                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 14, 2016
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 GLORIA GARRETT; JANE
 VANDEWALLE,

           Plaintiffs Counter Defendants -
           Appellants,

 v.                                                      No. 14-3240
                                             (D.C. No. 2:13-CV-02551-JAR-JPO)
 BRANSON COMMERCE PARK                                    (D. Kan.)
 COMMUNITY IMPROVEMENT
 DISTRICT,

           Defendant - Appellee,

 and

 SOUTHWEST TRUST COMPANY,
 N.A.,

           Defendant Counterclaimant -
           Appellee.



                             ORDER AND JUDGMENT *


Before GORSUCH, EBEL, and BACHARACH, Circuit Judges.




       *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      The plaintiffs seek relief under the Equal Credit Opportunity Act (ECOA).

That statute prohibits a “creditor” from “discriminat[ing] against any applicant,

with respect to any aspect of a credit transaction” on the basis of “marital status,”

among other things. 15 U.S.C. § 1691(a)(1). As parties to agreements with a

bank and community improvement district, the plaintiffs guaranteed that under

certain specified circumstances they would personally replenish a fund associated

with bonds their husbands secured in a real estate venture. Seeking both to avoid

that guarantee obligation and win damages, the plaintiffs filed this lawsuit

contending that the contracts they signed unlawfully discriminated against them

on the basis of their marital status as wives.

      Soon enough, though, the district court dismissed the complaint. It held

that the defendants didn’t qualify as “creditors” within the meaning of the statute,

that no qualifying “credit” was involved in the parties’ agreements, and that in all

events the plaintiffs’ claims were barred by the statute of limitations. Now on

appeal the defendants ask us to affirm each of these holdings or to affirm the

district court’s judgment on yet another and alternative ground, claiming that

because the plaintiffs merely guaranteed their husbands’ financial arrangements

they do not qualify as “applicants” for credit within ECOA’s purview.

      Among these many possible grounds for affirmance we believe the

narrowest is the statute of limitations. And whatever the strength of the various




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other arguments for affirmance the district court and defendants have advanced,

we are persuaded this one is sufficient to carry the day.

      To be sure, the parties disagree avidly over just how long the plaintiffs had

to sue under ECOA. The defendants note that when the plaintiffs signed their

guarantees ECOA provided a two-year limitations period. 15 U.S.C. § 1691e(f)

(2007). In reply, the plaintiffs observe that during the life of their deal with the

bank and district, Congress amended the law to permit a five-year limitations

period. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L.

No. 111-203, § 1085(7), 124 Stat. 1376, 2085 (2010).

      But the parties’ dispute over the length of the limitations period ultimately

proves immaterial, for even assuming the longer period applies the plaintiffs still

face a problem. ECOA’s limitations period generally begins running on the

“occurrence of [a] violation” of the statute, 15 U.S.C. § 1691e(f); the district

court held and the plaintiffs do not dispute that an ECOA violation “occurs” when

an unlawful agreement is signed; the plaintiffs signed their allegedly unlawful

guarantee agreement in 2007; and the plaintiffs failed to bring this suit until 2013.

By this calculation, then, it appears the plaintiffs’ claim comes too late even

under the more generous possible limitations period they advocate.

      And with that much resolved, only two wrinkles remain to confront.

      First, the plaintiffs suggest that a “renewal” of credit qualifies as a new and

independent violation of ECOA, so that even if one ECOA violation occurred

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back in 2007 when they signed the original agreements, later ECOA violations

could have occurred with the subsequent “renewal” of those agreements. By way

of support, the plaintiffs point to a Federal Reserve Board regulation suggesting

this view of the statute. 12 C.F.R. § 202.2, supp. I, ¶ 7(d)(5) cmt. 3; see also

Stern v. Espirito Santo Bank of Fla., 791 F. Supp. 865, 869 (S.D. Fla. 1992).

      But here again the plaintiffs’ legal argument fails to help them given the

facts they plead. For even assuming (without deciding) that ECOA’s limitations

period is indeed triggered anew with each “renewal,” the plaintiffs do not

plausibly allege facts showing that a “renewal” ever occurred in this case. True,

the plaintiffs do conclusorily contend that a renewal happened here. But, as

ordinarily understood, a “renewal” suggests “[t]he re-creation of a legal

relationship or the replacement of an old contract with a new contract, as opposed

to the mere extension of a previous relationship or contract.” Renewal, Black’s

Law Dictionary (10th ed. 2014). And the pleadings before us contain no well-

pleaded facts suggesting anything like this. Indeed, the parties’ contract,

referenced by both sides in connection with their submissions to the district court

and our own, nowhere indicates that it would or did expire during the relevant

period. Or that the parties would or did ever re-create their legal relationship. Or

that they would or did sign a new contract. Neither do the plaintiffs attempt to

argue for some different and special meaning of the term “renewal” in the context

of ECOA. In this light, the only plausible inference from the facts before us is,

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just as the district court held, that there was one ongoing agreement in this case

and no “renewal.”

      That leaves the plaintiffs’ final line of reply. Here they suggest that the

defendants may not assert a statute of limitations defense in response to their

request for a declaration that their agreement was void from its inception because

it violated ECOA. By way of support, the plaintiffs cite cases suggesting that at

least some courts in some states in some particular situations will not, as a matter

of state contract law, permit an otherwise valid limitations defense to defeat a

plaintiff’s claim seeking to have the parties’ contract declared void from

inception. See, e.g., Pacchiana v. Pacchiana, 94 A.D.2d 721, 721-22 (N.Y. App.

Div. 1983) (prenuptial agreement); Riverside Syndicate, Inc. v. Munroe, 882

N.E.2d 875, 878 (N.Y. 2008) (landlord-tenant agreement).

      This argument is not sufficiently developed, however, to permit an

intelligent assessment of its application in this case. The plaintiffs do not explain

how their theory might be squared with the plain language of ECOA which,

immediately after authorizing actions for declaratory relief under 15 U.S.C.

§ 1691e(c), proceeds to explain pretty unequivocally that “[a]ny action under this

section” must be brought within five years of an ECOA violation. 15 U.S.C.

§ 1691e(f) (emphasis added). Neither do the plaintiffs attempt to show that the

ECOA’s declaratory remedies include the power to declare contracts void from

inception, despite at least some authority seeming to suggest the opposite view.

                                         -5-
See, e.g., F.D.I.C. v. 32 Edwardsville, Inc., 873 F. Supp. 1474, 1480 (D. Kan.

1995) (finding that “[t]he ECOA does not provide for the invalidation of a

guaranty as a remedy for an ECOA violation”). Finally, the state contract law

cases the plaintiffs cite do not appear to come close to establishing that courts in

commercial cases like ours normally reject limitations defenses to claims seeking

to have a contract held void from inception. See, e.g., Kahn v. Kohlberg, Kravis,

Roberts & Co., 970 F.2d 1030, 1032, 1042-43 (2d Cir. 1992); Diamond v. Union

Bank & Trust, 776 F. Supp. 542, 543 (N.D. Okla. 1991) (finding the statute of

limitations barred a declaratory judgment claim that a contract was void because

of an ECOA violation).

      Maybe good responses exist to all these observations. Maybe, for example,

an argument can be made that ECOA’s statutory limitations period doesn’t apply

to some ECOA actions despite the statutory language suggesting it applies to any

ECOA action. Maybe, too, a good argument can be made that the remedial

powers ECOA affords courts include the power to void contracts or at least

portions of them. But questions like these just are not sufficiently explored by

the parties in this case to permit us to pass upon them intelligently, so we deem




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the matter waived and leave its resolution for another day. See Hardeman v. City

of Albuquerque, 377 F.3d 1106, 1122 (10th Cir. 2004).

      The motion for leave to file a sur-reply is denied and the judgment is

affirmed.



                                      ENTERED FOR THE COURT


                                      Neil M. Gorsuch
                                      Circuit Judge




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