UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

BRUCE L. BRUNSON,

Plaintiff - Appellant, 

v. 

PROVIDENT FUNDING ASSOCIATES; 

JAMES WOODALL; MAX DEFAULT 

SERVICES, 

Defendants - Appellees. 

No. 13-4029 

 (D.C. No. 2:10-CV-00795-DN) 

(D. Utah) 

 

ORDER AND JUDGMENT* 

Before LUCERO, O'BRIEN, and GORSUCH, Circuit Judges.

 If nothing else, this case illustrates the necessity of judicial restraint. Assuming 

Bruce Brunson’s allegations and his supporting evidence accurately state the facts and 

fairly capture all relevant circumstances, it appears Provident Funding Associates 

(Provident) did not treat him, its customer, well. In fact, the Provident team seems much 

 

*

 This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. 

It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. 

Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). 

Citation to an order and judgment must be accompanied by an appropriate parenthetical 

notation B (unpublished). Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 20, 2015

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

like The Gang That Couldn’t Shoot Straight1

. But it is not our place to pass judgment on 

Provident’s business practices. Courts have no roving commission to “do good.” They 

are, quite properly, constrained to applying the law in deciding the issues presented and 

nothing more, unsettling as that may sometimes be. So guided, we set emotion aside and 

decide the issues here presented. 

 Provident initiated foreclosure proceedings on Brunson’s home because he was 

seven months behind on his mortgage payments. That was a different case, but it 

precipitated this one. In this case Brunson seeks damages, claiming Provident negligently 

led him to believe he could avoid foreclosure if he continued to make monthly payments, 

but that did not happen.2

 He also argues Provident violated the Fair Credit Reporting Act 

(FCRA), 15 U.S.C. §§ 1681-1681x, and the Real Estate Settlement and Procedures Act 

(RESPA), 12 U.S.C. §§ 2601-2617. He appeals from a summary judgment entered in 

favor of Provident.3

 We affirm. 

I. Factual Background 

 The parties are well familiar with the facts, so we touch on them only briefly. In 

November 2004, Brunson borrowed $98,000 from Provident and used his home in Salt 

 

1

 Jimmy Breslin, The Gang That Couldn't Shoot Straight (1969). 

2

 Interestingly, and significantly, no contract claims are included in Brunson’s 

complaint and no contract remedies, such as reformation, were sought. Nor was a 

promissory estoppel claim put forward. But see infra n.20. Understandably, plaintiffs 

prefer tort remedies to contract remedies, but that preference cannot serve to turn two pair 

into a straight flush. 

3

 Brunson does not appeal from the summary judgment entered in favor of Max 

Default Services or James Woodall, other defendants in the district court.
- 3 - 

Lake City, Utah, as collateral for the thirty-year loan, which called for a fixed interest rate 

for three years and an adjustable rate thereafter. From January through July 2008, 

Brunson failed to make the required monthly payments ($1,148.22).4

 Provident began 

foreclosure proceedings and scheduled the sale of the home for July 30, 2008. The day 

before the sale and after an unsuccessful attempt to modify the loan,5

 Brunson filed a 

Chapter 13 bankruptcy petition resulting in an automatic stay, see 11 U.S.C. § 362, and 

preventing the foreclosure. Provident updated Brunson’s account to reflect the 

bankruptcy filing by placing it in its “bankruptcy module.” (Joint App’x, Vol. 4 at 1112.) 

 Brunson’s proposed bankruptcy plan acknowledged arrearages ($12,116.90) on 

the debt he owed to Provident (approximately $109,000). It called for him to make his 

regular monthly payments to Provident and, in addition, remit $201.95 a month to the 

bankruptcy trustee to be applied to the arrearages. The bankruptcy case was dismissed in 

October 2008 because Brunson’s lawyer failed to file a required form. Although the 

bankruptcy court notified Provident of the dismissal and Provident’s bankruptcy 

 

4

 In parts of the record, Brunson said he was working overseas at the time the loan 

went into default and his employer failed to make his monthly mortgage payments as it 

was required to do under the employment contract. He subsequently obtained a judgment 

against the employer for $888,753.75 but has been unable to collect. However, at the 

hearing to decide whether to dissolve the preliminary injunction, Brunson said he 

returned to the country in September 2007—at least three months before his first default. 

5

 On March 31, 2008, Brunson sought a loan modification from Provident. 

Provident claims it denied his request because he did not have sufficient income (indeed 

he did not list any income). Brunson, however, alleged Provident told him it had no 

incentive to work with him because it could profit from a foreclosure as his home’s value 

far exceeded the amount owed. 
- 4 - 

specialists have access to PACER,6

 Provident did not remove Brunson’s account from its 

bankruptcy module. 

 After the dismissal of his bankruptcy case, Brunson enlisted the assistance of 

Michael Blackburn, Chief Operations Officer of Perfect Home Living, a nonprofit 

organization affiliated with the United States Department of Treasury’s Homeownership 

Preservation Task Force. Its purpose is to help homeowners avoid foreclosure. Brunson 

and Blackburn made numerous calls to Provident in late 2008 seeking a loan 

modification. They were repeatedly informed by Provident that its records showed 

Brunson to still be in bankruptcy. Brunson and Blackburn told Provident the bankruptcy 

had been dismissed but Provident did not remove the account from its bankruptcy 

module. Nevertheless, it directed Brunson to continue making payments. 

 Brunson did so, making monthly payments to Provident from August 2008 to 

November 2009. Although an interest rate adjustment lowered his monthly payment 

from $1,148.22 to $1,102.20 in January 2009, he continued to make the higher payment.7

Provident applied these payments to the defaulted amount. For example, Provident 

applied the August 2008 payment to the January 2008 payment, the September 2008 

payment to the March 2008 payment, the October 2008 payment to the February 2008 

 

6

 PACER stands for “Public Access to Court Electronic Records.” As its name 

suggests, PACER “is an electronic public access service that allows users to obtain case 

and docket information online from federal appellate, district, and bankruptcy courts. . . 

.” See https://www.pacer.gov (last visited Apr. 15, 2015). 

7

 There is no evidence in the record that Brunson made any payments to the 

bankruptcy trustee as called for in the proposed bankruptcy plan. 
- 5 - 

payment, the November 2008 payment to the April 2008 payment and so forth; his last 

payment, in November 2009, was applied to the April 2009 payment.8

 Thus, even while 

making payments, Brunson continued to remain seven months in arrears.

 On December 1, 2009, Provident sent Brunson a letter giving notice of another 

interest rate adjustment. The letter stated the payment due on January 1, 2010, would 

decrease from $1,102.20 to $990.06, and the loan balance was $95,088.94 “assuming 

[Brunson had] made all payments when due.” (Joint App’x, Vol. 4 at 914.) Inexplicably, 

three weeks later, Brunson received a letter from Provident rejecting his December 2009 

payment as “short.” (Id. at 915.) The letter instructed him to call Provident. On 

December 28, 2009, Brunson spoke with James Karanfiloglu, Provident’s service 

compliance manager, who told him Provident had mistakenly maintained his account in 

its bankruptcy module even after the bankruptcy case had been dismissed and did not 

discover its mistake until December 2009.9

 Karanfiloglu told Brunson his payments had 

been applied to the arrearages and he remained seven months behind in his payments.10

 Brunson responded the next day (December 29) with a “Qualified Written 

 

8

 It is unclear why the September 2008 and October 2008 payments were applied 

to the March 2008 and February 2008 payments, respectively, and not vice versa. 

9

 Karanfiloglu attributed Provident’s mistake to employee turnover—the employee 

assigned to manage Brunson’s account while his bankruptcy case was pending left 

Provident near the time the case was dismissed. 

10 That accurately states the terms of the loan documents. 
- 6 - 

Request” (QWR)11 seeking documentation from Provident pursuant to RESPA.12 

Brunson also ceased making payments because Provident told him the monthly payments 

would not be accepted unless he brought his account to no more than one month 

delinquent.13 Despite this dispute, on December 31, 2009, Provident’s Annual Tax and 

Interest Statement to Brunson did not indicate his payments were past due.14 

 Brunson hired an attorney who sent another QWR on January 20, 2010. Five days 

later, Provident sent Brunson a notice of default stating he must pay $10,066.92 plus his 

monthly payment within thirty days to bring his loan current and prevent foreclosure. On 

January 28, Provident responded to the January 20 QWR.15 Although it questioned the 

propriety of the QWR, Provident provided Brunson the loan documents, his payment 

 

11 A QWR is “a written correspondence . . . that . . . includes, or otherwise enables 

the servicer to identify, the name and account of the borrower” and “includes a statement 

of the reasons for the belief of the borrower . . . that the account is in error or provides 

sufficient detail to the servicer regarding other information sought by the borrower.” 12 

U.S.C. § 2605(e)(1)(B). 

12 Brunson did not receive a response from Provident; Provident claims it did not 

receive this QWR. 

13 Provident’s normal business procedure regarding defaulted accounts is “to 

accept no less than 6 monthly payments, or the amount necessary for the account to be no 

more than one month delinquent.” (Joint App’x, Vol. 4 at 900.) The loan documents, in 

turn, stated Provident “may return any payment or partial payment if the payment or 

partial payments are insufficient to bring the Loan current.” (Joint App’x, Vol. 2 at 348.) 

Thus, according to Provident, had it properly noted the bankruptcy dismissal, it would 

have returned any monthly payment thereafter as insufficient to cure the seven-month 

default. 

14 According to Karanfiloglu, year-end statements do not reference delinquencies 

on the account. However, if an account is delinquent, the amount of interest reflected on 

the statement would be lower than if the account had remained current. 

15 Brunson claims this response was not received until late February 2010. 
- 7 - 

history, and an assistance package to be completed if he sought a loan modification. On 

March 24, 2010, Provident sent a more detailed response to the QWR. It explained its 

failure to remove his account from the bankruptcy module and gave him thirty days to 

bring the account current and avoid foreclosure. At this point, Provident notified 

Brunson he must pay $19,619.58 to cure the default; this amount included not only the 

missed payments but also other fees including over $7,000 in legal fees. In May 2010, 

when Brunson did not cure the default, Provident transferred his account to its 

foreclosure department. 

II. Procedural Background 

 Brunson filed his initial complaint against Provident in August 2010. The next 

month he filed an ex parte motion for a temporary restraining order (TRO) and 

preliminary injunction to halt the foreclosure proceedings set for September 22, 2010. 

He also submitted an amended complaint alleging negligent misrepresentation and 

violations of FCRA and RESPA. After providing notice to Provident and holding a 

hearing, the district judge granted the TRO. The judge held another hearing where 

Provident informally agreed to a preliminary injunction. 

 Fifteen months later, Provident moved to dissolve the preliminary injunction. The 

parties agreed the negligent misrepresentation claim was the only claim which could 

support injunctive relief. As to this claim, Brunson testified to his belief that the 

bankruptcy trustee and Provident had reached an agreement to cure the arrearages or 

place them on the rear of the loan. The judge granted Provident’s motion. He concluded 

Brunson’s belief that his arrearages had either been cured or placed on the end of the loan 
- 8 - 

was not the product a misrepresentation by Provident but rather “a mistake on his part. . . 

. [Brunson] has clearly testified that Provident never represented that the arrearage was 

resolved or put on the rear.” (Joint App’x, Vol. 4 at 1182-83.) The judge further rejected 

Brunson’s reliance on Provident’s acceptance of his monthly payments, the interest rate 

adjustment letter, and the tax and interest statement. He concluded none of these 

constituted a representation as to the existence or lack of an arrearage. Even assuming 

there was a misrepresentation by Provident about the bankruptcy case remaining pending, 

the judge determined any reliance by Brunson on this misrepresentation was 

unreasonable because he knew the bankruptcy case had been dismissed. 

 Provident then moved for summary judgment on all claims. The judge granted the 

motion. Relying on the same reasoning he used to dissolve the preliminary injunction, he 

determined Provident was entitled to judgment on the negligent misrepresentation claim 

because Brunson could not satisfy the “misrepresentation” and “reasonable reliance” 

elements of the claim.16 (Joint App’x, Vol. 4 at 886.) He rejected Brunson’s FCRA and 

RESPA claims because, among other things, no private right of action exists for 

violations of FCRA relating to the furnishing of information to a credit reporting agency 

(absent a dispute from Brunson) and Provident had timely responded to the QWRs as 

required by RESPA. 

 

 

16 The judge also decided the negligent misrepresentation claim was barred by the 

economic loss rule, the statute of frauds, and the terms of the loan. As we will explain, 

we need not rely on these grounds to affirm. 
- 9 - 

III. Discussion 

 “We review a district court’s decision to grant summary judgment de novo, 

applying the same standard as the district court.” Llewellyn v. Allstate Home Loans, Inc., 

711 F.3d 1173, 1178 (10th Cir. 2013) (quotations omitted). “Summary judgment is 

appropriate if ‘there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). 

 A. Negligent Misrepresentation

 The district judge cited several reasons for granting summary judgment to 

Provident on Brunson’s negligent misrepresentation claim. See supra n.16. We need 

only concern ourselves with one—Brunson’s failure to show reasonable reliance on a 

misrepresentation by Provident. Under Utah law, negligent misrepresentation claims 

require “reasonable reliance on a misrepresentation of material fact.” Olsen v. Univ. of 

Phoenix, 244 P.3d 388, 390 (Utah Ct. App. 2010). Reasonable reliance is often a 

question of fact unsuitable for summary judgment. Gold Standard, Inc. v. Getty Oil Co., 

915 P.2d 1060, 1067 (Utah 1996). But when the relevant facts are not contradicted, the 

issue may be resolved as a matter of law.17 Id. 

 

17 Brunson complains the judge improperly made findings of fact at the summary 

judgment stage. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t 

the summary judgment stage the judge’s function is not himself to weigh the evidence 

and determine the truth of the matter but to determine whether there is a genuine issue for 

trial.”). The judge’s order granting Provident’s summary judgment motion did contain 

“Findings of Fact.” (Joint App’x, Vol. 4 at 881.) But it appears the order was prepared 

by Provident upon the judge’s instruction “to prepare a proposed order [outlining] the 

undisputed facts and apply[ing] the relevant [law].” (Id.) Thus, the “Findings of Fact” 

 (Continued . . .) 
- 10 - 

 Brunson claims Provident negligently misrepresented to him that his arrearages 

had been forgiven or relegated to the end of his loan. Yet, as he conceded in the district 

court, no one at Provident explicitly told him so. Nevertheless, he maintains “Provident 

made numerous representations that allowed [him] and Mr. Blackburn to reasonably 

conclude that such an arrangement had been reached.” (Appellant’s Op. Br. at 42.) 

These representations include (1) Provident’s instruction to keep making his monthly 

payments even after he told several of its representatives he was no longer in bankruptcy, 

(2) its acceptance of his payments for sixteen months, and (3) the 2009 interest rate 

adjustment letter and Annual Tax and Interest Statement which did not identify any 

delinquencies or late charges. He also claims as reasonable his reliance on these 

representations as an indication that some sort of post-bankruptcy arrangement had been 

reached. According to his testimony, he discovered, after some research on the Internet, 

dealing with other creditors, and speaking with Blackburn, that creditors usually do not 

 

section should have been more appropriately titled “Undisputed Facts.” In any event, our 

de novo review requires us to “view the evidence and draw reasonable inferences 

therefrom in the light most favorable to the non-moving party” (Brunson) and determine 

whether a genuine issue of material fact exists. Garrison v. Gambro, Inc., 428 F.3d 933, 

935 (10th Cir. 2005) (quotations omitted). We have done so. 

Brunson also maintains the judge erroneously relied on his prior order granting 

Provident’s motion to dissolve the preliminary injunction in deciding to grant summary 

judgment because the legal standards governing each are different. We see no error. 

While the judge applied the same reasoning to resolve both motions as to the negligent 

misrepresentation claim (i.e., failure to show a misrepresentation and reasonable 

reliance), he applied the correct legal standard to each. See Commc’ns Maint., Inc. v. 

Motorola, Inc., 761 F.2d 1202, 1205 (7th Cir. 1985) (stating one of the concerns of 

adopting findings and conclusions of law from the preliminary injunction stage in ruling 

on a summary judgment motion is the different legal standards applicable to each). 
- 11 - 

accept less than the amount necessary to bring a delinquent account current. Based upon 

that assumption and because Provident told him to keep making payments and accepted 

his payments without seeking foreclosure, he reasonably assumed some sort of postbankruptcy deal had been struck. Further, he continued to make monthly payments of 

$1,148.22 even after an interest rate adjustment lowered the payment to $1,102.20. He 

maintains these overpayments supported his reasonable belief Provident was applying the 

additional funds to his arrears. We disagree. 

 Brunson knew he was seven months in arrears in 2008. Indeed, he filed for 

bankruptcy to avoid foreclosure and admitted his debt to Provident in his proposed 

bankruptcy plan. He also knew his bankruptcy case had been dismissed before he made 

any payments to the bankruptcy trustee to address the arrearages. Moreover, he retained 

the services of Perfect Home Living after the dismissal of his bankruptcy case to assist 

him in securing a loan modification from Provident. Nevertheless, he claims he believed 

something had been worked out in bankruptcy, either his delinquency had been cured or 

it had been placed on the end of his loan. As incredulous as this seems, we accept his 

claim to having held such a subjective belief. But that is not to say his belief was 

objectively reasonable. 

 Since Brunson is seeking to hold Provident liable for his mistaken belief, the issue 

is whether Provident’s “misrepresentations” caused Brunson’s misbelief and, if so, 

whether he reasonably relied on them. There is no evidence of a direct misrepresentation 

in this case. Instead, Brunson relies on the December 1, 2009 interest rate adjustment 

letter and the December 31, 2009 Annual Tax and Interest Statement. He claims neither 
- 12 - 

document indicated he was delinquent. But the interest rate adjustment letter specifically 

stated it assumed Brunson was not in default and the Annual Tax and Interest Statement 

was not sent until after Provident had provided him notice of the default. Concluding 

those matters amounted to Provident’s representation that the arrearages had been cured 

or placed at the end of the loan was unreasonable. Moreover, as we will explain, both 

documents were sent after Brunson was told by Provident that its records showed he was 

still in bankruptcy. Thus, even assuming these documents would cause a reasonable 

person to believe his account was in good standing, Brunson is not entitled to such an 

assumption because in spite of them he knew Provident misunderstood the status of his 

bankruptcy case. 

 That leaves Provident’s instruction to Brunson to keep making his monthly 

payments and its corresponding acceptance of those payments for sixteen months despite 

its policy (and, ostensibly, that of other creditors) to accept no less than the amount 

necessary to bring a delinquent account current. But the instruction and acceptance say 

nothing about the status of Brunson’s default. Assuming, arguendo, they constitute a 

misrepresentation does not help Brunson because, at bottom, his reliance upon them 

(without reading something additional into them) was not reasonable. That is so because 

when Brunson and Blackburn contacted Provident after the bankruptcy case was 

dismissed, it told them its records showed Brunson to still be in bankruptcy. While 

Provident was wrong and was told so, Brunson nevertheless knew Provident continued to 
- 13 - 

mistakenly believe he was still in bankruptcy. Yet, rather than continuing his attempt to 

correct Provident’s misunderstanding or escalating his concerns,18 Brunson simply 

stopped calling and made his payments. While he could hope the situation went 

undiscovered, it was not reasonable for him to believe Provident’s instruction to continue 

making payments and its acceptance of those payments was a representation that some 

sort of post-bankruptcy agreement had been reached to cure or otherwise modify his 

arrearages. Rather, it demonstrated only that Provident acted as though his bankruptcy 

case was still open, little more. It is necessary to keep our eye on the ball; although 

Provident may have been negligent in failing to update the status of Brunson’s account 

(and Brunson may have contract remedies), it did not negligently misrepresent its 

(erroneous) understanding of the status of the matter.19

 

18 For instance, Brunson does not claim to have supplied Provident with the 

bankruptcy dismissal order in spite of its repeated assertions that the case was still in 

bankruptcy. 

19 Brunson relies on the numerous communications he and Blackburn had with 

Provident in late 2008. He claims “the sheer volume” of these communications create a 

material factual dispute as to whether Provident made negligent misrepresentations and 

whether he reasonably relied on them. (Appellant’s Op. Br. at 37.) Blackburn testified at 

the preliminary injunction hearing, but, significantly, he never said Provident told him 

Brunson’s arrears would be overlooked or placed on the rear of the loan. In fact, Brunson 

admits there was no explicit statement to that effect. Moreover, Blackburn’s call log 

(provided by Brunson) shows Brunson and/or Blackburn spoke with Provident twenty 

times from November 4 through November 19, 2008. Most of these contacts were to 

establish authorization for a third party (Perfect Home Living) to negotiate on Brunson’s 

behalf and to discuss the delivery of a loan modification package. Three calls, including 

the last, show Provident told Brunson his account is still in bankruptcy. Thus, far from 

showing Provident negligently misrepresented that Brunson’s delinquency had been 

cured or placed on the end of the loan, the call log reiterates Provident was operating 

pursuant to its belief Brunson was still in bankruptcy. 
- 14 - 

 As to believing his overpayments were curing his arrears, Brunson fails to explain 

how his belief could be reasonable. On its face it seems inexplicable that Provident 

would accept an overpayment of $46 per month to cure his $10,000+ default, especially 

when the proposed bankruptcy plan called for a monthly payment of $201.95 for five 

years to cure it.20 

Grasping at the last remaining straw, Brunson claims omissions “may be 

actionable as a negligent misrepresentation where the defendant has a duty to disclose.” 

See Smith v. Frandsen, 94 P.3d 919, 923 (Utah 2004); see also Sugarhouse Fin. Co. v. 

Anderson, 610 P.2d 1369, 1373 (Utah 1980) (“Misrepresentation may be made either by 

affirmative statement or by material omission, where there exists a duty to speak.”). He 

claims “Provident had a duty to disclose to [him] that, notwithstanding its countless 

representations that he should just keep making payments of $1,148.22, it believed it 

could foreclose on [his] loan whenever it chose to do so.” (Appellant’s Op. Br. at 43.) 

Yet again, when Provident told Brunson to continue making his payments, it 

simultaneously told him its records showed he was still in bankruptcy, which Brunson 

knew was incorrect. Thus, any reliance by Brunson on any “omission” was 

unreasonable.21

 

20 Brunson actually only “overpaid” for four months because seven of the eleven 

payments made in 2009 were applied to amounts owed in 2008, when the higher payment 

still applied. 

21 Brunson did not allege any contract claims in his original or amended 

complaints. Nevertheless, relying on Rule 15(b)(2) of the Federal Rules of Civil 

Procedure, he now claims several contract claims were implicitly litigated and resolved in 

 (Continued . . .) 
- 15 - 

 B. FCRA

From February 2008 to January 2010, Provident continuously reported Brunson’s 

account as delinquent to credit reporting agencies (CRAs). It stopped reporting the 

delinquency from February 2010 to April 2010 while it investigated and responded to the 

January 20 QWR but resumed its reporting in May 2010. Brunson claims Provident, as a 

“user of credit,” violated FCRA when it failed to send him deficiency notices prior to 

reporting his delinquency to the CRAs. (Appellant’s Op. Br. at 45.) He claims this 

negative reporting prevented him from securing alternative financing to prevent the 

foreclosure. 

 15 U.S.C. § 1681m applies to “users” of consumer credit reports. It requires “any 

person tak[ing] any adverse action with respect to any consumer that is based in whole or 

in part on any information contained in a consumer report” to provide, inter alia, “notice 

of the adverse action to the consumer.” 15 U.S.C. § 1681m(a)(1). While Provident may 

have been a “user” of a consumer credit report when it decided to provide financing to 

 

the district court. We disagree. Rule 15(b)(2) states: “When an issue not raised by the 

pleadings is tried by the parties’ express or implied consent, it must be treated in all 

respects as if raised in the pleadings.” “A party impliedly consents to the trial of an issue 

not contained within the pleadings either by introducing evidence on the new issue or by 

failing to object when the opposing party introduces such evidence.” Eller v. Trans 

Union, LLC, 739 F.3d 467, 479 (10th Cir. 2013) (quotations omitted). “But implied 

consent cannot be based on the introduction of evidence that is relevant to an issue 

already in the case when there is no indication that the party presenting the evidence 

intended to raise a new issue.” Id. at 481 (quotations omitted). While Provident argued 

in the district court that the loan terms precluded any claim by Brunson that an oral 

agreement had been reached modifying his arrearages, that argument was merely one of 

many Provident raised in defense to Brunson’s negligent misrepresentation claim. There 

is no indication Provident intended to raise contract claims not pled by Brunson. 
- 16 - 

Brunson, his allegations relate to Provident’s reporting of Brunson’s account as 

delinquent to CRAs. These allegations refer to Provident’s status as a “furnisher,” not a 

“user”, of information under FCRA. Thus, § 1681m does not apply. 

 Under 15 U.S.C. § 1681s-2, “furnishers” of information to CRAs are prohibited 

from, among other things, knowingly providing inaccurate information to a CRA. 15 

U.S.C. § 1681s-2(a)(1). If such furnisher is a “financial institution that extends credit and 

regularly and in the ordinary course of business furnishes information to a [CRA],” it 

must provide written notice to its customer when it provides negative information about 

that customer to a CRA. 15 U.S.C. § 1681s-2(a)(7)(A)(i). Once it gives “such notice, the 

financial institution may submit additional negative information to a [CRA] . . . with 

respect to the same transaction, extension of credit, account, or customer without 

providing additional notice to the customer.” 15 U.S.C. § 1681s-2(a)(7)(A)(ii). But, 

while FCRA allows federal agencies and state officials to enforce these obligations, it 

does not allow consumers, like Brunson, a private right of action to do so. 15 U.S.C. § 

1681s-2(c), (d); see also Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 

1147 (10th Cir. 2012); Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1059 

(9th Cir. 2002). Thus, even assuming Provident failed to provide the required notice, 

Brunson is without recourse.22 

 

22 FCRA does allow a consumer to enforce a furnisher’s duty to provide accurate 

and complete information to CRAs through its dispute process. Sanders, 689 F.3d at 

1147; Nelson, 282 F.3d at 1060. When a furnisher receives notice of a consumer dispute 

from a CRA, the furnisher “must perform the verification and correction duties described 

 (Continued . . .) 
- 17 - 

 C. RESPA

 RESPA “is a consumer protection statute enacted to regulate real estate settlement 

processes” including loan servicing. Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 

1145, 1148 (10th Cir. 2013). Among other things, it requires servicers of “federally 

related mortgage loan[s]” to timely respond to a borrower’s QWR—first by 

acknowledging receipt of the QWR and then, after conducting an investigation, providing 

a written statement of the reasons it believes its accounting is correct and/or providing the 

information requested by the borrower. 12 U.S.C. § 2605(e)(1)(A),(2). At the time of 

the events in this case, the servicer had twenty days (excluding weekends and holidays) 

to acknowledge receipt of the QWR and sixty days (again excluding weekends and 

holidays) to investigate and provide a substantive response to the QWR and/or provide 

the requested information.23 Id. If the servicer fails to comply with these statutory 

mandates, the borrower may recover actual damages resulting from the failure. 12 U.S.C. 

§ 2605(f). The servicer’s duty to respond is triggered by receipt of a QWR—a “written 

correspondence, other than notice on a payment coupon” that states the name and account 

number of the borrower as well as a statement of the reasons the borrower believes the 

 

in 15 U.S.C. § 1681s-2(b).” Sanders, 689 F.3d at 1147. If it fails to do so, it is subject to 

suit by the consumer. Id.; see also 15 U.S.C. § 1681s-2(c) (limitation on private right of 

action does not apply to violation of duties listed in § 1681s-2(b), only to those duties 

listed in § 1681s-2(a) and (e)). Brunson does not claim to have filed a dispute with any 

CRA. 

23 In July 2010, the statute was amended to provide the servicer five days to 

acknowledge receipt of the QWR and thirty days to conduct an investigation and 

substantively respond and/or provide the information requested. 
- 18 - 

account is in error or a request for information. 12 U.S.C. § 2605(e)(1)(B); see supra 

n.11. 

 Brunson claims Provident violated RESPA by refusing to recognize his letters as 

valid QWRs under the statute. Because of this refusal, he maintains Provident failed to 

provide an accurate accounting of the amounts he owed. 

 We need not decide whether the letters authored by Brunson and his attorney 

constitute proper QWRs under the statute. Instead, we assume so. And Provident timely 

responded to them; Brunson does not argue otherwise.24 

 Brunson’s real complaint boils down to his claim the information provided by 

Provident was not accurate. But RESPA does not require the servicer to provide 

information the borrower believes to be accurate. It requires the servicer to provide “a 

statement of the reasons for which the servicer believes the account of the borrower is 

correct as determined by the servicer” and the information requested by the borrower. 12 

U.S.C. § 2605(e)(2)(B), (C) (emphasis added); see also Bates v. JPMorgan Chase Bank, 

NA, 768 F.3d 1126, 1135 (11th Cir. 2014) (finding servicer complied with RESPA by 

providing borrower with reasons it believed account was correct even though borrower 

 

24 Brunson sent his QWR on December 29, 2009; his attorney sent another QWR 

on January 20, 2009. Provident claims it did not receive Brunson’s QWR; Brunson does 

not dispute the claim. In any event, on January 28, 2010, within twenty business days of 

both QWRs, Provident sent a letter acknowledging receipt of a QWR. Then, on March 

24, 2010, within sixty business days of both Brunson and his attorney’s QWR, Provident 

provided a written explanation of why it believed its accounting was correct and enclosed 

the information requested. 
- 19 - 

was “confused and/or unsatisfied with [the] answer”). Provident did so. 

 AFFIRMED. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge