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1.2.5 This Treatise Analyzes Several Different Statutes

This treatise analyzes a number of different credit discrimination statutes. The Equal Credit Opportunity Act (ECOA) is the primary statute discussed, in part because it has the broadest application and the most detailed standards. The Fair Housing Act (FHA) is also given extensive consideration because it includes several prohibited bases not found in the ECOA (familial and handicap status), any aggrieved party (even a tester, a neighbor, or housing organization) can bring an action, punitive damages are not limited, and the FHA more directly prohibits discrimination in residential leases and in the sale of residences. Although the FHA only applies to credit relating to a dwelling, it applies to first and second mortgages and to unsecured loans used to improve or maintain a dwelling. The FHA also provides critical remedies in predatory lending cases.

42 U.S.C. §§ 1981 and 1982, the federal Civil Rights Acts, are also analyzed but in less detail. These statutes, like the FHA, are broader in some respects than the ECOA. Under these statutes any aggrieved party (not just an applicant) may bring an action; they clearly apply to all types of leases and even to sales not involving credit; and they are not limited in the amount of punitive damages available. These advantages make these statutes important in certain situations, particularly when the Fair Housing Act does not apply. The federal Civil Rights Acts may also be useful when the two-year ECOA and FHA limitations period has run because the federal Civil Rights Acts limitations period will be either four years or based on the analogous state law limitations period, which may be greater than two years. However, relief under these Acts may be limited to claims of race or nation origin discrimination.

The Americans with Disabilities Act11 (ADA) is also briefly discussed in this treatise. Title III of the ADA,12 prohibits discrimination by places of public accommodation—which includes banks, retailers, and other service establishments—on the basis of disability.13 The ADA may be especially useful in non-housing financing cases because the ECOA does not include disability as a prohibited basis. However, the ADA’s remedies are not as comprehensive as those under the ECOA, FHA or federal Civil Rights Acts as the ADA does not provide a monetary damages remedy in its private right of action.

The treatise also briefly covers state credit discrimination laws, particularly pointing out when using such laws may be helpful. The state laws themselves are summarized in Appendix F, infra. These statutes are particularly important when the plaintiff wants to stay in state court or when the state statute contains a prohibited basis not covered by the federal laws—such as sexual orientation. State discrimination laws also sometimes provide minimum statutory damages that are not found in the federal statutes.

A final category of laws mentioned in this treatise are state UDAP statutes, that is, state statutes of general applicability prohibiting unfair and deceptive acts and practices. These statutes are treated in detail in another NCLC treatise14 and are only referred to in this treatise when they are uniquely helpful in a credit discrimination case. They may offer longer limitations periods or better remedies (multiple damages or minimum statutory damages) and they may prohibit unfair discrimination even if the discriminatory basis is not covered by the credit discrimination statutes.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) includes a provision creating a federal standard for unfair, deceptive, and abusive acts and practices. It will also be referred to as appropriate.

Actions may generally be brought under multiple theories of liability; however, there are certain exceptions. An action to recover money damages for credit discrimination may be brought under either the ECOA or a state law but recovery may not be had under both. If an action is brought under the ECOA and certain provisions of the FHA, recovery may only be had under one statute. But, in all other cases, multiple theories may be used in the same suit though equitable considerations may limit recovery.

If a practitioner is uncertain which statute to utilize, the discussion in each chapter will explain the relative merits of the various statutes. Once the relevant statutes are selected, the treatise clearly indicates which sections of each chapter are relevant to those statutes.

Footnotes

  • 11 42 U.S.C. §§ 12101–12213.

  • 12 42 U.S.C. § 12182(a).

  • 13 42 U.S.C. § 12181(7)(F).

  • 14 National Consumer Law Center, Unfair and Deceptive Acts and Practices (9th ed. 2016), updated at www.nclc.org/library.