USCA11 Case: 20-12952 Date Filed: 07/06/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12952
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-00539-JB-MU
UZEZI AJOMALE,
Plaintiff-Appellant,
versus
QUICKEN LOANS, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Alabama
________________________
(July 6, 2021)
Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
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PER CURIAM:
Uzezi Ajomale appeals the dismissal of her case against Quicken Loans, Inc.
(“Quicken”) under the Fair Credit Reporting Act (“FCRA”). Ajomale claimed that
Quicken violated the FCRA—either willfully or negligently—by failing to send
her a credit score disclosure (“CSD”) after using her credit score in connection
with her husband’s inquiry into a joint mortgage loan. The district court awarded
summary judgment to Quicken on two grounds: (1) because Ajomale failed to
produce sufficient evidence of willfulness, and (2) because Ajomale abandoned her
negligence claim by failing to address it in her response to Quicken’s motion for
summary judgment. On appeal, Ajomale raises three arguments. First, she asserts
that the district court erred by finding that Quicken’s interpretation of the FCRA
(i.e., that it was not required to send her a CSD in these circumstances) was
objectively reasonable. Second, she asserts that the district court erred by
excluding certain emails documenting Quicken’s internal communications
regarding FCRA compliance. Third, she asserts that the district court erred by
finding that she had abandoned her negligence claim. For the following reasons,
we affirm.
We review a grant of summary judgment de novo, viewing all facts in the
light most favorable to the non-moving party and drawing all reasonable inferences
in that party’s favor. McCullum v. Orlando Reg’l Healthcare Sys., Inc.,
768 F.3d
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1135, 1141 (11th Cir. 2014). Summary judgment is appropriate where there is no
genuine issue as to any material fact, and the moving party is entitled to judgment
as a matter of law.
Id.
If a party fails to adequately brief a claim in responding to a motion for
summary judgment, we will consider that claim to have been abandoned. See
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014). A
party fails to adequately brief a claim when he or she does not “plainly and
prominently” raise it, such as by “devoting a discrete section of [his or her]
argument to [the claim].”
Id. “[P]assing references” to an issue “buried” in the
argument section of a brief will not suffice. Id. at 682; see also Singh v. U.S. Atty.
Gen.,
561 F.3d 1275, 1278 (11th Cir. 2009) (“[S]imply stating that an issue exists,
without further argument or discussion, constitutes abandonment of that issue and
precludes our considering the issue on appeal.”).
The FCRA places certain disclosure obligations on entities who use
consumer credit scores in the course of their business. As relevant to this case,
Section 1681g of the FCRA provides:
Any person who makes or arranges loans and who uses a consumer credit
score . . . in connection with an application initiated or sought by a
consumer for a closed end loan . . . shall provide [a CSD] to the consumer
as soon as reasonably practicable.
15 U.S.C.§ 1681g(g) (emphasis added). Any person who “willfully fails to
comply” with this requirement is liable to the consumer for both compensatory and
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punitive damages. Id. § 1681n. Any person who “is negligent in failing to
comply” is also liable to the consumer, but only for “actual damages sustained . . .
as a result of the failure.” Id. § 1681o.
To prove a “willful” violation of the FCRA, a consumer must show that the
defendant “either knowingly or recklessly violated the requirements of the Act.”
Levine v. World Fin. Network Nat. Bank,
554 F.3d 1314, 1318 (11th Cir. 2009)
(citing Safeco Ins. Co. of Am. v. Burr,
127 S. Ct. 2201, 2208 (2007)). A defendant
does not “recklessly” violate the FCRA unless its interpretation of the FCRA’s
requirements was “objectively unreasonable,” either under the text of the statute
itself or under “guidance from the court of appeals or the Federal Trade
Commission that might have warned [the defendant] away from the view it took.”
Id. Where the consumer fails to show that the defendant’s reading of the FCRA
was objectively unreasonable, “based on the text of the Act, judicial precedent, or
guidance from administrative agencies,” we will not look at evidence of the
defendant’s subjective intent. Pedro v. Equifax, Inc.,
868 F.3d 1275, 1280 (11th
Cir. 2017).
The district court did not err by dismissing Ajomale’s willful-violation claim
because she failed to demonstrate that Quicken’s interpretation of its FCRA
obligations was objectively unreasonable. As set out above, § 1681g of the FCRA
requires lenders to provide a CSD to “the consumer” whenever they use a
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“consumer credit score” in connection with a loan application “initiated or sought
by a consumer.” 15 U.S.C. § 1681g(g). On its face, this subsection references to
two categories of consumers: (1) the consumer whose credit score is used, and (2)
the consumer who initiates or seeks an application. And as the district court
observed, the statutory language does not make clear which type of consumer is
“the consumer” entitled to a CSD. Thus, the text of the FCRA does not foreclose
Quicken’s reading, according to which only the consumer who initiates or seeks a
loan application—in this case, Ajomale’s husband—must receive a CSD.1
Nor has Ajomale pointed to any guidance from this Court or the Federal
Trade Commission that should have warned Quicken away from the view it took.
We have never addressed or construed this particular subsection of the FCRA in
any of our decisions, published or unpublished. Similarly, the Federal Trade
Commission does not appear to have issued any authoritative guidance on this
question (i.e., whether a consumer other than the person seeking a loan is entitled
1
Ajomale also argues that, because this case involves a joint mortgage loan for which her
consent as a spouse was required, she too qualifies as a consumer who “initiated or sought” the
loan at issue. But while that may be one reasonable reading of § 1681g(g), we cannot conclude
that it is the only objectively reasonable interpretation of the statutory text, especially on these
facts where it is clear that only Ajomale’s husband was the one initiating and seeking the loan
application.
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to a CSD).2 Ajomale therefore has failed to show that Quicken’s interpretation of
the FCRA was objectively unreasonable.3
Consequently, the district court also did not err by refusing to consider
Quicken’s internal emails. If the consumer fails to establish that the defendant’s
reading of the FCRA was objectively unreasonable, we have no need to consider
evidence of the defendant’s subjective motives. Pedro, 868 F.3d at 1280. Thus,
even if the emails were otherwise admissible under the rules of evidence and
discovery, they were nonetheless insufficient as a matter of law to prove that
Quicken willfully violated its disclosure obligations under the FCRA.4
Finally, the district court did not err in concluding that Ajomale had
abandoned her negligent-violation claim. In responding to Quicken’s motion for
summary judgment, Ajomale devoted only three sentences to her argument that
Quicken had negligently violated § 1681g. Those sentences essentially stated—
without any citation to authority—that the evidence demonstrating Quicken’s
2
Ajomale cites a staff report from the Federal Trade Commission stating that § 1681g(g)’s
disclosure obligations apply “even if the consultation does not include a formal or informal
application.” But this guidance does not resolve the issue at hand. The report merely establishes
that lenders are required to provide a CSD even during the pre-application stage. It does not
clarify which type of consumer is entitled to a CSD—the one who seeks a loan, the one whose
credit score is used, or both.
3
In reaching this conclusion, we express no opinion whatsoever on the proper
interpretation of § 1681g(g). This appeal solely concerns whether Quicken’s reading of the
statute was so unreasonable as to amount to a willful violation of the FCRA.
4
In light of this holding, we need not address the propriety of the district court’s exclusion
of the emails on the alternate basis of Ajomale’s discovery violations.
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willfulness was also sufficient to support a negligence-based claim. Such “passing
references” to a claim, amounting to little more than a conclusory statement that a
genuine issue of fact exists, are not enough to preserve that claim for review. See
Sapuppo, 739 F.3d at 682; Singh,
561 F.3d at 1278. And in any event, Ajomale’s
arguments fail on their merits because, contrary to her assertions, the evidence
does not establish that Quicken’s actions were objectively unreasonable.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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