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Regions Bank v. Legal Outsource PA

United States Court of Appeals, Eleventh Circuit

August 28, 2019

REGIONS BANK, an Alabama state-chartered bank, Plaintiff-Counter Defendant-Appellee,
v.
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.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:14-cv-000476-PAM-MRM

          Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and MOORE, [*] District Judge.

          WILLIAM PRYOR, CIRCUIT JUDGE.

         The 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 judgment.

         I. BACKGROUND

         Beginning 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.

         In 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 Periwinkle loan.

         In 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 defaults.

         In 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.

         The 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.

         After 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 "applicants."

         The 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.

         Regions 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 . . . .

         The 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.

         II. STANDARD OF REVIEW

         We review a grant of summary judgment de novo. Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1231 (11th Cir. 2011).

         III. DISCUSSION

         This 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.

         We 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.

         A. The District Court Correctly Granted Summary Judgment Against the Equal Credit Opportunity Act Counterclaims by Lisa Phoenix.

         The 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).

         The 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).

         The 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)).

         In 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.").

         The 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 benefit himself.

         A 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.").

         To be 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 behind entirely.

         An 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.

         Applying 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.").

         As 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.

         Second, 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.

         Third, 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.

         Two of 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.

         The 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.

         The 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.

         But the 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.

         The 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.

         Yet the 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 plausible.

         The 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.

         The 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).

         Indeed, 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.

         The 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 441.

         The 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 . . . .").

         The 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.

         The 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.

         The 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.

         To be 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.

         Consider 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.

         Now 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.

         Logically, 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.

         Consider 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.

         We 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.

         That 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 argument.").

         The 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.

         To be 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.

         Consider 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.

         Our 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.

         Although 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 Act.

         B. The Amended Judgment Must Be Corrected on Remand.

         The 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.

         IV. CONCLUSION

         We 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 in part:

         Today 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 Opinion's analysis.

         Section 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.

         I.

         At different points in this litigation, Defendants-Counterclaimants-Appellants Lisa Phoenix and Periwinkle have arguably raised two ECOA claims possibly relevant to this ...


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