                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                        UNITED STATES COURT OF APPEALS February 12, 2019
                                                                      Elisabeth A. Shumaker
                                      TENTH CIRCUIT                       Clerk of Court



    GORDON NITKA, an individual,

                 Plaintiff - Appellant,

    v.                                                         No. 18-1177
                                                  (D.C. No. 1:17-CV-00495-LTB-KMT)
    NELNET, INC., a Nebraska corporation,                       (D. Colo.)

                 Defendant - Appellee.


                                ORDER AND JUDGMENT*


Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.


         Plaintiff Gordon Nitka brought this pro se lawsuit against the company that

services his federal student loans, Defendant Nelnet, Inc. According to the allegations in

the complaint, Defendant began servicing Plaintiff’s student loans in 2011. The

repayment of his loans was to begin in December 2013 and January 2014, but Plaintiff

did not make any payments. In May 2014, after his loans had gone over ninety days past


*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
due, he contacted Defendant, which offered him the option of an unemployment

deferment until November 2014. “By accepting the terms of the deferment, Plaintiff was

temporarily excused from his payment obligations on his loans but, in exchange, would

incur an increase to the principal sums (capitalized principal) in his . . . loans.” (R. at 20.)

“In consideration for accepting the deferment, [Defendant], by and through its agent(s),

offered to offset the account balance – bringing it to zero ($0) – and to back-date the

deferment such that it would begin on January 1, 2014.” (Id.) Plaintiff alleges that

Defendant is violating this agreement by continuing to report to credit-reporting agencies

that Plaintiff missed several loan payments after January 1, 2014.

       Plaintiff’s complaint raised six claims for relief based on Defendant’s failure to

remove the missed-payment reports from his credit information. Specifically, he alleged

a violation of the Fair Credit Reporting Act, two violations of the Fair Debt Collection

Practices Act, breach of contract, intentional infliction of emotional distress, and fraud.

His FCRA claim was based on both 15 U.S.C. § 1681s–2(a) and 15 U.S.C. § 1681s–2(b).

       Defendant filed a motion to dismiss the first four claims of the complaint,

expressly declining to address the emotional distress and fraud claims. The motion was

referred to a magistrate judge, who recommended dismissal of the four claims addressed

in the motion to dismiss. The magistrate judge expressly recommended dismissal with

prejudice of (1) the FCRA claim, to the extent it was based on 15 U.S.C. § 1681s–2(a),

and (2) the breach of contract claim. The magistrate judge did not specify whether the


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dismissal of the two FDCPA claims and the § 1681s–2(b) portion of the FCRA claim

should be with or without prejudice. Defendant filed an objection in which it asked the

district court to dismiss the two FDCPA claims with prejudice but did not make the same

request as to the § 1681s–2(b) FCRA claim. Plaintiff also filed his own objections to the

magistrate judge’s recommendation, conceding that his FCRA claim could not be based

on § 1681s–2(a) but arguing that his complaint otherwise stated valid claims for relief.

       The district court entered a short order stating that it had reviewed all of the

parties’ objections and concluded that the magistrate judge’s recommendations were

correct, with the clarification that dismissal should be with prejudice. The district then

“ORDERED that the Magistrate Judge’s Recommendation is accepted as clarified,

Defendant’s Motion to Dismiss (Doc 9) is GRANTED, and Plaintiff’s Complaint is

DISMISSED WITH PREJUDICE.” (R. at 287.) The court then entered final judgment

against Plaintiff, dismissing his entire complaint—and this civil action—with prejudice.

This appeal followed.

       We begin by addressing Plaintiff’s fraud and intentional infliction of emotional

distress claims, which were dismissed along with the rest of his complaint even though

Defendant had not sought dismissal of these claims and they were never mentioned by

either the magistrate judge or the district court. Defendant urges us to assume that the

district court “properly exercised [its] authority to dispose of [these] meritless tort

claims.” (Appellee’s Br. at 30.) The record does not support this characterization of the


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district court’s ruling. Nothing in the briefing or in the district court’s order suggests that

the district court intended to implicitly dismiss claims that were never addressed by the

parties or mentioned by the court. Rather, the record suggests the district court simply

overlooked the fact that the magistrate judge’s recommendation did not resolve all of the

claims in the complaint. We therefore agree with Plaintiff that the district court erred in

dismissing the entire complaint without considering these two unmentioned claims.

Although Defendant urges us to affirm the dismissal of these claims for reasons that were

never argued below, we conclude that these issues should be resolved by the district court

in the first instance. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general

rule, of course, that a federal appellate court does not consider an issue not passed upon

below.”). We accordingly reverse the dismissal of these two claims and remand for

further proceedings before the district court.

       We turn then to Plaintiff’s FCRA claim. Plaintiff concedes that he cannot assert a

claim under § 1681s–2(a) but argues that he asserted a valid claim under § 1681s–2(b).

The magistrate judge recommended dismissal of this claim because the complaint did not

allege that Plaintiff initiated the verification and correction process by notifying credit-

reporting agencies of the dispute. See Sanders v. Mountain Am. Fed. Credit Union, 689

F.3d 1138, 1147 (10th Cir. 2012). Even viewing the allegations in the complaint in the

light most favorable to Plaintiff, we agree with the magistrate judge that the complaint

does not allege the facts necessary to state a claim under § 1681s–2(b). However,


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Plaintiff argues in the alternative that the district court should not have dismissed this

claim with prejudice but should instead have allowed him to amend his complaint to

allege that he notified credit-reporting agencies of his dispute with Defendant. Defendant

does not dispute that Plaintiff could have amended his complaint to include this allegation

if his FCRA claim had not been dismissed with prejudice, but Defendant contends that

amendment would be futile because the information Defendant reported to the credit-

reporting agencies was factually correct and thus Plaintiff cannot succeed on a claim

under § 1681s–2(b). Again, this argument was not addressed below, and we are

persuaded that we should not resolve it in the first instance on appeal. See Singleton, 428

U.S. at 120. We accordingly affirm the dismissal of this claim but remand for the district

court to address Plaintiff’s argument that the dismissal should be modified to be without

prejudice and with leave to amend.

       As for Plaintiff’s two FDCPA claims, the magistrate judge recommended

dismissal on the ground that Defendant is not a “debt collector” for purposes of the

FDCPA because Plaintiff’s claims “concern[] a debt which was not in default at the time

it was obtained by [Defendant].” (R. at 240 (quoting 15 U.S.C. § 1692a(6)(F)(iii)).)

Plaintiff argues that this conclusion was erroneous because further discovery could have

revealed that Defendant transferred Plaintiff’s student loans to some subsidiary after they

went into default, and thus there could theoretically be a subsidiary of Defendant that

could be sued as a “debt collector” under the FDCPA. Even if this argument were not


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waived by Plaintiff’s failure to raise it before the district court, see MacKay v.

Farnsworth, 48 F.3d 491, 493 (10th Cir. 1995), we would find it to be unpersuasive

because, among other things, the complaint and the promissory notes referenced therein

indicate that the loans never went into default at all. Plaintiff raises no other arguments to

challenge the dismissal of his two FDCPA claims. We therefore affirm the dismissal of

these claims.

       In his opening brief, Plaintiff generally challenges the dismissal of all of his

claims, but he does not raise any legal arguments specifically addressing his breach of

contract claim. “Arguments not clearly made in a party’s opening brief are deemed

waived,” and we have “not hesitated to apply this waiver rule . . . even to [litigants] who

proceed pro se and therefore are entitled to liberal construction of their filings.” Toevs v.

Reid, 685 F.3d 903, 911 (10th Cir. 2012). Plaintiff has thus waived any challenges to the

dismissal of his breach of contract claim.

       For the foregoing reasons, we AFFIRM the dismissal with prejudice of Plaintiff’s

breach of contract claim, FDCPA claims, and FCRA claim to the extent it is based on

§ 1681s–2(a). We AFFIRM the dismissal of his FCRA claim to the extent it is based on

§ 1681s–2(b), but we REMAND this claim with directions for the district court to

consider whether the dismissal should be modified to be without prejudice and with leave

to amend. We REVERSE and REMAND for further proceedings the dismissal of

Plaintiff’s claims of intentional infliction of emotional distress and fraud. We GRANT


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Plaintiff’s motion to proceed in forma pauperis on appeal. Each party is to bear its own

costs on appeal. See Lyon Dev. Co. v. Bus. Men’s Assurance Co. of Am., 76 F.3d 1118,



1127 (10th Cir. 1996).


                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




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