Robey-Harcourt v. BenCorp Financial Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 15 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CARLA L. ROBEY-HARCOURT,
Individually,

Plaintiff-Appellant,

v. No. 02-6259

BENCORP FINANCIAL COMPANY,
INC., an Oklahoma Corporation,
CASZEY BENNET, P.K. SMITH, and
KARLOS LESURE, Individually,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 01-CV-1028-F)

Submitted on the Briefs:

Carla L. Robey-Harcourt, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Melvin C. Hall and Gisele K. Perryman, Oklahoma City, Oklahoma, for
Defendants-Appellees.

Before EBEL, LUCERO and O’BRIEN, Circuit Judges. *

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. The case is therefore ordered submitted without
oral argument.
O’BRIEN, Circuit Judge.

Ms. Carla L. Robey-Harcourt entered a mortgage brokerage business

contract with BenCorp Financial Company Inc. (“BenCorp”). In the contract,

BenCorp agreed to “exert its best efforts to obtain a bona fide mortgage loan

commitment” and “assembl[e] information, compil[e] file, and complet[e] credit

application for borrower(s).” The contract specifically stated BenCorp could not

make loans or guarantee the acceptance of a loan. After failing to receive the

loan she desired, Ms. Robey-Harcourt filed a complaint in the Western District of

Oklahoma against BenCorp alleging, among other claims, a violation of the

federal Truth in Lending Act (“the Act” or “TILA”), 15 U.S.C. § 1601 et seq. On

November 9, 2001, the court dismissed all claims except her TILA claim and state

law claims of fraud and conspiracy to commit fraud. On July 12, 2002, the

district court granted BenCorp’s Motion for Summary Judgment because it was

not a creditor and thus could not be held accountable under the Act. The court

declined to exercise jurisdiction over the remaining state-law claims and

dismissed them without prejudice.

She appeals, asserting the district court erred in (1) granting BenCorp

-2-
summary judgment, and (2) ignoring Oklahoma’s exemption under Regulation Z, 1

12 C.F.R. § 226.29 (2002). We have jurisdiction pursuant to 28 U.S.C. § 1291

and affirm based on the district court’s well-reasoned order. See Robey-Harcourt

v. BenCorp Fin. Co., Inc., 212 F. Supp. 2d 1332 (W.D.Okla. 2002).

DISCUSSION

We review the district court’s grant of summary judgment
de novo, applying the same legal standard used by the district
court. Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165

F.3d 1321, 1326 (10th Cir. 1999), cert. denied, 528 U.S. 815 (1999) (quoting F ED .

R. C IV . P. 56(c)).

Ms. Robey-Harcourt asserts summary judgment was inappropriate because

issues of material fact exist. She points to deposition testimony of Ms. Cindy

Barrett, a deputy administrator for Oklahoma’s Department of Consumer Credit,

who stated her belief that BenCorp was not in compliance with Regulation Z. But

compliance with Regulation Z begs the question, which is whether TILA applies

to BenCorp. BenCorp is licensed as a mortgage broker and TILA applies to

Regulation Z was issued by the Board of Governors of the Federal Reserve
1

Board and is the implementation tool for TILA.

-3-
“creditors.” Thus, TILA applies to BenCorp only if it is a “creditor” as defined

under the TILA and Regulation Z definitions. 2 BenCorp is not a creditor under

these definitions, and thus TILA is inapplicable.

Ms. Robey-Harcourt next argues the district court improperly weighed

evidence in granting summary judgment. BenCorp provided affidavits and other

evidence that it does not regularly extend credit, and has not done so in the past

two years. Ms. Robey-Harcourt did not refute BenCorp’s assertions, and the

opinions expressed in Ms. Barrett’s deposition testimony are irrelevant. Since

none of Ms. Robey-Harcourt’s evidence was relevant to the determination of

whether BenCorp was a creditor, it could not be a material fact affecting the

district court’s decision.

Ms. Robey-Harcourt also claims the district court erred by relying on an

2
TILA defines a creditor as “a person who both (1) regularly extends,
whether in connection with loans, sales of property or services, or otherwise,
consumer credit which is payable by agreement in more than four installments or
for which the payment of a finance charge is or may be required, and (2) is the
person to whom the debt arising from the consumer credit transaction is initially
payable on the face of the evidence of indebtedness or, if there is no such
evidence of indebtedness, by agreement.” 15 U.S.C. § 1602(f)(2002).

Regulation Z defines a creditor as “[a] person who regularly extends
consumer credit that is subject to a finance charge or is payable by written
agreement in more than 4 installments (not including a down payment), and (B) to
whom the obligation is initially payable, either on the face of the note or contract,
or by agreement when there is no note or contract.” 12 C.F.R. §
226.2(a)(17)(i)(2002).

-4-
unpublished opinion in granting summary judgment. The district court properly

applied the statutes and regulations. The fact it mentioned, after announcing its

holding, an unpublished case with a similar holding is immaterial.

Finally, Ms. Robey-Harcourt argues Oklahoma’s exemption under

Regulation Z was applicable and the district court erred in failing to apply

Oklahoma law. 3 This argument is unavailing for three reasons. First, she did not

raise this argument below, and we will not consider a new theory on appeal, even

one “that falls under the same general category as an argument presented at trial

or . . . a theory that was discussed in a vague and ambiguous way . . .”

Bancamerica Commercial Corp. v. Mosher Steel of Kansas, Inc., 100 F.3d 792,

798-99 (10th Cir. 1996) (quotations and citation omitted). Second, she fails to

provide legal authority for her assertion that Oklahoma law, rather than federal

law, should apply in this case. Parties must support their arguments with legal

authority. Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992); United

States v. Almaraz, 306 F.3d 1031, 1041 (10th Cir. 2002), cert. denied _____ U.S.

_____, 123 S.Ct. 1372 (2003). Her perfunctory argument that failed to develop

the issue is insufficient to invoke appellate review. Murrell v. Shalala, 43 F.3d

3
A state may be accorded exemption status from a class of transactions
from certain TILA requirements if “[t]he State law is substantially similar to the
Federal law or . . . affords the consumer greater protection than the Federal law . .
.” 12 C.F.R. § 226.29(a)(1)(2002). Because Oklahoma law mirrors TILA,
Oklahoma was granted an exemption.

-5-
1388, 1389 n.2 (10th Cir. 1994). Finally, she does not explain how the Oklahoma

exemption differs in any significant way from federal law.

Accordingly, the summary judgment in favor of BenCorp is AFFIRMED.

-6-