that the term "applicant" is only
compatible with "a first-party applicant who requests
credit to benefit herself." Hawkins, 761 F.3d
at 943 (Colloton, J., concurring). First, the Act uses the
term "applicant" in several provisions that can
only refer to a first-party applicant. For example, section
1691 speaks of a "completed application for
credit," 15 U.S.C. § 1691(d)(1), and of a creditor
taking action in connection with the "applicant's
application for a loan," id.§ 1691(e)(1).
We agree that "it would be unnatural to conclude that a
third party who offers a promise in support of an applicant
thereby submits what the statute describes as an
'application for a loan,' and a 'completed
application for credit.'" Hawkins, 761 F.3d
at 943-44 (Colloton, J., concurring) (citations omitted).
Similarly, the Act provides that within thirty days
"after receipt of a completed application for credit, a
creditor shall notify the applicant of its actions
on the application." 15 U.S.C. § 1691(d)(1)
(emphasis added). "The statute's use of the definite
article shows that applicant is the single person to whom
credit would be extended, not a third party asking on behalf
of the putative debtor." Hawkins, 761 F.3d at
943 (Colloton, J., concurring). In contrast with these
provisions, we are aware of no instance in which the Act
refers to an "applicant" in a context that would
naturally suggest that a third-party guarantor could qualify.
the statutory definition of "adverse action" on a
credit application excludes from that phrase "a refusal
to extend additional credit under an existing credit
arrangement where the applicant is delinquent or otherwise in
default." 15 U.S.C. § 1691(d)(6) (emphasis
added). This provision suggests that "the
applicant" has received credit and is responsible for
making payments on an existing loan. "A guarantor or
other third-party requestor does not in ordinary usage become
'delinquent' or 'in default' on a loan or
other existing credit arrangement." Hawkins,
761 F.3d at 944 (Colloton, J., concurring). And "if a
guarantor could be an 'applicant,' then the
creditor's refusal to extend additional credit to a
delinquent borrower would be an 'adverse action' on
the guarantor's 'application,' thus
entitling the third-party guarantor to a statement of reasons
that the creditor need not furnish to the first-party
applicant. [15 U.S.C.] § 1691(d)(2)." Id.
As Judge Colloton concluded, "This is not a natural
reading of the text." Id.
the Act recognizes that third parties can be involved in
requesting an extension of credit to a first-party applicant,
but it "distinguishes between the third-party requestor
and the 'applicant.'" Id. The Act
provides that "[w]here 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 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." Id. (alterations adopted) (quoting
15 U.S.C. § 1691(d)(4)). That Congress chose to use the
term "applicant" to refer to the party receiving
the credit and "third party" to refer to a separate
party who requests an extension of credit for the
"applicant" is telling. In short, after examining
the term "applicant" in the context of the statute
as a whole, we conclude that there is ample evidence that the
term bears the ordinary meaning of a person who requests a
benefit for himself.
the three of our sister circuits that have considered whether
the administrative interpretation of the term
"applicant" deserves Chevron deference
have also concluded that the Act unambiguously excludes
guarantors. See Hawkins, 761 F.3d at 942 (rejecting
Chevron deference and explaining "[w]e find it
to be unambiguous that assuming a secondary, contingent
liability does not amount to a request for credit");
Moran, 476 F.3d at 441 ("[T]here is nothing
ambiguous about 'applicant' and no way to confuse an
applicant with a guarantor."). But see RL BB,
754 F.3d at 385 (applying Chevron deference to
section 202.2(e) on the theory that the term
"applies" is ambiguous and that guarantors qualify
as requesting credit because they "make formal requests
for aid in the form of credit for a third party").
Because we agree with the Seventh and Eighth Circuits that
the ordinary meaning of "applicant" does not
encompass a guarantor, we hold that no deference is due
section 202.2(e). So the district court correctly granted
summary judgment against the counterclaim by Lisa
Phoenix's because she was not an "applicant"
under the Act.
dissenting opinion disagrees with our analysis of the meaning
of the term "applicant" under the Act on three
grounds. First, the dissent argues that the ordinary meaning
of the word "applicant" reasonably includes
guarantors. Dissenting Op. at 60-63. Second, the dissent
contends that our analysis fails to reflect the
"overriding national policy against discrimination that
underlies the [ECOA]." Id. at 76 (alteration in
original) (internal quotation marks omitted). Along the way
to that conclusion, the dissent relies on two favorites of
purposivists: the notion that the Act, as a remedial statute,
must be construed broadly, id. at 49-51, 61, 65-71,
76, and the notion that the words of the Act must be
construed in the light of the Act's overall purpose,
id. at 76. Finally, the dissent contends that
Congress acquiesced to the Board's definition of
"applicant" by failing to amend the Act to
expressly preclude the Board's definition. Id.
at 79-82. None of these reasons is persuasive.
dissent's analysis begins by focusing on how the word
"any" appears four times in two relevant sentences
of the Act. Id. at 60-61 (quoting 15 U.S.C. §
1691(a)(1) (making it "unlawful for any
creditor to discriminate against any application,
with respect to any aspect of a credit transaction .
. . ." (emphases added)); id. § 1691a(b)
(defining "applicant" to mean "any
person who applies to a creditor directly for . . .
credit" (emphasis added))). The dissent argues that the
repeated use of the word "any" suggests that
Congress intended for the statute to have expansive reach and
that we should not "engraft artificial limitations"
to curb the "expansive remedial purposes" of the
Act. Id. at 61 (quoting Blue Shield of Va. v.
McCready, 457 U.S. 465, 472 (1982)). If all the dissent
is arguing is that we should not go beyond the ordinary
meaning of the term "applicant" to narrow it
artificially, we agree entirely.
use of the word "any" does not change the meaning
of the term "applicant." We have repeatedly
explained that when Congress uses the word "any"
without "language limiting the breadth of that word,
'any' means all." CBS Inc. v. PrimeTime 24
Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001)
(alteration adopted) (quoting Merritt v. Dillard Paper
Co., 120 F.3d 1181, 1186 (11th Cir. 1997)). So when the
Act speaks of an applicant as "any person who
applies to a creditor directly for . . . credit," the
word "any" signifies only that all persons
who apply to a creditor directly for credit qualify. The word
or term that is modified by "any" is still defined
by its ordinary meaning. See, e.g., id.
(using dictionary definitions to interpret the word
"termination" from "any termination"). So
the relevant question remains what the ordinary meaning of
the term "person who applies to a creditor directly for
. . . . credit" includes.
dissent's attempt to answer this question leans heavily
on the definition of "apply" as "to make an
appeal or request . . . usually for something of benefit
to oneself." Dissenting Op. at 62 (emphasis
altered) (quoting Hawkins, 761 F.3d at 941 (quoting
Webster's Third New Int'l Dictionary at 105
(1993)). The dissent reasons, "[o]bviously, if something
is 'usually for something of benefit to
oneself,' it must sometimes be for something of
benefit to another." Id. (emphasis altered).
So, the dissent concludes, the word "applicant" can
fairly be interpreted to include a guarantor.
definition the dissent relies on proves the opposite. As
Judge Colloton pointed out in his concurrence in
Hawkins, "under th[e] usual meaning, an
'applicant' who 'applies for credit' is one
who requests credit to benefit herself, not credit to benefit
a third party. That there are unusual meanings of
'apply' that encompass making a request on behalf of
another is not sufficient to make a term ambiguous for
purposes of Chevron." 761 F.3d at 943
(Colloton, J., concurring). The only circumstance in which it
is reasonable to construe a term according to an unusual
meaning is when the context makes the unusual meaning a
natural one. But, as we have explained, there is nothing
natural about calling a guarantor an applicant for credit,
and the whole text of the Act makes that usage even less
dissent charges that our reading of the Act fails to apply
the whole-text canon, Dissenting Op. at 65-66, 66 n.20, but
the dissent's assertion is notably lacking in references
to the text. According to the dissent, if we viewed the Act
as a whole, we would see that "'[t]he overriding
national policy against discrimination that underlies the
[Act]' means that 'we cannot give' words in that
statute a 'narrow interpretation.'" Id.
at 76 (quoting Bros. v. First Leasing, 724 F.2d 789,
793 (9th Cir. 1984)). But apart from its logically irrelevant
reliance on the word "any," the dissent fails to
point to any other provisions of the Act that suggest that
the term "applicant" includes a third party who
requests a benefit for the first-party applicant. And it is
hornbook abuse of the whole-text canon to argue "that
since the overall purpose of the statute is to achieve
x, any interpretation of the text that limits the
achieving of x must be disfavored." Scalia
& Garner, Reading Law § 24, at 168.
dissent also contends that we fail to reconcile our reading
of the text with the "familiar canon of statutory
construction that remedial legislation should be construed
broadly to effectuate its purposes." Dissenting Op. at
65 (internal quotation marks omitted) (quoting Tcherepnin
v. Knight, 389 U.S. 332, 336 (1967)). Indeed, we do not
apply this so-called canon because it is of dubious value. An
eight-member majority of the Supreme Court has ridiculed it
as "th[e] last redoubt of losing causes," Dir.,
Office of Workers' Comp. Programs, Dep't of Labor v.
Newport News Shipbuilding & Dry Dock Co., 514 U.S.
122, 135 (1995), and the Court has rejected applying it in a
number of other decisions since 1995. See, e.g.,
CTS Corp. v. Waldburger, 573 U.S. 1, 12 (2014)
("The Court of Appeals supported its interpretation of
[section] 9658 by invoking the proposition that remedial
statutes should be interpreted in a liberal manner. The Court
of Appeals was in error when it treated this as a substitute
for a conclusion grounded in the statute's text and
structure."); Norfolk S. Ry. Co. v. Sorrell,
549 U.S. 158, 171 (2007) (rejecting argument based on
remedial-purpose canon and explaining that although a
statute's remedial purpose was to benefit employees,
"this remedial purpose [does not] require us to
interpret every uncertainty in the Act in favor of
employees"); Household Credit Servs., Inc. v.
Pfennig, 541 U.S. 232, 237, 244 (2004) (reversing court
of appeals that relied on remedial-purpose canon to broadly
interpret the term "finance charge" from the Truth
in Lending Act); Inyo Cty. v. Paiute-Shoshone Indians of
the Bishop Cmty. of the Bishop Colony, 538 U.S. 701,
710-12 (2003) (rejecting argument based on the
remedial-purpose canon that the term "person"
should be construed broadly under a statute to include Native
American tribes). As the Supreme Court has recently
explained, the fundamental problem with this so-called canon
is its indeterminate coverage, as "almost every statute
might be described as remedial in the sense that all statutes
are designed to remedy some problem." CTS
Corp., 573 U.S. at 12. And the "canon" too is
of indeterminate effect because, "even if the Court
[has] identified some subset of statutes as especially
remedial, [it] has emphasized that no legislation pursues its
purposes at all costs." Id. (citation and
internal quotation marks omitted).
it is hard to imagine a more widely criticized
"canon" of interpretation. A leading treatise has
labeled it a "false" canon and has explained that
it is "an open invitation to engage in
'purposive' rather than textual interpretation, and
generally to engage in judicial improvisation." Scalia
& Garner, Reading Law § 64, at 364-66. And
jurists as varied as Antonin Scalia and Richard Posner share
the same view. See Antonin Scalia, Assorted
Canards of Contemporary Legal Analysis, 40 Case W. Res.
L. Rev. 581, 581 (1990) (calling the canon one of "the
prime examples of lego-babble"); Richard A. Posner,
Statutory Interpretation-in the Classroom and in the
Courtroom, 50 U. Chi. L. Rev. 800, 809 (1983)
(explaining that the canon is "unrealistic about
legislative objectives" because it assumes that
legislatures pursue a single remedial purpose, when in
reality a "statute [often] is a compromise between one
group of legislators that holds a simple remedial objective
but lacks a majority and another group that has reservations
about the objective"). We agree with these authorities
that we should not employ this false canon to contravene the
text of the Act.
dissent also insists that we must "construe the literal
language of the [Act]" in the light of the
"overriding national policy against discrimination that
underlies the [Act]." Dissenting Op. at 76 (quoting
First Leasing, 724 F.2d at 793). We take no issue
with the dissent's explanation of the vital role that
women have played in our nation's history, of the
discrimination they have faced in obtaining credit, and that
one of the purposes of the Act was to remedy this
discrimination. See Dissenting Op. at 51-60. But the
dissent ignores that "[n]o legislation pursues its
purposes at all costs," and that "it frustrates
rather than effectuates legislative intent simplistically to
assume that whatever furthers the statute's
primary objective must be the law." Pension Benefit
Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-47 (1990)
(quoting Rodriguez v. United States, 480 U.S. 522,
525-26 (1987)). When a statute includes limiting provisions,
those provisions "are no less a reflection of the
genuine 'purpose' of the statute than the operative
provisions, and it is not the court's function to alter
the legislative compromise." Scalia & Garner,
Reading Law at 21. Here, Congress created a right
that runs only to "applicants." And as the Seventh
Circuit explained in Moran, because the term
"applicant" unambiguously does not encompass
"guarantors," reading the statute in the way the
dissent does would frustrate the limitations that Congress
imposed on statutory standing and "opens vistas of
liability" that Congress did not envision. 476 F.3d at
dissent's final substantive argument is that Congress has
impliedly adopted the Board's definition of
"applicant" by amending the Act without changing
the statutory definition during the 30 years since Regulation
B was first promulgated. Dissenting Op. at 79-82. Although
the Supreme Court has recognized that congressional inaction
can, in limited circumstances, support an inference that
Congress has acquiesced to an agency or judicial
interpretation, it has explained that "[l]egislative
silence is a poor beacon to follow" in construing a
statute. Zuber v. Allen, 396 U.S. 168, 185 (1969).
And it has repeatedly warned that congressional silence alone
is ordinarily not enough to infer acquiescence. See Solid
Waste Agency of N. Cook Cty. v. U.S. Army Corps of
Eng'rs, 531 U.S. 159, 169 (2001) ("Although we
have recognized congressional acquiescence to administrative
interpretations of a statute in some situations, we have done
so with extreme care."); United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 137 (1985)
("[W]e are chary of attributing significance to
Congress' failure to act . . . ."); Bob Jones
Univ. v. United States, 461 U.S. 574, 600 (1983)
("Nonaction by Congress is not often a useful guide . .
dissent cites Texas Department of Housing & Community
Affairs v. Inclusive Communities Project, Inc., 135
S.Ct. 2507 (2015), in arguing that we should infer
congressional acquiescence, Dissenting Op. at 79-80, but this
reliance is misplaced. There, the Supreme Court held that
when Congress amended the Fair Housing Act in 1988, it was
aware of and adopted the unanimous view of nine circuits that
had considered the matter and concluded that the statute
authorized disparate-impact claims. See Texas Dep't
of Hous., 135 S.Ct. at 2519.
dissenting opinion contends that until 2014, the "vast
majority of courts" that had "examined" the
issue held that guarantors had standing under the Equal
Credit Opportunity Act, Dissenting Op. at 80 (quoting RL
BB, 754 F.3d at 386), but this argument is misleading.
Before 2007, several federal and state courts applied
Regulation B, but they did so without discussing whether it
was entitled to deference. See, e.g., Silverman
v. Eastrich Multiple Inv'r Fund, L.P., 51 F.3d 28,
30-31 (3d Cir. 1995) (assuming without discussion that the
Board's interpretation was valid); Fed. Deposit Ins.
Corp. v. Medmark, Inc., 897 F.Supp. 511, 514 (D. Kan.
1995) (same); see also United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33, 38 (1952) (explaining that a
decision is not precedential with respect to an issue
"not there raised in briefs or argument nor discussed in
the opinion of the Court"). To our knowledge, the first
court to "examine" whether the Board's
definition deserved deference was the Seventh Circuit in
Moran, in 2007, and it concluded that it did not.
See 476 F.3d. at 441. By the time Congress
next amended the Act in July 2010, the only other courts to
opine on the issue were a federal district court, which
agreed with Moran and ruled that guarantors lack
statutory standing, see Champion Bank v. Reg'l Dev.,
LLC, No. 4:08-cv-1807-CDP, 2009 WL 1351122, at *3 (E.D.
Mo. May 13, 2009) (reasoning that "a guarantor does not,
by definition, apply for anything"), and the Supreme
Court of Iowa, which applied Regulation B without considering
Moran or whether it was entitled to deference,
see Bank of the West v. Kline, 782 N.W.2d 453, 458
(Iowa 2010). So when Congress amended the Act in 2010, the
weight of reasoned authority was against the
Board's definition of applicant. And Congress's prior
amendments to the Act took place before any court had
considered the validity of Regulation B. This situation
obviously is nothing like the unanimous, reasoned precedent
of nine circuits in favor of an agency interpretation
featured in Texas Department of Housing. We can
hardly infer congressional acquiescence in this circumstance.
dissent advances one other objection to our analysis: that it
"opine[s] on an issue that . . . Lisa Phoenix and
Periwinkle . . . never raised on appeal." Dissenting Op.
at 35. As the dissent sees it, Lisa Phoenix has abandoned
both of her counterclaims by failing to raise them
"plainly and prominently" enough in the
obligors' initial brief. Id. at 38 (quoting
Sapuppo, 739 F.3d at 681). We disagree.
sure, the obligors' briefing could most charitably be
described as clumsy. We emphatically "do not condone the
unartful way in which [the obligors] ha[ve] stated and argued
the issues on this appeal." Fed. Sav. & Loan
Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3. (11th
Cir. 1987). Even so, reading their initial brief in the light
of the record, the other briefs in this appeal, and the
principle that "briefs should be read liberally to
ascertain the issues raised on appeal," Allstate
Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994),
we have no doubt that Lisa Phoenix has fairly presented the
argument that the district court erred when it dismissed at
least one of her counterclaims relating to the Periwinkle
loan based on her status as a guarantor.
what happened in the district court. The obligors pleaded
four counterclaims under the Equal Credit Opportunity Act
based on the Periwinkle loan: one by Charles Phoenix, one by
Legal Outsource, one by Lisa Phoenix and Periwinkle Partners
jointly, and one by Lisa Phoenix individually. Citing
Hawkins for the proposition that guarantors are not
applicants, the district court dismissed the claims by
Charles Phoenix, Legal Outsource, and Lisa Phoenix
individually on the ground that those claims rested solely on
guarantor standing. But the district court withheld judgment
on the joint claim by Lisa Phoenix and Periwinkle because
that claim-counterclaim 11-appeared to allege that both Lisa
Phoenix and Periwinkle were applicants. After further
considering the matter, the district court granted summary
judgment against counterclaim 11 on the grounds that Lisa
Phoenix lacked standing and that Periwinkle had no marital
status. The district court also mentioned "the lack of
any evidence to establish any alleged discrimination on the
basis of marital status," which was a sufficient
alternative basis for the summary judgment, although the
district court did not clearly designate it as such.
consider the briefs. In a discrete section of their initial
brief, the obligors protest the district court's
"reli[ance] . . . on the Eighth Circuit's ruling in
Hawkins" "to substantiate dismissing Lisa
Phoenix's and Periwinkle's claims" under the
Equal Credit Opportunity Act. Initial Br. of Appellants at
30. And they argue that the regulation defining the term
"applicant" to include guarantors, see 12
C.F.R. § 202.2(e), is a valid exercise of regulatory
power to implement the Act. Initial Br. of Appellants at
31-32. They conclude that the claims by "Lisa Phoenix
and Periwinkle" "fall squarely within ECOA's
protections." Id. at 32.
this argument can relate only to counterclaim 11-the joint
claim by Lisa Phoenix and Periwinkle-or counterclaim 12-Lisa
Phoenix's individual claim as a guarantor of the
Periwinkle loan. That the brief refers to both Lisa Phoenix
and Periwinkle suggests that the obligors might have
counterclaim 11 in mind, but the district court did not rely
on Hawkins to dismiss any claim by Periwinkle. But,
with respect to Lisa Phoenix, the argument responds squarely
to the primary basis on which the district court dismissed
her share of counterclaim 11 and the sole basis on which it
dismissed her counterclaim 12. In this circumstance, we
cannot agree with the dissent that "no claim is properly
before us on appeal." Dissenting Op. at 35.
the consequences if we accepted the obligors'
argument-that is, if the obligors convinced us that the
district court erred when it "relied . . . on the Eighth
Circuit's ruling in Hawkins to substantiate
dismissing Lisa Phoenix's and Periwinkle's
claims" because, contrary to Hawkins,
guarantors are applicants under the Act. Initial Br. of
Appellants at 30. In that case, they necessarily would have
convinced us that "every stated ground for the judgment
against [counterclaim 12] is incorrect," which is
exactly what we have said an appellant must do "[t]o
obtain reversal of a district court judgment."
Sapuppo, 739 F.3d at 680. They also would have
convinced us that the primary and arguably the only
"stated ground for the judgment against [counterclaim
11] is incorrect." Id. So, unless some
alternative ground for affirmance appeared from Regions'
brief or from the record, accepting the obligors'
argument would require us to reverse the dismissal of
counterclaim 12 at least and perhaps counterclaim 11 as well.
consider it telling that Regions agrees with us, at least in
part, that the obligors have raised the issue of guarantor
standing. In its brief, Regions contends that the obligors
"have waived or abandoned any issue or argument with
respect to the dismissal of [counterclaims] IX, X, and
XII." Br. of Appellee Regions Bank at 34. But Regions
does not contend that the obligors have abandoned
counterclaim 11 or the general issue of guarantor standing.
On the contrary, it reads the obligors' brief to
"contend . . . that summary judgment for Regions on
Counterclaim count XI was in error because, under the
definition of 'applicant' supplied in Regulation B
[the governing regulation], Mrs. Phoenix possessed standing
to sue in her capacity as a guarantor of the Periwinkle
loan." Id. Regions proceeds to argue on the
merits that the district court correctly granted summary
judgment against counterclaim 11 because the obligors have
produced no evidence of discrimination and because guarantors
are not applicants. See id. at 35-42.
Regions does not share the dissent's view that Lisa
Phoenix "indisputably abandoned" counterclaim 11 is
relevant in two respects. Dissenting Op. at 41. First, even
if Lisa Phoenix waived or forfeited counterclaim 11 in her
initial brief, Regions has waived or forfeited the waiver or
forfeiture by conceding in its own brief that she raised it.
And nothing Regions said at oral argument can undo that
concession. See APA Excelsior III L.P. v. Premiere
Techs., Inc., 476 F.3d 1261, 1269 (11th Cir. 2007)
("[W]e do not consider claims not raised in a
party's initial brief and made for the first time at oral
second way in which Regions' concession matters is that
the main principle that animates the abandonment rule is fair
notice. As we have explained, "an appellee is entitled
to rely on the content of an appellant's brief for the
scope of the issues appealed." Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(quoting Pignons S.A. de Mecanique v. Polaroid
Corp., 701 F.2d 1, 3 (1st Cir. 1983)); accord
Haralson, 813 F.2d at 373 n.3. That Regions thought the
obligors raised counterclaim 11 in their brief-even as it
concluded that they had abandoned other claims-suggests that
the obligors' brief gave Regions fair notice that
counterclaim 11 was an issue.
sure, an appellee's assertions about what is or is not
abandoned do not bind us. Claims of abandonment may often be
overstated; in this appeal, we are not sure we agree with
Regions that Lisa Phoenix has abandoned counterclaim 12. And
there are many reasons why appellees may fail to raise
meritorious abandonment arguments. But the point remains:
that Regions understood the obligors' brief to present a
live argument about counterclaim 11 and the general issue of
guarantor standing is surely evidence that it is reasonably
understood to do so.
also that both amicus briefs-one by the Consumer Financial
Protection Bureau and one by five bankers associations-fully
briefed the issue of Lisa Phoenix's guarantor standing
under the Act. Neither brief ever hinted at the possibility
that Lisa Phoenix abandoned her counterclaims. That all of
the amici, like Regions, consider Lisa Phoenix to have
adequately raised the issue of her statutory standing
reinforces our conclusion that Lisa Phoenix did not abandon
her argument about counterclaims 11 and 12.
dissenting colleague's contention that Lisa Phoenix has
abandoned her counterclaims turns on her reading-which we
respectfully submit is an overreading-of three sentences in
the obligors' brief, each of which seems to suggest that
the Equal Credit Opportunity Act claim on appeal is that
Regions violated the Act when it allegedly demanded that Lisa
Phoenix guarantee the Outsource loan. See Dissenting
Op. at 38-39. The obligors' statement of the issues
presents the question, "Does a wife who refuses to
collateralize loans or guaranty her husband's
unsecured business debt have Equal Credit Opportunity
Act (ECOA) standing as an 'applicant' . . . ?"
Initial Br. of Appellants at 1 (emphasis added). Then, in
their argument section, the obligors protest that excluding
guarantors from the definition of "applicant"
"gives lenders an untethered license to require spouses
to collateralize and sign for their husbands'
loans with impunity," and they contend that Lisa
Phoenix was required "to sign for and collateralize
her husband's business debts." Id.
at 30, 32 (emphases added). As the dissent sees it, these
phrases can mean only that Lisa Phoenix has replaced her
counterclaims based on the Periwinkle claim with a wholly
novel claim based on Regions' alleged demand that she
guarantee the Outsource loan, even though the obligors never
pleaded such a claim in the district court and no such claim
is concerned in the judgment on appeal, and even though it
would be nonsensical for Lisa Phoenix to assert guarantor
standing with respect to a loan she never guaranteed.
we certainly agree that the obligors' brief is no model
of clarity, we do not think that its references to the
Outsource loan nullify Lisa Phoenix's challenge to the
ground on which her counterclaims were dismissed. In the
obligors' telling of the facts, Regions demanded that
Lisa Phoenix collateralize the Outsource loan, she refused,
and Regions punished her refusal by declaring falsely that
the Periwinkle loan was in default. We read the phrases on
which the dissent leans as highlighting the crucial narrative
role of Regions' demand and Lisa Phoenix's refusal in
the obligors' version of the facts, not as obliterating
her legal theory. And we do not see how we can read them any
other way without violating the rule that "briefs should
be read liberally to ascertain the issues raised on
appeal." Swann, 27 F.3d at 1542. The
abandonment rule would swell to a scope previously unimagined
if we were to hold that an appellant abandons her legal
theory whenever she places undue emphasis on one part of her
factual narrative over another. We conclude that Lisa Phoenix
has preserved at least one of her counterclaims under the
Equal Credit Opportunity Act and that the issue of guarantor
standing is before us. And, for the reasons we have
explained, we hold that the district court correctly granted
summary judgment against those counterclaims because a
guarantor is not an "applicant" for credit under
The Amended Judgment Must Be Corrected on Remand.
amended judgment states "that Regions Bank is entitled
to recover $540, 054.24 from Defendants for the
Legal Outsource loan." As both parties agreed at oral
argument, the counts regarding the Legal Outsource loan name
only Charles Phoenix and Legal Outsource as defendants, so
the judgment erroneously states that Lisa Phoenix and
Periwinkle Partners are also liable for the Outsource loan.
We remand with instructions to correct the judgment to state
that only Charles Phoenix and Legal Outsource are liable for
the damages owed for the default of the Outsource loan.
AFFIRM the summary judgment in favor of
Regions, and we REMAND with instructions to
correct the judgment.
ROSENBAUM, Circuit Judge, concurring in part and dissenting
we opine on an issue that Appellants Lisa Phoenix and
Periwinkle Partners LLC ("Periwinkle") never raised
on appeal. Courts have noted that deciding an issue no
appellant raised is generally unwise. But the Majority
Opinion nevertheless insists that we do so. And in following
this course, it purports to constrict the Equal Credit
Opportunity Act ("ECOA") to preclude it from
accomplishing one of its primary remedial goals:
disentangling spouses' financial intertwinement when such
intertwinement is not necessary. I therefore feel it
necessary to explain the problems with the Majority
I of this dissent demonstrates that no claim is properly
before us on appeal. And Section II responds to the Majority
Opinion's incorrect conclusion that guarantors lack
standing as "applicants" under the ECOA.
different points in this litigation,
Defendants-Counterclaimants-Appellants Lisa Phoenix and
Periwinkle have arguably raised two ECOA claims possibly
relevant to this ...