## Facts

- Jerry W. Markham and Marcia J. Harris, engaged and later married, sought to buy a home in Washington, D.C., and signed a sales contract in December 1976.
- A real estate firm involved in the transaction referred them to a mortgage broker to obtain financing and run a credit check.
- The couple submitted a joint mortgage application through the broker; the application was offered to a savings and loan association under an arrangement by which that institution would purchase certain mortgages.
- The closing was set for February 4, 1977, and the applicants took steps in reliance on the expected settlement (ending leases, changing addresses, initiating utilities).
- On February 1, 1977, the institution’s loan committee rejected the application.
- On February 3, the applicants were told the loan had been denied because they were not married and that reconsideration would require a marriage certificate.
- On February 8, the loan committee again denied the application.
- The applicants alleged the institution refused to combine their incomes because they were unmarried, though it would have combined incomes for similarly situated married joint applicants.

## Issues

1. Whether the Equal Credit Opportunity Act (ECOA) prohibits a creditor from refusing to combine the incomes of unmarried joint mortgage applicants, or conditioning approval on marriage, where it would combine incomes for similarly situated married joint applicants.
2. Whether the mortgage broker and real estate defendants could be liable under the ECOA on this record for the denial of credit.

## Decision

- The court reversed summary judgment for the savings and loan association and remanded, holding that the ECOA and Regulation B can bar denial or conditional approval based on applicants’ unmarried status and that material fact disputes remained.
- The court affirmed summary judgment for the mortgage broker and real estate defendants because the record did not support treating them as responsible ECOA “creditors” for the challenged credit decision or as having committed independent actionable misconduct.

## Legal Principles

- The ECOA prohibits discrimination “with respect to any aspect of a credit transaction” on the basis of marital status, and Regulation B is an authoritative implementation of that prohibition.
- A creditor may not refuse to consider joint applicants’ combined income, or condition approval on proof of marriage, solely because applicants are unmarried when similarly situated married applicants would receive aggregated-income consideration.
- An entity that exercises decisional control over whether credit will be extended may qualify as a “creditor” under the ECOA even if it acts as a mortgage purchaser or investor.
- Summary judgment is improper where evidence supports an inference that credit was denied because applicants were unmarried and the governing law may treat that reason as unlawful discrimination.

## Conclusion

The court held that marital-status-based underwriting practices that deny or condition a joint mortgage on marriage—such as refusing to combine unmarried applicants’ incomes where married applicants’ incomes would be combined—may violate the ECOA and Regulation B, requiring trial-level factfinding as to the institution that made the credit decision, while affirming dismissal of claims against intermediaries who did not make that decision on this record.


Markham v. Colonial Mortg. Serv. Co., 605 F.2d 566 (D.C. Cir. 1979)