                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                                       ____________                  U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                       NOVEMBER 17, 2005
                                        No. 04-16095
                                                                        THOMAS K. KAHN
                                       _____________
                                                                             CLERK

                       D.C. Docket No. 04-01938-CV-T-26-MSS

SALVADOR DIAZ-VERSON, JR.,
DVA ARENA, LLC,
a Florida limited liability company,
DVA SPORTS, LLC,

                                                              Plaintiffs-Appellants,

                                             versus

BANK OF AMERICA, N.A.,
A subsidiary of Bank of America Corporation, a foreign for profit corporation,

                                                              Defendant-Appellee.

                                      ______________

                      Appeal from the United States District Court
                           for the Middle District of Florida
                                    _____________

                                   (November 17, 2005)

Before TJOFLAT, PRYOR and ALARCON*, Circuit Judges.

       *
        Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
PER CURIAM:

       On May 14, 2004, Bank of America (the “Bank”) and Salvador Diaz-

Verson, Jr., entered into a written loan commitment (the “Commitment”) whereby

the Bank agreed to loan Diaz-Verson a sum of money which Diaz-Verson would

use to purchase a parcel of real estate.1 The Commitment provided that it would

become “null and void if . . . the Loan [was] not closed prior to June 1, 2004.”

The loan did not close prior to that date; the Bank therefore treated the

Commitment as a nullity.

       Diaz-Verson thereafter brought this action against the Bank, filing a four-

count complaint for consequential and punitive damages. Two of the counts are

before us in this appeal, Counts I and II. Count I alleges that the parties amended

the Commitment by oral agreement to extend the closing date to June 25, 2004,

that Diaz-Verson was prepared to close the loan that day and that, in refusing to

close, the Bank infringed his rights under the Equal Credit Opportunity Act

(“ECOA”), 15 U.S.C. § 1691. Count II repeats the allegations that the parties

amended the Commitment to extend the closing date to June 25 and that the Bank



       1
         The Commitment was made with DVA Sports, LLC. Because Diaz-Verson owns a
controlling interest in DVA Sports and guaranteed the loan, we treat the Commitment has having
been issued to Diaz-Verson. According to Diaz-Verson’s complaint in this case, Diaz-Verson
planned on placing an arena to be used primarily for a minor-league hockey team.

                                              2
refused to close on that day, and alleges that the Bank therefore breached the

Commitment as amended.

       The Bank moved to dismiss Counts I and II for failure to state a claim for

relief, see Fed. R. Civ. P. 12(b)(6), and the district court granted its motion. The

court’s dispositive order does not explain why Count I failed to state a claim.2 The

order stated that Count II failed to state a claim because the alleged oral agreement

to extend the closing date was unenforceable under Florida’s Banking Statute of

Frauds, FLA. STAT. § 687.0304. Diaz-Verson now appeals, contending that Counts

I and II state claims for relief.

       We affirm the district court’s judgment on Count I because Diaz-Verson’s

claim is frivolous. The ECOA prohibited the Bank from discriminating against

Diaz-Verson “on the basis of race, color, religion, national origin, sex, or marital

status or age.” 15 U.S.C. § 1691(a)(1). The closest the complaint comes to

alleging discrimination on the basis of any of these protected categories is the

allegation, in Count I, that the “Plaintiff Diaz-Verson, Jr., was born in Cuba and is

now a naturalized American citizen.” This is simply not enough to make out a

case of discrimination on account of “national origin.” We turn then to Count II.


       2
         The Bank’s memorandum in support of the motion to dismiss argued that Count I failed
to allege a prima facie case under the ECOA. We assume that the district court accepted the
Bank’s argument.

                                              3
      Florida’s Banking Statute of Frauds provides that “[a] debtor may not

maintain an action on a credit agreement unless the agreement is in writing,

expresses consideration, sets forth the relevant terms and conditions, and is signed

by the creditor and the debtor.” FLA. STAT. § 687.0304(2). The statute defines

“credit agreement” as “an agreement to lend or forbear repayment of money,

goods, or things in action, to otherwise extend credit, or to make any other

financial accommodation.” FLA. STAT. § 687.0304(1)(a). It goes on to state that

an “agreement by a creditor to take certain actions, such as entering into a new

credit agreement, forbearing from exercising remedies under prior credit

agreements, or extending installments due under prior credit agreements,” must be

in writing and otherwise satisfy the requirements under subsection (2) of the

statute. FLA. STAT. § 687.0304(3)(a).

      Count II alleges, in paragraph 26, that “[t]his is an action for damages for

breach of a loan commitment. . . .” In paragraph 28, Count II alleges that “Bank of

America breached the Commitment. . . .” The paragraphs “Common to All

Counts,” which precede Count I (and therefore Count II), allege in paragraph 8,

that the “Commitment is attached hereto as Exhibit ‘A.’” Exhibit A, as indicated

above, states that the Commitment shall become “null and void if . . . the Loan is

not closed prior to June 1, 2004.” The loan did not close prior to that date; hence,

                                          4
in paragraphs 9 and 10, the complaint alleges that the June 1 closing date “was

extended by oral agreement” to June 25, and that the Bank “agreed to that closing

date.”3 The sum of these allegations is that the Bank breached an oral agreement.

      The Florida Statute of Frauds plainly forecloses a suit based on an oral

credit agreement, such as the one at hand. In his brief, Diaz-Verson argues two

sides of the coin: (1) the Bank’s oral agreement to extend the closing date

constituted a waiver by the Bank of its right to treat the Commitment as “null and

void” if the loan did not close on or before June 1; (2) the Bank’s oral agreement

to extend the closing date operated to estop the bank from relying on the June 1

closing deadline.

      We assume for sake of argument that whereas the statute bars enforcement

of an oral agreement, such as the one the parties allegedly made, it does not bar the

application of the doctrines of waiver and estoppel. Those doctrines are based on

the proposition that the party against whom the doctrines are asserted engaged in

conduct that delayed the other party from performing in accordance with the

written agreement. See Young v. Pottinger, 340 So. 2d 518, 520-21 (Fla. 2d DCA

1976) (citing 2 A. Corbin, Corbin on Contracts, § 310 (1950)). Put in the context

of this case, the allegation would be that the Bank engaged in conduct that

      3
          The complaint does not allege when the oral agreement to extend the date was made.

                                                5
prevented Diaz-Verson from closing the loan on or before June 1. Diaz-Verson’s

problem in pursuing the waiver/estoppel argument is that the complaint does not

allege such conduct on the Bank’s part. All that it states is that the Bank—at some

undisclosed date—extended the closing date to June 25. There is no allegation,

for example, that Diaz-Verson was prepared to close on or before June 1; to the

contrary, the inference we draw from the complaint’s allegations is that Diaz-

Verson could not have closed on time. In sum, assuming that the doctrines of

waiver and estoppel could provide Diaz-Verson a basis for proceeding against the

Bank, they provide him no comfort because nothing in the complaint supports

their application.

      The judgement of the district court is, accordingly,

      AFFIRMED.




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