Ennis Unita McWhorter v. TransUnion LLC
U.S. Court of Appeals for the Eleventh Circuit
Ennis Unita McWhorter v. TransUnion LLC
Opinion
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13427
Non-Argument Calendar
____________________
ENNIS UNITA MCWHORTER,
Plaintiff-Appellant
versus
TRANS UNION LLC,
Credit Reporting Agency,
NELNET SERVICING, LLC,
Financial Services Company,
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendants-Appellees.
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 2 of 14
2 Opinion of the Court 23-13427
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-01753-SDG
____________________
Before JORDAN, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
Ennis McWhorter, representing herself, appeals the district
court’s dismissal of her amended complaint. The appellees have
responded by jointly filing a motion for summary affirmance. After
careful consideration, we grant the amended motion for summary
affirmance as to appellees Trans Union LLC and Nelnet Servicing,
LLC, but we deny the motion as to Experian Information Solu-
tions, Inc.
I.
The operative amended complaint was McWhorter’s fifth
attempt to state claims for fraud and violations of the Fair Credit
Reporting Act against defendants Experian Information Solutions,
Inc., Trans Union LLC, and Nelnet Servicing, LLC. As relevant to
this appeal, McWhorter alleged that Experian and Trans Union vi-
olated the FCRA by including inaccurate information about her
student loans and other debts in her credit reports and failing to
modify or delete the information after she disputed it. See 15 U.S.C.
§ 1681i(a). She also asserted that the two consumer reporting agen-
cies were liable for actual and punitive damages because they
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 3 of 14
23-13427 Opinion of the Court 3
willfully violated the FCRA. See 15 U.S.C. § 1681n. And she alleged
that Nelnet, a student loan servicer, violated the FCRA by furnish-
ing inaccurate information about her student loans to credit report-
ing agencies. See 15 U.S.C. § 1681s-(2)(b). 1
On motion of the defendants, the district court dismissed
McWhorter’s amended complaint with prejudice for failure to
state a claim. McWhorter now appeals, arguing that the district
court erred by granting the defendants’ motion to dismiss and
abused its discretion by denying her motions for default judgment
and her motion for relief from the district court’s judgment of dis-
missal. The appellees seek summary affirmance of the district
court’s judgment.
II.
We review the denial of a motion for default judgment for
abuse of discretion. Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1309, 1316 (11th Cir. 2002). We review a district court’s
order granting a motion to dismiss for failure to state a claim de
novo, accepting the allegations in the complaint as true and con-
struing them in the light most favorable to the plaintiff. MacPhee v.
1 McWhorter also claimed that all three defendants committed fraud, that Ex-
perian and Trans Union violated 15 U.S.C. § 1681g by failing to provide her
full file upon request, and that Trans Union violated 15 U.S.C. § 1681e(b) by
failing to follow reasonable procedures to ensure maximum possible accuracy
of its report. But she abandoned those claims on appeal by making only pass-
ing references to them, without providing supporting arguments or citations
to authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014).
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 4 of 14
4 Opinion of the Court 23-13427
MiMedx Grp., Inc., 73 F.4th 1220, 1238 (11th Cir. 2023). We review
both the denial of a motion for relief from judgment under Rule
60(b) and the denial a motion for leave to amend a complaint for
abuse of discretion, but we review de novo a district court’s deter-
mination that amendment would be futile. Id.; SFM Holdings, Ltd.
v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010).
III.
Summary disposition of an appeal is appropriate when “the
position of one of the parties is clearly right as a matter of law so
that there can be no substantial question as to the outcome of the
case” or when the appeal is frivolous. Groendyke Transp., Inc. v. Da-
vis, 406 F.2d 1158, 1162 (5th Cir. 1969). 2 Summary affirmance of
the district court’s judgment in favor of Trans Union and Nelnet is
appropriate here because McWhorter’s argument regarding the de-
nial of her motions for default judgment is frivolous and the posi-
tion of these two appellees is otherwise clearly right as a matter of
law.
But summary affirmance of the judgment in favor of Ex-
perian is not appropriate. At a minimum, McWhorter has raised a
non-frivolous argument that her amended complaint—read liber-
ally as a pro se pleading and assuming the facts alleged in her
2 Groendyke Transportation is binding precedent in the Eleventh Circuit under
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 5 of 14
23-13427 Opinion of the Court 5
complaint are true—stated a claim against Experian for a violation
of 15 U.S.C. § 1681i.
We address each of the arguments McWhorter raises on ap-
peal in turn.
A.
Rule 55(a) of the Federal Rules of Civil Procedure permits a
court to enter a default judgment against a party when that party
“has failed to plead or otherwise defend” the claims against it. Fed.
R. Civ. P. 55(a). Ordinarily, a defendant must serve an answer to a
complaint within the time provided under Rule 12(a)(1). But if a
defendant moves to dismiss the complaint for failure to state a
claim, the defendant is not required to serve an answer to the com-
plaint until after the court denies the motion or postpones its dis-
position until trial. Fed. R. Civ. P. 12(a)(4)(A); see Fed. R. Civ. P.
12(b)(6). Because the defendants here filed motions to dismiss for
failure to state a claim in response to each of McWhorter’s com-
plaints, they did not fail to “plead or otherwise defend” against her
claims, and the district court did not abuse its discretion in denying
her motions for default judgment.
B.
To state a claim for relief, a federal civil complaint must con-
tain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requires a
plaintiff to allege “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 6 of 14
6 Opinion of the Court 23-13427
544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id.
A complaint drafted by a pro se plaintiff must be liberally
construed. Jones v. Florida Parole Comm’n, 787 F.3d 1105, 1107 (11th
Cir. 2015). “Even so, a pro se pleading must suggest (even if in-
artfully) that there is at least some factual support for a claim; it is
not enough just to invoke a legal theory devoid of any factual ba-
sis.” Id. Courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation
omitted). The “pleading standard Rule 8 announces does not re-
quire detailed factual allegations, but it demands more than an un-
adorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(quotation omitted).
1.
We turn first to McWhorter’s claims against Experian and
Trans Union. Reading the amended complaint liberally,
McWhorter alleged that the consumer reporting agencies violated
the FCRA when they failed to correct inaccurate information on
her credit reports related to her student loans and two consumer
financial accounts. She also claimed that she was entitled to puni-
tive damages because the violations were willful.
Section 1681i of Title 15 establishes procedures for a con-
sumer reporting agency to follow when a consumer disputes the
accuracy or completeness of information in the consumer’s file at
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 7 of 14
23-13427 Opinion of the Court 7
the agency. See 15 U.S.C. § 1681i(a). Among other things, § 1681i
requires consumer reporting agencies to “conduct a reasonable re-
investigation” when a consumer disputes an item in her file, and if
the agency finds that the information is inaccurate, incomplete, or
cannot be verified, it must “promptly delete” or modify the item
and notify the furnisher of the information. Id. To state a claim
under this section, the plaintiff must allege facts showing, at a min-
imum, that the agency’s file contained factually inaccurate infor-
mation and that the agency’s investigation upon dispute was not
reasonable. Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 944 (11th
Cir. 2021); see Collins v. Experian Info. Sols., Inc., 775 F.3d 1330, 1335
(11th Cir. 2015). When evaluating whether information in a credit
report is accurate, “we look to the objectively reasonable interpre-
tations of the report.” Holden v. Holiday Inn Club Vacations Inc., 98
F.4th 1359, 1367 (11th Cir. 2024) (quotation omitted). A report
must be either factually incorrect or “objectively likely to mislead
its intended user, or both” to violate the FCRA’s standard for accu-
racy. Id. at 1367–68.
Under 15 U.S.C. § 1681n(a), a person who “willfully fails to
comply” with the FCRA is liable to the affected consumer for ac-
tual, statutory, or punitive damages. A violation is willful if it is
committed “with knowledge or reckless disregard for the law.”
Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1310 (11th Cir.
2009). A consumer reporting agency acts in reckless violation of
the FCRA if “the action is not only a violation under a reasonable
reading of the statute’s terms, but shows that the company ran a
risk of violating the law substantially greater than the risk
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 8 of 14
8 Opinion of the Court 23-13427
associated with a reading that was merely careless.” Safeco Ins. Co.
of Am. v. Burr, 551 U.S. 47, 69 (2007).
McWhorter failed to state a claim under § 1681i or § 1681n
against Trans Union. To begin, she did not plausibly allege that
Trans Union reported inaccurate information about her student
loans. She alleged that she did “not know what [wa]s accurate
about” Trans Union’s reporting of her loans. She seemed to believe
that Trans Union had falsely reported that her student loans were
in collection instead of in forbearance, but the credit report ex-
cerpts she incorporated into her complaint did not support that in-
terpretation. The excerpts showed a “scheduled payment” amount
on a few dates in her student loan history, but they did not indicate
that the loans were past due or in collections. To the contrary, for
each date showing a scheduled payment, Trans Union rated the
loans as “OK” and indicated “$0” past due. In context, the reported
existence of a partial payment schedule was not necessarily factu-
ally inaccurate or objectively likely to mislead the intended recipi-
ent into believing that the loans were in collections rather than in
forbearance.
McWhorter also failed to allege facts showing that Trans Un-
ion did not conduct a reasonable reinvestigation into the disputed
student loan accounts. She alleged that the agency contacted the
furnisher of information (identified as Nelnet, the loan servicer),
which informed Trans Union that the loans were in forbearance.
Accepting other allegations in the amended complaint as true, it
appears that this information was accurate—and as we have
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 9 of 14
23-13427 Opinion of the Court 9
explained, it was also consistent with Trans Union’s reporting of
the loans. McWhorter does not allege that Trans Union should
have investigated further, or that it would have discovered any
other significant information with additional reasonable investiga-
tion.
As to the Westlake Financial and Noble Finance loan ac-
counts, McWhorter did not allege any facts supporting an inference
that Trans Union failed to conduct a reasonable investigation after
receiving notice of a dispute. She alleged that Trans Union re-
ported false payment information about the Westlake Financial ac-
count, but she did not allege that she notified Trans Union of her
dispute or that she provided any information to Trans Union to
show that its report was inaccurate. And although she alleged that
Trans Union was “still reporting a Noble Finance account after be-
ing disputed by the plaintiff,” she did not allege what inaccurate
information Trans Union reported, if any, about the account or
what steps the agency could have taken to reasonably investigate
the dispute.
To establish that a consumer reporting agency is liable for
punitive damages under § 1681n, a plaintiff must show more than
mere noncompliance with the FCRA. See 15 U.S.C. § 1681n(a); Col-
lins, 775 F.3d at 1336. Because McWhorter failed to plausibly allege
that Trans Union violated the FCRA, she also failed to plausibly
allege that it did so willfully.
But McWhorter’s allegations against Experian were differ-
ent. Read liberally, her amended complaint alleged that Experian
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 10 of 14
10 Opinion of the Court 23-13427
reported inaccurate information about payments she made on her
loan with Westlake Financial. She alleged that she made a final
payment of $10,541.43 in March 2017, which Experian never re-
ported. Instead, Experian reported that the Westlake Financial ac-
count was “charged off” in March 2017, and that the amount writ-
ten off exceeded the original $12,108 loan amount. She also al-
leged—against Experian only—that she disputed Experian’s infor-
mation about the Westlake Financial account “several times with
receipt,” but Experian continued to report the inaccurate infor-
mation, which negatively affected her credit rating.
We have previously held that evidence that a consumer re-
porting agency disregarded information provided by the consumer
and relied solely on the creditor was sufficient to create a jury ques-
tion whether the agency’s reinvestigation was reasonable. See Col-
lins, 775 F.3d at 1333. At the pleading stage, McWhorter’s allega-
tion that she informed Experian multiple times that its information
was inaccurate, repeatedly provided proof of the inaccuracy, and
was harmed by Experian’s failure to correct the information in her
file may be sufficient to state a claim for a violation of § 1681i. At
the very least, her argument on appeal is not frivolous or clearly
wrong as a matter of law. We therefore deny Experian’s motion for
summary affirmance.3
3 Because we decline to summarily affirm the dismissal of McWhorter’s com-
plaint against Experian, we do not decide whether she stated a claim against
Experian under § 1681n. We will consider all McWhorter’s arguments related
to her claims against Experian after briefing is complete.
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 11 of 14
23-13427 Opinion of the Court 11
2.
Last, we turn to McWhorter’s claim against Nelnet Servic-
ing, LLC, which she alleged was a “furnisher of information” about
her student loans. When a consumer reporting agency notifies a
furnisher of information about a consumer dispute, the furnisher
must investigate the dispute, review relevant information provided
by the consumer, and report the results of its investigation to the
reporting agency. 15 U.S.C. § 1681s-2(b)(1)(A)–(C). If the furnisher
determines that the disputed information is inaccurate, incom-
plete, or unverifiable, it must modify, delete, or “permanently
block the reporting” of that information. Id. § 1681s-2(b)(1)(E). To
state a claim against a furnisher of information for a violation of
§ 1681s-2, a consumer must first identify inaccurate or incomplete
information provided by the furnisher to a consumer reporting
agency. Milgram v. Chase Bank USA, N.A., 72 F.4th 1212, 1218 (11th
Cir. 2023). The consumer must also allege facts showing that the
furnisher’s investigation of the disputed information was unreason-
able. Id. And “to prove an investigation was unreasonable, a plain-
tiff must point out some facts the furnisher could have uncovered
that establish that the reported information was, in fact, inaccurate
or incomplete.” Id. (quotation omitted).
Here, McWhorter alleged that Nelnet furnished information
to consumer reporting agencies showing that a payment schedule
had been established for some of her student loans, which she be-
lieved indicated that the loans were in collections rather than in
forbearance. But she also alleged that in response to notice of her
dispute, Nelnet informed the agencies that her student loans were
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 12 of 14
12 Opinion of the Court 23-13427
in forbearance. As we have explained, the information reported
about McWhorter’s student loans was not inconsistent with the
forbearance status she claimed. And McWhorter’s own allegation
that Nelnet responded to the dispute by providing accurate infor-
mation undermines any implication that Nelnet failed to conduct a
reasonable investigation of the dispute. In short, the facts alleged
in the amended complaint clearly did not state a plausible claim for
relief under § 1681s-2 against Nelnet.
C.
Rule 60(b) of the Federal Rules of Civil Procedure provides
several grounds for relief from a final judgment, including, as rele-
vant here, “mistake, inadvertence, surprise, or excusable neglect”;
newly discovered evidence; and fraud, misrepresentation, or mis-
conduct by an opposing party. Fed. R. Civ. P. 60(b)(1)–(3). A plain-
tiff who is granted relief from a judgment under Rule 60(b) may
then seek leave to amend her complaint. United States ex rel. Atkins
v. McInteer, 470 F.3d 1350, 1361 n.22 (11th Cir. 2006). A “district
court may deny a motion for leave to amend as futile when the
complaint as amended would still be properly dismissed.” EEOC v.
STME, LLC, 938 F.3d 1305, 1320 (11th Cir. 2019) (quotation omit-
ted).
After the district court dismissed her amended complaint
with prejudice, McWhorter moved to set aside the judgment based
on assertions of misconduct by the defendants, newly discovered
evidence, error in the district court’s opinion, excusable neglect,
and fraud. She stated that she had been suffering from low iron
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 13 of 14
23-13427 Opinion of the Court 13
when she submitted one or more of the five iterations of her com-
plaint. Although much of the motion is difficult to decipher, it ap-
pears that she sought leave to file another amended complaint. She
reiterated some of the allegations in her fourth amended complaint
and other filings, made new but incoherent allegations about an
unrelated “Plaintiffs Risk Decisioning Report from LexisNexis” and
“suspicious correspondences” from Nelnet, and argued that her al-
legations showed that the defendants had committed misconduct,
including fraud. As “newly discovered evidence,” she attached por-
tions of a more recent credit report containing entries that she did
not understand and that she described as “willful(ness), reckless
and intentional” misconduct by Experian.
The district court did not abuse its discretion in denying the
motion to set aside the judgment as to Trans Union and Nelnet. 4
Even if McWhorter’s low iron and inability to articulate her claims
could satisfy one of the grounds for relief in Rule 60(b), setting aside
the judgment so that McWhorter could file yet another amended
complaint would have served no purpose. The reiterated allega-
tions contained in her motion failed to state a claim for relief
against Trans Union and Nelnet for the same reasons as before, and
she did not make any discernable attempt to state new claims
against them. Because a fifth amended complaint incorporating
the allegations in McWhorter’s motion would still be subject to dis-
missal for failure to state a claim against those defendants, the
4 We reserve decision on this issue as to Experian.
USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 14 of 14
14 Opinion of the Court 23-13427
district court correctly concluded that granting leave to amend
would have been futile.
IV.
We GRANT the amended motion for summary affirmance
in part and AFFIRM the district court’s judgment as to Trans Union
LLC and Nelnet Servicing, LLC. We DENY Experian Information
Solutions, Inc.’s amended motion for summary affirmance. Ex-
perian’s response brief is due within 30 days after the issuance of
this opinion. McWhorter may serve and file a reply brief within 21
days after service of Experian’s response brief.
We GRANT McWhorter’s motion for leave to exceed the
page limit and word count in her response to the amended motion
for summary affirmance. We DENY as moot the appellees’ initial
motion for summary affirmance and the motion to exceed page
limits and word count in response to the initial motion for sum-
mary affirmance.
Reference
- Status
- Unpublished