UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

15 cv

FAIR HOUSING JUSTICE CENTER, INC.;
BARBARA TIRRELL BAUER; SUSAN
BURNS; LISA DARDEN; VANESSA
DAWSON; LAUREL DEVANEY; JOSEL YN
MARTINEZ; KAARON BRISCOE MINEFEE;
CHARNETTA PETTIE; and INDIKA
SENANA YAKE,

·.·•.l_··
·_,.::

~--~.

COMPLAINT
Civ. _ _ _ __

Plaintiffs,
v.
M&T BANK CORPORATION,
Defendant.

Plaintiffs Fair Housing Justice Center, Inc. ("FHJC"), Barbara Tirrell Bauer,
Susan Bums, Lisa Darden, Vanessa Dawson, Laurel Devaney, Joselyn Martinez, Kaaron Briscoe
Minefee, Chametta Pettie, and Indika Senanayake (collectively, "Plaintiffs"), by their attorneys
Emery Celli Brinckerhoff & Abady LLP, for their Complaint against Defendant M&T Bank
Corporation ("M&T Bank") allege as follows:

INTRODUCTION
1.

Defendant M&T Bank, one of the top 20 largest banks in the United

States, uses neighborhood racial demographics to limit the availability of one of its home
mortgages, a loan product for first-time homebuyers with advantageous terms such as a lower
down payment. The bank's loan officers in New York City hide the racial criteria from some
prospective homebuyers, use the criteria to discourage others from using the product, racially
steer prospective buyers, and offer different loan terms and conditions based on race or national
ongm.

1

 2.

During 2013 and 2014, the Fair Housing Justice Center (“FHJC”) sent

African American, Hispanic, South Asian, and white testers to M&T Bank’s New York City loan
office to inquire about obtaining a mortgage to purchase a single-family home or condominium
apartment. All the testers were women who portrayed themselves as first-time homebuyers who
were married and had no children. While most non-white testers were encouraged to consider
applying for a mortgage through M&T Bank’s Get Started Program, which is limited to homes
located in “majority minority” neighborhood (more than 50% minority population) or in low or
moderate income areas, white testers were discouraged from applying for a Get Started
mortgage. In one instance, a loan officer told a white tester “I highly doubt you’re gonna buy in
an area where you’re a min…more minority than majority.”
3.

In one test, Defendant’s loan officer advised a Hispanic tester with a

higher annual income, more cash, and a better credit score than a white tester that she would
qualify for a home price of $100,000 less than the white tester and a loan amount of $125,000
less than the white tester.
4.

In another test, Defendant’s loan officer provided the white tester with

detailed information about condominium and cooperative apartment prices she could afford,
while telling the African American tester that she was not yet ready to purchase an apartment
even though the African American tester stated that she had a higher annual income, more
savings, and a higher credit score than the white tester had stated.
5.

When suggesting neighborhoods in which the testers might consider

buying homes, one of Defendant’s loan officers, for example, encouraged an African American
tester to consider neighborhoods in Queens where the population is predominantly minority,
while encouraging the white tester to consider areas of Queens with less than a 5% African

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 American population. Defendant’s loan officer further cautioned the same white tester to avoid
an area that is “all Russian,” stating “you don’t want that.”
6.

FHJC, along with nine testers who were discriminated against by

Defendant, brings this civil rights action to halt Defendant’s racially defined Get Started
program, to reform Defendant’s mortgage lending practices to ensure that future discrimination
based on race or national origin does not occur, and to assure that Defendant’s lending practices
do not further residential segregation.
JURISDICTION AND VENUE
7.

This Court has subject matter jurisdiction over the federal claims pursuant

to 28 U.S.C. §§ 1331, 1343; 28 U.S.C. § 2201; and 42 U.S.C. § 3613. This Court has
supplemental jurisdiction over the New York City law claims pursuant to 28 U.S.C. § 1367.
8.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because

Defendant M&T Bank is incorporated in the State of New York and maintains more than five
bank branches in this District, operates an office with home mortgage loan officers in this
District located at 350 Park Avenue, New York, NY, and otherwise conducts business in this
District. In addition, venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because
the events giving rising to the claims occurred in this District.
THE PARTIES
9.

FHJC is a non-profit New York City-based civil rights organization

dedicated to ensuring that all people have equal access to housing opportunities in the New York

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 City region1 by eliminating housing discrimination and creating open, accessible, and inclusive
communities.
10.

Among other activities, FHJC (a) provides information to the public and

other nonprofit organizations in the New York City region about fair housing laws, (b) provides
intake counseling to individuals and organizations with allegations of housing discrimination, (c)
conducts testing and other investigations of allegations of housing discrimination, (d) makes
legal referrals to cooperating attorneys, (e) assists with the preparation and filing of
administrative housing discrimination complaints, and (f) provides post-referral litigation support
services. FHJC provides these services free of charge and without regard to income.
11.

FHJC also conducts testing investigations for government law

enforcement agencies, provides technical assistance to nonprofit organizations, and engages in
policy initiatives that further FHJC’s mission, including the publication and dissemination of
reports and educational materials.
12.

FHJC employs “testers,” individuals who pose as renters or homebuyers

for the purpose of obtaining information about the conduct of landlords, real estate companies,
banks, and others, to determine whether illegal housing discrimination is taking place.
13.

FHJC expended staff time and other resources to investigate and respond

to Defendant’s discriminatory lending practices. This investigation diverted resources away
from other FHJC activities.
14.

In addition, Defendant’s discriminatory lending practices have frustrated,

and continue to frustrate, FHJC’s mission to ensure that all people have equal access to housing
opportunities in the New York City region by, among other things:
1

FHJC serves all five boroughs of New York City and the New York counties of Nassau, Suffolk,
Westchester, Dutchess, Orange, Putnam, and Rockland.

4

 a.

limiting the availability of a residential mortgage loan product for first-time

homebuyers to home purchases in neighborhoods with a greater than 50% minority
population;
b.

failing to provide access to information about the terms and conditions of home

mortgage loan products in an equal manner without regard to the race and/or national
origin of prospective borrowers and/or the racial composition of neighborhoods;
c.

steering prospective home mortgage applicants to certain neighborhoods and/or

loan products based on race and/or national origin; and
d.

reinforcing residential racial segregation.
15.

Lisa Darden, Kaaron Briscoe Minefee, and Charnetta Pettie are African

American women who reside in the City of New York and during all relevant times were
employed as testers by FHJC.
16.

Joselyn Martinez is a Hispanic woman who resides in the City of New

York and during all relevant times was employed as a tester by FHJC.
17.

Indika Senanayake is a South Asian woman who resides in the City of

New York and at all relevant times was employed as a tester by FHJC.
18.

Barbara Tirrell Bauer, Susan Burns, Vanessa Dawson, and Laurel

Devaney are white women who reside in the City of New York and during all relevant times
were employed as testers by FHJC.
19.

M&T Bank is the seventeenth largest commercial bank holding companies

headquartered in the United States. M&T Bank is incorporated in the State of New York with its
principal place of business in Buffalo, New York. It operates more than 700 branches in New

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 York, Maryland, Pennsylvania, Washington, D.C., Virginia, West Virginia, New Jersey, Florida,
and Delaware.
20.

M&T Bank was originally established in 1856 as Manufacturers and

Traders Bank and operates, in part, through a subsidiary named Manufacturers and Traders Trust
Company.
21.

For home mortgages in New York City, M&T Bank has one office located

at 350 Park Avenue in Manhattan, New York with several loan officers working from that
location.
22.

Currently, M&T Bank is regulated by the Federal Reserve Board of New

York (“Federal Reserve Board”) and the New York State Banking Department (“Banking
Department”). During at least the past at least twelve years, both the Federal Reserve Board and
the Banking Department have examined M&T Bank to evaluate how it contributes to community
reinvestment in the areas where it operates. Both found that M&T Bank offered mortgages to
first-time homebuyers with advantageous terms if the home being purchased was located in an
area where the median household income is low or moderate (“LMI area”) or where the buyers
qualified as being low or moderate income. Through 2012, neither regulator found that M&T
Bank offered any home mortgage products that were dependent on the racial composition of the
neighborhood where the home being purchased was located.
FACTUAL BACKGROUND
The Get Started Program
23.

M&T Bank offers a loan product for first-time homebuyers called the Get

Started Mortgage program (“Get Started”), which according to the M&T Bank website features
advantageous terms such as a low down payment and the ability to finance closing costs. Get

6

 Started is available in select counties in eight states and the District of Columbia, according to
M&T Bank’s website. For New York City, Get Started mortgages are available in certain areas
of the five boroughs as defined by M&T Bank.
24.

M&T Bank began the Get Started program as a pilot in Buffalo, New

York and rural areas near Rochester, New York in the late 1990s. After 2000, M&T Bank
expanded the program to additional areas and by the late 2000s was issuing between 600 and
1,000 Get Started loans every two years.
25.

By at the latest 2013, M&T Bank was utilizing racial criteria for the Get

Started program and began to offer Get Started mortgages with advantageous terms in LMI areas
or areas where the minority population is more than 50% regardless of the area’s median
household income. M&T Bank placed a cap of $417,000 on the total amount of loan or
mortgage a buyer could obtain under its Get Started program and did not restrict the program to
buyers who are low or moderate income.
26.

Consequently, as of 2013, M&T Bank began to offer home mortgages

with advantageous terms based upon the racial composition of the neighborhood where the house
being purchased was located. For example, M&T Bank’s revised Get Started program is not
available for homes located in areas with a 45% or 30% minority population, unless the
neighborhood is also an LMI area. In contrast, Get Started mortgages are made available by
M&T Bank in areas with a higher than 50% minority population or a “majority minority area”
regardless of the area’s median household income.
27.

On its website, M&T Bank conceals the true nature of the Get Started

program by not revealing its racial criteria. Currently, the M&T Bank website does not mention
any racial criteria and instead states that certain restrictions apply to Get Started mortgages such

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 as “maximum income by household, 80% of median income unless property is located in a
low/moderate income census tract, then no income limit applies.”
28.

M&T Bank further obscures its Get Started program requirements by

failing to disclose to prospective first-time homebuyers the specific geographic boundaries of the
eligible home loan areas, by referring to them as majority minority or demographically changing
areas, and by refusing to state the census tracts or zip codes within the program. Instead, M&T
Bank loan officers tell prospective first-time homebuyers to contact M&T Bank once they
identify specific home addresses and then the loan officer will look up the address on a list
maintained by M&T Bank to determine whether the location of the house is in an area whose
racial composition meets M&T Bank’s criteria. Although M&T Bank loan officers possess
documentation regarding the criteria used by M&T Bank to determine eligibility for a Get
Started loan, prospective first-time homebuyers are not permitted to see the written criteria and
are not provided any written information about the geographic boundaries of the areas within the
program.
29.

In addition to the racial loan criteria established by M&T Bank for its Get

Started Program and the hidden nature of the criteria, M&T Bank loan officers steer prospective
first-time homebuyers based on the race of the buyer and/or the race of a neighborhood to or
away from the Get Started program, as described more fully below.
FHJC Testing Investigation of M&T Bank
30.

In late 2012, FHJC began a testing investigation of M&T Bank’s policies

and practices regarding home mortgage products for first-time homebuyers in New York City.
After sending an initial tester to obtain general information about M&T Bank’s programs and
loan products, FHJC designed an investigation in which female testers portraying married

8

 women who were first-time homebuyers would contact and then meet with an M&T Bank loan
officer to obtain information about loan products available to them in light of their income,
debts, savings, and credit score. All the testers met with an M&T Bank loan officer at M&T
Bank’s sole home loan office located on Park Avenue in Manhattan.
31.

FHJC assigned each tester a set of household and financial characteristics.

In each instance, FHJC assigned to the African American, Hispanic, and South Asian testers a
higher annual household income, more cash savings, less debt, and a better credit score than their
white counterparts. FHJC assigned each tester to ask the loan officer she met what price home
and amount of loan the tester could afford based on these financial characteristics.
32.

FHJC structured the testing investigation in this manner because it is not

uncommon for first time home-buyers to contact a lender just prior to or at the beginning of their
search for a home. Homebuyers obtain information from lenders in order to find out what price
range of housing they can afford and what types of loan products are available, and to learn more
about the process and costs associated with obtaining a home mortgage. Often, real estate agents
recommend that first-time homebuyers contact lenders to obtain this information before
beginning their search for a home.
33.

Prior to conducting the tests described in this Complaint, Plaintiffs

received training from FHJC about testing in general and lender testing in particular, which
included instructions on conducting tests, preparing tester report forms, and using concealed
recorders during tests.
Spring 2013
34.

Testing Summary: As described in greater detail below, during a

two-week period in the spring of 2013, FHJC sent Plaintiffs Charnetta Pettie, an African

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 American woman; Indika Senanayake, a South Asian woman; and Susan Burns, a white woman,
to M&T Bank’s Park Avenue loan office. Both Ms. Pettie and Ms. Senanayake were told about
the Get Started program and its advantageous lower down payment terms, but Ms. Burns, was
not. Only Ms. Pettie, the sole African American tester sent at the time, was told about the Get
Started program’s racial criteria. Furthermore, Ms. Pettie was encouraged to consider
purchasing a home in predominantly African American neighborhoods in Manhattan and
Queens, in contrast to Ms. Burns who was encouraged to look for homes in neighborhoods with
less than a 5% African American population. Ms. Senanayake was quoted a lower home price
and loan amount than Ms. Burns even though she had higher income, cash savings, and credit
score.
35.

On April 18, 2013, FHJC sent Plaintiff Charnetta Pettie, an African

American woman, to meet with a loan officer named Dorothy Babson. Prior to that date, Ms.
Pettie had made an appointment by telephone with Ms. Babson. FHJC instructed Ms. Pettie to
inform Ms. Babson that she was a first-time homebuyer and was interested in learning what price
home and loan amount she could afford in light of her income, debt, savings and credit score
before she began to look for a house or condominium to purchase.
36.

On April 30, 2013, FHJC sent Plaintiff Indika Senanayake, a South Asian

woman, to the same M&T Bank office to meet with the same loan officer and to make the same
inquiry as Ms. Pettie. On May 1, 2013, FHJC sent Plaintiff Susan Burns, a woman, to do the
same.
37.

FHJC assigned Ms. Pettie and Ms. Senanayake annual household incomes

of $93,000 and $119,000, respectively, while assigning Ms. Burns a lower household income of
$90,000. Similarly, FHJC assigned Ms. Pettie and Ms. Senanayake cash savings in the amount

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 of $105,000 and $129,500, respectively, compared to Ms. Burns who FHJC assigned a lower
cash savings of $100,000. Both Ms. Pettie and Ms. Senanayake were assigned a credit score of
735 while Ms. Burns was assigned a lower credit score of 725.
38.

M&T Bank’s loan officer, Dorothy Babson, a woman, told both Ms. Pettie

and Ms. Senanayake about M&T Bank’s Get Started program, but did not tell Ms. Burns about
the program. Ms. Babson told Ms. Senanayake that Defendant offered loans through its Get
Started program in LMI areas and did not inform her of the additional option of purchasing a
home in an area that is not an LMI area, but has a population that is more than 50% minority.
Ms. Babson only told Ms. Pettie, the sole African American woman of these three testers, about
the Get Started program’s racial criteria.
39.

Ms. Babson quoted a lower home price and loan amount to Ms.

Senanayake, a South Asian woman, than she did to Ms. Burns, a white woman. Specifically,
Ms. Babson told Ms. Senanayake that in light of her income and cash savings, Ms. Senanayake’s
maximum home price was $400,000 and maximum loan amount was $320,000. One day later,
Ms. Babson told Ms. Burns that her maximum home price was $450,000 and her maximum loan
amount was $405,000. The home price Ms. Babson quoted to Ms. Senanayake was $50,000 less
than the home price she quoted to Ms. Burns and the loan amount Ms. Babson quoted to Ms.
Senanayake was $85,000 less than the amount she quoted to Ms. Burns, even though Ms.
Senanayake’s income, cash savings, and credit score were higher than Ms. Burns’. In addition to
not telling Ms. Burns about the Get Started program, Ms. Babson only provided Ms. Burns
information about a conventional loan product that would require her to pay real estate mortgage
insurance, known as PMI, and did not explain to Ms. Burns that with the same amount of down

11

 payment, 10% of the purchase price, Ms. Burns would not have to pay PMI if she obtained a Get
Started loan from M&T Bank.
40.

During her meetings with Ms. Pettie and Ms. Burns, Ms. Babson

discussed possible neighborhoods in Manhattan and Queens where each might look for housing
within the maximum home price Ms. Babson calculated. With Ms. Pettie, Ms. Babson discussed
Harlem in Manhattan, and Springfield Gardens, St. Albans, and Ozone Park in Queens. With
Ms. Burns, Ms. Babson discussed Murray Hill in Manhattan and Middle Village, Maspeth, and
parts of Rego Park in Queens.
41.

The racial demographics of the neighborhoods suggested by Ms. Babson

to Ms. Pettie and Ms. Burns are radically different. For example, Ms. Babson suggested that
Ms. Pettie, an African American woman, consider purchasing a home in Harlem, which
according to the New York City Census FactFinder, is more than 80% minority and only 16%
white. In contrast, when speaking about Manhattan neighborhoods with Ms. Burns, a white
woman, Ms. Babson suggested the area of Murray Hill. According to the New York City Census
FactFinder, Murray Hill is 31% minority and 67% white. Less than 5% of the population in
Murray Hill is African American.
42.

Similarly, for Queens, Ms. Babson suggested predominantly African

American or minority neighborhoods to Ms. Pettie and predominantly white areas to Ms. Burns.
For example, Ms. Babson suggested St. Albans and Springfield Gardens to Ms. Pettie, both of
which are predominantly minority neighborhoods. St. Albans is 89% African American and 1%
white, according to the City of New York Census FactFinder. Springfield Gardens is 88%
African American and only 2% white. Ms. Babson also suggested that Ms. Pettie consider

12

 Ozone Park, a neighborhood where 56% of the population is African American, Asian, and
Hispanic, combined.
43.

In contrast, Ms. Babson suggested Middle Village and Maspeth to Ms.

Burns, both of which are majority white neighborhoods with 74% and 59% white populations,
respectively. According to the City of New York Census FactFinder, both of these areas are less
than 1% African American.
44.

While discussing Rego Park, Queens with Ms. Burns, a neighborhood that

is approximately 50% white and only 3% African American, Ms. Babson stated that Ms. Burns
should avoid purchasing a home in a certain section of Rego Park that is “all Russian….you
don’t want that.”
45.

All four of the Manhattan and Queens neighborhoods suggested by Ms.

Babson to Charnetta Pettie, an African American woman, would have qualified for a Get Started
mortgage from M&T Bank. Ms. Babson did not even tell Susan Burns, a white woman, about
the Get Started program and did not suggest any of the Manhattan or Queens neighborhoods to
Ms. Burns that she suggested to Ms. Pettie.
July and September 2013
46.

Testing Summary: As described in greater detail below, Plaintiffs Barbara

Tirrell Bauer, a white woman, and Joselyn Martinez, a Hispanic woman, met with the same
M&T Bank loan officer in July and September of 2013. Even though she had a higher income,
higher cash savings, and a better credit score than Ms. Tirrell Bauer, Ms. Martinez was quoted a
lower home price and loan amount than those quoted to Ms. Tirrell Bauer. When Ms. Tirrell
Bauer was told about the Get Started program’s racial criteria, the M&T Bank loan officer
warned her that it would require her to buy a home in an area “more than 50% minority,” which

13

 she (the loan officer) “highly doubt[ed]” Ms. Tirrell Bauer would want to do. Consistent with
this warning, the loan officer only provided Ms. Tirrell Bauer with home price and loan amount
details for a conventional loan that did not offer the advantageous terms of the Get Started
program.
47.

On July 19, 2013, FHJC sent Plaintiff Barbara Tirrell Bauer, a white

woman, to M&T Bank’s office located at 350 Park Avenue, New York, NY. Prior to that date,
Ms. Tirrell Bauer made an appointment by telephone with Dorothy Babson. FHJC instructed
Ms. Tirrell Bauer to inform Ms. Babson that she was a first-time homebuyer and was interested
in learning what price home and loan amount she could afford in light of her income, debt,
savings and credit score before she began to look for a house or condominium to purchase.
48.

On September 4, 2013, FHJC sent Plaintiff Joselyn Martinez, a Hispanic

woman, to the same M&T Bank office to meet with the same loan officer and to make the same
inquiry at Ms. Tirrell Bauer.
49.

FHJC assigned Ms. Martinez an annual household income of $104,000

and cash savings of $120,000. FHJC assigned Ms. Tirrell Bauer a lower household income of
$102,000 and lower cash savings of $115,000. Ms. Martinez was assigned a credit score of 735
and Ms. Tirrell Bauer was assigned a credit score of 725.
50.

When they met on July 19, 2013, M&T Bank’s loan officer, Dorothy

Babson told Ms. Tirrell Bauer about the Get Started mortgage program and its racial criteria, but
stated that “[I] highly doubt that you’re gonna buy in an area where you’re a min…. more
minority than majority” and then later reminded Ms. Tirrell Bauer that to use the Get Started
mortgage program she would have to buy in an LMI area or in a majority minority area “if you
get what I mean.” Following this statement, Ms. Babson no longer discussed the Get Started

14

 program with Ms. Tirrell Bauer and recommended a home price and loan amount for a
conventional loan only. The terms and conventional loan product that Ms. Babson
recommended to Ms. Tirrell Bauer included a down payment of 15% of the home purchase price,
which would obligate Ms. Tirrell Bauer to pay PMI (mortgage insurance). Ms. Babson did not
tell Ms. Tirrell Bauer that if she obtained a Get Started mortgage with a 15% down payment, she
would not have to pay PMI.
51.

Finally, Ms. Babson, told Ms. Martinez that the maximum home price Ms.

Martinez could afford to purchase was $450,000, or $100,000 less than the $550,000 amount
quoted to Ms. Tirrell Bauer. Ms. Babson told Ms. Martinez that the maximum loan she could
afford was $405,000, which was $125,000 less than the maximum quoted to Ms. Tirrell Bauer.
Ms. Babson quoted a lower home price and loan amount to Ms. Martinez even though Ms.
Martinez had a higher household income, greater cash savings, and a higher credit score than Ms.
Tirrell Bauer.
September 2013
52.

Testing Summary: As described in greater detail below, less than a month

after Plaintiff Martinez went to M&T Bank, Plaintiffs Vanessa Dawson, a white woman, and
Lisa Darden, an African American woman, met with the same loan officer. While both Plaintiffs
were told about the Get Started program’s racial criteria, Ms. Dawson was encouraged to
consider an area within Harlem where French people are moving and Ms. Darden was not.
Despite stating that she had more cash saved for a down payment and closing costs, Ms. Darden
was told that she was not yet ready to purchase a condominium or coop apartment because she
had not saved enough while Ms. Dawson was provided home price and loan amount details to
purchase immediately.

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 53.

On September 19, 2013, FHJC sent Plaintiff Vanessa Dawson, a white

woman, to M&T Bank’s office located at 350 Park Avenue, New York, NY to meet with a loan
officer. Prior to that date, Ms. Dawson made an appointment by telephone with Ms. Babson.
FHJC instructed Ms. Dawson to inform Ms. Babson that she was a first-time homebuyer and was
interested in learning what price home and loan amount she could afford in light of her income,
debt, savings, and credit score before she began to look for a house or condominium to purchase.
54.

On September 26, 2013, FHJC sent Plaintiff Lisa Darden, an African

American woman, to the same M&T Bank office to meet with the same loan officer and to make
the same inquiry as Ms. Dawson.
55.

FHJC assigned Ms. Darden an annual household income of $130,000 and

cash savings of $38,000. FHJC assigned Ms. Dawson a lower annual household income of
$124,000 and lower cash savings of $29,000. Ms. Darden was assigned a credit score of 742 and
Ms. Dawson was assigned a credit score for herself of 720 and for her husband, a credit score of
722.
56.

Ms. Babson told both Ms. Dawson and Ms. Darden about M&T Bank’s

Get Started program, including the fact that it offered mortgages in LMI areas and in areas with
more than a 50% minority population that are not LMI areas. When discussing the Get Started
program with Ms. Dawson, a white woman, Ms. Babson pointed out to Ms. Dawson that French
people are moving to a part of Harlem that Ms. Dawson might want to consider under the Get
Started program. Ms. Babson did not tell Ms. Dawson about new condominium apartments
being built in Harlem with multi-year property tax abatements. Ms. Babson was apparently
aware of this housing option and its economic benefits at the time because she discussed it with
Ms. Darden, an African American woman who told Ms. Babson that she lived in Harlem.

16

 57.

During their meeting on September 26, 2013, Ms. Babson told Ms.

Darden, an African American woman, that it was premature for her to buy an apartment and that
Ms. Darden should save more or obtain a gift before purchasing an apartment. Ms. Babson
calculated a maximum home price and loan amount for Ms. Darden if in the future she doubled
her cash savings.
58.

In contrast, the week before, Ms. Babson told Ms. Dawson, a white

woman with a lower annual income, lower cash savings, and lower credit score than Ms. Darden,
that she could afford to buy a condominium apartment with a maximum price of $210,000 or a
cooperative apartment with a maximum price of $350,000.
59.

Ms. Babson did not provide Ms. Darden with any home price or loan

amount that Ms. Darden could afford as of September 2013 even though that is what Ms. Darden
asked Ms. Babson to provide.
60.

Additionally, during their respective meetings, Ms. Babson encouraged

Ms. Darden, an African American woman, to consider a Federal Housing Administration insured
home loan, referred to as an FHA loan, with a 3.5% down payment. Ms. Babson told Ms.
Dawson, a white woman, that Ms. Dawson should not consider an FHA loan at all because the
closing costs and fees were so high.
April 2014
61.

Testing Summary: As described in greater detail below, Plaintiffs Laurel

Devaney, a white woman, and Kaaron Briscoe Minefee, an African American woman, went to
M&T Bank’s Park Avenue loan office within one week of each other in April 2014 and met with
the same loan officer. While both testers were told about the Get Started program, the loan
officer cautioned Ms. Devaney that the program involved buying a home in LMI areas or areas

17

 with changing demographics. Consistent with her cautionary note to Ms. Devaney, the M&T
Bank loan officer told her that the only mortgage she could obtain was a conventional loan.
62.

On April 14, 2014, FHJC sent Plaintiff Laurel Devaney, a white woman,

to M&T Bank’s office located at 350 Park Avenue, New York, NY to meet with a loan officer.
Prior to that date, Ms. Devaney had made an appointment by telephone with Annie Krasner, one
of Defendant’s white loan officers. FHJC instructed Ms. Devaney to inform Ms. Krasner that
she was a first-time homebuyer and was interested in learning what price home and loan amount
she could afford in light of her income, debt, savings, and credit before she began to look for a
house or condominium to purchase.
63.

Approximately a week later, on April 22, 2014, FHJC sent Plaintiff

Kaaron Briscoe Minefee, an African American woman, to the same M&T Bank office to meet
with the same loan officer and to make the same inquiry as Ms. Devaney.
64.

FHJC assigned Ms. Briscoe Minefee an annual household income of

$158,000 and cash savings of $99,500. FHJC assigned Ms. Devaney a lower annual household
income of $152,000 and lower cash savings of $97,000. Ms. Briscoe Minefee was assigned a
credit score of 735 for herself and for her husband, compared to Ms. Devaney who was assigned
a credit score of 725 for herself and 730 for her husband.
65.

M&T Bank’s loan officer, Annie Krasner, initially told both Ms. Devaney

and Ms. Briscoe Minefee about M&T Bank’s Get Started Program for first-time homebuyers.
Ms. Krasner did not reveal the program’s racial criteria to Ms. Briscoe Minefee, claiming that the
program was limited to LMI areas. In contrast, Ms. Krasner cautioned Ms. Devaney, a white
woman, that the program included both LMI areas and areas where “the demographics are
changing.” Ms. Krasner told Ms. Devaney that “parts of Harlem” and “other areas are deemed to

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 be in this area” by the bank. Ms. Krasner went on to tell Ms. Devaney that Park Slope was
already too “trendy” and “valuable” for the Get Started program to work. Finally, Ms. Krasner
said to Ms. Devaney, “what I’m summing this up to is the only loan you can get is a regular”
conventional M&T Bank loan (emphasis added). Consistent with this statement, Ms. Krasner
then provided Ms. Devaney with a house price and loan amount for a conventional loan with a
20% down payment and did not provide a house price or loan amount for a Get Started
mortgage.
66.

When meeting with Ms. Briscoe Minefee, an African American woman,

Ms. Krasner not only encouraged her to consider a Get Started mortgage, but provided specific
maximum home prices and loan amounts for conventional and a Get Started mortgages stating
that both loan products were best for Ms. Briscoe Minefee. When Ms. Briscoe Minefee asked
Ms. Krasner if she had any brochures or printed information about the Get Started program
requirements, Ms. Krasner told Ms. Briscoe Minefee that she could not share the “guidelines”
with her.
INJURY TO PLAINTIFFS
67.

As a result of the illegal and discriminatory actions described above,

Defendant has directly and substantially injured Plaintiff FHJC by fostering residential racial
segregation that frustrates its mission to create open and inclusive communities.
68.

FHJC also has been injured by diverting its scarce resources toward

identifying and counteracting Defendant’s unlawful policies and practices. Those resources
could have been used to provide services, and conduct educational activities, research, and policy
advocacy instead of countering Defendant’s discriminatory policies and practices.

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 69.

Defendant’s discriminatory policies and practices perpetuate residential

segregation based on race and national origin in New York City and other areas where it
provides Get Started mortgages to first time homebuyers.
70.

FHJC, through its tester employees, was provided inaccurate, different or

no information by Defendant about the terms and conditions for home mortgage loan products
offered by Defendant for first-time homebuyers based on race or national origin in violation of
fair housing laws.
71.

Until these violations are remedied, Defendant’s illegal and discriminatory

actions will continue to injure FHJC.
72.

By reason of the foregoing, the individual Plaintiffs have each suffered a

loss of civil rights and other damages, including emotional distress, humiliation, and
embarrassment.
FIRST CAUSE OF ACTION
Fair Housing Act – § 3605(a)
73.

Plaintiffs repeat and reallege the foregoing paragraphs of their Complaint

as though fully set forth herein.
74.

The home mortgages offered by Defendant, including those through its

Get Started program, are “residential real estate-related transactions” as defined by Section
3605(b)(1) of the Fair Housing Act, 42 U.S.C. § 3605(b)(1).
75.

Defendant’s conduct, as described above, constitutes discrimination in

making available residential real estate-related transactions and in the terms and conditions of
such transactions on the basis of race or national origin in violation of the Fair Housing Act, 42
U.S.C. § 3605(a). Section 3605(a) includes “failing or refusing to provide to any person . . .
information regarding the availability of loans or other financial assistance, application
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 requirements, . . . or providing information which is inaccurate or different from that provided
others” because of race or national origin. 28 C.F.R. Part 100.120(b).
76.

Defendant’s conduct, as described above, was intentional, willful, and

made in disregard for the rights of others.
77.

Plaintiffs are “aggrieved persons” as defined by the Fair Housing Act

because they have been injured by Defendant’s discriminatory housing practices. 42 U.S.C.
§ 3602(i).
78.

Pursuant to 42 U.S.C. § 3613(c), Plaintiffs are entitled to actual damages,

punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.
SECOND CAUSE OF ACTION
Fair Housing Act – § 3604(a)
79.

Plaintiffs repeat and reallege the foregoing paragraphs of their Complaint

as though fully set forth herein.
80.

Defendant’s conduct, as described above, constitutes otherwise making a

dwelling unavailable because race or national origin in violation of the Fair Housing Act, 42
U.S.C. § 3604(a).
81.

Defendant’s conduct as described above was intentional, willful, and made

in disregard for the rights of others.
82.

Plaintiffs are “aggrieved persons” as defined by the Fair Housing Act

because they have been injured by Defendant’s discriminatory housing practices. 42 U.S.C.
§ 3602(i).
83.

Pursuant to 42 U.S.C. § 3613(c), Plaintiffs are entitled to actual damages,

punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.

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 THIRD CAUSE OF ACTION
Fair Housing Act – § 3604(c)
84.

Plaintiffs repeat and reallege the foregoing paragraphs of their Complaint

as though fully set forth herein.
85.

Defendant’s conduct, as described above, constitutes the making of a

statement with respect to the sale of a dwelling that indicates a preference, limitation, or
discrimination based on race or national origin or the intent to make such preference, limitation
or discrimination in violation of the Fair Housing Act, 42 U.S.C. § 3604(c).
86.

Defendant’s conduct as described above was intentional, willful, and made

in disregard for the rights of others.
87.

Plaintiffs are “aggrieved persons” as defined by the Fair Housing Act

because they have been injured by Defendant’s discriminatory housing practices. 42 U.S.C.
§ 3602(i).
88.

Pursuant to 42 U.S.C. § 3613(c), Plaintiffs are entitled to actual damages,

punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.
FOURTH CAUSE OF ACTION
New York State Human Rights Law – § 296–a(1)
89.

Plaintiffs repeat and reallege the foregoing paragraphs of their Complaint

as though fully set forth herein.
90.

The home mortgages offered by Defendant, including those through its

Get Started program, are “credit” as defined by Section 292(20) of the New York State Human
Rights Law.

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 91.

Defendant M&T Bank is a “creditor” as that term is defined by Section

292(22) of the New York State Human Rights Law.
92.

Defendant’s conduct as described above constitutes an unlawful

discriminatory practice to discriminate in the granting, withholding, extending or renewing or in
the fixing of the rates, terms or conditions of any form of credit on the basis of race or national
origin in violation of Section 296-a(b) of the New York State Human Rights Law.
93.

Defendant’s conduct as described above was intentional, willful, and

made in disregard for the rights of others.
94.

Plaintiffs have suffered damages as a result of Defendants’ conduct

described above.
95.

Pursuant to § 297(9) and (10) of the New York State Human Rights Law,

Plaintiffs are entitled to actual damages, punitive damages, injunctive relief, and reasonable
attorneys’ fees and costs.
FIFTH CAUSE OF ACTION
New York City Human Rights Law – § 8-107(5)(d)(1)
96.

Plaintiffs repeat and reallege the foregoing paragraphs of their Complaint

as though fully set forth herein.
97.

Defendant M&T Bank is a “bank” as defined by Section 8-107(5)(d) of

the New York City Human Rights Law.
98.

Defendants’ conduct as described above constitutes discrimination

because of race or national origin in the withholding or extending or fixing of rates, terms or
conditions of any financial assistance for the purchase of any housing accommodation in
violation of Section 8-107(5)(d)(1) of the New York City Human Rights Law.

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 99.

Defendant’s conduct as described above was intentional, willful, and made

in disregard for the rights of others. Plaintiffs have suffered damages as a result of Defendant’s
conduct described above.
100.

Pursuant to § 8-502(a) and (f) of the New York City Human Rights Law,

Plaintiffs are entitled to actual damages, punitive damages, injunctive relief, and reasonable
attorneys’ fees and costs.
101.

Plaintiffs have caused a copy of this Complaint to be served upon the New

York City Commission on Human Rights and the New York City Corporation Counsel, pursuant
to § 8-502(c) of the New York City Human Rights Law.
SIXTH CAUSE OF ACTION
New York City Human Rights Law – § 8-107(5)(d)(2)
102.

Plaintiffs repeat and reallege the foregoing paragraphs of their Complaint

as though fully set forth herein.
103.

Defendant M&T Bank is a “bank” as defined by Section 8-107(5)(d) of

the New York City Human Rights Law.
104.

Defendants’ conduct as described above constitutes the use of a form of

application for a loan, mortgage, or other form of financial assistance, or the making of any
record or inquiry in connection with applications for such financial assistance which expresses,
directly or indirectly, any limitation, specification or discrimination as to race or national origin
in violation of Section 8-107(5)(d)(2) of the New York City Human Rights Law.
105.

Defendant’s conduct as described above was intentional, willful, and made

in disregard for the rights of others.
106.

Plaintiffs have suffered damages as a result of Defendant’s conduct

described above.
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 107.

Pursuant to § 8-502(a) and (f) of the New York City Human Rights Law,

Plaintiffs are entitled to actual damages, punitive damages, injunctive relief, and reasonable
attorneys’ fees and costs.
108.

Plaintiffs have caused a copy of this Complaint to be served upon the New

York City Commission on Human Rights and the New York City Corporation Counsel, pursuant
to § 8-502(c) of the New York City Human Rights Law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request judgment against Defendant as
follows:
(a)

Declaring that Defendants’ discriminatory practices violate the Fair Housing Act,
the New York State Human Rights Law, and the New York City Human Rights
Law;

(b)

Enjoining Defendant; its employees, agents and successors in interest; and all
other persons in active concert or participation with it from:
(i)

discriminating in making available residential real estate-related
transactions and in the terms and conditions of such transactions on the
basis of the race or national origin of prospective borrowers, applicants, or
the residents of the area in which a dwelling is located;

(ii)

failing or refusing to provide information regarding the availability of
loans or other financial assistance and application requirements because of
the race or national origin of prospective borrowers, applicants, or the
residents of the area in which a dwelling is located;

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 (iii)

providing information regarding residential real estate-related transactions
which is inaccurate or different from that provided others because of the
race or national origin of prospective borrowers, applicants, or the
residents of the area in which a dwelling is located;

(iv)

making any statement with respect to the sale of a dwelling that indicates a
preference, limitation, or discrimination based on race or national origin of
the prospective borrower, applicant, or the residents of the area in which a
dwelling is located, or the intent to make such preference, limitation or
discrimination;

(v)

discriminating in the granting, withholding, extending or renewing or in
the fixing of the rates, terms or conditions of any form of residential realestate related transaction, loan, or financial assistance to purchase a
housing accommodation;

(vi)

using any form of application for a loan, mortgage, or other form of
financial assistance, or to make any record or inquiry in connection with
applications for such financial assistance which expresses, directly or
indirectly, any limitation, specification or discrimination as to race or
national origin;

(vii)

coercing, intimidating, threatening, or interfering with any person in the
exercise or enjoyment of any right granted or protected by the Fair
Housing Act; and

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 (viii)

aiding, abetting, inciting, compelling, or coercing the doing of any of the
acts forbidden by the New York State Human Rights Law and the New
York City Human Rights Law;

(c)

Enjoining Defendant; its employees, agents, and successors in interest; and all
other persons in active concert or participation with it to:
(i)

make all necessary modifications to the terms and conditions of the
residential real-estate related loans or other financial assistance it offers to
first-time homebuyers, including the Get Started program, to comply with
fair lending laws;

(ii)

train all employees involved in the making of residential real-estate related
loans or other financial assistance on fair lending laws;

(iii)

implement criteria, loan products, conditions, and/or incentives for
mortgages for first time homebuyers that counteract the harm caused by
Defendant’s past discriminatory policies and practices;

(iv)

allow monitoring of its residential lending process;

(vi)

revise its written fair lending policy to be distributed to all employees, and
agents; and

(vii)

establish a system for testing employees and agents for unlawful
discriminatory practices;

(d)

Awarding such damages to Plaintiff FHJC as will fully compensate for the
diversion of resources and frustration of mission caused by Defendant’s unlawful
discriminatory practices;

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 (e)

Awarding such damages to the individual Plaintiffs as will fully compensate for
any loss of civil rights, as well as for the humiliation, embarrassment, and
emotional distress suffered due to unlawful Defendant's discriminatory conduct;

(f)

Awarding punitive damages to Plaintiffs;

(g)

Awarding Plaintiffs reasonable attorneys' fees, costs, and expenses incurred in
prosecuting this action; and

(h)

Granting Plaintiffs such other further relief as may be just and proper.

Dated: February 3, 2015
New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP

By:

-~
------,--_c/
_,----'~
--­
Diane L. Houk
R. Orion Danjuma
600 Fifth Avenue, 1oth Floor
New York, New York 10020
Telephone: (212) 763-5000
Facsimile: (212) 763-5001

Attorneys for Plaintiffs

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