Cherry v. Hughes Supply Co.
Cherry v. Hughes Supply Co.
Opinion of the Court
Larry Cherry is a plumber who used to do business as A & A Mechanical. In 1990, A & A applied for and received credit from Hughes Supply Company. The credit application identified Cherry as the owner of the business.
In 1992, General Plumbing Company applied for and received credit from Hughes Supply, indicating on the application that it had previously done business as A & A Mechanical, but had changed its name. General Plumbing’s application listed the same mailing address as well as three of the same trade references that A & A had listed on its credit application. And Cherry was one of the two plumbers who provided the business’ plumbing services. But instead of identifying Cherry as the owner of General Plumbing, the application named his wife, Patsy Cherry, who is not a plumber, as the business owner.
Near the beginning of 1995, General Plumbing failed to pay its
In 1997, Larry Cherry was doing business as Lakeside Plumbing Company. Lakeside applied for and received credit from Hughes Supply. The credit application, which named Larry Cherry as the business owner, gave the same business mailing address that both A & A Mechanical and General Plumbing had used. The application also listed two of the same trade references that A & A and General Plumbing had listed on their applications.
In August 1997, Lakeside failed to pay the balance of its credit account, so Hughes Supply closed the account. In September of that year, Cherry paid the Lakeside account balance and also paid the 1995 debt of General Plumbing. Hughes Supply then reopened Lakeside’s credit account. Thereafter, Lakeside again defaulted on its account.
Hughes Supply eventually sued Larry Cherry to recover the principal amount of $23,283 owed on the Lakeside account. Cherry answered the complaint and counterclaimed that Hughes Supply had violated the federal Equal Credit Opportunity Act by discriminating against him based on his marital status. Cherry claimed that Hughes Supply had improperly required him to pay his wife’s General Plumbing debt as a condition of reopening his Lakeside account. Hughes Supply moved for summary judgment. The trial court granted summary judgment to Hughes Supply on both its claim and on Cherry’s counterclaim.
Cherry appeals from the summary judgment order. He does not challenge the grant of summary judgment to Hughes Supply on its claim for the unpaid Lakeside debt, but challenges only the grant of summary judgment to Hughes Supply on his Equal Credit Opportunity Act counterclaim. He argues that there are genuine issues of material fact as to whether Hughes Supply violated the Act by requiring him to pay his wife’s General Plumbing debt, by closing his Lakeside account, and by requiring his wife to personally guarantee the Lakeside account as a condition of reopening it. The arguments are without merit, and we therefore affirm the judgment of the trial court.
1. The Equal Credit Opportunity Act makes it unlawful for a creditor to discriminate against a credit applicant on the basis of, among other things, marital status.
In the instant case, we assume for the sake of argument that Cherry has made a prima facie showing of discrimination based on his claims that he had no ownership interest in General Plumbing, that his wife owned that business, that Hughes Supply closed his Lakeside account because of the unpaid General Plumbing debt, and that Hughes Supply required him to pay that debt before it would reopen his Lakeside credit account.
In response to Cherry’s prima facie case, Hughes Supply has offered legitimate and nondiscriminatory reasons for closing the Lakeside account and for requiring Cherry to pay the General Plumbing debt. Hughes Supply closed the Lakeside account because it was past due, and Hughes Supply further believed that Cherry was liable for the General Plumbing debt because he was in fact an owner of that business. Based on the facts that Cherry was initially in business as A & A Mechanical, that A & A then changed its name to General Plumbing, that Cherry was the plumber for both A & A and General Plumbing, that Cherry subsequently did business as Lakeside, and that all three businesses have the same mailing address and have used the same trade references, we conclude that Hughes Supply justifiably believed that Cherry was in business with his wife as General Plumbing. Whether under the name of A & A, Lakeside, or General Plumbing, Cherry sought, obtained, benefitted from, and defaulted on credit from Hughes Supply.
Cherry has come forward with no evidence that Hughes Supply’s rationale is a pretext for marital status discrimination. On the contrary, it is clear that Hughes Supply did not close the Lakeside account and require Cherry to pay the General Plumbing debt based on his marital status. The fact that Cherry is married to the person whose name is on the General Plumbing credit application is incidental. Under the same circumstances, if the name on the application
Summary judgment is appropriate when there are no genuine issues of material fact.
2. Cherry also claims that Hughes Supply discriminated against him under the Equal Credit Opportunity Act by requiring his wife to personally guarantee the Lakeside account as a condition of reopening it. But Cherry did not assert this claim in his two-count counterclaim, which alleged violations of the Act based only on (1) Hughes Supply’s failure to provide a proper statement of its reason for threatening to discontinue the Lakeside account, and (2) Hughes Supply’s requirement that he pay the General Plumbing debt. Because the present argument was not a ground asserted in the counterclaim, it provides no basis for reversing the trial court’s judgment.
Judgment affirmed.
15 USC § 1691 (a) (1).
Mercado-Garcia v. Ponce Fed. Bank, 779 FSupp. 620, 628 (III) (D. P.R. 1991), aff’d, 979 F2d 890 (1st Cir. 1992).
Id.
Id.
Id.
Hughes Supply’s credit manager contradicted Cherry’s claim, testifying that Cherry offered to pay General Plumbing’s debt.
See Haynsworth v. South Carolina Elec. &c. Co., 488 FSupp. 565, 567-570 (D. S.C. 1979) (no violation of Equal Credit Opportunity Act where utility refused to put residential account in plaintiff’s name because it held her hable for an outstanding debt in her husband’s name, even though he no longer lived in the residence). See also Haynes v. Bank of Wedowee, 634 F2d 266 (5th Cir. 1981) (no discrimination under Equal Credit Opportunity Act where bank considered bankruptcy of plaintiff’s husband in deciding to accelerate plaintiff’s loan).
OCGA § 9-11-56 (c).
See Mercado-Garcia, 979 F2d at 893.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.