Alisha Kingery v. Quicken Loans , 629 F. App'x 509 ( 2015 )


Menu:
  •                            UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-1661
    ALISHA KINGERY, f/k/a Alisha Wilkes, on behalf of herself
    and those similarly situated,
    Plaintiff - Appellant,
    v.
    QUICKEN LOANS, INC.,
    Defendant - Appellee.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Charleston.  Joseph R. Goodwin,
    District Judge. (2:12-cv-01353)
    Argued:   September 15, 2015            Decided:   November 12, 2015
    Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Deepak Gupta, GUPTA BECK PLLC, Washington, D.C., for
    Appellant.   John Curtis Lynch, TROUTMAN SANDERS LLP, Virginia
    Beach, Virginia, for Appellee.     ON BRIEF: John W. Barrett,
    Jonathan R. Marshall, BAILEY & GLASSER, LLP, Charleston, West
    Virginia; Leonard A. Bennett, Matthew J. Erausquin, Susan M.
    Rotkis, CONSUMER LITIGATION ASSOCIATES, Newport News, Virginia;
    Jonathan E. Taylor, GUPTA BECK PLLC, Washington, D.C.; Ian
    Lyngklip, CONSUMER LAW CENTER, PLC, Southfield, Michigan; John
    Charles Bazaz, Fairfax, Virginia, for Appellant. Jason Manning,
    Megan Burns, TROUTMAN SANDERS LLP, Virginia Beach, Virginia, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Alisha Kingery (Kingery) appeals the district court’s grant
    of summary judgment in favor of Quicken Loans, Inc. (Quicken)
    with respect to her claim alleging Quicken failed to comply with
    the credit-score disclosure requirements set forth in 15 U.S.C.
    § 1681g(g)(1)(A),       which       are    triggered     when    a    mortgage    lender
    “uses   a    consumer       credit    score      . . .   in     connection      with    an
    application initiated or sought by a consumer for a closed end
    loan or the establishment of an open end loan for a consumer
    purpose that is secured by 1 to 4 units of residential real
    property     . . . .”         Id.     § 1681g(g)(1).            The   district     court
    granted     summary    judgment      in    favor    of   Quicken      based    upon    its
    holding that the summary judgment record, when viewed in the
    light   most    favorable      to     Kingery      and   drawing      all     reasonable
    inferences     in     her    favor,       failed   to    establish      that     Quicken
    “use[d]” her credit score “in connection with” her inquiry about
    refinancing     her     current      home     mortgage     loan,      and     therefore,
    Quicken      never       triggered          § 1681g(g)(1)(A)’s              credit-score
    disclosure requirements.              Id.        For the following reasons, we
    affirm.
    I
    3
    Desiring to refinance her current home mortgage loan, on
    April 29, 2010, Kingery, formerly known as Alisha Wilkes, sent a
    loan       inquiry         to       the          website       MortgageLoans.com. 1
    MortgageLoans.com subsequently sent Kingery an email identifying
    Quicken as one of four potential lenders. 2                    The email informed
    Kingery that Quicken would be contacting her within the next
    twenty-four       hours.        Within    that    timeframe,        Quicken    employee
    Matthew Muskan (Muskan) contacted Kingery to ask her permission
    to pull her credit reports.               Kingery voluntarily granted Muskan
    permission.
    Muskan     electronically         pulled    Kingery’s    tri-merge        credit
    report     from   First    American      CREDCO     on   May   3,    2010. 3     Within
    fifteen seconds, Kingery’s tri-merge credit report appeared on
    Muskan’s computer screen at Quicken.                 Her three credit scores in
    descending order, which appeared in the middle of the first page
    of Kingery’s tri-merge credit report, were 669, 614, and 566.
    1Because this appeal challenges the grant of summary
    judgment, the facts are presented based upon viewing the
    admissible evidence in the record in the light most favorable to
    Kingery as the nonmoving party and drawing all reasonable
    inferences in her favor. Pueschel v. Peters, 
    577 F.3d 558
    , 563
    (4th Cir. 2009).
    2
    This appeal only concerns Quicken and not the other three
    potential lenders.
    3A tri-merge credit report consists of the raw data from
    the three major credit repositories merged into a single credit
    report.
    4
    Of relevance on appeal, beginning on the bottom of the first
    page and continuing onto the top of the second page, Kingery’s
    tri-merge credit report showed that foreclosure proceedings had
    started      against    her        on   March        19,    2010,    with     respect     to   a
    $404,903 GMAC real estate mortgage that was almost two years in
    arrears ($58,109 total in arrears based on a monthly payment of
    $2,621).
    During Muskan’s deposition in this case three years later,
    he    testified      that     he    had     no   recollection          of    Kingery’s     loan
    inquiry,     also     known    among        Quicken        employees    as    a   loan    lead.
    However, relying on internal Quicken computer records regarding
    Kingery’s loan inquiry, the authenticity of which Kingery does
    not dispute, Muskan testified that he “clearly denied the loan
    for foreclosure.”            (J.A. 707).             According to Muskan, the only
    way    the    code     of     denied      for        foreclosure       was    entered      into
    Quicken’s computer system was if “[he] would have to -- manually
    . . . click and deny her out for foreclosure.”                          
    Id.
    Within a week of Quicken denying Kingery’s loan inquiry,
    Quicken internally transferred it to a consultant within its
    twelve-month         credit        repair     program        known     as     Fresh      Start.
    According to Quicken’s answer to one of Kingery’s interrogatory
    requests, “[t]he Fresh Start Program is a credit repair team
    that works with loan leads to attempt to develop them into loan
    applications         where     the        lead       is     preliminarily         denied       in
    5
    Quicken[’s] internal lead inquiry system.”                 (J.A. 654).       After
    the    Fresh     Start      consultant     made     unsuccessful     efforts    to
    transform Kingery’s loan inquiry into a loan application, on May
    24, 2010, Kingery’s loan inquiry was coded in Quicken’s loan
    origination computer system as a final denial.
    The loan denial letter that Quicken sent Kingery, dated May
    24, 2010, states the following as the reason for denying her
    loan inquiry:         “Credit History: Current/previous slow payments,
    judgments, liens or B[ankruptcy].”                  (J.A. 104).     On the same
    day,   Quicken       sent   Kingery   a    document    entitled    “CREDIT   SCORE
    NOTICE,” which listed her credit scores with Equifax BEACON,
    Experian, and TransUnion and stated the key factors affecting
    such scores.         The document also gave the full statutory notice
    provision      set     forth   in     15   U.S.C.     § 1681g(g)(1)(D),      which
    provides, inter alia:          “In connection with your application for
    a home loan, the lender must disclose to you the score that a
    consumer reporting agency distributed to users and the lender
    used in connection with your home loan, and the key factors
    affecting your credit scores.”             15 U.S.C. § 1681g(g)(1)(D).
    The same letter also offered Kingery the opportunity to pay
    a fee to participate in Fresh Start.                  According to the letter,
    Quicken “designed [Fresh Start] to help [Kingery] improve [her]
    credit and [her] ability to qualify for credit-based financing.”
    (J.A. 104).
    6
    Turning to the evening of the same day on which Muskan
    entered the computer code into Quicken’s computer system to deny
    Kingery’s     loan     inquiry     because        she     was        in   foreclosure
    proceedings, a Quicken computer program considered the potential
    for Kingery’s loan inquiry to participate in a second layer of
    internal Quicken loan review known as Second Voice.                            However,
    because     multiple    bankers    had        already     attempted       to    contact
    Kingery, the computer program’s algorithm automatically excluded
    Kingery’s    loan     inquiry    from     participation         in    Second     Voice.
    Therefore,     none    of     Kingery’s       credit    scores        were     used    in
    connection with Second Voice.                 Had Kingery’s loan inquiry not
    been   automatically        excluded    from     Second    Voice      based     upon    a
    computer    program    algorithm,       it     subsequently      would       have     been
    excluded on the basis that her middle credit score of 614 fell
    below the 620 credit score cut-off for participation in Second
    Voice.
    The operative complaint in this case is the second amended
    complaint in which Kingery alleges Quicken violated 15 U.S.C. §
    1681g(g), which provides, in relevant part:
    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 or the establishment of an open end
    loan for a consumer purpose that is secured by 1 to 4
    units of residential real property . . . shall provide
    the following to the consumer as soon as reasonably
    practicable: . . . [a copy of the consumer’s credit
    scores, the key factors that adversely affected such
    7
    scores, and a copy of the statutory notice entitled
    NOTICE TO THE HOME LOAN APPLICANT].
    Id. § 1681g(g)(1)(A).         Notably, § 1681g(g)(1)(A) is triggered by
    a mortgage lender’s use of a credit score in connection with a
    consumer’s application for a mortgage but not its use of any
    other   information      contained      in       the     balance   of    a   consumer’s
    credit report.     Section 1681g(g)(1)(A)’s credit-score disclosure
    requirements are part of the Fair Credit Reporting Act (FCRA),
    
    15 U.S.C. §§ 1681
    -1681x, which Act provides a private right of
    action against a mortgage lender who willfully or negligently
    fails to comply with § 1681g(g)(1)(A)’s credit-score disclosure
    requirements.          Id.    §     1681n       (civil     liability      for    willful
    noncompliance);        § 1681o        (civil           liability     for        negligent
    noncompliance).
    The crux of Kingery’s theory of liability is that although
    Quicken   sent   her    the       credit-score         disclosures      required    by   §
    1681g(g)(1)(A) on May 24, 2010, it did not send them as soon
    reasonably practicable after Quicken used her credit scores on
    May 3, 2010, in connection with her loan inquiry.                               Notably,
    Kingery’s theory of FCRA liability assumes that Quicken actually
    used her credit scores in connection with her loan inquiry as
    contemplated by § 1681g(g)(1).                  Quicken took the position below
    and continues to take the same position on appeal that it never
    used Kingery’s credit scores in connection with her loan inquiry
    8
    as     contemplated          by   §     1681g(g)(1),          and     therefore,        it   never
    triggered               § 1681g(g)(1)(A)’s                 credit-score             disclosure
    requirements with respect to Kingery.                          And by way of explanation
    as     to        why    Quicken        sent         Kingery     credit-score        disclosure
    documentation on May 24, 2010, Quicken points to the following
    portion of the affidavit of its Deputy Corporate Counsel Amy
    Bishop:            “Because       it    would        be   too    burdensome        to    make    a
    determination of ‘use’ of a client’s credit score on a case by
    case basis, Quicken Loans chose to be over-compliant by sending
    credit score disclosure notices even when the consumer’s credit
    score       is    not    ‘used’        in    any     manner     ‘in    connection        with   an
    application.’”           (J.A. 443).
    Following the close of discovery, Quicken moved for summary
    judgment         in    its   favor,         which    Kingery    opposed.       The       district
    court ultimately granted summary judgment in favor of Quicken on
    the ground that Kingery failed to proffer sufficient evidence
    for a reasonable jury to find that Quicken had used her credit
    scores in connection with her loan inquiry under the ordinary
    plain meaning of the term “use.”                          In reaching this ruling, the
    district court “conclude[d] that ‘use’ occurs under § 1681g(g)
    when    the       lender     employs         the     consumer’s       score   to    achieve     a
    purpose or objective, such as employing the score to make a
    decision with respect to a loan application.”                                 (J.A. 865-66).
    In so concluding, the district court relied upon the Supreme
    9
    Court’s ordinary plain meaning analysis set forth in Smith v.
    United States, 
    508 U.S. 223
     (1993), of the term “uses,” as that
    term is found in 
    18 U.S.C. § 924
    (c)(1).
    Section    924(c)      mandates         the   imposition     of     specified
    criminal penalties if the defendant, “during and in relation to
    any crime of violence or drug trafficking crime . . . , uses
    . . . a firearm . . . .”           
    18 U.S.C. § 924
    (c)(1).                Because the
    term    “uses,”    as   found    in   §     924(c)(1),     is     not    statutorily
    defined, the Smith Court gave the term its ordinary and natural
    meaning, namely “to employ or to derive service from.”                        Smith,
    
    508 U.S. at 229
     (citation and internal quotation marks omitted).
    Based upon this analysis, the Smith Court held that a criminal
    who trades his firearm for drugs uses it during and in relation
    to a drug trafficking crime within the meaning of § 924(c)(1),
    because trading a firearm for drugs falls squarely within the
    ordinary and natural meaning of the term use.                Id. at 241.
    In   the   present   case,     the      district    court    found    on   the
    summary judgment record, viewed in the light most favorable to
    Kingery, that:      (1) Quicken did not use, that is did not employ
    or derive service from, any of Kingery’s three credit scores in
    connection with denying her loan inquiry; rather, Quicken only
    obtained,    sorted,    and     stored    Kingery’s       three    credit    scores,
    which conduct does not fall within the ordinary meaning of the
    term “use”; and (2) Quicken denied Kingery’s loan inquiry for
    10
    the sole reason that her tri-merge credit report showed she was
    already in mortgage foreclosure proceedings on the very loan she
    sought to refinance.       Because the district court concluded that
    Quicken     did   not   trigger    § 1681g(g)(1)(A)’s          credit-score
    disclosure requirements with respect to Kingery’s loan inquiry,
    the district court did not reach the timing issue.
    This timely appeal followed.
    II
    A
    We review the grant of summary judgment de novo.             Pueschel,
    
    577 F.3d at 563
    .    Summary judgment is appropriate “if the movant
    shows that there is no genuine dispute as to any material fact
    and the movant is entitled to judgment as a matter of law.”
    Fed. R. Civ. P. 56(a).      In considering the merits of the motion,
    we, like the district court, view the admissible evidence in the
    summary judgment record in the light most favorable to Kingery
    as the nonmoving party and draw all reasonable inferences in her
    favor.    Pueschel, 
    577 F.3d at 563
    .
    B
    Before   addressing    Kingery’s   precise    arguments    on   appeal,
    for the sake of clarity, we take a moment to set forth the
    arguments she does not make on appeal.            Kingery does not argue
    that Quicken lacked her permission to pull her credit scores
    11
    and/or her credit report information from the three major credit
    reporting agencies.          Likewise, she does not argue that Quicken’s
    subsequent     action       in    pulling       her       tri-merge       credit    report
    violated FCRA in any manner.                Moreover, Kingery concedes that
    the ordinary meaning of the term “use” connotes more than merely
    obtaining, possessing, or storing.                    Thus, Kingery concedes that
    Quicken’s    conduct      in     obtaining,      possessing,         and    storing       her
    credit   scores     in    connection     with         her    loan    inquiry       did    not
    trigger § 1681g(g)(1)(A)’s credit-score disclosure requirements.
    Finally,    with    the     exception   of      §     1681g(g)(1)(A)’s        timeliness
    component, Kingery does not argue that the information Quicken
    sent her dated May 24, 2010 (three weeks after she submitted her
    loan inquiry to Quicken) failed to satisfy § 1681g(g)(1)(A)’s
    credit-score disclosure requirements.
    C
    Having just clarified the arguments Kingery does not make
    on appeal, we now turn to those she does make on appeal.                                  In
    broad    terms,      Kingery       argues        that        Quicken       triggered       §
    1681g(g)(1)(A)’s         credit-score       disclosure         requirements         in     at
    least one of four ways.           She then follows up by arguing that the
    credit-score       disclosure      documents        she     received       from    Quicken
    approximately       three      weeks   after        she     made    her    Quicken       loan
    inquiry were untimely in that Quicken did not send them to her
    as soon as reasonably practicable.
    12
    Because we agree with the district court that Quicken did
    not “use[]” Kingery’s credit scores “in connection with” her
    loan     inquiry      as     necessary       to        trigger       §     1681g(g)(1)(A)’s
    credit-score disclosure requirements, we also do not reach the
    timing    issue      presented      by    Kingery’s       claim.           We    now    turn      to
    address the four independent ways that Kingery argues Quicken
    triggered            § 1681g(g)(1)(A)’s                 credit-score               disclosure
    requirements with respect to her loan inquiry.                             In so doing, we
    give   the    term    “uses”       as    found    in    § 1681g(g)(1)            its    ordinary
    meaning of “to employ or to derive service from,” because such
    term     is   not     statutorily         defined,       Smith,          
    508 U.S. at 229
    (citation      and    internal          quotation       marks       omitted),          and    such
    definition makes sense in the context of § 1681g(g)(1)’s broadly
    sweeping “in connection with” language, see id. (“Language, of
    course, cannot be interpreted apart from context.”).                               See Smith,
    
    508 U.S. at 228-30
     (giving the term “uses” as found in                                            
    18 U.S.C. § 924
    (c)(1)        its    ordinary       meaning         of     to    employ       or   to
    derive service from because the term is not statutorily defined
    and    the    ordinary     definition        makes       sense       in    the    context         of
    § 924(c)(1)’s        sweeping       “during       and    in        relation      to”     a    drug
    trafficking offense language).
    1
    Kingery      argues    that       Quicken       used    her       credit    scores         in
    connection       with      her     loan     inquiry           as     contemplated            in    §
    13
    1681g(g)(1) by integrating them into its computer system and
    projecting them onto Muskan’s computer screen.                    The district
    court correctly rejected this argument.               The record demonstrates
    only that once Quicken obtained Kingery’s credit scores with her
    permission, it converted them into a different computer file
    format, sorted them into data fields using a computer program,
    and delivered them to Muskan via his computer screen.                     Because
    none of these actions in the mere handling of Kingery’s credit
    scores constitute the employing of or the deriving service from
    such    scores,       none   triggered    § 1681g(g)(1)(A)’s      credit-score
    disclosure requirements.
    2
    Kingery next argues that, viewing the record evidence in
    the    light    most    favorable   to   her    and   drawing   all    reasonable
    inferences in her favor, a rational jury could infer that Muskan
    considered      her    credit   scores    in    deciding   to   deny    her   loan
    inquiry,       and    thus   triggered   §     1681g(g)(1)(A)’s   credit-score
    disclosure requirements.            In support of this argument, Kingery
    points to no affirmative evidence that Muskan considered her
    credit scores in denying her loan inquiry.                 Instead, she points
    to the fact that Muskan has no independent recollection of her
    loan inquiry.
    Kingery’s argument is without merit.             There is no evidence
    in the record from which a rational jury could infer that Muskan
    14
    consulted Kingery’s credit scores and actually took them into
    account in denying her loan inquiry.                         The only evidence in the
    record on this point shows that Muskan denied Kingery’s loan
    inquiry    for       the     sole    reason       that      Kingery       was      in    mortgage
    foreclosure         proceedings           on   the     very       loan       she      sought    to
    refinance.          Such evidence is:             (1) a printout of the computer
    record made at the time Muskan denied Kingery’s loan inquiry
    showing the fact that Kingery was in foreclosure proceedings as
    the    reason       he     denied    such      loan     inquiry;         and    (2)      Muskan’s
    deposition testimony, based upon his review of such computer
    printout record, that he necessarily denied her loan inquiry
    because she was in foreclosure proceedings.                             In the face of this
    uncontroverted           evidence        and   the    fact       that    Kingery        does    not
    dispute that her pending mortgage foreclosure proceedings would
    have   been     a    sufficient          ground      upon    which      to     deny     her    loan
    inquiry regardless of her credit scores, the jury would have to
    engage in impermissible speculation in order to make the finding
    Kingery suggests.
    To bolster her argument, Kingery also contends that, at the
    summary   judgment          stage,       Muskan’s     testimony         should      be    ignored
    because    Muskan,           as     an     employee         of    Quicken,         is     not    a
    disinterested witness and therefore, under Reeves v. Sanderson
    Plumbing Products, Inc., 
    530 U.S. 133
     (2000), the jury is not
    required to believe his testimony.                          In making this argument,
    15
    Kingery relies upon the following quote from Reeves:                              “[T]he
    court     should    give     credence      to       the    evidence      favoring     the
    nonmovant as well as that evidence supporting the moving party
    that is uncontradicted and unimpeached, at least to the extent
    that that evidence comes from disinterested witnesses.”                           
    Id. at 151
     (internal quotation marks omitted).                    Kingery interprets this
    quote broadly so as to require a district court considering a
    motion     for     summary    judgment       to      ignore     the   uncontroverted
    testimony    of     all   employees     of      a   company     moving    for    summary
    judgment.
    We    have     wisely    rejected       this     broad    reading     of    Reeves,
    albeit in an unpublished opinion.                   See Luh v. J.M. Huber Corp.,
    211 F. App’x 143, 146 (4th Cir. 2006).                         In so rejecting, we
    began by pointing out that “Reeves states the noncontroversial
    position that witness testimony that the jury is not required to
    believe cannot be used to sustain a summary judgment decision,
    since the jury is not required to believe their testimony.”                           
    Id.
    We then looked to the Supreme Court’s holding in Chesapeake &
    Ohio Ry. Co. v. Martin, 
    283 U.S. 209
     (1931), that the testimony
    of an employee of the defendant must be taken as true when such
    testimony discloses no lack of candor, the employee witness went
    unimpeached,       his     credibility       was     not      questioned,       and   the
    accuracy    of     his    testimony   is     not      controverted       by   evidence,
    although if it were inaccurate, it readily could be shown to be
    16
    so.     Chesapeake & Ohio Ry. Co., 
    283 U.S. at 216
    .                           Other circuits
    have    also    rejected       the       broad     reading         of   Reeves    pressed    by
    Kingery.        LaFrenier v. Kinirey, 
    550 F.3d 166
    , 168 (1st Cir.
    2008); Stratienko v. Cordis Corp., 
    429 F.3d 592
    , 597-98 (6th
    Cir. 2005).        Applying the holding of Chesapeake & Ohio Ry. Co.
    here,    the     status      of     Muskan        as    an     employee      of   Quicken   is
    insufficient by itself to create a jury question on his veracity
    as long as his testimony disclosed no lack of candor, he was not
    impeached, his credibility was not questioned, and the accuracy
    of his testimony was not controverted by evidence, although if
    it were inaccurate it readily could have been shown to be so.
    Based    upon    this       test,    we    have        no    reason     to   ignore    Muskan’s
    testimony in deciding the merits of Quicken’s motion for summary
    judgment.
    Because        the     jury        would        be     required       to    engage   in
    impermissible speculation to find that Muskan had factored in
    Kingery’s credit scores in his decision to deny her mortgage
    loan    inquiry,      Kingery       cannot        stave      off    Quicken’s      motion   for
    summary judgment on this basis.                         See Dash v. Mayweather, 
    731 F.3d 303
    ,    311    (4th       Cir.     2013)       (to    defeat     summary      judgment,
    “nonmoving party must rely on more than conclusory allegations,
    mere speculation, the building of one inference upon another, or
    the mere existence of a scintilla of evidence”).
    17
    3
    We next address Kingery’s argument that because the minimum
    credit    score        for    participation      in   Second    Voice     is    620,   a
    reasonable jury could infer that Quicken used her middle credit
    score of 614 in connection with denying her loan inquiry.                              In
    making    this    argument,       Kingery    candidly      recognizes     the    record
    contains the sworn declaration of Kevin Lang (Lang), Quicken’s
    Director of Software Engineering, in which Lang declares that
    Quicken never used Kingery’s credit scores in determining she
    failed to qualify for participation in Second Voice.                           Notably,
    Lang     explained       in    his   declaration      that     Quicken’s       computer
    program, which reviews the eligibility of previously denied loan
    inquiries      for      participation       in   Second      Voice,     automatically
    excluded, based on a computer algorithm, Kingery’s loan inquiry
    from participation in Second Voice because multiple bankers had
    already attempted to contact her.                 Therefore, he declared, none
    of Kingery’s credit scores were used in connection with Second
    Voice.
    Again, relying on Reeves, Kingery argues the statements in
    Lang’s    sworn      declaration      cannot     be   credited     at    the    summary
    judgment stage because Lang is a Quicken employee.                      For the same
    reasons Kingery’s argument based on Reeves failed with respect
    to   Muskan,      it     fails   with   respect       to   Lang.        The    relevant
    authority makes clear that the status of Lang as an employee of
    18
    Quicken is insufficient by itself to create a jury question on
    his veracity as long as his sworn statements disclose no lack of
    candor,     he    is        unimpeached,         his     credibility            has   not     been
    questioned,       and        the     accuracy          of        his     testimony       is    not
    controverted      by     evidence,         although         if    it    were     inaccurate     it
    readily could be shown to be so.                       Chesapeake & Ohio Ry. Co., 
    283 U.S. at 216
    .       Based upon this test, we have no reason to ignore
    the    statements       in       Lang’s    sworn       declaration         in    deciding     the
    merits     of     Quicken’s          motion       for       summary        judgment.           And
    considering those uncontroverted statements, no reasonable jury
    could     infer    that          Quicken    precluded            her     loan    inquiry      from
    participation in Second Voice because of her middle credit score
    of 614.
    4
    Lastly, we consider Kingery’s argument pertaining to Fresh
    Start.     Kingery argues that Quicken used her credit score of 614
    to    determine    that       she    was    eligible         for       Fresh    Start,    thereby
    triggering         §         1681g(g)(1)(A)’s                credit-score             disclosure
    requirements.       The sole evidence she points to in support of
    this    argument       is    a    statement       in    Quicken’s         internal       training
    manual,    dated       November       16,     2012,         which       states    that      target
    clients for Fresh Start have a credit score under 620.
    Kingery’s Fresh Start argument fares no better than her
    prior     three    arguments.              The        reason      is     the    same——lack      of
    19
    sufficient evidence for a reasonable jury to find that Quicken
    used her credit score in connection with her loan inquiry.                                       The
    only        evidence      in     the    record         regarding      why    Quicken       denied
    Kingery’s loan inquiry is that it was denied because the very
    mortgage she sought to refinance was in foreclosure.                                 Thus, the
    only reasonable inference to be made under this circumstance is
    that        Quicken    referred        Kingery’s        loan    inquiry      to    Fresh    Start
    because        of   the     foreclosure.           On     the   flip      side,    under        this
    circumstance,          a       reasonable        jury     would       have    to    engage        in
    impermissible          speculation          to    find    by    a    preponderance         of    the
    evidence that Quicken actually used Kingery’s credit scores of
    614 or 566 in referring her loan inquiry to Fresh Start based
    solely on a statement in Quicken’s training manual dated one and
    one half years after Quicken referred Kingery’s loan inquiry to
    Fresh        Start.        See   Dash,      731    F.3d    at       311   (mere    speculation
    insufficient to defeat summary judgment).                             This is what we call
    a scintilla of evidence, and it is insufficient to stave off
    Quicken’s motion for summary judgment.                              Id. (mere scintilla of
    evidence        insufficient           to   defeat      summary      judgment).        In       sum,
    Kingery gets nowhere on her Fresh Start argument. 4
    4
    We note that Quicken argues that Kingery failed below to
    make her argument pertaining to Fresh Start in opposition to its
    motion for summary judgment, and therefore, Kingery waived her
    right to press it on appeal. Kingery responds that she made the
    argument below, and even if she did not, under Yee v. City of
    (Continued)
    20
    III
    In conclusion, because Kingery failed to proffer sufficient
    evidence, when viewed in the light most favorable to her and
    drawing   all   reasonable   inferences   in   her   favor,   to   create   a
    genuine issue of material fact that Quicken used at least one of
    her three   credit   scores   in   connection   with   her    loan   inquiry
    seeking to refinance her foreclosure-burdened mortgage as the
    term “use[d]” is found in § 1681g(g)(1), we affirm the district
    court’s grant of Quicken’s motion for summary judgment.
    AFFIRMED
    Escondido, 
    503 U.S. 519
    , 534 (1992), she has the right to press
    the argument on appeal.     See 
    id.
     (“Once a federal claim is
    properly presented, a party can make any argument in support of
    that claim; parties are not limited to the precise arguments
    they made below.”).   Having reviewed the record, we agree with
    Quicken that Kingery failed below to make her argument
    pertaining to Fresh Start that she now makes on appeal. Indeed,
    such failure explains why the district court did not address it.
    Nevertheless, because we reject the argument on the merits, we
    decline to reach the waiver issue.
    21