[ DO NOT PUBLISH] 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

v ersus

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: 1 of 142 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 J ORDAN , G RANT , and L AGOA , 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 Solut ions, 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 violated 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 agencies were liable for actual and punitive damages because they USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 2 of 1423

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willfully violated the FCRA. See 15 U.S .C. § 1681n. And s he allegedthat Nelnet, a student loan servicer, violated the FCRA by furnishing inaccurate information about her student loans to credit reporting agencies. See 15 U.S.C. § 1681s

- (2)(b). 1 On motion of the defendants, the district co urt dismissed McWhorter’s amended complaint with prejudice for failure to state a claim. McWhorter now appeal s , arguing that the district court erred by granting the defendants’ motion to dismiss and abused its discretion by denying her motions for defaul t judgment and her motion for relief from the district court’s judgment of dismissal . T he 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. B rown & 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 denovo, accepting the allegations in the complaint as true and construing them in the ligh t most favorable to the plaintiff. MacPhee v.

1 McWhorter also claimed that all three defendants committed fraud, that Experian 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 abandon ed those claims on appeal by making only passing 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: 3 of 144 Opinion of the Court 23

- 13427
MiMedx Grp., Inc. , 73 F.4th 1220, 1238 (11th Cir. 2023)

. W e 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 determination 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 whe n “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. Davis , 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 denial of her motions for default judgment i s frivolous and the position of the se two appellees is otherwise clearly right as a matter of law. But summary affirmance of the judgment in favor of Experian is not appropriate. At a minimum, McWhorter has raised a

non

- frivolous argument that her amende d complaint

— read liberally 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: 4 of 1423

- 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 appeal 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 aclaim, the defendant is not required to serve an answer to the complaint unt il after the court denies the motion or postpones its disposition 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 complaints, 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 contain “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: 5 of 146 Opinion of the Court 23

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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 defen dant is liable for the misconduct alleged.” Id. A complaint drafted by a p ro se plaintiff must be liberally construed. Jones v. Fl orida Parole Comm’n , 787 F.3d 1105, 1107 (11th Cir. 2015). “ Even so, a pro se pleading must suggest (even if inartfully) t hat there is at least some factual support for a claim; it isnot enough just to invoke a legal theory devoid of any factual basis. ” Id. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal , 556 U.S. at 678 (quotationomitted). The “pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, 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 l oans and two consumer financial accounts. She also claimed that she was entitled to punitive damages because the violations were willful.Section 1681i of Title 15 establishes procedures for a consumer 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: 6 of 1423

- 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 reinvestigation” 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 al lege facts showing , at a minimum, that the agency ’ s file contained factually inaccurate information and that the agency’s investigation upon dispute was not reasonable. Losch v. Nationstar Mortg. LLC , 995 F.3d 937, 94 4 (11th Cir. 2021) ; see Collins v. Exp erian 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 interpretations 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 accuracy. Id. at 1367

– 68. Under 15 U.S.C. § 1681n(a), a pe rson who “ willfully fails to comply ” with the FCRA is liable to the affected consumer for actual, statutory, or punitive damages. A violation is willful if it is committed “with knowled ge or reckless disregard for the law .” Harris v. Mexican Specialty Fo ods, 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 violatin g the law substantially greater than the risk USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 7 of 148 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 ha d falsely reported that her student loans were in collection instead of in forbearance, but t he credit report excerpts she incorporated into her complaint d id not support that interpretation. 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 c ollections. To the contrary, for each date showing a scheduled payment, Trans Union rated the loan s as “OK” and indicated “$0” past due. I n context, the report ed
existence of a partial payment schedule was not necessarily factually inaccurate or o bjectively likely to mislead the intended recipient into believing that the loans were in collections rather than in forbearance. McWhorter also failed to allege facts s howing that Trans Union did not conduct a reasonable reinvestigation into the disputed student loan accounts. S he alleged that the agency contacted the furnisher of information (identified as Nelnet, the loan servicer)
, wh ich 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: 8 of 1423

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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 w ith additional reasonable investigation.
As to the Westlake Financial and Noble Finance loan accounts, McWhor ter did not allege any facts supporting an inference that Trans Union failed to conduct a reasonable investigation aft er receiving notice of a dispute. She alleged that Trans Union reported false payment information about the Westlake Financial account, b ut 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 thatTrans Union was “still reporting a Noble Finance account after bei ng disputed by the plaintiff,” she did not allege what inaccurate information Trans Union reported, if any, about the account or what steps the agenc y could have taken to reasonably investigate the dispute.
To establish that a consumer reporting agency i s liable for punitive damages under § 1681n, a plaintiff must show more than mere noncompliance with the FCRA. See 15 U.S.C. § 1681n(a); Collins , 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 different. Read liberally, her amended complaint alleged that Experian USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 9 of 1410 Opinion of the Court 23

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report ed inaccurate information about payments she made on her loan with Westlake Financial . She alleged that she made a finalpayment of $10,541.43 in March 2017, which Experian never reported. Instead, Experian reported that the Westlake Financial account was “charged off” in March 2017, and that the amount written off exce eded the original $12,108 loan amount. She also alleged

— against Experian only

— that she disputed Experian’s information about the Westlake Financial account “several times withreceipt,” but Experian continued to report the inaccurate information, which ne gatively affected her credit rating

. We have previously held that evidence that a consumer reporting agency disregarded information provided by the consumer and relied solely on the creditor was sufficient to create a jury question whether the agency’s r einvestigation was reasonable. See Collins , 775 F.3d at 1333. At the pleading stage, McWhorter’s allegation that she informed Experian multiple times that its information was inaccurate, repeatedly provided proof of the inaccuracy, and was harmed by Expe rian’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

s ummary affirmance

. 3

3 Because we decline to summarily affirm the dismissal of McWhorter’s complaint 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: 10 of 1423

- 13427 Opinion of the Court 11

2
. Last, we turn to McWhorter’s claim against Nelnet Servicing, 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
, incomplete , 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 inac curate 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 disput ed information was unreasonable. Id. And “t o prove an investigation was unreasonable, a plaintiff must point out some facts the furnisher could have uncovered that establish that the reported information was, in fact, inaccurate or incomplete.” Id. (quo tation 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 believed 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: 11 of 1412 Opinion of the Court 23

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in forbearance. As we have explained, the information reported about McWhorter’s student loan s was not inconsistent with the forbearance status she claimed. And McWhorter’s own allegationthat Nelnet responded to the dispute by providing accurate information undermines any implication that Nelnet failed to conduct a reasonable investigation of th e dispute

. In short, t he 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

se

veral grounds for relief from a final judgment, including, as relevant here, “mistake, inadvertence, surprise, or excusable neglect” ;newly discovered evidence; and fraud, misrepresentation, or misconduct by an opposing party. Fed. R. Civ. P. 60(b)(1)

– (3)

. A plaintiff who is granted re lief from a judgment under Rule 60(b) may then seek leave to amend her complaint. U nited 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 omitted). After the district court dismissed her amended complaint with prejudice, McWhorter moved to set aside the judgment based

on assertion s 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: 12 of 1423

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when she submitted one or more of the five iterations of her complaint. Although much of the motion is difficult to decipher, it appears 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 allegations showed that the defendants had committed misconduct, including fraud

. As “newly discovered evidence,” s he attached portions 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 ab use 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 allegations contained in her motion failed to state a claim for relief against Trans Union and Nelnet for the same rea sons as before, and she did not mak e any discernable attempt to state new claims against them. Because a fifth amended complaint incorporatingthe allegations in McWhorter’s motion would still be subject to dismissal 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: 13 of 1414 Opinion of the Court 23

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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. Experian’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 pagelimits and word count in response to the initial motion for summary affirmance

. USCA11 Case: 23-13427 Document: 60-1 Date Filed: 07/12/2024 Page: 14 of 14