                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 96-3693EM
                                  _____________

Samuel Ray Noland,                  *
                                    *
          Appellant,                *
                                    * On Appeal from the United
    v.                              * States District Court
                                    * for the Eastern District
                                    * of Missouri.
Commerce Mortgage Corporation,      *
                                    *
          Appellee.                 *
                               ___________

                             Submitted: June 13, 1997

                                  Filed: August 8, 1997
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, BEEZER* and WOLLMAN, Circuit
      Judges.
                           ___________

RICHARD S. ARNOLD, Chief Judge.

      This appeal presents the question of whether Samuel Noland’s response to
Commerce Mortgage’s motion for summary judgment was sufficient to withstand that
motion. In July of 1994, Samuel Noland applied to Commerce Mortgage for a
mortgage loan of about $41,000. Noland made his application to the bank’s “Home


      *
        The Hon. Robert R. Beezer, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
Partnership Program,” which extends favorable mortgage terms — such as smaller
down payments, lower interest rates, and reduced closing costs — to lower-income
home buyers. The bank sent Noland several requests for additional information about
certain assets, adverse credit history, and his source of funds for closing. After this and
other information about the house had been gathered, the loan amount was raised to
$43,650. The bank then determined that Noland would need about $3700 to close. It
later revised this estimate, determining that Noland would need $6100.1 At the end of
November, the bank rejected Noland’s application, giving as reasons concerns about
his credit history and his failure to demonstrate where he would obtain the closing
money.

        In July 1995, Noland filed a complaint against Commerce Mortgage, alleging
that it had rejected his application because he is black, in violation of the Fair Housing
Act, 42 U.S.C. §§ 3601-31. After some discovery, Commerce Mortgage moved for
summary judgment. Shortly thereafter the District Court2 granted Commerce
Mortgage’s pending motion to compel the production of additional documents. Noland
sent documents and answers in response to the motion to compel, and included a four-
page document that could be construed as a response to Commerce Mortgage’s
summary-judgment motion.3 That document asserted that Noland’s credit history was
respectable, and therefore could not be the reason for his application’s having been
rejected. It was not signed or verified by Noland. Commerce Mortgage then requested
that the Court rule on its motion for summary judgment. The Court shortly thereafter


      1
        The higher amount reflected the inclusion of amounts necessary to pay off other
debts the bank thought Noland should pay, which it had not counted towards its earlier
estimate of $3700.
      2
        The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern
District of Missouri.
      3
       Noland proceeded pro se in the District Court. Although we will construe his
efforts below charitably, Noland’s status does not alter either the substantive or
procedural burdens he must carry to survive summary judgment.

                                           -2-
granted the motion, holding that “as [plaintiff] has not responded to this motion and as
the motion and memo supporting it are persuasive, summary judgment is granted for
the reasons set out in the motion and memo[randum].” Appellant’s App. 8. Noland
appeals.

       Even when a defendant’s motion for summary judgment is not opposed by the
plaintiff, a district court must satisfy itself that, on the record before it, there are no
genuine issues of material fact as to at least one of the necessary elements of plaintiff’s
case. A housing-discrimination plaintiff’s prima facie case consists of evidence that the
plaintiff was a member of a protected class, that he applied for and was qualified for
a loan from the defendant, that the loan application was rejected, and that the defendant
has approved loans for applicants with similar qualifications. See Ring v. First
Interstate Mortgage, Inc., 984 F.2d 924, 926 (8th Cir. 1993). The parties agree that
Noland is black, and his application was rejected. Commerce Mortgage contends that
Noland was not qualified, and that he had not presented evidence of others who,
although similar in qualification, were not rejected. We agree with the second of these
contentions, and therefore hold that summary judgment was proper.

        Some evidence was in the record from which a jury could reasonably conclude
that Noland was qualified. Commerce Mortgage told Noland initially that he needed
to have $3700 in cash to close. A letter from Noland’s bank reported that he had this
much in his account on November 1. Commerce presented a bank statement that
suggests Noland’s balance did not reach $3700 until November 16. This discrepancy
would be for a jury to resolve, but regardless of its resolution, Noland had the amount
originally requested available on November 22, when Commerce Mortgage made the
decision to reject Noland’s application. Commerce Mortgage had raised the amount
required by the time of its decision, but we do not think it can use that change alone to
justify its rejection of Noland, since it did not inform Noland of the change until after
the rejection of the application. To permit this justification would allow lenders to
change the rules of the game at any time so as to prevent an unwanted potential

                                           -3-
borrower from ever “qualifying,” and thus from being able to make out a prima facie
case. Therefore, we conclude that the evidence created material issues of fact on this
part of Noland’s prima facie case.

       We also conclude, however, that there was no evidence in the record that non-
black applicants otherwise similar to Noland had received loans from Commerce
Mortgage. In part, this derives from Noland’s not having information about Commerce
Mortgage’s treatment of other applicants. But the blame for the absence of this
evidence lies with Noland, for his discovery request sought all documents relating to
applicants that Commerce Mortgage had approved or denied in the last five years, to
which Commerce Mortgage objected on the grounds that it was overly broad and
burdensome. Appellant’s App. 142. Noland did not seek an order to compel discovery
from the District Court, nor did he amend his request to limit its scope. Noland
therefore cannot justify his lack of evidence about Commerce Mortgage’s approval of
other similar applicants. Consequently, the District Court’s grant of summary judgment
for defendant was correct, because the record contained no evidence that tended to
establish the fourth part of Noland’s prima facie case.

      Affirmed.

      A true copy.


             Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -4-
