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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Still v. Cunningham (07/09/2004) sp-5825

Still v. Cunningham (07/09/2004) sp-5825

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


VERN T. STILL and WANDA STILL,          )
                                    )    Supreme  Court  Nos.  S-
               Appellants and      )
               Cross-Appellees,         )
                                   )    Superior Court No.
     v.                            )    4FA-00-1298 CI
LLOYD CUNNINGHAM, as Assignee      )    O P I N I O N
of Northrim Bank,                       )
               Appellee and        )    [No. 5825 - July 9, 2004]
               Cross-Appellant.         )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mary E. Greene, Judge.

          Appearances:   Thomas V.  Van  Flein,  Clapp,
          Peterson  &  Stowers,  LLC,  Anchorage,   for
          Appellants  and Cross-Appellees.  Gregory  L.
          Youngmun, John D. Harjehausen, Delisio  Moran
          Geraghty   &  Zobel,  P.C.,  Anchorage,   for
          Appellee and Cross-Appellant.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.


           Vern Still was held liable on a personal guaranty, but

his  wife  Wanda was exonerated on the grounds that  the  obligee

violated  the Stills' civil rights by requiring Wanda to  sign  a

guaranty.   She  was awarded partial rather than full  attorney's

fees for her successful defense.

           These  appeals present four main contentions.   First,

Vern  contends  that  the guaranty did  not  cover  the  debt  in

question.   Second, Lloyd Cunningham, assignee  of  the  obligee,

contends  that  Wanda  should  not  have  been  exonerated   from

liability.   Third,  Vern  contends  that  he  should  have  been

exonerated  from  liability because his civil  rights  were  also

violated.  Fourth, Wanda contends that she was entitled  to  full

rather than partial attorney's fees.  We conclude that the  first

three contentions lack merit, but that the fourth is correct.


     A.   Facts

          Premier Homes is an Alaska corporation, founded by Vern

Still,  Lute  Cunningham, and Hank Bartos,  to  import  and  sell

modular  homes  in  the North Pole area.  As  of  1996,  Bartos's

shares  were  in the process of being reacquired and  there  were

four  stockholders:  Vern Still owned twenty-five percent of  the

shares,  his  son Mark also owned twenty-five percent,  and  Lute

Cunningham  and  his  wife Marilyn together owned  the  remaining

fifty percent of the shares.  Lute was the president.

           On  June  5, 1996, Vern and Wanda signed separate  but

identical guaranties, guarantying the payment of all present  and

future  indebtedness of Premier Homes to Northrim Bank.  Although

the  guaranties referred to a specific loan in a  shaded  area  -

Loan  103  - they expressly covered all of Premier's present  and

future  indebtedness to Northrim.  Language  directly  below  the

shaded area stated that "[r]eferences in the shaded area are  for

Lender's  use  only  and do not limit the applicability  of  this

document  to  any  particular  loan  or  item."   The  guaranties

contained a clause authorizing the lender, either before or after

revocation,  to  extend the time for payment of  an  indebtedness

without reducing the guarantor's liability.1

           In  1996  Northrim made ten separate loans to Premier,

each financing separate modular units.  All but one had been sold

as  of  March  12, 1997.  On that date Premier borrowed  $203,022

from Northrim in a transaction referred to as Loan 200.  The note

for  Loan 200 was signed by Lute as president.  The Northrim loan

authorization  for Loan 200 lists as guarantors  the  Cunninghams

and  the  Stills.2  Specific collateral for Loan 200  included  a

deed of trust covering a modular housing unit owned by Premier, a

deed  of  trust covering real property owned by Lute and Marilyn,

and a real estate contract payable to the Cunninghams under which

$125,000  was receivable.  The purposes of the loan were  (1)  to

provide  season start-up costs for Premier; (2) to  pay  off  the

$132,000 balance on an earlier loan from Key Bank; and (3) to pay

original   shareholder  Frank  Bartos  a  sum  to  complete   the

reacquisition of his shares.

           On March 20, 1997, eight days after Loan 200 was made,

Northrim  issued  a  line  of credit to  Premier  not  to  exceed

$750,000.   The  proceeds were to be used for  the  purchase  and

transportation of modular units.  Each loan was to be secured  by

a  first deed of trust on a modular unit placed on a lot  and  by

the  guaranties of all of the stockholders in Premier.   In  1997

some  twelve units were financed by Northrim under this  line  of

credit.   All  of  them  were  placed in  Stillmeyer  Estates,  a

subdivision  owned by Vern.  Five of the units were purchased  by

Lute  and  Marilyn as rentals or for resale.  It is not clear  if

these  purchases  were  made from Premier or  directly  from  the


           On  October 1, 1997, Vern wrote Northrim, revoking the

guaranty.   The  letter  stated:  "I am  writing  concerning  the

guarantee  I  have signed for Premier Homes of North  Pole,  Inc.

Effective immediately, I am revoking my guarantee.  I will not be

responsible for any new loans made through the company, unless  I

personally appear to sign any documents."

           Although  Northrim  had financed approximately  twenty

units  as  of Vern's October 1, 1997 revocation, apparently  only

Loan  200  ultimately proved troublesome. On March 24, 1998,  the

note  was  extended to May 25, 1998.  On June 26, 1998, the  note

was   extended   to  October  20,  1998.   This   extension   was

accomplished by a document entitled "Change in Terms  Agreement,"

which was signed by Lute as president and Vern as vice-president.

Meanwhile, on May 5, June 11, and August 19, 1998, Vern  executed

new  guaranties identical in terms to the June 5,  1996  guaranty

that  he had revoked, except for references in the shaded  areas.

A third extension extended repayment to June 30, 1999.

           On  January  18, 2000, Northrim notified Premier,  the

Cunninghams,  and  the  Stills that  Loan  200  was  in  default.

Eventually the note was purchased by Lute's brother Lloyd.  Lloyd

paid  the balance of the loan, $90,039.26, and took an assignment

of Northrim's rights as to collateral and the guaranties.

     B.   Proceedings

           Lloyd,  as  Northrim's assignee, brought  this  action

against  the  Stills under the guaranties of  June  5,  1996,  to

collect the outstanding balance of Loan 200.  Lloyd also  made  a

claim  against  Vern under the guaranties that Vern  executed  in

1998.    Vern  and  Wanda  answered,  denying  liability.    They

interposed  a third-party complaint against Lute and Marilyn  for

fraudulently diverting funds from Premier for their own uses, and

for breach of their fiduciary duties as officers and shareholders

of  Premier.   The Stills also counterclaimed against  Lloyd  for

civil  conspiracy "to set up a sham proceeding in order  to  bilk

Vern  and Wanda Still."  Lloyd's complaint was alleged to be  "in

furtherance of this conspiracy."  In an amended answer Vern  pled

another  counterclaim against Lloyd, alleging that Vern had  done

construction work for Lloyd and had not been fully paid.

           After  some discovery was conducted, Lloyd  moved  for

summary  judgment against the Stills based on the  June  5,  1996

guaranties  and against Vern based on the three guaranties  given

in 1998.  Vern and Wanda opposed the motion on two grounds.  They

claimed,  first, that the guaranties did not cover Loan 200,  and

second,  that Northrim violated federal and state law by refusing

to  extend  credit  to Vern, who was independently  creditworthy,

without  first  requiring  Wanda's  guaranty.   The  Stills  also

contended  that  the three extensions of Loan  200  voided  their

obligation  as  guarantors.   In reply,  Lloyd  argued  that  the

guaranties  explicitly  covered all the  indebtedness,  including

extensions  or  modifications of the  indebtedness.   Lloyd  also

contended  that Northrim had a legitimate basis for requesting  a

guaranty   from  Wanda.   The  Stills  cross-moved  for   summary

judgment,  claiming that Northrim had discriminated against  them

based on their marital status.

           The superior court first considered Lloyd's motion for

summary  judgment.  The court ruled from the bench that the  1996

guaranties  were continuous in nature and that their  terms  were

not  ambiguous.3     So the language is sufficient to take it out

of that . . . kind of case where there's a voiding by the fact of

extensions.   The court declined to find that extrinsic  evidence

of  conversations  between  Vern and Gary  Roderick  of  Northrim

changed the meaning of the guaranties.  The court concluded  that

Vern's  revocation was not effective as to Loan 200  because  the

revocation  was made after the loan.  The court also  ruled  that

the extensions did not void the guaranties because the guaranties

provided that extensions would not terminate them.  But the court

reserved decision on the Stills' civil rights claims.

           Subsequently, the superior court ruled on the  Stills'

cross-motion  for  summary judgment.  The  court  held  that  the

Stills' state and federal discrimination claims were time barred,

but that discrimination could be raised as an affirmative defense

to  the  enforcement of the guaranties or as a  counterclaim  for

recoupment.  The court ruled that Wanda's guaranty was void,  but

that Vern's guaranty was enforceable.

           The  parties  settled the Stills'  third-party  claims

against Lute and Marilyn. These were dismissed with prejudice  in

April  2001.   A year later the court ruled that Vern  could  not

assert  a  claim  against  Lloyd as a  constructive  co-guarantor

standing  in  the  shoes  of his brother  Lute.   The  case  then

proceeded  to  a  bench trial on Vern's counterclaim  for  unpaid

construction  work against Lloyd.  The court found  in  favor  of

Lloyd  and dismissed the counterclaim.  The court entered a final

judgment  in  favor of Lloyd against Vern for the full  principal

amount paid by Lloyd to Northrim for the note plus interest.4

           Both  Lloyd and Wanda moved for attorney's fees.   The

court  awarded  Lloyd  reasonable  actual  attorney's  fees,   as

provided  in the guaranty, of $28,912.50.  Wanda argued that  she

was  also  entitled  to an award of reasonable actual  attorney's

fees as a prevailing civil rights litigant.  The court determined

that  Wanda was not entitled to actual fees as a prevailing civil

rights claimant, and awarded her partial attorney's fees pursuant

to Civil Rule 82.  Vern and Wanda appeal and Lloyd cross-appeals.


A.             Standard of Review

           This  court  reviews an order of summary  judgment  de

novo.5   Summary judgment is only appropriate where there  is  no

dispute as to material facts, and the moving party is entitled to

judgment  as  a  matter  of law.6  "Once  the  moving  party  has

established  a prima facie case, the non-movant is  required,  in

order  to  prevent the entry of summary judgment,  to  set  forth

specific  facts showing that he could produce admissible evidence

reasonably   tending  to  dispute  or  contradict  the   movant's

evidence,  and  thus demonstrate that a material  issue  of  fact

exists."7   On  appeal from the grant of summary  judgment,  this

court  will  construe factual evidence in favor of  the  opposing


          B.    Did  the  Trial Court Err in Ruling  that  Vern's
          Guaranty Applied to Loan 200?
           Vern's first argument is that the superior court erred

when  it  decided that his June 1996 guaranty was  applicable  to

Loan  200.   He claims that the court should have considered  the

evidence  of the parties' intent and practice rather than  ruling

that there must be an ambiguity before extrinsic evidence can  be

considered:  "the trial court refused to consider the substantial

extrinsic  evidence showing the parties' intent, at the  time  of

the June 5, 1996 guaranty, that the guaranty  was applicable only

to  Loan  No. 103 and not Loan No. 200."  He contends  that  "the

Court  should have ruled that the guaranty was not applicable  to

Loan 200, or that at the very least the guaranty, when viewed  in

context  with the extrinsic evidence, was reasonably  susceptible

to both asserted meanings, requiring a jury trial."

          Vern also argues that if this court determines that the

guaranty  was  continuing in nature, "a  genuine  issue  of  fact

exists regarding unilateral mistake and fraud."  He contends that

Roderick  of  Northrim told him that his June  5,  1996  guaranty

would  only apply to the particular loan identified in the shaded

area  of the guaranty and contends that he would not have  signed

any  of  the  guaranties  if  he had been  told  that  they  were

continuing in nature.

           In opposition to the motion for summary judgment, Vern

filed  an affidavit.  The allegations critical to his claim  that

extrinsic evidence affected the meaning of the guaranties and his

claims  of  mistake and misrepresentation are  contained  in  the

following paragraph of the affidavit:

                Based  on my conversation with Gary  at
          the  bank, I was led to understand that  some
          loans needed a guaranty and others didn't, in
          fact,  most  didn't, because they were  fully
          secured  by  the modular units.   Gary  never
          told  me  that the bank thought if  I  signed
          just one guaranty I was promising my personal
          money for every loan the bank would issue  to
          Premier  Homes,  no  matter  how  large   the
          amount, no matter what the interest rate was,
          and no matter whether I approved a particular
          loan.   I  would not have agreed to  that  if
          they did tell me that.  When the time came to
          guarantee some loans, Gary would call me down
          and  I would sign - except for Loan No.  200,
          which  I did not consent to.  If you look  at
          the  second page of the guaranties, you  will
          see   the  loan  number  that  the  guarantee
          applies to.  This is how Gary explained it to
          me.   Each guaranty was for a particular loan
          and  that was my understanding based  on  the
          bank's practice with me.
                     1.    The  terms of the guaranty  cannot  be
               altered by the extrinsic evidence offered by Vern.
            Under  the  terms  of  the  parol  evidence  rule  an

integrated  written contract cannot be varied or contradicted  by

prior negotiations or agreements.  We explained the operation  of

this  rule  in  Alaska  Diversified Contractors,  Inc.  v.  Lower

Kuskokwim School District as follows:

                The  parol evidence rule is a  rule  of
          substantive   law   which   holds   that   an
          integrated written contract may not be varied
          or  contradicted  by  prior  negotiations  or
          agreements.   Before the parol evidence  rule
          can    be    applied,    three    preliminary
          determinations must be made:  (1) whether the
          contract is integrated, (2) what the contract
          means,  and  (3) whether the prior  agreement
          conflicts   with  the  integrated  agreement.
          Alaska   Northern  Dev.,  Inc.   v.   Alyeska
          Pipeline  Serv.  Co.,  666  P.2d  33,   37_40
          (Alaska  1983), cert. denied, 464 U.S.  1041,
          104  S.  Ct.  706,  79  L.Ed.2d  170  (1984).
          Extrinsic evidence may always be received  on
          the  question  of meaning.  Alyeska  Pipeline
          Serv. Co. v. O'Kelley, 645 P.2d 767, 771 n. 1
          (Alaska  1982).   Once  the  meaning  of  the
          written contract is determined, however,  the
          parol evidence rule precludes the enforcement
          of  prior  inconsistent  agreements.   Alaska
          Northern, 666 P.2d at 37.
               . . . .
                This  is  not  to say  that  the  parol
          evidence rule is easy to apply.  There is  an
          obvious   tension  between  using   extrinsic
          evidence of a prior agreement for the purpose
          of  determining the meaning of an  integrated
          contract,  and  barring the use  of  a  prior
          agreement  to  change an integrated  contract
          once its meaning is determined.  The evidence
          which  is consulted to determine meaning  may
          be the same evidence which is later excluded,
          or rendered irrelevant, by the parol evidence
          rule.   However,  this apparent  conflict  is
          made  manageable  in most  cases  by  various
          practical   rules.    For   example,    while
          extrinsic  evidence should  be  consulted  in
          determining   the  meaning   of   a   written
          contract,  nonetheless "after the transaction
          has been shown in all its length and breadth,
          the  words of an integrated agreement  remain
          the  most  important evidence of  intention."
          Restatement   (Second)  of   Contracts    212
          comment    b.     Further,    questions    of
          interpretation  of  the  meaning  of  written
          documents are treated as questions of law for
          the court except where they are dependent for
          their  resolution  on  conflicting  extrinsic
          evidence.   O'Kelley, 645 P.2d at 771  n.  2;
          Restatement   (Second)  of  Contracts    212,
          comments  d, e.  The question of the  meaning
          of  a written contract, including a review of
          the  extrinsic evidence to determine  whether
          any of the extrinsic evidence is conflicting,
          is  a  preliminary question  for  the  court.
          Where there is conflicting extrinsic evidence
          the   court,  rather  than  the  jury,   must
          nonetheless  decide the question  of  meaning
          except  where the written language,  read  in
          context,  is reasonably susceptible  to  both
          asserted meanings.  Alaska Northern, 666 P.2d
          at 39.[9]
           In  the present case there is no question but that the

guaranty  was  integrated.   Further, although  Vern's  affidavit

concerning his conversations with Gary Roderick can be  consulted

on  the  question of the meaning of the guaranty, ultimately  the

language  of  the  guaranty is such that  it  is  not  reasonably

susceptible to the meaning advocated by Vern.  It clearly was not

limited  to  a  particular loan, rather  it  was  continuous  and

applied  to  all indebtedness incurred by Premier before  it  was

revoked.  The superior court correctly decided that the extrinsic

evidence  referred  to  by  Vern was ineffective  to  change  the

meaning of the guaranty.

                       2.      Were   issues   of   mistake   and
               misrepresentation  raised as defenses  to  summary
           Vern  argues  that  Gary Roderick told  him  that  the

guaranty  would only apply to the particular loan  identified  in

the  shaded area of the guaranty.  He now claims that this was  a

misrepresentation rendering the guaranty void and  that  it  gave

rise  to  a  material mistake on his part that also rendered  the

guaranty  void.   A guaranty is voidable if it is  induced  by  a

fraudulent   or  material  misrepresentation  by  the  obligee.10

Similarly, a contract may be voidable because of a mistake of one

party  as to a basic assumption when the mistake is known to  the

other  party  or is due to the fault of the other party.11   Here

Vern's  mistake and misrepresentation claims are  both  based  on

Roderick's  alleged misrepresentation.  The parol  evidence  rule

does  not  apply when the remedy of rescission or reformation  is

sought as a result of misrepresentation, or mistake.12  Thus these

defenses are not precluded by the parol evidence rule.

           But  there are two questions that must be resolved  in

connection  with  these  defenses.  First,  is  Vern's  affidavit

sufficiently   specific  to  support  a   claim   that   Roderick

misrepresented the nature of the guaranty?  Second, assuming that

the   affidavit   is  sufficiently  specific  to   show   factual

misrepresentation,  did  Vern  nonetheless  fail  to  raise,  and

preserve  for  purposes  of appeal, the defenses  of  mistake  or

misrepresentation?  We turn to a discussion of these points.

               a.   Is the affidavit sufficiently specific?

           In  reviewing grants of summary judgment, we view  the

evidence submitted in opposition to a summary judgment motion  in

the   light  most  favorable  to  the  opponent,  "resolving  all

reasonable  implications that can be drawn from such evidence  in

favor  of  the  opponent."13   But  we  are  also  justified   in

disregarding  parties' statements made during  litigation  as  to

their  subjective  impressions  or  intent  at  the  time  of   a

transaction "unless the party in some way expressed or manifested

his understanding at the time of contract formation."14

          Vern's affidavit, quoted supra page 9, contains several

statements   that   are  properly  considered   as   nonprobative

expressions  of  his  subjective  impressions  and  intent.   His

statement  that he was "led to understand" that only  some  loans

needed a guaranty and his statement that he would not have agreed

to  a  continuing  guaranty, fall in this  category.   Also,  his

reference  to  the  guaranties subsequent to  the  June  5,  1996

guaranty  are of doubtful probative effect as to what took  place

at  the  signing  of the first guaranty, because  the  subsequent

guaranties  were signed after he had revoked the first  guaranty.

But the statement in the penultimate sentence - "this is how Gary

explained it to me" - may be an averment of a communication  made

during  the  1996 transaction.  It can be interpreted as  saying,

when  considered  most favorably to Vern, that Roderick  actually

told  Vern  that  the guaranty only applied to  the  loan  number

listed  on the guaranty.  As so construed, the affidavit makes  a

specific  claim that Roderick misrepresented the  nature  of  the


                              b.   Did Vern raise the defenses of
                    mistake  and misrepresentation in  opposition
                    to the motion for summary judgment?
           Even  though  Vern's  affidavit could  have  supported

defenses  that the 1996 guaranty should be rescinded or  reformed

based  on  mistake or misrepresentation, these defenses were  not

asserted  in  Vern's memorandum in opposition to the  motion  for

summary judgment.  Instead, he relied on his civil rights defense

and  on his claim that the guaranties "do not cover the one  loan

that  was  in  default  -  Loan  No.  200."   His  memorandum  in

opposition   to  the  motion  for  summary  judgment  extensively

develops, for some thirty-seven pages, what appears to be all  of

his  defenses to the motion.  Yet at no point does it claim  that

the  guaranty  is  unenforceable because of misrepresentation  or

mistake.   Indeed, "misrepresentation" or "mistake" are not  even

mentioned in the memorandum.

           Issues  that are not raised in the superior court  are

waived   and  cannot  be  asserted  on  appeal  as  grounds   for

overturning a judgment.15  Here Vern's affidavit was relevant to a

defense to the motion for summary judgment that was raised -  the

coverage  of  the guaranty - and to two that were  not  raised  -

mistake and misrepresentation.  The fact that the affidavit could

have supported defenses that were not raised is not, in our view,

sufficient to raise them.

           Alaska Civil Rule 56(c) sets out the obligations of  a

party  opposing  a  motion for summary judgment.   It  states  in

relevant part:

          The adverse party in accordance with Rule  77
          may  serve  opposing  affidavits,  a  concise
          "statement  of genuine issues" setting  forth
          all   material  facts  as  to  which  it   is
          contended   there  exists  a  genuine   issue
          necessary  to  be litigated,  and  any  other
          memorandum in opposition to the motion.
Vern  did  not  file  a document entitled "Statement  of  Genuine

Issues," but his memorandum stated his defenses in detail.  Civil

Rule 77, referred to in Civil Rule 56(c), requires an opponent to

a  motion  to  file "a brief, complete written statement  of  the

reasons  in  opposition  to the motion, which  shall  include  an

answering  brief  of  points  and  authorities."16   An  opposing

memorandum  thus  must  include all of a party's  defenses  to  a

motion.   Neither  the  trial court nor  the  movants  should  be

required to guess whether factual evidence might support defenses

that  are not identified or relied on.  Here, since Vern did  not

assert  as  reasons  in  opposition to  the  motion  for  summary

judgment  the  defenses  of  mistake or misrepresentation,  these

defenses are waived and cannot be asserted on appeal.

          C.     Neither   the  Revocation  Nor  the   Extensions
          Discharged Vern's Liability.
           Vern argues that his revocation in October 1997 of the

June  1996  guaranty discharged him from liability for Loan  200.

This  claim  is  without merit for Loan 200 was made  some  eight

months  before the revocation.  The guaranty states that it  will

"continue  to  bind  Guarantor for all Indebtedness  incurred  by

Borrower  or  committed by Lender prior to receipt of Guarantor's

written  notice of revocation, including any extensions, renewals

or   modifications  of  the  Indebtedness."   Even  without  such

language,  it  is  established  that  "upon  termination   of   a

continuing guaranty, the continuing guarantor remains a secondary

obligor  with  respect  to obligations of the  principal  obligor

incurred prior to termination."17

           Vern also argues that the three extensions without his

written consent, as guarantor,18 voided any obligation that he had

under  the  guaranty.  This argument is also without merit.   The

guaranty explicitly included extensions.19  A guarantor's consent

to future extensions expressed in a guaranty is binding.20

          D.    Did the Court Err in Failing To Prorate the  Debt
          to All Co-Guarantors?
           Citing  the  general  rule  that  co-sureties  between

themselves  should  share  the  cost  of  performance  of   their

obligations  according to their respective  contributive  shares,

Vern  claims that Lloyd should be able to recover from  him  only

twenty-five  percent of the amount Lloyd paid in satisfaction  of

Loan  200.   His theory is that Lloyd was the agent of  Lute  and

that if Lute had paid off the entire obligation he would only  be

entitled to a contribution of twenty-five percent from Vern.

           The primary difficulty with this argument is that Vern

did not establish that Lloyd was acting as an agent for Lute when

he   acquired  the  note.   As  the  trial  court  ruled,  "Lloyd

Cunningham  stands in the shoes of Northrim, the principal,"  and

the  applicable rule is that "the principal's entitled to recover

the entire amount of the guaranty from [Vern].  After [Vern] paid

that,  he  would have a right of contribution from co-guarantors.

That's  his  suit.  That's not this suit."  Thus while  Vern  may

have  claims  against  Lute and Marilyn  for  their  contributive

shares,21 he did not establish a factual basis for asserting such

claims against Lloyd.

     E.   Civil Rights Claims

                    1.   The opinion of the superior court

           The  superior  court granted the Stills' civil-rights-

based  motion  for  summary  judgment.   It  held  that  Northrim

violated the Stills' rights by requiring Wanda to sign a guaranty

without  a  legitimate justification.  The court  voided  Wanda's

guaranty  because  of  this violation,  but  not  Vern's.   These

decisions are challenged in the current appeal and cross-appeal.

           In  the  process  of  ruling on  the  Stills'  summary

judgment motion the court wrote a thorough opinion.  We  set  out

portions  of it here in order to establish the legal context  for

the claims presented:

          A.   Did   Northrim   violate  state   and/or
               federal law when it required Mrs.  Still
               to  sign a guaranty for the loan to  her
               spouse's business?
     1.   State law claim

      The  Stills  argue that requiring Wanda Still to  sign  the
guaranty  before  approving the loan  to  her  spouse's  business
violated Alaska civil rights laws, specifically AS 18.80.200,  AS
18.80.210,  and  AS 18.80.250.  Discrimination on  the  basis  of
marital  status  violates  public policy  in  Alaska.   Under  AS
18.80.210, the opportunity to obtain credit and financing without
discrimination based on marital status is a civil right.   It  is
unlawful under AS 18.80.250 for a financial institution extending
credit to permit one of its employees (a) to discriminate against
a  loan  applicant because of marital status in  a  condition  to
obtaining  credit, except to the extent allowed  by  federal  law
applicable to the same type of transaction, or (b) to  refuse  to
extend  credit  to  a  married loan applicant  who  is  otherwise
creditworthy.   The  Alaska  Supreme  Court  has  held  that   AS
18.80.250  creates  a  private  right  of  action  allowing   the
aggrieved party to sue for damages for violation of the  statute.
Alaska's civil rights statutes have been given a high priority in
the  past and have been construed broadly to further the goal  of
eradicating discrimination.  In general, contract provisions that
violate  state  law  are unenforceable.  Thus,  if  Mrs.  Still's
guaranty  violated Alaska civil rights law, it normally would  be

     AS 18.80.250, unlike other provisions in AS 18.80, expressly
excludes any practice permitted by federal law:

                    (a)(1) . . . , except  to
                    the  extent of a  federal
                    statute   or   regulation
                    applicable      to      a
                    transaction of  the  same
                    (b)   Notwithstanding the
                    provisions of (a) of this
                    section,   any   practice
                    permitted   by    federal
                    statute   or   regulation
                    applicable  to  financial
                    or credit transactions of
                    the  same  character   as
                    those  covered  by   this
                    section     does      not
                    constitute discrimination
                    under this section.
The  federal  Equal Credit Opportunity Act (15  U.S.C.   1601  et
seq.)  and  Regulation B (12 C.F.R. Pt. 202) apply to all  credit
transactions  without regard to the nature or type of  credit  or
creditor.   Therefore,  federal law must  be  analyzed  first  to
determine whether Northrim's requirement of Mrs. Still's guaranty
was permitted by federal law.

                    2.    Did  federal  law  permit  Northrim  to
                    require Mrs. Still to sign a guaranty  before
                    approving a loan to her spouse's business?
      The  Stills  argue that Northrim violated the Equal  Credit
Opportunity  Act  (ECOA),  15 U.S.C.A.   1691(a)(1)  and  federal
regulations.  Regulation B states:

                    a   creditor  shall   not
                    require the signature  of
                    an   applicant's   spouse
                    .   .  .  on  any  credit
                    instrument     if     the
                    applicant qualifies under
                    the  creditor's standards
                    of  creditworthiness  for
                    the  amount and terms  of
                    the credit requested.
Federal regulations concerning the signature of a spouse or other
person   for  extensions  of  credit  are  found  at  12   C.F.R.
202.7(d).   The regulations are intended to assure that qualified
applicants  are  able to obtain credit in their  own  names.   In
general,  the creditor may not require the signature of a  spouse
or other person unless the creditor relies upon the future income
of  the  spouse or jointly owned property or the creditworthiness
of  the  spouse  or other person.  The creditor may  require  the
spouse's signature if the applicant requests unsecured credit and
the  guaranty relies upon property owned jointly with the  spouse
to satisfy the creditor's standards of creditworthiness.  But the
creditor  may  require  the signature  only  on  the  instruments
reasonably  believed to be necessary to enable  the  creditor  to
access  the property in the event of the death or default of  the
applicant,  and  provided that the creditor  does  not  routinely
require  non-applicant joint owners to sign  an  instrument  that
would  result  in  forfeiture  of the  non-applicant's  interest.
Moreover,  the  spouse's signature, which was sought  because  of
property  owned  jointly,  cannot  be  used  to  impose  personal
liability on the spouse for the entire debt.

     When an applicant applies for individual credit but does not
qualify  alone, the creditor may require a cosigner or  guarantor
but  cannot require that the cosigner or guarantor be the spouse.
Specifically  with  respect to spousal guarantees,  the  official
interpretation  of 12 C.F.R.  202.7(d) states  that  "although  a
creditor  may require all officers of a closely held  corporation
to  personally guarantee a corporate loan, the creditor  may  not
automatically require that spouses of married officers also  sign
the guarantee."

      One  federal district court rejected a creditor's  argument
that  the  bank's requirement of guaranties showed that the  bank
did  not consider the debtor to be creditworthy.  The court noted
that the record contained no evidence that the debtor-spouse  was
not individually creditworthy in the bank's eyes.  Similarly,  in
this  case, the record contains no evidence that Vern  Still  was
not independently creditworthy.

(Citation footnotes omitted.)

                     2.    The  court did not err in refusing  to

               invalidate Vern's guaranty.

           Vern  argues that since the trial court held that  his

right  to  obtain credit individually was violated when  Northrim

required  Wanda  to  act  as a guarantor the  court  should  have

invalidated his guaranty along with Wanda's.  He argues that as a

general proposition contracts made in violation of law should  be

considered void and that this remedy is appropriate in this  case

in  order  to  vindicate  the  violation  of  his  civil  rights.

Although  he  cites general authority holding that a  contractual

provision may be invalidated if it is illegal or in violation  of

public  policy,  he  cites no authority that  has  invalidated  a

guaranty that was permissibly required under equal rights lending


           A  number of cases decided under Regulation B of  ECOA

have  held that while a guaranty that was impermissibly  required

should  be voided, it is not appropriate to void a guaranty  that

was  permissibly required in the same transaction.   In  general,

the  reasons for this result are that the civil rights  violation

caused  the  impermissibly required guaranty to be  signed.   But

even  if  the lender had complied with the civil rights law,  the

permissibly  required guaranty still would  have  been  executed.

Even  though  the  permissibly bound  guarantor  must  honor  his

guaranty,   he   may  rely  on  statutory  damage  remedies   for

vindication, assuming the statute of limitations has not run, and

assuming that he has suffered damages.

           A  leading  case expressing this reasoning is  Integra

Bank/Pittsburgh v. Freeman.22  There the court stated:

          I  conclude,  therefore, that while  an  ECOA
          violation  should  not  void  the  underlying
          credit   transaction  an  offending  creditor
          should  not be permitted to look for  payment
          to  parties  who, but for the ECOA violation,
          would not have incurred personal liability on
          the  underlying  debt in the first  instance.
          This  rule  places  a creditor  in  no  worse
          position  than if it had adhered to  the  law
          when  the  credit  transaction  occurred.   A
          creditor   may  not  claim  to  have   relied
          factually upon a guarantor's assets if it has
          never   requested   nor  received   financial
          information   regarding  them.   Further,   a
          creditor  may not claim legal reliance  on  a
          signature that was illegally required in  the
          first instance.
                With  regard to other credit applicants
          involved  in  a tainted credit transaction  -
          the  primary  credit seeker  and  permissibly
          required sureties or guarantors for example -
          I conclude that the purpose of the ECOA would
          not be furthered by permitting them to assert
          an  alleged  ECOA violation as a  defense  to
          liability  on  the  underlying  debt.   These
          parties'  liability for the  underlying  debt
          exists   independent  of  the  alleged   ECOA
          violation.  Congress did not enact  the  ECOA
          to permit permissibly bound debtors to escape
          contractual  liability when  called  upon  to
          perform.    To  allow  an  ECOA  defense   to
          liability  in  such circumstances  would  not
          advance  Congress'  stated  intent  to  allow
          creditworthy applicants to enter into  credit
          transactions without regard to their  marital
               In stating that permissibly bound debtor
          parties  may not assert an ECOA violation  to
          escape  liability on the underlying  debt  it
          does  not  follow that these  parties  cannot
          suffer  an injury cognizable under the  ECOA.
          A cognizable injury to such a party may occur
          if   -   as  an  objectively  qualified  loan
          applicant  or  guarantor  -  the   party   is
          nonetheless impermissibly required to  secure
          a   spouse's   or  other  party's   signature
          pursuant  to  a loan transaction.   The  ECOA
          affords these parties an affirmative cause of
          action   for  their  actual  "actual  damages
          sustained" under 15 U.S.C.  1691e(a).[23]
Other  cases  employing similar reasoning  include  Silverman  v.

Eastrich Multiple Investor Fund24 and FDIC v. Medmark, Inc.25

          We agree with these authorities both as interpretations

of  ECOA  and  as analogous authority concerning  how  state  law

should be applied.  If Northrim Bank had fully complied with ECOA

and  its state law counterparts, Vern would still be liable under

the  1996  guaranty.  Ordering the forfeiture  of  a  permissibly

required  guaranty that was obtained along with an  impermissibly

required   one   does  not  seem  necessary  to   deter   lending

institutions from illegal conduct.  The array of other  potential

sanctions, including compensatory damages,26 punitive damages  in

egregious cases,27 injunctive relief,28 criminal sanctions,29 and

the  voiding  of the impermissibly required guaranty  along  with

actual   attorney's  fees  to  the  party  whose   guaranty   was

impermissibly required,30 all serve to deter forbidden conduct.

          F.    Did  the  Trial  Court Err  by  Granting  Summary
          Judgment in Favor of Wanda?
           On  cross-appeal Lloyd argues that the superior  court

should  not have granted summary judgment in favor of Wanda.   He

argues  that  Wanda had the burden of establishing that  Premier,

rather  than  Vern,  was  independently  creditworthy.   He  also

contends that there was no evidence that Northrim required  Wanda

to  sign  a  guaranty for the impermissible reason that  she  was

Vern's spouse and that there were questions of fact as to whether

the  bank  required her guaranty because it was relying on  joint

property owned by the Stills or on Wanda's annual wages  of  some


           Lloyd's  first point - that the relevant  inquiry  was

whether   Premier  Homes  rather  than  Vern  was   independently

creditworthy - is without merit.  The applicable regulation is 12

C.F.R.  202.7(d) (2004).  It provides:

          Signature of spouse or other person -
                 (1)   Rule  for  qualified  applicant.
          Except  as  provided  in  this  paragraph,  a
          creditor  shall not require the signature  of
          an  applicant's spouse or other person, other
          than   a   joint  applicant,  on  any  credit
          instrument  if the applicant qualifies  under
          the  creditor's standards of creditworthiness
          for  the  amount  and  terms  of  the  credit
Under  the  regulations, both Premier and Vern were applicants.31

But  since  Wanda  is  the  spouse  of  Vern,  not  Premier,  the

"applicant" whose standard of creditworthiness is at issue in the

present context is Vern.

           Concerning  Lloyd's  argument  that  Wanda  failed  to

produce evidence that Northrim discriminated against her based on

marital  status, the actual legal question that must be addressed

need  not  be  stated  in  those  broad  terms.   The  applicable

regulation  is  12 C.F.R.  202.7(d)(1), set forth  above.   Under

this regulation, requiring the signature of an applicant's spouse

is  prohibited  if the applicant qualifies under  the  creditor's

standards  of  creditworthiness for the amount and terms  of  the

credit requested.  As to this question the evidence presented  by

the  Stills showed that Vern was independently creditworthy, that

his  creditworthiness did not depend on jointly  owned  property,

and  that  Northrim  did not require Wanda  to  sign  a  guaranty

because of her income.

          The superior court discussed these points as follows:

                Vern Still states in his affidavit that
          he  was  creditworthy without his wife.   Mr.
          Cunningham  contends that  this  is  a  self-
          serving statement made during litigation that
          does  not raise an issue of fact.  The bank's
          documents, however, note that Mr.  Still  was
          the owner of StillMeyer Corp., which owned  a
          large   subdivision,  and  the  Valley  Water
          Company.  A 1998 report discusses Mr. Still's
          financial  condition and makes no mention  of
          Mrs.  Still.  Because the Stills filed  joint
          tax   returns,   Mr.   Still's   tax   return
          necessarily included income information about
          his wife.  But, the joint tax return does not
          show  whether or not Northrim relied on  Mrs.
          Still's   income.   Moreover,  Mr.   Roderick
          stated  in  his deposition that Mrs.  Still's
          signature  was  of little importance  to  the
          loan  transaction,  thus seemingly  admitting
          that  Premier Homes would have been  able  to
          obtain  the  line  of  credit  without   Mrs.
          Still's guaranty.
                Lloyd Cunningham argues that the Stills
          have failed to show that there are no factual
          issues   regarding  whether  Mr.  Still   was
          creditworthy  on his own.  A March  5,  1997,
          internal   report  states  that  "[f]inancial
          strength and depth of Premier Homes lay  with
          Vern  and  Wanda  Still"  and  "[t]heir  2/97
          statement shows a Net Worth of $4.9 million."
          The same report, however, attributes this net
          worth  to  the Valley Water Company  and  the
          real  estate  holdings of StillMeyer.   Wanda
          Still had no interest in either company.  The
          W-2  form  indicates that the reported  wages
          for  the  Stills were solely those  of  Wanda
          Still,  who  was  employed  by  Valley  Water
          Company.  Mr. Cunningham argues that Northrim
          may  have  been  justified in obtaining  Mrs.
          Still's signature on a guaranty, because  the
          presence of information about her in the loan
          file shows that the bank might have used  the
          joint  finances  of  Vern  and  Wanda  Still,
          particularly  her  salary,  in  the  decision
          about  Premier  Homes'  loan.   There  is  no
          evidence  to  support this speculation.   The
          loan  was  to be paid primarily in one  large
          balloon  payment approximately a  year  after
          the  date on the note.  Even the gross amount
          of  Mrs. Still's salary was only about 1/4 of
          the   total  principal  owed  when  the  note
          matured.   No juror could reasonably  believe
          that the relatively small amount of cash that
          might  be available from Mrs. Still's  salary
          was  important to Northrim's decision on loan
          No.  200 to Premier Homes.  The Stills'  $4.9
          million net worth (all or most of which  came
          from  Mr.  Still's companies)  noted  in  the
          bank's  report  was many times  greater  than
          Mrs.  Still's salary.  Nothing in  Northrim's
          loan  files has been brought to this  court's
          attention  from which an inference  could  be
          made  that  Vern  Still was not  sufficiently
          creditworthy  individually to  guarantee  the
          loans  to Premier Homes along with the  other
          shareholders  and officers  of  the  company.
          Mr. Roderick stated in his deposition that he
          believed Wanda Still was of no importance  to
          the credit transaction.
(Citation footnotes omitted.)  We agree with the court's analysis

and  with  its  conclusion  that "Vern  Still  was  independently

creditworthy  without Wanda Still's salary  or  her  interest  in

jointly   owned   property.   No  jury  could   reasonably   find


          G.    Should  Wanda  Have Been Awarded Attorney's  Fees
          under a Reasonable Actual Fee Standard?
           The superior court ruled that Wanda was the prevailing

party  and awarded her attorney's fees of $1,992.15.  This  award

was  made under Civil Rule 82(b)(2), which provides for a partial

award  of  attorney's fees of twenty percent  of  reasonable  and

actual  fees to a prevailing party who does not recover  a  money

judgment  in a case that is resolved short of trial.   The  trial

court  found  that Wanda's reasonable actual fees were  $9,960.75

and awarded her twenty percent of this sum.

          Section 1691e(d) of ECOA provides for the recovery of a

reasonable  attorney's fee "in the case of any successful  action

under  subsection  (a),  (b) or (c) of this  section  .  .  .  ."

Subsection  (c)  provides  for a grant  of  "such  equitable  and

declaratory  relief as is necessary to enforce  the  requirements

imposed  under this subchapter."32  "A reasonable fee" in section

1691e(d)  means a reasonable actual fee rather than a  reasonable

partial  fee  as would be awarded under Civil Rule  82.33   Wanda

argues  that  the court should have applied section 1691e(d)  and

awarded her actual fees.

           In  reply,  Lloyd contends that a prerequisite  to  an

award  of  fees  under  section 1691e(d)  is  that  the  litigant

requesting such fees must have filed an action.  Lloyd relies  on

North  Carolina  Department  of Transportation  v.  Crest  Street

Community Council, Inc.,34 where the United States Supreme  Court

held that an independent action seeking attorney's fees under  42

U.S.C.   198835 could not be maintained.  Instead, such fees  may

only  be  sought in litigation in which a party seeks to  enforce

the civil rights laws listed in section 1988.36  We do not regard

the  North  Carolina  case as closely analogous  authority.   The

Supreme  Court  did not rule that attorney's fees  under  section

1988  would not be available in an action in which the prevailing

party  sought to enforce one of the applicable civil rights  laws

as an affirmative defense or a setoff.

            Whether  section  1691e(d)  authorizes  an  award  of

attorney's  fees  to  a  litigant who is not  a  plaintiff  is  a

question  of federal law.  But so far as we can tell, no  federal

or  state court has held that section 1691e(d) either permits  or

precludes fee awards to prevailing defendants.  The parties  have

brought  no authoritative decisions on the issue to our attention

and we have found none.37

          Our case of Hayer v. National Bank of Alaska presents a

close  analogy.38  The Hayer case arose when the  bank  sued  the

Hayers  for  a  debt.  They defended claiming that the  bank  had

violated  the  federal Truth in Lending Act, 15 U.S.C.   1601-65.

They  claimed  that  they were entitled to a partial  offset  for

statutory penalties because of the bank's violations.  The  trial

court  found  that  the debt was owed and that  the  Hayers  were

entitled  to  a partial offset because the bank had violated  the

federal  act.  The court made no award of costs or  fees  to  the

Hayers.  They appealed claiming, in part, that they were entitled

to  an  award  of  attorney's fees under 15  U.S.C.   1640(a)(3),

which  "provides  that a creditor violating the  Truth-in-Lending

Act  is  liable `in the case of any successful action to  enforce

[rights under the act for] the costs of the action, together with

a  reasonable attorney's fee as determined by the court.' "39  We

held  that the Hayers were entitled to attorney's fees under this

provision, even though their claim was asserted as a setoff:

                It  might  be argued that the rationale
          behind  such an award of attorney's  fees  is
          inapplicable   where  the   debtor   is   the
          defendant   instead  of  the  plaintiff   and
          asserts the Truth-in-Lending violation  as  a
          setoff  to a suit on the underlying debt.  We
          see no reason to make such a distinction.  At
          least one case holds that attorney's fees are
          to be awarded where the debtor prevails on  a
          counterclaim, Robert Levitan & Sons, Inc.  v.
          Francis,  88  Misc.2d 125,  387  N.Y.S.2d  35
          (1976),   and   we  can  see  no  significant
          difference   between   a   setoff    and    a
          counterclaim in this context.  Because of the
          Hayers'  assertion of their  Truth-in-Lending
          Act  claim,  the appellee, a large state-wide
          bank,  had been alerted to its non-compliance
          with the federal act and will presumably take
          steps   to  ensure  future  compliance.   The
          congressional  policy of enforcement  through
          private   litigation  will  thus  have   been
          furthered by assertion of the Hayers'  claim.
          We  believe  therefore that the court  should
          have  awarded  them  a reasonable  attorney's
           We believe that this rationale applies as strongly  to

ECOA  violations  as  to  Truth-in-Lending  Act  violations.   We

conclude  therefore  that  the court should  have  awarded  Wanda

reasonable actual attorney's fees.  On remand the superior  court

should  award  Wanda  a  fee  of  $9,960.75  for  her  successful

assertion of her entitlement to equitable relief under 15  U.S.C.



           The  award  of  attorney's  fees  to  Wanda  Still  is

REVERSED.   On  remand the court should award her $9,960.75.   In

all  other  respects,  the  judgment of  the  superior  court  is


1Lute and Marilyn Cunningham also signed identical guaranties  in
favor of Northrim on June 5, 1996.
2Back-up documentation indicates that this is a reference to Vern
and Wanda, not Vern and Mark.
3The court stated, in part:

          the language is as clear as any that one sees
          in any of the case law about what the meaning
          of  the  guaranty was.  And the Stills signed
          them without question in 1996.
                The  times  that other guaranties  were
          required  was  after . . . Mr. Still  revoked
          that  guaranty.  And so the conduct is  in  a
          different kind of context.  And I don't think
          it  .  .  . can be used to raise an ambiguity
          about what the document said.
                .  .  .  the course of conduct that  is
          actually relevant is the fact that there were
          no  guaranties that were required  until  Mr.
          Still  revoked his guaranty.  That course  of
          conduct   says  that  it  was  a   continuing
          guaranty and everybody knew it.
                .  .  .  I  also find that Mr.  Still's
          letter  . . . terminating his guaranty wasn't
          effective  with  respect to loan  number  200
          . . . .
               . . . .
                .  .  . the other issue that was raised
          had to do with the extensions.  And certainly
          there  are  some . . . times that  extensions
          can void a guaranty.  But in these particular
          guaranties,     there     were     provisions
          specifically  in  the  guaranties  themselves
          that . . . cover[] extensions.
4The  Stills'  conspiracy counterclaim was  evidently  considered
resolved  favorably to Lloyd, although the briefs do not describe
the procedural mechanism by which this occurred.
5West v. Umialik Ins. Co., 8 P.3d 1135, 1137 (Alaska 2000).
6Alaska R. Civ. P. 56(c).
7Philbin  v.  Matanuska-Susitna Borough, 991 P.2d  1263,  1265-66
(Alaska 1999) (quotations omitted).
8West, 8 P.3d at 1137.
9778 P.2d 581, 583-84 (Alaska 1989) (footnotes omitted).
10Restatement (Second) of Contracts 5 153 (1981);see Restatemen
11Restatement (Second) of Contracts  153 (1981); see  Restatement
(Third) of Suretyship and Guaranty  12(3).
12Diagnostic  Imaging  Ctr. Assocs. v. H&P,  815  P.2d  865,  867
(Alaska 1991).
13Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1003 (Alaska
14Id.;  see  also  Peterson v. Wirum, 625 P.2d 866,  870  (Alaska

          Differences of opinion among the  parties  as
          to  their subjective intent, expressed during
          the litigation, do not establish an issue  of
          fact   regarding   the  parties'   reasonable
          expectations  at the time they  entered  into
          the   contract,   since   such   self-serving
          statements   are   not   considered   to   be
          probative.   Rather, the court must  look  to
          the  express  manifestations of each  party's
          understanding  of the contract in  attempting
          to  give  effect  to  the intent  behind  the
(Footnotes omitted.)

15Hagans, Brown & Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d
1164,  1166  n.2  (Alaska 1989) ("Issues not properly  raised  or
briefed at trial are not properly before this court on appeal.").
16Alaska R. Civ. P. 77(c)(1)(ii).
17Restatement (Third) of Suretyship and Guaranty  16 (1996).
18He  consented to the second extension in his capacity  of  vice
president of Premier.  See supra page 4.
19The guaranty provided in relevant part:

          DURATION OF GUARANTY.  This Guaranty  .  .  .
          will   continue  in  full  force  until   all
          Indebtedness  incurred or  contracted  before
          receipt by Lender of any notice of revocation
          shall  have been fully and finally  paid  and
          satisfied   and  all  other  obligations   of
          Guarantor under this Guaranty shall have been
          performed  in full.  If Guarantor  elects  to
          revoke  this Guaranty, Guarantor may only  do
          so  in writing. . . .  Written revocation  of
          this Guaranty will apply only to advances  or
          new Indebtedness created after actual receipt
          by     Lender    of    Guarantor's    written
          revocation. . .  This Guaranty will  continue
          to   bind   Guarantor  for  all  Indebtedness
          incurred  by Borrower or committed by  Lender
          prior   to  receipt  of  Guarantor's  written
          notice    of   revocation,   including    any
          extensions,   renewals,   substitutions    or
          modifications   of  the  Indebtedness.    All
          renewals,   extensions,  substitutions,   and
          modifications  of  the  Indebtedness  granted
          after     Guarantor's     revocation,     are
          contemplated   under   this   Guaranty   and,
          specifically will not be considered to be new
          Indebtedness.  . . .  Release  of  any  other
          guarantor   or  termination  of   any   other
          guaranty of the Indebtedness shall not affect
          the   liability  of  Guarantor   under   this
20See Restatement (Third) of Suretyship and Guaranty  48(1).
21See id.  55, 57.
22839 F. Supp. 326 (E.D. Pa. 1993).
23Id. at 329-30 (citation omitted).
2451 F.3d 28 (3d Cir. 1995).
25897  F.  Supp.  511  (D.  Kan. 1995);  see  also,  Southwestern
Pennsylvania  Reg'l Council, Inc. v. Gentile, 776 A.2d  276,  282
(Pa.  Super. 2001); Eure v. Jefferson Nat'l Bank, 448 S.E.2d 417,
421 (Va. 1994).
26See  AS 22.10.020(i); Loomis v. Schaeffer, 549 P.2d 1341,  1343
(Alaska 1976).
29AS 18.80.270.
30See infra pages 26-29.
3112 C.F.R.  202.2(e) (2004).
3215 U.S.C.  1691e(d) provides as follows:

          Recovery of costs and attorney's fees
                In  the  case of any successful  action
          under  subsection (a), (b), or  (c)  of  this
          section,  the  costs of the action,  together
          with   a   reasonable   attorney's   fee   as
          determined  by the court, shall be  added  to
          any  damages awarded by the court under  such
33See Hayer v. Nat'l Bank of Alaska, 663 P.2d 547 (Alaska 1983).
34479 U.S. 6 (1986).
3542  U.S.C.   1988 states in relevant part:  "In any  action  or
proceeding to enforce a provision of . . . Title VI of the  Civil
Rights  Acts  of  1964 . . . , the court, in its discretion,  may
allow  the  prevailing  party, other than the  United  States,  a
reasonable attorney's fee as part of the costs."
36North Carolina, 479 U.S. at 11.
37Courts  in two cases, in dicta, have stated or implied  that  a
prevailing defendant may not rely on that statute for an award of
attorney's fees.  Integra Bank/Pittsburg v. Freeman, 839 F. Supp.
326  (E.D.  Pa.  1993) (implying in dictum that  attorney's  fees
would  not  be  available  under  statute  to  defendant  seeking
recoupment); Durdin v. Cheyenne Mountain Bank, 2004 WL 352089, at
6  (Colo.  App., Feb. 26, 2004) (stating in dictum that fees  are
not available under this statute to defendants).
38619 P.2d 474 (Alaska 1980).
39Id. at 476.