                           UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.


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