                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 5 2001
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    THE ESTATE OF CARMEN
    LETICIA HILGERT, d/b/a
    INTERNATIONAL TRADE
    ASSOCIATES, BY AND THROUGH
    HER HUSBAND AND                                    No. 00-3171
    COURT-APPOINTED                               (D.C. No. 99-CV-2031)
    ADMINISTRATOR, CLIVE                                 (D. Kan.)
    BERNARD HILGERT,

              Plaintiff-Appellant,

    v.

    MARK TWAIN/MERCANTILE
    BANK; ROBERT M. WILEY, Vice
    President, Mark Twain/Mercantile
    Bank; STEPHEN A. COTE, Assistant
    Vice President, Mark
    Twain/Mercantile Bank; SMALL
    BUSINESS ADMINISTRATION,

              Defendants-Appellees.


                          ORDER AND JUDGMENT            *




Before EBEL, KELLY, and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Clive Bernard Hilgert, as administrator of his wife’s estate, brought this

action alleging discrimination by defendants in rejecting his wife’s loan

application, in violation of the Equal Credit Opportunity Act (ECOA), 15 U.S.C.

§ 1691, and alleging breach of contract. The district court granted defendants’

motions for summary judgment and denied Mr. Hilgert’s motion for

reconsideration, which it analyzed under both Fed. R. Civ. P. 59(e) and 60(b).

Mr. Hilgert appeals. We review the district court’s grant of summary judgment de

novo, applying the same standards as the district court under Rule 56(c).      Wolf v.

Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). We review the court’s

denial of Mr. Hilgert’s post-judgment motion for abuse of discretion.       Phelps v.

Hamilton , 122 F.3d 1309, 1324 (10th Cir.1997) (Rule 59(e));       Woodworker’s

Supply, Inc. v. Principal Mut. Life Ins. Co.     , 170 F.3d 985, 992 (10th Cir.1999)

(Rule 60(b)).

       The district court determined that the summary judgment evidence showed

the following. Mr. Hilgert’s wife, Carmen, applied for a loan from Mark

Twain/Mercantile Bank for her start-up import-export business. Part of the loan


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was to be guaranteed by the Small Business Administration (SBA). The bank

denied her loan request because the SBA had denied her application and requests

for reconsideration. The SBA did so for a variety of reasons, including absence

of reasonable assurance the business would generate profit sufficient to repay the

loan; disproportion between loan requested and Ms. Hilgert’s investment;

insufficient collateral; no confidence in financial data due to lack of detail; and

unsupported and unreliable projections.

      The district court held that to state a claim for discrimination under the

ECOA, Mr. Hilgert first had to show that his wife qualified for the requested

loan. See Mathiesen v. Banc One Mortgage Corp.        , 173 F.3d 1242, 1246 n.4

(10th Cir. 1999). Because it concluded Mr. Hilgert had not made this preliminary

showing, the court determined defendants were entitled to summary judgment on

the ECOA claim. It also determined that there was no evidence of discrimination.

The court held that the breach of contract claim failed because it was not

premised on a written contract signed by both the debtor and creditor.    See

Kan. Stat. Ann. § 16-118(a). Finally, the court denied Mr. Hilgert’s motion for

reconsideration because he had not stated any valid bases for relief under either

Rule 59(e) or 60(b).

      We have considered Mr. Hilgert’s arguments on appeal and have reviewed

the record, and we conclude he has not shown that the district court erred in its


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rulings. We note in particular his contention that there is evidence that the bank

rejected the loan application without consideration of whether the SBA would

guarantee the loan. Even if this were true, it would not overcome Mr. Hilgert’s

failure to make the critical showing that his wife qualified for the loan. Thus, for

substantially the same reasons stated in the district court’s orders of April 19 and

June 1, 2000, we affirm the district court’s grant of summary judgment and denial

of post-judgment relief.

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.



                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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