Shelly Milgram v. Chase Bank USA, N.A.

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10250
____________________
SHELLY MILGRAM,
a.k.a. Shelly Jaspan,
Plaintiff-Counter
Defendant-Appellant,
versus
CHASE BANK USA, N.A.,
Defendant-Counter
Claimant-Third Party
Plaintiff-Appellee,
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2 Opinion of the Court 22-10250
CAPITAL ONE BANK (USA), N.A.,
et al.,
Defendants,
DEC THE WALS INTERIORS, CO.,
a/k/a Yolo Interiors,
Defendant-Third Party
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-60929-AMC
____________________
Before ROSENBAUM, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
This is a case about square pegs and round holes. Or it could
be about how, to a hammer, everything looks like a nail. The point
is this: the Fair Credit Reporting Act has some important applica-
tions. But its cause of action isn’t a great fit for the dispute here.
Let us explain.
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22-10250 Opinion of the Court 3
Shelly Milgram’s employee opened, in Milgram’s name, a
credit card with Chase and ran up tens of thousands of dollars in
debt. The employee also illegally accessed Milgram’s bank ac-
counts and used them to partially pay off the monthly statements.
When she discovered the scheme, Milgram reported the
fraud to Chase, but Chase refused to characterize the charges as
illegitimate. In Chase’s view, the fact that Milgram’s bank accounts
had consistently paid for charges on the card had vested “apparent
authority” in the employee to incur those charges. Although Mil-
gram disputed that determination (and provided proof that the em-
ployee had pled guilty to multiple felonies), Chase refused to
change its mind.
So Milgram sued Chase under the Fair Credit Reporting Act
for not conducting a reasonable investigation into her dispute. The
district court granted summary judgment for Chase because it con-
cluded that Chase’s investigation into Milgram’s dispute was “rea-
sonable,” as the Act requires.
After a thorough review of the record, and with the benefit
of oral argument, we affirm. Milgram has not identified any inves-
tigatory steps Chase failed to take that made Chase’s investigation
unreasonable.
I. BACKGROUND
A. Factual History
Shelly Milgram owns and operates Dec the Walls Interiors
(which does business as “Yolo Interiors”), an interior-design
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company in Florida. In 2013, Milgram hired Jean Williams to be an
office manager. Milgram did not authorize Williams to handle
credit cards, make payments on those cards, or access bank ac-
counts. As for her bank account usernames and passwords, Mil-
gram kept those in an unlocked file cabinet in her office and ex-
pressly told Williams not to open the file cabinet. Yolo Interiors
had two checking accounts—with Bank of America and Sun-
Trust—and a Chase business credit card. For the Chase business
card, Milgram set up automatic payments from Yolo Interiors’s
checking accounts to pay $350 every month.
Williams opened three credit cards in Milgram’s name with-
out Milgram’s knowledge or permission: a Chase personal credit
card, a Capital One card, and a Comenity Bank card. As Williams
set it up, Milgram was the owner of the Chase personal card and
Williams was an authorized user. Between 2014 and 2016, Wil-
liams used the three credit cards, as well as Yolo Interiors’s Chase
business card, for personal purchases. When the bills came due,
Williams made payments on the cards from Yolo Interiors’s check-
ing accounts.
In May 2016, Milgram noticed a charge on her Bank of
America app—from Yolo Interiors’s checking account—that she
didn’t recognize. This alert led Milgram to review her credit.
When she did so, Milgram discovered the other three (unauthor-
ized) credit cards in her name. Milgram called Chase to informally
report the fraud. Chase, in turn, called Williams, and Williams
“told the lady on the phone that—that she made all the charges,
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that it was fraud; that [Milgram] wasn’t responsible for it.” Mil-
gram also reported the fraud to Comenity Bank and Capital One
and filed a police report.
Then Milgram formally reported the fraudulent card (the
Chase personal card) and the fraudulent charges (on the Chase
business card) to Chase in June 2016. In support of her fraud claim,
Milgram submitted text messages from Williams admitting to the
fraud, the police incident report, and screenshots from the bank ac-
counts.
Chase’s fraud investigation team looked into Milgram’s
claim. In general, Chase uses a set of criteria—created by its legal
department—to determine whether charges were fraudulent. If
one criterion is satisfied, then Chase holds the accountholder re-
sponsible. As a part of its evaluation, Chase considers whether pay-
ments were made on the account and if so, whether the payments
came from an account owned by the customer. In Milgram’s case,
Chase found that the cards were paid for by bank accounts Milgram
controlled: Yolo Interiors’s Suntrust and Bank of America checking
accounts. Chase also confirmed that Milgram owned Yolo Interi-
ors. Given that the credit cards were paid by accounts Milgram
controlled, Chase determined, Milgram was liable for the charges.
In other words, because Milgram’s accounts had paid off the credit
card, Chase concluded that Williams had apparent authority to use
the cards, and Chase therefore held Milgram liable for the out-
standing balance—then around $ 30,000. Chase “gave . . . consid-
eration” to the fact that a state attorney was prosecuting Williams
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for identity theft but ultimately concluded that that was not suffi-
cient evidence to overcome the apparent authority.1
Milgram filed a dispute with the national credit-reporting
agencies—Equifax, Transunion, and Experian—in August 2016.
The credit-reporting agencies, as they were supposed to, for-
warded the dispute to Chase.
For a dispute coming in from a credit-reporting agency, a
different Chase team—the Automated Consumer Dispute Verifi-
cation (“Dispute Verification”) team—investigated. The Dispute
Verification team’s “investigation” consisted of verifying that
Chase’s data on Milgram, her date of birth, Social Security number,
and other personal information, matched the credit-reporting
agency’s data. Because it did, Chase verified that Milgram indeed
owed the money.
Over the next few years, Milgram continued to file new dis-
putes—both directly with Chase and indirectly through the na-
tional credit-reporting agencies—but received the same result each
time.
Meanwhile, in October 2018, Jean Williams pled guilty to
seven counts of grand theft in the second and third degree, criminal
use of personal identification information, and defrauding a
1 On the other hand, Comenity Bank and Capital One stopped reporting the
cards to credit reporting agencies after receiving Milgram’s disputes.
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financial institution. She was sentenced to three years’ incarcera-
tion followed by ten years of probation.
A Florida state court issued an order recognizing that Wil-
liams had fraudulently opened the Chase personal card and had
transferred money to pay the balances without Milgram’s permis-
sion. The court “recommend[ed] that Equifax, Experian and
TransUnion remove any negative charge offs and negative delin-
quencies” from Milgram’s credit history.
With this order in hand, in November 2018, Milgram filed
another dispute with Chase (followed by another inquiry in De-
cember 2018), attaching the Florida state court judgment and or-
der. Chase re-verified that Milgram was responsible for the ac-
count because (in Chase’s words in responding to the December
inquiry) “[w]e received payment(s) on this account.”
B. Procedural History
On April 10, 2019, Milgram sued Chase for violating the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq. 2 In lay
terms, the Fair Credit Reporting Act requires “furnishers” of credit
information—like Chase—to conduct a “reasonable” investigation
2 Milgram sued other defendants but either settled with or dismissed those
defendants. The district court also dismissed Milgram’s other claims against
Chase. And while Chase asserted counterclaims against Milgram and third-
party claims against Yolo Interiors, the district court declined to exercise sup-
plemental jurisdiction over those claims. Having assured ourselves that a final
judgment has been entered, we omit discussion of the claims not at issue in
this appeal. See 28 U.S.C. § 1291.
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when the subject of the information (here, Milgram) challenges the
accuracy of the information. In her case, Milgram said, Chase was
liable for conducting an unreasonable investigation of her disputes.
Chase moved to dismiss Milgram’s claim as time-barred un-
der the two-year statute of limitations. See 15 U.S.C. § 1681p. The
district court denied Chase’s motion. It recognized that district
courts were divided on the question of whether—when a plaintiff
submitted multiple disputes—a second or subsequent dispute reset
the statute of limitations or whether only disputes with new mate-
rial information reset the limitations period. The district court held
that Milgram’s later disputes were timely because “each dispute
contained new information provided by [Milgram] to the credit re-
porting agencies (and thereafter to Chase).” So, the district court
concluded, disputes made after April 10, 2017—two years before
the complaint was filed—were timely filed.
The parties cross-moved for summary judgment. Milgram
argued that, given the ample evidence that she hadn’t authorized
Williams to open or use the card, Chase’s conclusion that she was
liable showed that Chase’s investigation was inadequate. Chase,
Milgram pointed out, did not contact the police or the state attor-
ney prosecuting Williams and had ignored the state-court order ad-
judicating Williams guilty. Chase countered that it couldn’t be lia-
ble under the FCRA for a disputed legal question. In other words,
Chase argued that Milgram’s dispute about whether Chase could
hold her liable for Williams’s conduct just wasn’t the kind of issue
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cognizable under the FCRA. And even it were, Chase continued,
it had conducted a reasonable investigation.
The district court granted Chase’s motion and denied Mil-
gram’s. The district court concluded that Milgram hadn’t identi-
fied any other steps Chase could have taken or evidence it should
have considered. That Milgram disagreed with Chase’s conclu-
sion, the district court said, didn’t mean that Chase’s investigation
was unreasonable.
Milgram now appeals.
II. STANDARD OF REVIEW
We review grants of summary judgment de novo. Brown
v. Nexus Bus. Sols., LLC, 29 F.4th 1315, 1317 (11th Cir. 2022). Sum-
mary judgment is proper “if the movant shows that there is no gen-
uine 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)).
On summary-judgment review, we view all evidence in “the light
most favorable to the nonmoving party” and draw “all justifiable
inferences in that party’s favor.” Id. (quotation omitted).
III. DISCUSSION
Milgram argues that the district court erred in suggesting
that her disputes weren’t cognizable under the FCRA because they
were legal disputes and in holding that no genuine issue of material
fact existed as to whether Chase’s investigations of Milgram’s dis-
putes were reasonable. We agree with the district court on the lat-
ter point and so affirm. We split our decision into three parts. First,
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we describe the operation of the FCRA. Second, we explain why
Milgram’s claims are timely. And then, third, we apply the FCRA’s
requirements to the facts in this case.
A. The Fair Credit Reporting Act
Congress enacted the Fair Credit Reporting Act to protect
consumers from unfair reporting methods while also ensuring that
the credit system would retain the accuracy required by the bank-
ing system to efficiently allocate credit. 15 U.S.C. § 1681.
At the outset, we must define two groups that the FCRA re-
fers to: “consumer reporting agencies” (“reporting agencies”) and
“furnishers.” Id. §§ 1681a(f); 1681s-2(a). A “consumer reporting
agency” is a person or organization that assembles credit reports.
Id. § 1681a(f). Here, think of Equifax, Experian, and TransUnion.
“Furnishers,” on the other hand, are people or organizations that
give consumer information (furnish it) to those reporting agencies.
Id. § 1681s-2(a). Furnishers can be creditors (banks, landlords, or
anyone else) or third-party debt collectors.
Under the FCRA, furnishers have a duty not to furnish in-
formation about a consumer to a reporting agency if the furnisher
“knows or has reasonable cause to believe” that the information is
inaccurate. Id. § 1681s-2(a)(1)(A). So if a furnisher learns that its
information is inaccurate, it must notify the reporting agency and
stop furnishing the information. Id. § 1681s-2(a)(2).
Consumers can dispute the accuracy of the information in
their credit reports in one of two ways. Consumers can dispute the
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accuracy or completeness of information in a credit report (1) di-
rectly with the furnisher or (2) indirectly with the credit reporting
agency (who then forwards the dispute to the furnisher). See 15
U.S.C. § 1681s-2(a)(8) (directing the CFPB to promulgate regula-
tions for direct disputes); 12 C.F.R. § 1022.43 (regulations related to
direct disputes); 15 U.S.C. § 1681i(a)(2) (relating to indirect dis-
putes). 3
Upon receipt of a dispute, the furnisher must conduct a “rea-
sonable investigation” into the information’s accuracy. 4 Id. §
1681s-2(b); Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295,
1301–02 (11th Cir. 2016). A furnisher’s investigation produces one
of three outcomes so that afterwards, the furnisher can do one of
three things: (1) verify the information as accurate; (2) determine
that the information is wrong or incomplete, or (3) determine that
the information cannot be verified. 15 U.S.C. § 1681s-2(b)(1)(D)–
3 We’ve recognized that the FCRA supplies a cause of action for indirect dis-
putes—meaning disputes against furnishers for not conducting a reasonable
investigation after receiving notice of a dispute from a credit reporting agency.
See Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1312 (11th Cir. 2018). Mil-
gram sues Chase for not conducting reasonable investigations of her indirect
disputes. We therefore do not consider whether there is a cause of action for
not conducting a reasonable investigation after receiving a direct dispute.
4 And while the investigation is ongoing (in other words, while the infor-
mation is disputed), the furnisher must alert the reporting agency that the fur-
nished information is disputed. Id. § 1681s-2(a)(3).
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(E). In the second and third cases, the furnisher must modify or
delete the information. Id. § 1681(b)(1)(E).
Still, though, we’ve held that consumers cannot sue furnish-
ers for providing inaccurate information—only for conducting un-
reasonable investigations. Felts v. Wells Fargo Bank, N.A., 893
F.3d 1305, 1312 (11th Cir. 2018) (“Consumers have no private right
of action against furnishers for reporting inaccurate information to
[reporting agencies] regarding consumer accounts. . . . Instead, the
only private right of action consumers have against furnishers is for
a violation of § 1681s–2(b), which requires furnishers to conduct an
investigation following notice of a dispute.”); 15 U.S.C. § 1681s-
2(c)(1) (providing that there is no liability for violating section
1681s-2(a)).
What constitutes a “reasonable” investigation varies based
on the circumstances. Hinkle, 827 F.3d at 1302. For instance, the
furnisher’s identity matters to that calculus. Id. And whether the
furnisher is “an original creditor, a collection agency collecting on
behalf of the original creditor, a debt buyer, or a down-the-line
buyer” can affect how we evaluate the reasonableness of its inves-
tigation. Id. Another circumstance we consider is what infor-
mation the furnisher has available to it and what steps it takes to
gather more information. Id. at 1303 (“For instance, a debt buyer
with account-level documentation or more comprehensive war-
ranties from its predecessor debt buyer might be in a completely
different position than [a third-party debt collector].”). Finally,
while consumers cannot sue directly for the outcome of an
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investigation, if a furnisher verifies an account, “the question of
whether the furnisher behaved reasonably will turn on whether the
furnisher acquired sufficient evidence to support the conclusion
that the information was true.” Id.To succeed on an FCRA claim, a plaintiff must establish (at
least) two things. First, a plaintiff cannot recover on a § 1681s-2(b)
claim without identifying inaccurate or incomplete information
that the furnisher provided to the reporting agency. Felts, 893 F.3d
at 1313. And second, to prove an investigation was unreasonable,
a plaintiff must point out “some facts the furnisher could have un-
covered that establish that the reported information was, in fact,
inaccurate or incomplete.” Id.B. Timeliness
Chase argues in the alternative that Milgram’s claim is un-
timely because she brought it after the statute of limitations ex-
pired. 5
Chase concedes that (maybe) a new dispute could trigger a
new limitations period, but it asserts that could be the case only if
the new dispute has new material information—which it says Mil-
gram didn’t provide. We are unpersuaded.
The FCRA provides that consumers must file suit within the
earlier of “2 years after the date of discovery by the plaintiff of the
5 We don’t address whether the time limit is jurisdictional because, even if it
is, Milgram’s claims are timely.
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violation that is the basis for such liability” or “5 years after the date
on which the violation that is the basis for such liability occurs.” 15
U.S.C. § 1681p(1)–(2).
Both time limitations are triggered by “the violation that is
the basis for such liability.” Id. Here, the violation that triggers
liability isn’t the dispute, it is the unreasonable investigation. Felts,
893 F.3d at 1312. So every time a furnisher fails to conduct a rea-
sonable investigation, it can be liable for doing so.
We are unaware of any circuit-court authority to address
this question, but we find Judge Hudson’s decision in Broccuto per-
suasive. Broccuto v. Experian Information Solutions, 2008 WL
1969222, at *4 (E.D. Va. May 6, 2008). As Judge Hudson observed,
the statute provides that furnishers “shall” conduct an investiga-
tion. Id. (citing 15 U.S.C. § 1681s-2). He continued that “[t]he stat-
ute’s construction creates a violation every time a consumer sub-
mits a dispute to a credit reporting agency and that agency or the
relevant lender does not respond to the complaint as directed by
the statute.” Id. Judge Hudson concluded that “[t]he fact that the
account or transactions questioned in the instant dispute may have
also been the subject of a previous dispute does not mitigate the
obligations of the bank or credit reporting agency to take the ac-
tions outlined in § 1681s-2(b)(1)(A)-(D).” Id.
Precisely. Because it is the unreasonable investigation that
triggers liability, whether the dispute involves new information is
irrelevant to the statute-of-limitations question.
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Chase’s counterargument and authorities do not alter the
analysis. They all boil down to the same fear: that consumers
could continually reset the statute of limitations by filing new dis-
putes.
But even if that were a legitimate concern, nothing in the
statute allows us to consider it. Indeed, Chase’s solution is atextual.
The statute includes no “new-material-information” requirement.
Rather, the statute requires furnishers to conduct investigations
upon receipt of a dispute—whether or not a dispute involves new
material information. “We are not allowed to add or subtract
words from a statute; we cannot rewrite it.” Catalyst Pharms., Inc.
v. Becerra, 14 F.4th 1299, 1309 (11th Cir. 2021) (quotation omitted).
Maybe Chase’s rule makes sense, but “[i]f Congress wanted” that
rule, it should have written it that way. Id. “Nothing is to be added
to what the text states or reasonably implies.” A. Scalia & B. Gar-
ner, READING LAW: THE INTERPRETATION OF STATUTES 93 (2012).
And here, all the text requires and reasonably implies is that the
furnisher has an obligation to conduct a “reasonable” investigation
when a consumer disputes reported information. So we cannot
(and do not) amend Congress’s statute to apply Chase’s preferred
version.
In any event, we aren’t concerned about a practical problem
with our holding for three reasons. One, the FCRA has an offramp
for frivolous or irrelevant disputes. 15 U.S.C. § 1681s-2(a)(8)(F); 12
C.F.R. § 1022.43(f). If a consumer continually resubmits disputes
without providing new information, a furnisher can deem the
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dispute irrelevant or frivolous. 15 U.S.C. § 1681s-2(a)(8)(F); 12
C.F.R. § 1022.43(f). Two, as we explain below, courts look at each
dispute in context, so in the case of a repeated dispute with no new
material information, perhaps only minimal (or no) reinvestigation
might be “reasonable.” And three, the Consumer Finance Protec-
tion Bureau—which is tasked with administering the FCRA—
found in its annual report that, after analyzing of hundreds of thou-
sands of consumer complaints, consumers often needed to file mul-
tiple disputes to resolve an issue. So creating a “one shot” statute
of limitations would, in addition to being atextual, frustrate Con-
gress’s goal of trying to defeat “abuses in the credit reporting indus-
try.” Guimond v. TransUnion Credit Info. Co., 45 F.3d 1329, 1333
(9th Cir. 1995). Having assured ourselves that we have jurisdiction,
we turn to the merits.
C. Analysis
To obtain reversal, Milgram must show both (1) that the er-
ror in her credit report—that she owed Wells Fargo money for the
charges on the credit card—is a cognizable inaccuracy under the
FCRA and (2) that Chase’s investigation into her dispute was un-
reasonable. Our analysis assumes without deciding that legal inac-
curacies can be so clearly erroneous as to raise a claim under the
FCRA. But because Milgram cannot show that Chase’s investiga-
tion was unreasonable, she cannot prevail, even with this
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assumption. So we do not consider whether, in fact, legal inaccu-
racies can, under certain circumstances, raise a claim under the
FCRA.6
Milgram can sue Chase based on its investigations into Mil-
gram’s based on its investigations after April 10, 2017—everything
else is time-barred. 15 U.S.C. § 1681p. By April 2017, Chase had
determined that Milgram had vested apparent authority in Wil-
liams to use the credit card. So that is our baseline.
To challenge that conclusion, Milgram gave Chase the crim-
inal judgment proving that Williams was guilty of impersonating
Milgram. But that criminal judgment didn’t impact Chase’s con-
clusion because Chase had always known that Milgram alleged that
Williams lacked actual authority to incur charges on Milgram’s be-
half. Chase had instead concluded that Williams had apparent au-
thority to do so.7
6 Milgram also contends that the district court misapplied the summary-judg-
ment standard because the district court assumed that the presence of cross-
motions for summary judgment reflected a concession by the parties that no
genuine issues of material fact existed. We agree with Milgram that the mere
fact that both parties have filed motions for summary judgment does not nec-
essarily mean that no material disputes of fact exist. But we need not consider
whether the district court here made that assumption because even if it did,
on this record, no material disputes of fact exist, and Chase is entitled to sum-
mary judgment.
7 Actual authority exists when the principal actually provides an agent author-
ity to act on her behalf. Fla. State Oriental Med. Ass’n, Inc. v. Slepin, 971 So.
2d 141, 145 (Fla. Dist. Ct. App. 2007). Apparent authority arises where the
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Apparent authority—–under Florida law, because Milgram
lives in Florida—is a form of estoppel. Jackson Hewitt, Inc. v.
Kaman, 100 So. 3d 19, 31 (Fla. Dist. Ct. App. 2011). To prove ap-
parent authority, a litigant must show all the following: “(a) a rep-
resentation by the purported principal, (b) a reliance on that repre-
sentation by a third party, and (c) a change in position by the third
party in reliance on the representation.” Id. at 32. When Milgram
filed her dispute with Chase, Chase had determined that (a) bank
accounts controlled by Milgram had consistently paid down bal-
ances on the card; (b) Chase had furnished credit to an authorized
user on the card; and (c) Chase had paid money to third-party ven-
dors based on that reliance. So Chase determined that Milgram
had vested Williams with apparent authority to use the card. 8
The question we must answer is this: what import (if any)
did Williams’s criminal judgment have on that conclusion? We
don’t think the criminal judgment was relevant to Chase’s appar-
ent-authority determination. To be sure, Williams’s criminal judg-
ment proved that Williams lacked actual authority. But Milgram’s
automatic payments to pay off the card each month led Chase to
conclude that Williams had authority to incur those charges. That
Williams didn’t actually have that authority doesn’t undercut that
conclusion; it doesn’t go to apparent authority at all.
principal holds out the agent as having authority, but the principal doesn’t in-
tend to vest the agent with authority. Id.8 We express no opinion on the correctness of that determination.
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Indeed, Chase was already aware of the criminal investiga-
tion into Williams. Chase “gave . . . consideration” to the fact that
Williams didn’t have actual authority to incur those charges but
decided that the lack of actual authority didn’t affect the apparent
authority that Milgram’s omissions had vested in Williams.
Given this earlier determination, Williams’s criminal convic-
tion isn’t relevant to Chase’s conclusion. As a result, Chase didn’t
need to keep investigating. Nor has Milgram explained what Chase
should have done differently: whom it should have talked to or
what documents it should have considered that might have af-
fected its apparent-authority analysis. That omission dooms Mil-
gram’s claim because “a plaintiff cannot demonstrate that a reason-
able investigation would have resulted in the furnisher concluding
that the information was inaccurate or incomplete without identi-
fying some facts the furnisher could have uncovered that establish
that the reported information was, in fact, inaccurate or incom-
plete.” Felts, 893 F.3d at 1313.
IV. CONCLUSION
Shelly Milgram sued Chase for not conducting a reasonable
investigation into whether Milgram was responsible for the debt
incurred on a Chase credit card. While Milgram disagrees with
Chase’s conclusion, Milgram hasn’t shown a genuine dispute of
fact whether Chase’s conclusion was unreasonable as a matter of
law.
AFFIRMED.
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22-10250 ROSENBAUM, J., Concurring 1
ROSENBAUM, Circuit Judge, Concurring:
The ultimate resolution of this case is surely frustrating for
some consumers. But I don’t believe this outcome leaves a con-
sumer in Milgram’s position without recourse. Rather, I believe a
consumer in Milgram’s shoes could properly use a declaratory-
judgment action to challenge a determination like the one Chase
made here. See 28 U.S.C. § 2201(a).
A declaratory judgment allows a federal district court to “de-
clare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could
be sought.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
126 (2007) (quoting 28 U.S.C. § 2201(a)). 1
Using this case as an example, I conclude that a declaratory
judgment would be proper here because Chase could sue Milgram
for the money it says that she owes. So in reverse, Milgram can sue
Chase for a declaratory judgment that she doesn’t owe Chase
money. And Chase’s furnishing of the debt information is damag-
ing Milgram even aside from the debt Chase says is looming over
her head. Milgram alleged that banks denied her credit or gave her
credit on worse terms because of the debt on her credit report.
This fact pattern—seeking a declaration that no legal relationship
1 This type of action may be able to proceed in only state court unless the
plaintiff can satisfy federal diversity jurisdiction. 28 U.S.C. § 1332(a); FLA STAT.
§ 86.011 (Florida Declaratory Judgment Statute).
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2 ROSENBAUM, J., Concurring 22-10250
between two parties exists—is similar to the very familiar fact pat-
tern where an insurance company seeks a declaratory judgment
that no coverage exists under an insurance policy, to preempt a
breach-of-contract action by the (potentially) insured. See, e.g.,
Travelers Prop. Cas. Co. v. Moore, 763 F.3d 1265, 1268 (11th Cir.
2014).
Here, Chase asserts that Milgram and Williams had a princi-
pal-agent relationship and Chase reasonably relied on Milgram’s
payment for Williams’s expenses, so Milgram is liable for those ex-
penses through apparent authority. Milgram, of course, disagrees.
But the point is this: the dispute here isn’t really about whether
Chase did an adequate investigation; it is about whether Chase
came to the right conclusion. Under the FCRA, a furnisher’s con-
clusion can be challenged only indirectly: an insufficiently sup-
ported conclusion can be evidence of an unreasonable investiga-
tion. Hinkle, 827 F.3d at 1303 (“[T]he question of whether the fur-
nisher behaved reasonably will turn on whether the furnisher ac-
quired sufficient evidence to support the conclusion that the infor-
mation was true.”). But that isn’t a real substitute to challenge any
legal aspect of whether Chase’s determination of apparent author-
ity is correct.
The better route, in my view, is for Milgram to sue Chase
for a declaration that she doesn’t owe Chase money, that Milgram
and Williams never had a principal-agent relationship, and that
Chase didn’t reasonably rely on automated payments. With that
declaration in hand, Milgram (or any litigant) would have a much
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22-10250 ROSENBAUM, J., Concurring 3
stronger cudgel with which to force a furnisher to stop reporting
debt to a reporting agency. See, e.g., Losch v. Nationstar Mortg.,
LLC, 995 F.3d 937, 945 (11th Cir. 2021) (explaining that a reporting
agency reported inaccurate information when it reported that a
consumer had debt that had been discharged by a bankruptcy
court). Or Milgram could go directly to the reporting agency with
the declaration and get the reporting agency to take it off her credit
history. 2 See 15 U.S.C. § 1681i.
2 Another advantage of going to court for a declaratory judgment—or request-
ing that a reporting agency make this determination rather than Chase—is that
the court (or the reporting agency) is neutral. In the current procedural pos-
ture, Chase is a judge in its own cause. In other words, Chase gets to decide
whether Chase reasonably relied on Milgram’s payments. See Williams v.
Pennsylvania, 579 U.S. 1, 8–9 (2016) (“[N]o man can be a judge in his own
case.”). The conflict of interest is obvious.