United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 22-2840

___________________________ 

Chiya C. Lloyd

 Plaintiff - Appellant

v.

FedLoan Servicing

 Defendant - Appellee

Equifax Information Services LLC; Trans Union, LLC

 Defendants 

Experian Information Solutions, Inc.

 Defendant - Appellee

____________

Appeal from United States District Court 

for the Western District of Missouri - Kansas City

____________ 

Submitted: September 21, 2023

Filed: June 21, 2024

____________ 

Before SMITH, Chief Judge,1 MELLOY and ERICKSON, Circuit Judges. 

____________

1

Judge Smith completed his term as chief judge of the circuit on March 10, 

2024. See 28 U.S.C. § 45(a)(3)(A).
-2- 

ERICKSON, Circuit Judge.

Chiya Lloyd filed her initial complaint pursuant to the Fair Credit Reporting 

Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., against FedLoan Servicing LLC2

(“FedLoan”), Equifax Information Services, LLC (“Equifax”), Trans Union, LLC 

(“Trans Union”), and Experian Information Solutions, Inc. (“Experian”). Equifax 

and Trans Union settled with Lloyd and were dismissed from the case; after their 

dismissal, Lloyd filed an amended complaint asserting FCRA violations against 

FedLoan and Experian. The district court3 granted a motion for summary judgment 

in favor of Experian, and, later, one in favor of FedLoan. We affirm.

I. BACKGROUND

FedLoan services at least nine federal student loans for Lloyd. As a servicer, 

FedLoan furnishes information to Experian regarding Lloyd’s student loan payment 

history. In turn, Experian, a consumer reporting agency (“CRA”), regularly issues 

consumer reports pursuant to the FCRA. 

In August 2019, FedLoan submitted three pieces of information to Experian: 

(1) Lloyd’s nine student loan payments from January 2018 were overdue, (2) 

Lloyd’s nine student loan payments from February 2018 were overdue, and (3) seven 

of Lloyd’s student loan payments from June 2019 were overdue. In early September 

2019, Lloyd submitted an online dispute4 with Experian contesting all the reported 

delinquencies. To describe her dispute, Lloyd entered a narrative that read: “Any 

and all late remarks are factually inaccurate. See proof provided.” In support, she 

2

FedLoan Servicing LLC is the trade name of the Pennsylvania Higher 

Education Assistance Agency, which services student loan accounts on behalf of the 

United States Department of Education.

3 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the 

Western District of Missouri.

4

Lloyd filed two identical disputes a few days apart in the beginning of 

September, which were addressed as one. 
-3- 

attached screenshots of her transaction history from FedLoan as of August 16, 2019, 

and an administrative forbearance letter from FedLoan dated August 2, 2019. 

 

After receiving Lloyd’s dispute, Experian sent an Automated Consumer 

Dispute Verification (“ACDV”) to FedLoan, requesting further information on 

Lloyd’s accounts. In response to the ACDV, FedLoan investigated and reported 

back to Experian that none of Lloyd’s nine student loan payments were delinquent 

in January or February 2018. However, FedLoan confirmed that seven of Lloyd’s 

loan payments for June 2019 were ninety days past due. Experian communicated 

this update to Lloyd in a credit report dated September 24, 2019. 

Lloyd filed a second dispute with Experian contesting the remaining alleged 

late payments. Experian sent a second ACDV to FedLoan, and FedLoan provided 

Experian with an update on the seven disputed loan payments. This time FedLoan 

reported that only one of Lloyd’s student loan accounts had an overdue payment 

from June 2019. Experian communicated this update to Lloyd in a credit report 

dated October 17, 2019. 

Lloyd submitted a third dispute contesting the sole remaining alleged late 

payment. On December 2, 2019, FedLoan received one ACDV from Experian 

regarding the reporting on Lloyd’s student loan account. FedLoan completed 

another investigation and informed Experian that the remaining delinquent charge 

on Lloyd’s account was not overdue. By February 2020, Experian removed all 

delinquent marks from Lloyd’s credit report. 

Before receiving the results of her first dispute from Experian, Lloyd initiated 

a civil action against FedLoan, Experian, and a handful of other CRAs. After 

amending her complaint, Lloyd’s lawsuit alleged that FedLoan failed to properly 

investigate the accuracy of the information that it reported to Experian, and Experian 

failed to follow its procedures, or have proper procedures in place, to discover

FedLoan’s mistakes. Lloyd alleged both FedLoan and Experian violated 15 U.S.C. 

§§ 1681e(b), 1681i(a)(1)(A), and 1681s-2(b). 
-4- 

The district court granted Experian’s motion for summary judgment, 

determining that Lloyd could not show Experian failed to follow reasonable 

procedures or that Experian failed to conduct a reasonable reinvestigation. The 

district court initially granted FedLoan partial relief, finding that FedLoan did not 

willfully violate the FCRA. Further briefing ensued from both parties and the court 

then granted complete summary judgment in favor of FedLoan on the ground that 

Lloyd did not present sufficient evidence of damage to support her claim. This 

appeal followed.

II. ANALYSIS

We review a district court’s grant of summary judgment de novo, and we may 

affirm summary judgment for any reason supported by the record. Gareis v. 3M 

Co., 9 F.4th 812, 818 (8th Cir. 2021). 

A. Claims Against Experian

Lloyd challenges on appeal the district court’s dismissal of her unreasonable 

reinvestigation claim under § 1681i(a). In particular, Lloyd asserts Experian should 

have accepted her documents and should have recognized that FedLoan is an 

unreliable CRA.

The FCRA requires a consumer reporting agency, like Experian, to “conduct 

a reasonable reinvestigation” when it receives a dispute from a consumer. 15 U.S.C. 

§ 1681i(a)(1)(A). The FCRA sets forth general requirements for consumer reporting 

agencies when conducting a reinvestigation: the agency must review all relevant 

information provided by the consumer, the agency must promptly notify the 

furnisher of the dispute, the agency must provide the furnisher with all relevant 

information, the agency must modify or delete inaccurate or unverifiable 

information, and the agency must notify the consumer of the results of its 

investigation. Id. § 1681i(a)(2)-(6). If the consumer requests a description of the 
-5- 

CRA’s reinvestigation procedure, the CRA must provide the consumer with the 

description within fifteen days. Id. § 1681i(a)(7).

When filing her first consumer dispute with Experian, Lloyd submitted 

screenshots of her transaction history from FedLoan as of August 16, 2019, and an 

administrative forbearance letter from FedLoan dated August 2, 2019. Lloyd 

contends that these documents alone should have proved to Experian that FedLoan 

falsely reported delinquencies on her account and that FedLoan is an unreliable 

source of information. Lloyd maintains that all Experian needed to do was compare 

her documents with FedLoan’s invoices and her dispute would have been resolved.

However, Lloyd’s screenshots are incomplete depictions of the status of her student 

loan accounts. The screenshots do not identify any payment due dates or any 

amounts due on specific loans. All transaction information is lumped together as 

applied to all of Lloyd’s loans. Even so, Lloyd’s screenshots show that she made no 

payments during January 2018, November 2018, December 2018, January 2019, 

February 2019, or June 2019.

More importantly, Experian did not have access to FedLoan’s invoices. Upon 

receiving Lloyd’s dispute, Experian sent an ACDV to FedLoan, requesting further 

information on Lloyd’s accounts. Lloyd concedes that an ACDV “typically includes 

a description of the dispute, information about the disputed account, and any 

documents and comments provided by the consumer.” Lloyd provided no evidence 

that Experian failed to follow the typical ACDV process during its reinvestigation.

Lloyd also attached an August 2, 2019, letter from FedLoan, which explained 

that Lloyd’s loans had been placed in administrative forbearance between April 26, 

2019, and July 25, 2019. Lloyd contends that she did not request this forbearance, 

and she made payments during March, April, May, and July of 2019. The 

forbearance letter stated that Lloyd was responsible for the interest that accrued 

during the forbearance. As this letter only addressed one of the three months at issue, 

the document also does not resolve her dispute. 
-6- 

Taken together, the screenshots and forbearance letter do not create a clear or 

comprehensive picture of Lloyd’s student loan accounts at the time she filed her 

dispute. The screenshots of her transaction history lack critical information, 

including the amount due each month and the due date. The forbearance letter only 

addressed one of three missed months of payment. Contrary to her assertion, 

Lloyd’s narrative and accompanying documents were insufficient for Experian to 

resolve the issues FedLoan flagged. 

While Lloyd generally argues that Experian failed to follow its procedures 

and failed to have proper procedures in place to detect inconsistencies in a 

furnisher’s reporting, she did not point to any step in Experian’s reinvestigation 

procedure as insufficient. The record shows Experian followed the steps set forth 

by the FCRA for conducting a reinvestigation. Once it received Lloyd’s first 

dispute, Experian reviewed Lloyd’s statement describing her dispute and the 

documents she submitted. Experian then provided this information to FedLoan and 

requested further information from FedLoan through its ACDV process. When it 

received updated information, Experian modified its report and removed the 

inaccurate delinquencies. Experian promptly notified Lloyd of the results of its 

reinvestigation and informed Lloyd of her options if she continued to disagree with 

the reporting. 

 

Although § 1681(a)(3) allows a CRA to decline to reinvestigate if it 

reasonably determines a consumer’s dispute is “frivolous or irrelevant,” Experian 

repeated this process when it received Lloyd’s second dispute. See Federal Trade 

Commission, 40 Years of Experience with the Fair Credit Reporting Act, 2011 WL 

3020575, at *69 (“The CRA is not required to repeat an investigation that it has 

previously conducted simply because the consumer reiterates a dispute about the 

same item of information, unless the consumer provides further information 

indicating that the item is inaccurate or incomplete, or alleges changed factual 

circumstances.”). When Lloyd submitted her second dispute, she did not include 

any new documents or provide new narrative facts. Even so, Experian chose to 
-7- 

repeat its reinvestigation and once again modified its report and provided Lloyd with 

timely notice of the results.

Nothing in the record suggests that Lloyd requested a description of 

Experian’s reinvestigation procedure, which a consumer may do under 

§ 1681i(a)(7). Lloyd has failed to show that Experian did not satisfy its statutory 

requirements when conducting a reinvestigation under the FCRA. Each 

investigation was not the same, as each dispute led to the removal of one or more 

delinquent remarks on Lloyd’s account. Likewise, Lloyd has failed to meet her 

burden of showing Experian willfully or negligently violated the FCRA when 

conducting its reinvestigation.5

 

Lloyd also argues that her screenshots and forbearance letter prove that 

FedLoan is an unreliable CRA and Experian had no right to rely on FedLoan’s 

representations. However, these two documents do not establish a basis from which

one could characterize FedLoan as an unreliable source of information. The Seventh 

Circuit in Henson v. CSC Credit Services held that a CRA “may be required, in 

certain circumstances, to verify the accuracy of its initial source of information,” but 

the Henson Court conditioned that duty “on whether the consumer has alerted the 

reporting agency to the possibility that the source may be unreliable or the reporting 

5

While the dissent would allow Lloyd’s negligence claim to proceed under res 

ipsa loquitur, no circuit court has expressly applied the doctrine in the FCRA 

context. See Johnson v. Trans Union, LLC, 524 F. App’x 268, 270 (7th Cir. 2013) 

(including res ipsa loquitur in the “litany of implausible arguments” presented on 

appeal); Ausherman v. Bank of Am. Corp., 352 F.3d 896 (4th Cir. 2003) (expressly 

declining to apply res ipsa loquitur to prove a duty under the FCRA); Philbin v. 

Trans Union Corp., 101 F.3d 957 (3d Cir. 1996) (noting res ipsa loquitor is one 

theory that has been discussed by other courts but finding it unnecessary to decide 

among the various theories advanced by the plaintiff); Stewart v. Credit Bureau Inc., 

734 F.2d 47, 51 (D.C. Cir. 1984) (while the district court hypothesized there could 

be an instance when inaccurate credit reports by themselves can be read as 

evidencing unreasonable procedures, the appellate court did not apply res ipsa 

loquitur in reviving the plaintiff’s claims but instead vacated the district court’s 

opinion due to the procedural posture and insufficient record). 
-8- 

agency itself knows or should know that the source is unreliable.” 29 F.3d 280, 287 

(7th Cir. 1994). The court did not articulate the circumstances where this duty might 

be triggered. 

 

Lloyd has not identified any binding precedent supporting her contention that, 

under these facts, Experian should have been on notice that FedLoan is an unreliable 

furnisher. Lloyd does not allege any widespread inaccuracies across FedLoan’s 

serviced accounts. Additionally, nothing in the record reflects that Experian should 

have suspected that FedLoan was an unreliable source. Under these facts and 

circumstances, Lloyd failed to present a cognizable claim against Experian. 

B. Claims Against FedLoan

Lloyd contends the district court erred when it found the evidence was 

insufficient to show a willful violation of the FCRA by FedLoan. Lloyd asserts a 

reasonable jury could have found FedLoan willfully failed to correct the 

delinquencies on her accounts because FedLoan had “ample notice that its late 

payment reports were inaccurate,” the inaccuracies were “a staggeringly easy 

problem” to resolve, and a customer service representative confirmed there was no 

basis for FedLoan to report any of Lloyd’s payments as delinquent. 

 “To show willful noncompliance with the FCRA, the plaintiff must show that 

the defendant knowingly and intentionally committed an act in conscious disregard 

for the rights of others, but need not show malice or evil motive.” Bakker v. 

McKinnon, 152 F.3d 1007, 1013 (8th Cir. 1998) (cleaned up). To prove willfulness, 

Lloyd is required to provide some evidence showing that FedLoan knowingly, 

intentionally, or recklessly committed an act in conscious disregard of her rights. 

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57-58 (2007). 

Lloyd attempted to prove willfulness by relying on statements documented in 

a transcript she created from a phone conversation with an unknown FedLoan 

customer service representative on an unknown date. Lloyd maintains that the 
-9- 

customer service representative confirmed that she was not past due on any of her 

student loan payments. However, the customer service representative noted that 

Lloyd missed her June payments and that the loan was accruing unpaid interest. In 

any event, Lloyd’s transcription is not competent evidence because Lloyd cannot lay 

an appropriate foundation for it, as she cannot identify who was speaking on behalf 

of FedLoan, the authority the speaker had to make representations on behalf of 

FedLoan, or even when the conversation occurred. Being unable to lay the proper 

foundation, the transcript would not be admissible at trial and is insufficient to show 

FedLoan knowingly, intentionally, or recklessly failed to comply with the 

requirements of the FCRA. 

Lloyd also contends willfulness was demonstrated because even though she 

provided documents showing timely payments, she was required by FedLoan to file 

multiple disputesto correct inaccuracies, FedLoan continued to provide at least some 

false information, and FedLoan’s continued distribution of false information was 

purposeful and unreasonable. While it is undesirable that FedLoan was not more 

attentive to detail, Lloyd has at least nine student loans with FedLoan and FedLoan 

was responsive in resolving her disputes. On this record, the mere fact that Lloyd 

filed multiple disputes does not, in itself, show FedLoan knowingly and intentionally 

committed an act in conscious disregard for the rights of others. 

With regard to Lloyd’s reasonableness claim, § 1681s-2(b) sets forth the 

duties required when an entity furnishing credit report information receives a 

dispute. The statute requires the furnisher to:

(A) conduct an investigation with respect to the disputed information;

(B) review all relevant information provided by the consumer reporting 

agency pursuant to section 1681i(a)(2) of this title;

(C) report the results of the investigation to the consumer reporting 

agency;

(D) if the investigation finds that the information is incomplete or 

inaccurate, report those results to all other consumer reporting agencies 

to which the person furnished the information and that compile and 

maintain files on consumers on a nationwide basis; and
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(E) if an item of information disputed by a consumer is found to be 

inaccurate or incomplete or cannot be verified after any reinvestigation 

under paragraph (1), for purposes of reporting to a consumer reporting 

agency only, as appropriate, based on the results of the reinvestigation 

promptly-- 

(i) modify that item of information;

(ii) delete that item of information; or

(iii) permanently block the reporting of that item of information.

15 U.S.C. § 1681s-2(b)(1)(A)-(E). Lloyd does not identify which of these statutory 

duties FedLoan failed to satisfy. Evidence in the record shows that for each of 

Lloyd’s three disputes, FedLoan followed the steps set forth in § 1681s-2(b)(1)(A)-

(E), which ultimately resulted in removing inaccurate information from Lloyd credit 

report each time.

Lloyd’s failure to present evidence sufficient to allow a jury to find that 

FedLoan’s investigation was unreasonable is fatal to her claim. The initial 

documents Lloyd submitted did not paint a full or accurate picture of her loan 

payment history. The screenshots of her transaction history did not detail what 

amounts were due or the date they were due. Finally, Lloyd did not identify a 

statutory duty that FedLoan failed to fulfill. As with the claims against Experian, 

we find the doctrine of res ipsa loquitur inapplicable under the facts and 

circumstances of this case. The district court did not err in denying Lloyd’s motion 

for summary judgment. 

Even if Lloyd had presented sufficient evidence demonstrating FedLoan acted 

willfully or unreasonably, Lloyd bears the burden of showing actual damages 

resulted from FedLoan’s alleged reporting error. 15 U.S.C. § 1681o(a)(1); Peterson 

v. Experian Info. Sols., 44 F.4th 1124, 1126 (8th Cir. 2022). Lloyd contends she

suffered actual damages in the form of credit card denials and a mortgage denial. 

While denial of credit can give rise to an actual claim for damage resulting

from erroneous credit reporting, see Peterson, 44 F.4th at 1126-27, the credit denial 

letters Lloyd submitted provided only brief, bulleted explanations as to why Lloyd’s 
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credit card applications were denied. None identified FedLoan’s student loan 

reporting as a factor in their denial decisions. The denial letters from Mastercard, 

Sears, and Home Depot provided cursory explanations, such as “[h]istory of 

delinquent credit obligation(s)” and “[n]umber of credit bureau inquiries.” The 

credit denial letter from TD Bank did not provide a reason as to why it denied 

Lloyd’s application for an account, but it did provide several reasons for Lloyd’s 

adverse credit score: “[s]erious delinquency,” “[t]ime since delinquency is too recent 

or unknown,” “[n]umber of accounts with delinquency,” and “[r]atio of balance to 

limit on bank revolving or other rev accts too high.” Although each letter provided 

contact information for follow-up, nothing in the record suggests that Lloyd 

contacted the credit card companies for more information or specific reason(s) for 

the denial. 

In summary, the letters Lloyd submitted are simply too vague to demonstrate 

actual damages. In addition, Lloyd had other history of loan delinquencies. Lloyd’s 

suspicion that FedLoan’s reporting caused her credit card denials lacks evidentiary

support, and the district court did not err by dismissing her claim.6

Lloyd also submitted a letter denying her application for a home loan from a 

mortgage originator at Mutual of Omaha. Evidence in the record shows that Lloyd 

and her husband applied jointly for a loan with the same originator twice, once in 

2018 and then again in 2019. Lloyd’s first application in 2018 occurred before 

FedLoan reported any delinquencies on her student loans and the reason preapproval 

was not obtained was due to Lloyd’s credit history. 

Following the 2019 application, the mortgage originator noted that Lloyd’s 

credit report included additional derogatory marks in addition to her student loan 

delinquencies. The mortgage originator was also concerned about Lloyd’s income 

6

We are unpersuaded by the dissent’s reliance on Spokeo, Inc. v. Robins, 578 

U.S. 330, 341 (2016), as support for the position that the credit denial letters 

constitute sufficient evidence of damage because the focus in Spokeo was on 

standing, which is not at issue in this case.
-12- 

and needed additional information from Lloyd. Rather than provide the requested

information, Lloyd followed up with a request for the originator to write a letter 

stating Lloyd was denied a mortgage due to the information in her credit report. The 

record does not support Lloyd’s assertion that FedLoan’s reporting, and not other 

issues a mortgage originator considers, led to the loan denial. Because Lloyd failed 

to provide sufficient evidence to raise a jury question that she sustained actual 

damages from FedLoan’s reporting, her claim fails. 

Lastly, Lloyd asserts that the district court impermissibly excluded her expert 

rebuttal report and credit impact evidence. Because the credit score impact analysis 

was contained within the rebuttal report, we address them together. We review a 

district court’s decision to exclude expert evidence for an abuse of discretion. Kuhn 

v. Wyeth, Inc., 686 F.3d 618, 624 (8th Cir. 2012).

 The district court excluded the report because it was untimely and should have 

been presented as an affirmative report. The district court noted that the information 

in the report should have been presented in an affirmative expert report. Instead of 

doing so, Lloyd waited until FedLoan’s expert pointed out all the flaws in her case 

to retain a rebuttal expert in an attempt to salvage her case. The district court twice 

emphasized that Lloyd is an attorney and that Lloyd should have known she had to

designate an expert for her case-in-chief and file the report in accordance with the 

court’s scheduling order.

Despite carrying the burden of proof on the issues presented in her report, 

Lloyd argues that she does not have to present the testimony in her case-in-chief if 

the testimony would also be proper in rebuttal under United States v. Luschen, 614 

F.2d 1164, 1170 (8th Cir. 1980). In Luschen, the trial court allowed the government 

to reopen its rebuttal and provide testimony that it could have provided during its 

case-in-chief. Id. The Court concluded that the district court did not abuse its 

discretion in doing so because “[t]he fact that testimony would have been more 

proper for the case-in-chief does not preclude the testimony if it is proper both in the 

case-in-chief and in the rebuttal.” Id. 
-13- 

 The admissibility of evidence is entrusted to the sound discretion of the trial 

court. It is indisputable that Lloyd failed to comply with the expert opinion deadline. 

Unlike in Luschen, this case failed at the summary judgment stage. While Lloyd

contends that exclusion was too harsh a sanction for her untimely report, a district 

court may exclude evidence as a self-executing sanction unless the party’s failure to 

comply is substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). When 

imposing a sanction, a district court should consider “the reason for noncompliance, 

the surprise and prejudice to the opposing party, the extent to which allowing the 

information or testimony would disrupt the order and efficiency of the trial, and the 

importance of the information or testimony.” Wegener v. Johnson, 527 F.3d 687, 

692 (8th Cir. 2008). While the district court’s discretion narrows as the severity of 

the sanction increases, id., here the district court considered most of these factors 

when it excluded the report. 

Notably, the district court did not find Lloyd’s reason for failing to timely file 

her report persuasive. Even though the district court did not make an express finding 

of surprise or prejudice, the court noted that Lloyd “waited until the flaws in her case 

were elucidated by Defendant FLS’s expert, and only then found an expert who 

could testify in rebuttal.” Similar to the defendant in Wegener, FedLoan may not 

have been surprised at the arguments presented in Lloyd’s report, but it may have 

been surprised by the untimely disclosure. 

The district court also found that Lloyd’s late disclosure significantly 

disrupted the case. The court emphasized that Lloyd’s need for additional time 

occurred only “after discovery ha[d] long been closed.” Lloyd was on notice that 

the court was concerned about discovery delays. In its second amended scheduling 

order, the district court informed the parties that “[a]ny last minute discovery 

submitted too late for the opposing side to timely discover may be stricken” and “the 

Court expects discovery to proceed in a timely manner.” Further, as the deadlines 

drew near, the district court issued an order cautioning the parties “that if they wish 

the Court to extend the discovery deadline, they must file a motion for extension of 

time demonstrating good cause for the extension sought.” Despite the district court’s 
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clear expectations and repeated warnings, Lloyd did not file a motion or request 

leave to file supplemental discovery until more than a year after the close of 

discovery. 

Because Lloyd’s failure to comply with the district court’s orders was not 

substantially justified or harmless, the district court did not abuse its discretion in 

excluding Lloyd’s expert’s rebuttal report.

 

III. CONCLUSION

For the foregoing reasons, we affirm the dismissal of Lloyd’s claims. 

SMITH, Chief Judge, concurring in part and dissenting in part.

For the reasons given in the majority opinion, I agree with the disposition of 

the willfulness and evidentiary issues. However, I would reverse the district court’s 

grant of summary judgment with respect to the negligence claims. In my opinion, a 

reasonable jury could find negligence and award damages.

In 2019, Chiya Lloyd and her husband sought to become homebuyers.7 Like 

most prospective homebuyers, they lacked sufficient cash to buy a home outright. 

Instead, they would need to obtain a loan, relying on their creditworthiness.

Over the summer, Lloyd monitored her credit reports, as she and her husband 

prepared to apply in the fall. Errors began to appear in August. Lloyd’s student loan 

servicer, FedLoan, was falsely reporting to the nation’s three major credit bureaus—

Experian, Equifax, and TransUnion—that Lloyd was delinquent on her student loan 

payments. Most relevant here, FedLoan reported that Lloyd was 90 days delinquent 

on her bill for June 26, 2019—a factual impossibility in August.

7

At summary judgment, a court views the facts in the light most favorable to 

Lloyd. Taylor v. Tenant Tracker, Inc., 710 F.3d 824, 825 (8th Cir. 2013). 
-15- 

Lloyd disputed the reports with the credit bureaus, confident they would 

remove the error from their files. Following their standard investigation procedures, 

the credit bureaus submitted Automated Consumer Dispute Verifications (ACDVs) 

to FedLoan around August 24. These ACDVs requested information on the status of 

Lloyd’s account. FedLoan conducted an internal investigation, answered the 

ACDVs, and reiterated that, as of August 24, Lloyd was 90 days delinquent on her 

June 26 bill. The credit bureaus accepted this finding and did not amend their files 

regarding the June 26 bill. In September, October, and December, Lloyd repeated 

the process, and the results were the same. She was told that, as of August, she had 

been 90 days delinquent on her June 26 bill.

Hopeful that lenders would disregard the falsely reported 90-day delinquency, 

Lloyd and her husband pressed forward. Around this time, Lloyd applied for four 

credit cards. All four applications were rejected. The Sears Card cited “[h]istory of 

delinquent credit obligation(s)” on Lloyd’s Experian credit report. R. Doc. 138-14, 

at 1. The Shop Your Way Mastercard used identical language. Id. at 2. The Home 

Depot Consumer Credit Card cited “[n]umber of credit bureau inquiries” at 

Experian. Id. at 3. And TD Bank cited Experian’s report as showing “[s]erious 

delinquency,” “[t]ime since delinquency is too recent or unknown,” “[n]umber of 

accounts with delinquency,” and “[r]atio of balance to limit on bank revolving or 

other rev accts [revolving accounts] too high.” R. Doc. 150-10, at 1.

In September, Lloyd and her husband went to Mutual of Omaha Mortgage, 

seeking prequalification for a home loan. A branch manager pulled the couple’s 

credit reports, investigated their creditworthiness, and determined that they were 

ineligible for a home loan. On October 1, the manager sent a letter:

Dear Chiya and Clarence Lloyd:

I have reviewed your application. At this time, we cannot offer you a 

home loan based on reported lates on your credit report:

• Experian, Transunion and Equifax reported student loan late 

payments for +90 days. This was a credit report from 9/9/2019.
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• Experian reported +90 day lates on your student loans as recent 

as 6/2019. This was a credit report from 9/27/2019.

• Also, student loans will need to be calculated into your monthly 

liabilities. I have attached the options for Conventional and FHA 

loan options for your review.

R. Doc. 136-11, at 2.

Pursuant to the Fair Credit Reporting Act (FCRA), Lloyd brought willfulness 

and negligence claims against FedLoan, Experian, Equifax, and TransUnion. Soon 

thereafter, Equifax and TransUnion removed the 90-day delinquency from their 

files, and Lloyd voluntarily dismissed them from the case. FedLoan and Experian 

persisted in their error and insisted that Lloyd had been 90 days delinquent on her 

June 2019 bill. They did not correct their files until February 2020.

***

Access to credit is vital to a person’s participation in our nation’s economic 

opportunities. Credit reports often play a substantial role in assessing a person’s 

creditworthiness. As the Supreme Court recently explained, “[a] credit report can 

determine everything from whether a person can secure a credit card, purchase a 

home, win a new job, or start a small business. Recognizing the importance of 

accuracy in credit reporting, Congress adopted the Fair Credit Reporting Act in 1970 

(FCRA).” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 45

(2024). The FCRA imposes a duty not to “willfully or negligently supply false

information” about consumers’ creditworthiness. Id. To enforce this duty, Congress 

has “authorized consumer suits against any person who willfully or negligently fails 

to comply with any of the law’s requirements.” Id. at 47 (cleaned up). 

A negligence claim under the FCRA resembles a traditional negligence claim. 

A plaintiff must prove four elements: “(1) inaccurate information was included in a 

consumer’s credit report; (2) the inaccuracy was due to defendant’s failure to follow 

reasonable procedures to assure maximum possible accuracy; (3) the consumer 
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suffered injury; and (4) the consumer’s injury was caused by the inclusion of the 

inaccurate entry.” Bibbs v. Trans Union LLC, 43 F.4th 331, 342 (3d Cir. 2022)

(quoting Cortez v. Trans Union, LLC, 617 F.3d 688, 708 (3d Cir. 2010)). “[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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine 

issue for trial exists if a nonmovant “present[s] more than a scintilla of evidence” 

and “advance[s] specific facts” supporting each element of her claim. Rolscreen Co. 

v. Pella Prods. of St. Louis, Inc., 64 F.3d 1202, 1211 (8th Cir. 1995). 

On the first element, Lloyd’s allegations are indisputably correct. When 

FedLoan told Experian and when Experian told prospective lenders that Lloyd was 

90 days delinquent on her June 26 bill as of August 24, they reported inaccurate 

information that was factually impossible. A person cannot be 90 days delinquent 

on a bill that was due two months prior.

On the second element, the majority opinion faults Lloyd, in her negligence 

claim against Experian, because she “provide[s] no evidence that Experian failed to 

follow the typical ACDV process,” and she “d[oes] not point to any step in 

Experian’s reinvestigation procedure as insufficient.” As for the negligence claim 

against FedLoan, the majority declares: “FedLoan followed the steps set forth in [the 

statute], which ultimately resulted in removing inaccurate information from 

Lloyd[’s] credit report each time.” The opinion continues: “Lloyd’s failure to present 

evidence sufficient to allow a jury to find that FedLoan’s investigation was 

unreasonable is fatal to her claim.”

I disagree with these “no evidence” findings. Concededly, Lloyd provides no 

direct evidence about what went wrong at FedLoan and Experian. But the record 

contains sufficient circumstantial evidence on which a reasonable jury could find 

for Lloyd. A reasonable jury could infer that FedLoan and Experian “fail[ed] to 

follow reasonable procedures to assure maximum possible accuracy.” Bibbs, 43 

F.4th at 342. Of course, Lloyd’s strongest circumstantial evidence is the timeline.
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At least two of our sister circuits have suggested that, if an appropriate case 

ever arises, a consumer may be able to prove a negligence claim under the FCRA 

using the doctrine of res ipsa loquitur—the thing speaks for itself. See Ausherman 

v. Bank of Am. Corp., 352 F.3d 896, 901–02 (4th Cir. 2003); Philbin v. Trans Union 

Corp., 101 F.3d 957, 965–66 (3d Cir. 1996). Our circuit describes res ipsa loquitur 

as “a type of circumstantial evidence, which permits, but does not compel, an 

inference of negligence upon showing an injury would not have occurred absent 

some unspecified but impliedly negligent act.” Depositors Ins. Co. v. Wal-Mart 

Stores, Inc., 506 F.3d 1092, 1096 (8th Cir. 2007) (internal quotation marks omitted). 

The doctrine has several variations. See Restatement (Third) of Torts: Phys. & Emot. 

Harm § 17 cmt. b (Am. L. Inst. 2010) (discussing alternative formulations).

According to the Supreme Court, the FCRA should be construed in light of 

“common law usage.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007). Under 

the common law, res ipsa loquitur is a well-established doctrine, enabling a plaintiff 

to prove negligence without direct evidence about the exact cause of her injury. In 

non-FCRA contexts, the doctrine has been widely used in our circuit. Following the 

views of our sister circuits and the view of the Supreme Court in Safeco, I would 

allow Lloyd to proceed on her res ipsa loquitur argument. See Appellant’s Br. at 31. 

“[I]n certain instances,” as here, “inaccurate credit reports by themselves can fairly 

be read as evidencing unreasonable procedures.” Philbin, 101 F.3d at 966 (quoting 

Stewart v. Credit Bureau, Inc., 734 F.2d 47, 52 (D.C. Cir. 1984)).

Res ipsa loquitur may or may not be a winning argument at trial, but I believe 

a reasonable jury could permissibly infer that no set of investigation procedures, 

which allows factually impossible information to remain in a consumer’s credit file, 

reasonably “assure[s] maximum possible accuracy.” Bibbs, 43 F.4th at 342. Upon 

the completion of their investigations, FedLoan and Experian confirmed that Lloyd 

had indeed been 90 days delinquent on her June 26 bill as of August 24. From this 
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fact, a reasonable jury could conclude that the investigations were unreasonable. 

Merely counting the days on the calendar would have sufficed.8

On the third and fourth elements, which pertain to damages and causation, the 

majority opinion properly holds that “denial of credit can give rise to an actual claim 

for damage resulting from erroneous credit reporting.” Here, Lloyd suffered denials 

of four credit card applications and prequalification for a home loan. The majority 

faults Lloyd for not doing a “follow-up” with the credit card companies after their 

denials. However, the FCRA does not contain a “follow-up” requirement. Next, the 

majority faults Lloyd for being “too vague” about her damages and for having 

“additional derogatory marks” in her credit history. These observations, in my 

opinion, go more to the weight of the evidence than its legal sufficiency.9

 “[T]he law 

has long permitted recovery by certain tort victims even if their harms may be 

8

In my view, it is immaterial whether the defendants did or did not “follow the 

typical ACDV process.” If they did not follow the typical process, their liability is 

clear. If they followed the typical process, but the typical process is so defective that 

it allows factually impossible information to remain in consumers’ credit files, a jury 

could permissibly infer that the typical process is unreasonable and violates the 

FCRA. See 15 U.S.C. §§ 1681e(b), 1681i(a)(1)(A), 1681s-2(b)(1). Both paths lead 

to liability. Res ipsa loquitur relieves the plaintiff of her burden to discover 

specifically what happened. See Depositors, 506 F.3d at 1096. 

9

See Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of 

the evidence, and the drawing of legitimate inferences from the facts are jury 

functions, not those of a judge, whether he is ruling on a motion for summary 

judgment or for a directed verdict. The evidence of the non-movant is to be believed, 

and all justifiable inferences are to be drawn in h[er] favor.”); Wilson v. Myers, 823 

F.2d 253, 256 (8th Cir. 1987) (“Summary judgment is not designed to weed out 

dubious claims, but to eliminate those claims with no basis in material fact. The trial 

court errs when it takes upon itself, in deciding a summary judgment motion, to 

weigh conflicting evidence and to resolve the issue based on the evidence.” (citation 

omitted)); Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996) (“If 

reasonable minds could differ as to the import of the evidence, summary judgment 

is inappropriate.” (internal quotation marks omitted)).
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difficult to prove or measure.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)

(interpreting the FCRA).

Importantly, the FCRA does not require but-for causation. A plaintiff merely 

needs to show that false information in her credit report was a “substantial factor” in 

causing her injury. Philbin, 101 F.3d at 968. On this record, a reasonable jury could 

find that a false report of a 90-day delinquency on a very recent student loan bill 

substantially contributed to the credit card companies’ and Mutual of Omaha’s 

denials of credit. Even though damages may be difficult to measure in this case, see 

Spokeo, 578 U.S. at 341, I believe the record contains sufficient evidence for a jury 

to decide what Lloyd may be owed, see 15 U.S.C. § 1681o(a); see also Peterson v. 

Experian Info. Sols., 44 F.4th 1124, 1127 (8th Cir. 2022) (commenting that a 

consumer suffers actual damages when she “is refused credit altogether” (quoting 

Smith v. Santander Consumer USA, Inc., 703 F.3d 316, 317 (5th Cir. 2012) (per 

curiam))). I would reverse the district court on both negligence claims.

Today’s decision undermines Congress’s goal of ensuring an accurate credit 

reporting system—one that is fair to consumers and useful to lenders. See Kirtz, 601 

U.S. at 45. Today’s decision also conflicts with the Supreme Court’s views of the 

FCRA in Safeco and Spokeo, and it appears to create a split between our circuit and 

at least some of our sister circuits. On the willfulness and evidentiary issues, I join 

the court’s opinion. On the negligence claims, I respectfully dissent. 

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