Alisha Kingery v. Quicken Loan
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-01353 Copies to all parties and the district court/agency. [999697711].. [14-1661]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1661
ALISHA KINGERY, f/k/a Alisha Wilkes, on behalf of herself
and those similarly situated,
Plaintiff - Appellant,
v.
QUICKEN LOANS, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Joseph R. Goodwin,
District Judge. (2:12-cv-01353)
Argued:
September 15, 2015
Decided:
November 12, 2015
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Deepak Gupta, GUPTA BECK PLLC, Washington, D.C., for
Appellant.
John Curtis Lynch, TROUTMAN SANDERS LLP, Virginia
Beach, Virginia, for Appellee.
ON BRIEF: John W. Barrett,
Jonathan R. Marshall, BAILEY & GLASSER, LLP, Charleston, West
Virginia; Leonard A. Bennett, Matthew J. Erausquin, Susan M.
Rotkis, CONSUMER LITIGATION ASSOCIATES, Newport News, Virginia;
Jonathan E. Taylor, GUPTA BECK PLLC, Washington, D.C.; Ian
Lyngklip, CONSUMER LAW CENTER, PLC, Southfield, Michigan; John
Charles Bazaz, Fairfax, Virginia, for Appellant. Jason Manning,
Megan Burns, TROUTMAN SANDERS LLP, Virginia Beach, Virginia, for
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Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Alisha Kingery (Kingery) appeals the district court’s grant
of summary judgment in favor of Quicken Loans, Inc. (Quicken)
with respect to her claim alleging Quicken failed to comply with
the credit-score disclosure requirements set forth in 15 U.S.C.
§ 1681g(g)(1)(A),
“uses
a
which
consumer
are
credit
triggered
score
when
. . .
in
a
mortgage
connection
lender
with
an
application initiated or sought by a consumer for a closed end
loan or the establishment of an open end loan for a consumer
purpose that is secured by 1 to 4 units of residential real
property
granted
. . . .”
summary
Id.
judgment
§ 1681g(g)(1).
in
favor
of
The
Quicken
district
based
court
upon
its
holding that the summary judgment record, when viewed in the
light
most
inferences
favorable
in
her
to
Kingery
favor,
failed
and
to
drawing
all
establish
reasonable
that
Quicken
“use[d]” her credit score “in connection with” her inquiry about
refinancing
Quicken
her
never
current
home
triggered
disclosure requirements.
mortgage
loan,
§ 1681g(g)(1)(A)’s
Id.
and
therefore,
credit-score
For the following reasons, we
affirm.
I
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Desiring to refinance her current home mortgage loan, on
April 29, 2010, Kingery, formerly known as Alisha Wilkes, sent a
loan
inquiry
to
the
website
MortgageLoans.com. 1
MortgageLoans.com subsequently sent Kingery an email identifying
Quicken as one of four potential lenders. 2
The email informed
Kingery that Quicken would be contacting her within the next
twenty-four
hours.
Within
that
timeframe,
Quicken
employee
Matthew Muskan (Muskan) contacted Kingery to ask her permission
to pull her credit reports.
Kingery voluntarily granted Muskan
permission.
Muskan
report
from
electronically
First
American
pulled
CREDCO
Kingery’s
on
May
tri-merge
credit
2010. 3
Within
3,
fifteen seconds, Kingery’s tri-merge credit report appeared on
Muskan’s computer screen at Quicken.
Her three credit scores in
descending order, which appeared in the middle of the first page
of Kingery’s tri-merge credit report, were 669, 614, and 566.
1
Because this appeal challenges the grant of summary
judgment, the facts are presented based upon viewing the
admissible evidence in the record in the light most favorable to
Kingery as the nonmoving party and drawing all reasonable
inferences in her favor. Pueschel v. Peters, 577 F.3d 558, 563
(4th Cir. 2009).
2
This appeal only concerns Quicken and not the other three
potential lenders.
3
A tri-merge credit report consists of the raw data from
the three major credit repositories merged into a single credit
report.
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Of relevance on appeal, beginning on the bottom of the first
page and continuing onto the top of the second page, Kingery’s
tri-merge credit report showed that foreclosure proceedings had
started
against
her
on
March
19,
2010,
with
respect
to
a
$404,903 GMAC real estate mortgage that was almost two years in
arrears ($58,109 total in arrears based on a monthly payment of
$2,621).
During Muskan’s deposition in this case three years later,
he
testified
inquiry,
also
that
he
known
had
no
among
recollection
Quicken
employees
of
Kingery’s
as
a
loan
loan
lead.
However, relying on internal Quicken computer records regarding
Kingery’s loan inquiry, the authenticity of which Kingery does
not dispute, Muskan testified that he “clearly denied the loan
for foreclosure.”
(J.A. 707).
way
denied
the
code
of
According to Muskan, the only
for
foreclosure
was
entered
into
Quicken’s computer system was if “[he] would have to -- manually
. . . click and deny her out for foreclosure.”
Id.
Within a week of Quicken denying Kingery’s loan inquiry,
Quicken internally transferred it to a consultant within its
twelve-month
credit
repair
program
known
as
Fresh
Start.
According to Quicken’s answer to one of Kingery’s interrogatory
requests, “[t]he Fresh Start Program is a credit repair team
that works with loan leads to attempt to develop them into loan
applications
where
the
lead
is
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preliminarily
denied
in
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Quicken[’s] internal lead inquiry system.”
the
Fresh
Start
consultant
made
(J.A. 654).
unsuccessful
After
efforts
to
transform Kingery’s loan inquiry into a loan application, on May
24, 2010, Kingery’s loan inquiry was coded in Quicken’s loan
origination computer system as a final denial.
The loan denial letter that Quicken sent Kingery, dated May
24, 2010, states the following as the reason for denying her
loan inquiry:
“Credit History: Current/previous slow payments,
judgments, liens or B[ankruptcy].”
day,
Quicken
sent
Kingery
a
(J.A. 104).
document
entitled
On the same
“CREDIT
SCORE
NOTICE,” which listed her credit scores with Equifax BEACON,
Experian, and TransUnion and stated the key factors affecting
such scores.
provision
set
The document also gave the full statutory notice
forth
provides, inter alia:
in
15
U.S.C.
§ 1681g(g)(1)(D),
which
“In connection with your application for
a home loan, the lender must disclose to you the score that a
consumer reporting agency distributed to users and the lender
used in connection with your home loan, and the key factors
affecting your credit scores.”
15 U.S.C. § 1681g(g)(1)(D).
The same letter also offered Kingery the opportunity to pay
a fee to participate in Fresh Start.
According to the letter,
Quicken “designed [Fresh Start] to help [Kingery] improve [her]
credit and [her] ability to qualify for credit-based financing.”
(J.A. 104).
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Turning to the evening of the same day on which Muskan
entered the computer code into Quicken’s computer system to deny
Kingery’s
loan
inquiry
because
she
was
in
foreclosure
proceedings, a Quicken computer program considered the potential
for Kingery’s loan inquiry to participate in a second layer of
internal Quicken loan review known as Second Voice.
because
multiple
bankers
had
already
attempted
However,
to
contact
Kingery, the computer program’s algorithm automatically excluded
Kingery’s
loan
Therefore,
none
inquiry
of
from
participation
Kingery’s
credit
connection with Second Voice.
been
automatically
computer
program
excluded
algorithm,
in
scores
Second
were
Voice.
used
in
Had Kingery’s loan inquiry not
from
it
Second
Voice
subsequently
based
would
upon
have
a
been
excluded on the basis that her middle credit score of 614 fell
below the 620 credit score cut-off for participation in Second
Voice.
The operative complaint in this case is the second amended
complaint in which Kingery alleges Quicken violated 15 U.S.C. §
1681g(g), which provides, in relevant part:
Any person who makes or arranges loans and who uses a
consumer credit score . . . in connection with an
application initiated or sought by a consumer for a
closed end loan or the establishment of an open end
loan for a consumer purpose that is secured by 1 to 4
units of residential real property . . . shall provide
the following to the consumer as soon as reasonably
practicable: . . . [a copy of the consumer’s credit
scores, the key factors that adversely affected such
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scores, and a copy of the statutory notice entitled
NOTICE TO THE HOME LOAN APPLICANT].
Id. § 1681g(g)(1)(A).
Notably, § 1681g(g)(1)(A) is triggered by
a mortgage lender’s use of a credit score in connection with a
consumer’s application for a mortgage but not its use of any
other
information
credit report.
contained
in
the
balance
of
a
consumer’s
Section 1681g(g)(1)(A)’s credit-score disclosure
requirements are part of the Fair Credit Reporting Act (FCRA),
15 U.S.C. §§ 1681-1681x, which Act provides a private right of
action against a mortgage lender who willfully or negligently
fails to comply with § 1681g(g)(1)(A)’s credit-score disclosure
requirements.
Id.
noncompliance);
§
1681n
§ 1681o
(civil
(civil
liability
liability
for
for
willful
negligent
noncompliance).
The crux of Kingery’s theory of liability is that although
Quicken
sent
her
the
credit-score
disclosures
required
by
§
1681g(g)(1)(A) on May 24, 2010, it did not send them as soon
reasonably practicable after Quicken used her credit scores on
May 3, 2010, in connection with her loan inquiry.
Notably,
Kingery’s theory of FCRA liability assumes that Quicken actually
used her credit scores in connection with her loan inquiry as
contemplated by § 1681g(g)(1).
Quicken took the position below
and continues to take the same position on appeal that it never
used Kingery’s credit scores in connection with her loan inquiry
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contemplated
triggered
by
§
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1681g(g)(1),
§ 1681g(g)(1)(A)’s
and
credit-score
requirements with respect to Kingery.
as
to
why
Quicken
sent
therefore,
it
never
disclosure
Kingery
And by way of explanation
credit-score
disclosure
documentation on May 24, 2010, Quicken points to the following
portion of the affidavit of its Deputy Corporate Counsel Amy
Bishop:
“Because
it
would
be
too
burdensome
to
make
a
determination of ‘use’ of a client’s credit score on a case by
case basis, Quicken Loans chose to be over-compliant by sending
credit score disclosure notices even when the consumer’s credit
score
is
not
application.’”
‘used’
in
any
manner
‘in
connection
with
an
(J.A. 443).
Following the close of discovery, Quicken moved for summary
judgment
in
its
favor,
which
Kingery
opposed.
The
district
court ultimately granted summary judgment in favor of Quicken on
the ground that Kingery failed to proffer sufficient evidence
for a reasonable jury to find that Quicken had used her credit
scores in connection with her loan inquiry under the ordinary
plain meaning of the term “use.”
In reaching this ruling, the
district court “conclude[d] that ‘use’ occurs under § 1681g(g)
when
the
lender
employs
the
consumer’s
score
to
achieve
a
purpose or objective, such as employing the score to make a
decision with respect to a loan application.”
(J.A. 865-66).
In so concluding, the district court relied upon the Supreme
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Court’s ordinary plain meaning analysis set forth in Smith v.
United States, 508 U.S. 223 (1993), of the term “uses,” as that
term is found in 18 U.S.C. § 924(c)(1).
Section
924(c)
mandates
the
imposition
of
specified
criminal penalties if the defendant, “during and in relation to
any crime of violence or drug trafficking crime . . . , uses
. . . a firearm . . . .”
term
“uses,”
as
found
18 U.S.C. § 924(c)(1).
in
§
924(c)(1),
is
Because the
not
statutorily
defined, the Smith Court gave the term its ordinary and natural
meaning, namely “to employ or to derive service from.”
Smith,
508 U.S. at 229 (citation and internal quotation marks omitted).
Based upon this analysis, the Smith Court held that a criminal
who trades his firearm for drugs uses it during and in relation
to a drug trafficking crime within the meaning of § 924(c)(1),
because trading a firearm for drugs falls squarely within the
ordinary and natural meaning of the term use.
In
the
present
case,
the
district
Id. at 241.
court
found
on
the
summary judgment record, viewed in the light most favorable to
Kingery, that:
(1) Quicken did not use, that is did not employ
or derive service from, any of Kingery’s three credit scores in
connection with denying her loan inquiry; rather, Quicken only
obtained,
sorted,
and
stored
Kingery’s
three
credit
scores,
which conduct does not fall within the ordinary meaning of the
term “use”; and (2) Quicken denied Kingery’s loan inquiry for
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the sole reason that her tri-merge credit report showed she was
already in mortgage foreclosure proceedings on the very loan she
sought to refinance.
Quicken
did
not
Because the district court concluded that
trigger
§ 1681g(g)(1)(A)’s
credit-score
disclosure requirements with respect to Kingery’s loan inquiry,
the district court did not reach the timing issue.
This timely appeal followed.
II
A
We review the grant of summary judgment de novo.
577 F.3d at 563.
Pueschel,
Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
In considering the merits of the motion,
we, like the district court, view the admissible evidence in the
summary judgment record in the light most favorable to Kingery
as the nonmoving party and draw all reasonable inferences in her
favor.
Pueschel, 577 F.3d at 563.
B
Before
addressing
Kingery’s
precise
arguments
on
appeal,
for the sake of clarity, we take a moment to set forth the
arguments she does not make on appeal.
Kingery does not argue
that Quicken lacked her permission to pull her credit scores
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and/or her credit report information from the three major credit
reporting agencies.
subsequent
Likewise, she does not argue that Quicken’s
action
in
pulling
her
violated FCRA in any manner.
tri-merge
credit
report
Moreover, Kingery concedes that
the ordinary meaning of the term “use” connotes more than merely
obtaining, possessing, or storing.
Quicken’s
credit
conduct
scores
in
in
obtaining,
connection
Thus, Kingery concedes that
possessing,
with
her
loan
and
storing
inquiry
her
did
not
trigger § 1681g(g)(1)(A)’s credit-score disclosure requirements.
Finally,
with
the
exception
of
§
1681g(g)(1)(A)’s
timeliness
component, Kingery does not argue that the information Quicken
sent her dated May 24, 2010 (three weeks after she submitted her
loan inquiry to Quicken) failed to satisfy § 1681g(g)(1)(A)’s
credit-score disclosure requirements.
C
Having just clarified the arguments Kingery does not make
on appeal, we now turn to those she does make on appeal.
broad
terms,
Kingery
1681g(g)(1)(A)’s
credit-score
least one of four ways.
credit-score
approximately
argues
disclosure
three
that
Quicken
disclosure
In
triggered
requirements
in
§
at
She then follows up by arguing that the
documents
weeks
after
she
she
received
made
her
from
Quicken
Quicken
loan
inquiry were untimely in that Quicken did not send them to her
as soon as reasonably practicable.
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Because we agree with the district court that Quicken did
not “use[]” Kingery’s credit scores “in connection with” her
loan
inquiry
as
necessary
to
trigger
§
1681g(g)(1)(A)’s
credit-score disclosure requirements, we also do not reach the
timing
issue
presented
by
Kingery’s
claim.
We
now
turn
to
address the four independent ways that Kingery argues Quicken
triggered
§ 1681g(g)(1)(A)’s
credit-score
requirements with respect to her loan inquiry.
give
the
term
“uses”
as
found
in
disclosure
In so doing, we
§ 1681g(g)(1)
its
ordinary
meaning of “to employ or to derive service from,” because such
term
is
not
(citation
statutorily
and
internal
defined,
Smith,
quotation
marks
508
U.S.
omitted),
at
and
229
such
definition makes sense in the context of § 1681g(g)(1)’s broadly
sweeping “in connection with” language, see id. (“Language, of
course, cannot be interpreted apart from context.”).
See Smith,
508 U.S. at 228-30 (giving the term “uses” as found in
18
U.S.C.
to
§ 924(c)(1)
its
ordinary
meaning
of
to
employ
or
derive service from because the term is not statutorily defined
and
the
ordinary
§ 924(c)(1)’s
definition
sweeping
makes
“during
and
sense
in
in
the
relation
context
to”
a
of
drug
trafficking offense language).
1
Kingery
connection
argues
with
that
her
Quicken
loan
used
inquiry
13
her
as
credit
scores
contemplated
in
in
§
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1681g(g)(1) by integrating them into its computer system and
projecting them onto Muskan’s computer screen.
court correctly rejected this argument.
The district
The record demonstrates
only that once Quicken obtained Kingery’s credit scores with her
permission, it converted them into a different computer file
format, sorted them into data fields using a computer program,
and delivered them to Muskan via his computer screen.
Because
none of these actions in the mere handling of Kingery’s credit
scores constitute the employing of or the deriving service from
such
scores,
none
triggered
§ 1681g(g)(1)(A)’s
credit-score
disclosure requirements.
2
Kingery next argues that, viewing the record evidence in
the
light
most
favorable
to
her
and
drawing
all
reasonable
inferences in her favor, a rational jury could infer that Muskan
considered
inquiry,
her
and
credit
thus
scores
triggered
disclosure requirements.
in
§
deciding
to
deny
1681g(g)(1)(A)’s
her
loan
credit-score
In support of this argument, Kingery
points to no affirmative evidence that Muskan considered her
credit scores in denying her loan inquiry.
Instead, she points
to the fact that Muskan has no independent recollection of her
loan inquiry.
Kingery’s argument is without merit.
There is no evidence
in the record from which a rational jury could infer that Muskan
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consulted Kingery’s credit scores and actually took them into
account in denying her loan inquiry.
The only evidence in the
record on this point shows that Muskan denied Kingery’s loan
inquiry
for
foreclosure
the
sole
reason
proceedings
refinance.
on
that
the
Such evidence is:
Kingery
very
was
loan
in
she
mortgage
sought
to
(1) a printout of the computer
record made at the time Muskan denied Kingery’s loan inquiry
showing the fact that Kingery was in foreclosure proceedings as
the
reason
he
denied
such
loan
inquiry;
and
(2)
Muskan’s
deposition testimony, based upon his review of such computer
printout record, that he necessarily denied her loan inquiry
because she was in foreclosure proceedings.
uncontroverted
evidence
and
the
fact
that
In the face of this
Kingery
does
not
dispute that her pending mortgage foreclosure proceedings would
have
been
a
sufficient
ground
upon
which
to
deny
her
loan
inquiry regardless of her credit scores, the jury would have to
engage in impermissible speculation in order to make the finding
Kingery suggests.
To bolster her argument, Kingery also contends that, at the
summary
judgment
because
Muskan,
stage,
as
an
Muskan’s
testimony
employee
of
should
Quicken,
be
ignored
is
not
a
disinterested witness and therefore, under Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000), the jury is not
required to believe his testimony.
15
In making this argument,
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Kingery relies upon the following quote from Reeves:
court
should
give
credence
to
the
evidence
“[T]he
favoring
the
nonmovant as well as that evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent
that that evidence comes from disinterested witnesses.”
151 (internal quotation marks omitted).
Id. at
Kingery interprets this
quote broadly so as to require a district court considering a
motion
for
testimony
of
summary
all
judgment
employees
to
ignore
a
company
of
the
uncontroverted
moving
for
summary
reading
of
Reeves,
judgment.
We
have
wisely
rejected
this
albeit in an unpublished opinion.
broad
See Luh v. J.M. Huber Corp.,
211 F. App’x 143, 146 (4th Cir. 2006).
In so rejecting, we
began by pointing out that “Reeves states the noncontroversial
position that witness testimony that the jury is not required to
believe cannot be used to sustain a summary judgment decision,
since the jury is not required to believe their testimony.”
Id.
We then looked to the Supreme Court’s holding in Chesapeake &
Ohio Ry. Co. v. Martin, 283 U.S. 209 (1931), that the testimony
of an employee of the defendant must be taken as true when such
testimony discloses no lack of candor, the employee witness went
unimpeached,
accuracy
of
his
his
credibility
testimony
is
was
not
not
questioned,
controverted
by
and
the
evidence,
although if it were inaccurate, it readily could be shown to be
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Chesapeake & Ohio Ry. Co., 283 U.S. at 216.
have
also
Kingery.
rejected
the
broad
reading
of
Other circuits
Reeves
pressed
by
LaFrenier v. Kinirey, 550 F.3d 166, 168 (1st Cir.
2008); Stratienko v. Cordis Corp., 429 F.3d 592, 597-98 (6th
Cir. 2005).
here,
Applying the holding of Chesapeake & Ohio Ry. Co.
the
status
of
Muskan
as
an
employee
of
Quicken
is
insufficient by itself to create a jury question on his veracity
as long as his testimony disclosed no lack of candor, he was not
impeached, his credibility was not questioned, and the accuracy
of his testimony was not controverted by evidence, although if
it were inaccurate it readily could have been shown to be so.
Based
upon
this
test,
we
have
no
reason
to
ignore
Muskan’s
testimony in deciding the merits of Quicken’s motion for summary
judgment.
Because
the
jury
would
be
required
to
engage
in
impermissible speculation to find that Muskan had factored in
Kingery’s credit scores in his decision to deny her mortgage
loan
inquiry,
Kingery
cannot
stave
summary judgment on this basis.
F.3d
303,
311
(4th
Cir.
2013)
off
Quicken’s
motion
for
See Dash v. Mayweather, 731
(to
defeat
summary
judgment,
“nonmoving party must rely on more than conclusory allegations,
mere speculation, the building of one inference upon another, or
the mere existence of a scintilla of evidence”).
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3
We next address Kingery’s argument that because the minimum
credit
score
for
participation
in
Second
Voice
is
620,
a
reasonable jury could infer that Quicken used her middle credit
score of 614 in connection with denying her loan inquiry.
making
this
argument,
Kingery
candidly
recognizes
the
In
record
contains the sworn declaration of Kevin Lang (Lang), Quicken’s
Director of Software Engineering, in which Lang declares that
Quicken never used Kingery’s credit scores in determining she
failed to qualify for participation in Second Voice.
Notably,
Lang
computer
explained
in
his
declaration
that
Quicken’s
program, which reviews the eligibility of previously denied loan
inquiries
for
participation
in
Second
Voice,
automatically
excluded, based on a computer algorithm, Kingery’s loan inquiry
from participation in Second Voice because multiple bankers had
already attempted to contact her.
Therefore, he declared, none
of Kingery’s credit scores were used in connection with Second
Voice.
Again, relying on Reeves, Kingery argues the statements in
Lang’s
sworn
declaration
cannot
be
credited
at
judgment stage because Lang is a Quicken employee.
the
summary
For the same
reasons Kingery’s argument based on Reeves failed with respect
to
Muskan,
it
fails
with
respect
to
Lang.
The
relevant
authority makes clear that the status of Lang as an employee of
18
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Quicken is insufficient by itself to create a jury question on
his veracity as long as his sworn statements disclose no lack of
candor,
he
is
unimpeached,
questioned,
and
controverted
the
by
his
accuracy
evidence,
of
although
readily could be shown to be so.
U.S. at 216.
the
his
if
has
not
testimony
it
were
been
is
not
inaccurate
it
Chesapeake & Ohio Ry. Co., 283
Based upon this test, we have no reason to ignore
statements
merits
credibility
of
in
Lang’s
Quicken’s
sworn
motion
declaration
for
summary
in
deciding
judgment.
the
And
considering those uncontroverted statements, no reasonable jury
could
infer
that
Quicken
precluded
her
loan
inquiry
from
participation in Second Voice because of her middle credit score
of 614.
4
Lastly, we consider Kingery’s argument pertaining to Fresh
Start.
to
Kingery argues that Quicken used her credit score of 614
determine
triggering
that
§
she
was
eligible
1681g(g)(1)(A)’s
for
Fresh
Start,
credit-score
thereby
disclosure
requirements.
The sole evidence she points to in support of
this
is
argument
manual,
dated
a
statement
November
16,
in
2012,
Quicken’s
which
internal
states
that
training
target
clients for Fresh Start have a credit score under 620.
Kingery’s Fresh Start argument fares no better than her
prior
three
arguments.
The
reason
19
is
the
same——lack
of
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sufficient evidence for a reasonable jury to find that Quicken
used her credit score in connection with her loan inquiry.
only
evidence
in
the
record
regarding
why
Quicken
The
denied
Kingery’s loan inquiry is that it was denied because the very
mortgage she sought to refinance was in foreclosure.
Thus, the
only reasonable inference to be made under this circumstance is
that
Quicken
because
of
referred
the
Kingery’s
foreclosure.
circumstance,
a
reasonable
impermissible
speculation
loan
On
the
jury
to
inquiry
flip
would
find
by
a
to
Fresh
side,
have
to
Start
under
engage
preponderance
of
this
in
the
evidence that Quicken actually used Kingery’s credit scores of
614 or 566 in referring her loan inquiry to Fresh Start based
solely on a statement in Quicken’s training manual dated one and
one half years after Quicken referred Kingery’s loan inquiry to
Fresh
Start.
See
Dash,
731
F.3d
at
insufficient to defeat summary judgment).
311
(mere
speculation
This is what we call
a scintilla of evidence, and it is insufficient to stave off
Quicken’s motion for summary judgment.
evidence
insufficient
to
defeat
summary
Id. (mere scintilla of
judgment).
In
sum,
Kingery gets nowhere on her Fresh Start argument. 4
4
We note that Quicken argues that Kingery failed below to
make her argument pertaining to Fresh Start in opposition to its
motion for summary judgment, and therefore, Kingery waived her
right to press it on appeal. Kingery responds that she made the
argument below, and even if she did not, under Yee v. City of
(Continued)
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III
In conclusion, because Kingery failed to proffer sufficient
evidence, when viewed in the light most favorable to her and
drawing
all
reasonable
inferences
in
her
favor,
to
create
a
genuine issue of material fact that Quicken used at least one of
her three
credit
scores
in
connection
with
her
loan
inquiry
seeking to refinance her foreclosure-burdened mortgage as the
term “use[d]” is found in § 1681g(g)(1), we affirm the district
court’s grant of Quicken’s motion for summary judgment.
AFFIRMED
Escondido, 503 U.S. 519, 534 (1992), she has the right to press
the argument on appeal.
See id. (“Once a federal claim is
properly presented, a party can make any argument in support of
that claim; parties are not limited to the precise arguments
they made below.”).
Having reviewed the record, we agree with
Quicken that Kingery failed below to make her argument
pertaining to Fresh Start that she now makes on appeal. Indeed,
such failure explains why the district court did not address it.
Nevertheless, because we reject the argument on the merits, we
decline to reach the waiver issue.
21
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