In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1710
MARIO L. SIMS and
TIFFINY SIMS,
Plaintiffs‐Appellants,
v.
NEW PENN FINANCIAL LLC, under its assumed name doing
business as SHELLPOINT MORTGAGE SERVICING,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15‐cv‐00263‐MGG — Michael G. Gotsch, Sr., Magistrate Judge.
____________________
ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 18, 2018
____________________
Before BAUER, KANNE, and SCUDDER, Circuit Judges.
PER CURIAM. Mario and Tiffiny Sims, an African‐American
couple, purchased a house in South Bend, Indiana, that they
later discovered was subject to a mortgage that the seller had
stopped paying. Ever since, they have tried to assume that
loan to avoid a foreclosure sale. They sued the loan servicer,
Shellpoint, under the Equal Credit Opportunity Act, 15 U.S.C.
2 No. 18‐1710
§§ 1691–91f, alleging that Shellpoint discriminated against
them based on race when it prohibited them from assuming
the loan. The district judge concluded that the Simses did not
produce enough evidence of discriminatory intent and
entered summary judgment for Shellpoint. Because the
Simses’ evidence of racial discrimination is too speculative to
establish a dispute of material fact, we affirm.
I. Background
The Simses purchased a house from John Tiffany in
October 2008 for $185,000. The Simses made a down payment
($12,000) and monthly payments ($1,400) to Tiffany for about
a year. To their surprise, Bank of New York Mellon notified
them in December 2009 that it was foreclosing on the
property. (Tiffany had stopped making mortgage payments
the prior May and still owed $126,000.)
To avoid a foreclosure sale and maintain possession of the
house, the Simses then launched what became an extended
effort to assume Tiffany’s debt and mortgage. The Simses first
offered to assume the debt when they wrote to the then‐loan
servicer, Resurgent, in January 2010. Tiffany followed up
months later, writing to Resurgent that he was “willing to
work toward a resolution in which Mr. and Mrs. Sims take
over his obligation with the bank” and asking what was
needed to “move this matter forward.” (Under Tiffany’s
mortgage agreement, any purchasers of the property may
assume the loan, so long as the loan servicer receives
information to evaluate them “as if a new loan were being
made” and determines that the assumption would not impair
its security.) Over the next four years, the Simses maintain,
they tried to assume Tiffany’s mortgage, but Resurgent never
advised them of what information it needed to evaluate their
No. 18‐1710 3
application. Meanwhile, in 2012 the Simses acquired a
quitclaim deed for the property from Tiffany, and in 2013
Bank of New York Mellon foreclosed on the house, which
then was scheduled for a foreclosure sale.
Shellpoint, which began servicing the loan in March 2014,
informed the Simses nine months later of what information
they needed to provide in order to apply to assume the loan.
To give the Simses an opportunity to submit the requisite
documentation, Shellpoint agreed to postpone a foreclosure
sale.
Over the next several months, the Simses tried to apply for
the loan without success. They maintain that they thrice sent
the required financial records to Shellpoint. According to an
affidavit prepared by one of Shellpoint’s representatives,
however, the Simses never submitted an application that
Shellpoint deemed complete enough to warrant review.
Shellpoint also informed the Simses in March 2015 that they
needed to bring Tiffany’s loan current before they could
assume it. This requirement proved to be a sticking point:
without Tiffany’s written consent to discuss the status of his
loan with a third party (here, the Simses), Shellpoint refused
to disclose information about his missed payments, and the
Simses assert that they could not bring his loan current
without knowing how much it would cost them to do so.
The Simses, based on a conversation with a Shellpoint
employee, believe that Shellpoint has not permitted them to
assume Tiffany’s loan because they are African‐American.
They assert that Shellpoint frequently rebuffed their inquiries
to Shellpoint about their application’s status. Shellpoint
personnel, they insist, sometimes hung up on them or sent
their calls to voicemail and did not call back. They eventually
4 No. 18‐1710
got through to a Shellpoint employee, K’tia Cox, who the
Simses believe is African‐American and who allegedly told
them, “These people, you know how they treat us.”
After several attempts to assume the loan without success,
the Simses filed this suit. Seeking damages and an injunction
preventing a foreclosure sale of the house, they sued
Shellpoint under the Equal Credit Opportunity Act, the Fair
Housing Act, the Fair Debt Collection Practices Act, and
Indiana state law. As relevant here, they alleged that
Shellpoint discriminated against them based on race by
delaying their effort to assume Tiffany’s loan and forcing
them to make all of Tiffany’s overdue payments as a condition
of assumption—a condition that, they say, Tiffany’s mortgage
agreement does not require.
In response to Shellpoint’s motion to dismiss the
complaint, the district court dismissed many claims but
allowed the Simses to proceed on their claim under the Equal
Credit Opportunity Act. The 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 race… .”
15 U.S.C. § 1691(a)(1).
After discovery, a magistrate judge, presiding by consent,
28 U.S.C. § 636(c), entered summary judgment for the
defendant. The judge first determined that the Simses
“probably were not ‘applicants’” under the Act because they
were seeking to assume a line of credit, rather than to
“exten[d], renew[], or continu[e]” one. See 15 U.S.C.
§ 1691a(b). But even if the Act applied, the judge continued,
the Simses failed to present evidence of discrimination under
either a disparate impact or disparate treatment theory. Cox’s
statement (“These people, you know how they treat us”), the
No. 18‐1710 5
judge assessed, was ambiguous and lacked foundation, and
thus it was insufficient to show race discrimination. In the
end, the “dearth of evidence from the Simses” precluded
them from calling into question Shellpoint’s conduct or
conclusion that they did not complete the prerequisites for
assuming the loan.
II. Analysis
On appeal, the Simses argue that they presented enough
evidence to withstand summary judgment. They advance a
disparate treatment theory and assert that Cox’s
uncontroverted statement shows that Shellpoint
discriminated against them based on race by delaying the
assumption process and requiring them to bring the loan
current before assuming it.
The district court correctly entered summary judgment for
the defendants because no reasonable jury could find that
Shellpoint discriminated against the Simses based on their
race. For their suit to survive summary judgment, the Simses
needed to put forth enough evidence of discrimination to
establish a dispute of material fact. See Latimore v. Citibank Fed.
Sav. Bank, 151 F.3d 712, 715 (7th Cir. 1998). But their only
evidence is Cox’s statement, which is vague and requires too
much speculation to conclude that their race motivated
Shellpoint to require them to satisfy Tiffany’s outstanding
loan payments. See Estate of Davis v. Wells Fargo Bank, 633
F.3d 529, 540–41 (7th Cir. 2011). Rather, that requirement is
consistent with the loan agreement, which conditions
assumption on Shellpoint’s determination that its security
would not be impaired. Moreover, the Simses do not point to
evidence countering the Shellpoint representative’s statement
that they never produced a complete application.
6 No. 18‐1710
Because we conclude that the Simses failed to show
discrimination, we need not assess whether they qualify as
applicants under the Act. See Moran Foods, Inc. v. Mid‐Atl. Mkt.
Dev. Co., LLC, 476 F.3d 436, 441–42 (7th Cir. 2007).
AFFIRMED