Jeffrey Chaitoff v. Experian Information Solutions

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-2632

JEFFREY CHAITOFF,

Plaintiff-Appellant,

v.

EXPERIAN INFORMATION SOLUTIONS, INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:18-cv-7259 — Virginia M. Kendall, Judge.

____________________

ARGUED OCTOBER 24, 2022 — DECIDED AUGUST 14, 2023

____________________

Before HAMILTON, ST. EVE, and KIRSCH, Circuit Judges.

KIRSCH, Circuit Judge. In a nation of 330 million people, bil-

lions of pieces of credit information are generated each year.

Mistakes in compiling and reporting that information are in-

evitable. Jeffrey Chaitoff sued under the Fair Credit Reporting

Act alleging that Experian made a mistake when it omitted a

fact from his credit report, then failed to correct its error.

Chaitoff signed an agreement with his mortgage lender that

allowed him to make lower payments and avoid foreclosure.

2 No. 21-2632

Rather than report the agreement, Chaitoff’s credit report said

that he was delinquent.

The district court determined that any dispute about the

agreement’s existence or effect was a legal dispute, meaning

Experian was immune from FCRA liability for any errors re-

lated to it. We disagree. First, we hold that the omission of

material information is actionable under the FCRA. Second,

we hold that reporting the existence of the agreement did not

involve the application of law to facts, so was not a legal error.

We reverse the district court’s conclusion otherwise.

The district court also concluded that Experian’s handling

of the situation was reasonable across the board, thus entitling

it to summary judgment on alternative grounds. We disagree

in part. Experian’s initial reporting efforts were reasonable be-

yond any doubt, so it earned summary judgment on that

claim, and we affirm that portion of the district court’s judg-

ment. But we disagree with the district court as to Experian’s

investigations after Chaitoff alerted it to the discrepancy.

A reasonable jury could find that there was a cost-effective

step Experian could have taken that would have discovered

the agreement’s existence.

Finally, we agree with Chaitoff that Experian failed to note

his dispute in later reports, as the FCRA requires. We there-

fore affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion.

I

Consumers borrow money to fund expenses large and

small. Deciding who gets credit and on what terms falls to

what we will call furnishers—most people know them as

lenders or creditors. To facilitate their lending decisions,

No. 21-2632 3

furnishers rely on credit reports generated by consumer re-

porting agencies, or CRAs. Furnishers send CRAs infor-

mation about consumers’ income, assets, liabilities, and pay-

ment history. CRAs then compile those data into standard-

ized reports and, in many cases, distill it to a number—a

credit score—that affects whether, how much, and on what

terms a consumer can borrow. Because furnishers give credit

reports and scores extraordinary weight, they underpin the

national economy, and are thus the subject of federal legisla-

tion.

A

Congress enacted the Fair Credit Reporting Act, codified

at 15 U.S.C. § 1681 et seq., “to ensure fair and accurate credit

reporting, promote efficiency in the banking system, and pro-

tect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S.

47, 52 (2007). To accomplish those goals, the FCRA tries to en-

sure that “consumer reporting agencies exercise their grave

responsibilities with fairness, impartiality, and a respect for

the consumer’s right to privacy.” 15 U.S.C. § 1681(a)(4).

One of the FCRA’s cornerstones is § 1681e, which de-

mands that CRAs “follow reasonable procedures to assure

maximum possible accuracy of the information concerning

the individual about whom the report relates.” Accuracy is

not defined in the statute, but it has long been understood that

“accuracy” encompasses both truth and completeness—a re-

port that is misleading or materially incomplete is inaccurate.

E.g., Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 39−42 (D.C.

Cir. 1984); Seamans v. Temple Univ., 744 F.3d 853, 865 (3d Cir.

2014).

4 No. 21-2632

When a consumer contends that his credit report is inac-

curate or incomplete, he can dispute his report with the CRA

that prepared it. The CRA is then obligated to conduct a “rea-

sonable reinvestigation to determine whether the disputed in-

formation is inaccurate,” 15 U.S.C. § 1681i(a)(1)(A), consider-

ing “[a]ll relevant information submitted by the consumer.”

Id. § 1681i(a)(4). “If the reinvestigation does not resolve the

dispute,” § 1681i(b) allows a consumer to “file a brief state-

ment setting forth the nature of the dispute.” If a consumer

elects to do so, “unless there is reasonable grounds to believe

that it is frivolous or irrelevant, the consumer reporting

agency shall, in any subsequent consumer report containing

the information in question, clearly note that it is disputed by

the consumer and provide either the consumer’s statement or

a clear and accurate codification or summary thereof.” Id.

§ 1681i(c). Negligent violations of these provisions are action-

able under § 1681o; willful violations carry additional penal-

ties and are actionable under § 1681n.

B

Jeffrey Chaitoff bought a home in 1995. He refinanced his

mortgage through Ocwen Loan Servicing in 2012. When he

lost his job in 2016, Chaitoff fell behind on his payments, and

Ocwen began reporting the delinquency. Chaitoff remained

at least six months behind from October 2016 until August

2017. Throughout that period, Chaitoff tried different things

to avoid foreclosure. First, Chaitoff entered into an unemploy-

ment forbearance plan in August 2016 that allowed him to

make very low payments to avoid foreclosure. Then, in April

2017, Ocwen sent Chaitoff an offer to enter into a Trial Period

Plan (TPP). If Chaitoff completed the Plan, his monthly

No. 21-2632 5

payment would be reduced and his account would be

brought current—that is, he would no longer be delinquent.

To adopt the Plan, Chaitoff had to make three reduced

payments, one in each of May, June, and July 2017. Those pay-

ments, in turn, would be credited to his most delinquent

months. In other words, although Chaitoff would write

checks in May, June, and July, he would not be making those

months’ payments because the funds would be applied to his

oldest delinquencies. Critically for our purposes, the Plan

documents made clear that Ocwen “would continue to report

the delinquency status of [Chaitoff’s] loan to credit reporting

agencies as well as [his] entry into a Trial Period Plan in ac-

cordance with the requirements of the Fair Credit Reporting

Act and the Consumer Data Industry Association require-

ments.” Ocwen warned Chaitoff that entering into a Plan, es-

pecially if he was current on his payments, could adversely

affect his credit score. Chaitoff accepted Ocwen’s offer, made

the Plan’s three reduced payments, and his loan was modified

accordingly. Chaitoff eventually sold the home.

Chaitoff tried to obtain a mortgage to purchase another

home but was denied. A would-be lender informed him that

his denial was based on information in a credit report pre-

pared by Experian—one of the three major CRAs. When

Chaitoff requested his Experian report, he discovered what he

believed were errors in his file related to his Ocwen mortgage:

His report noted that he was delinquent until August 2017,

and it never mentioned the TPP.

6 No. 21-2632

Chaitoff first disputed those errors with Experian in May

2018. His dispute letter stated:

The Ocwen trade line on my credit report is re-

porting inaccurate, false, and misleading infor-

mation. … As you can see from the attached

documentation, in April 2017, the loan was

modified after I came upon financial hardship,

and my monthly payments were decreased.

***

Since the modification, and agreed decrease in

amount due, I made each monthly payment on

time consistently throughout 2017. In accord-

ance with the modification agreement and my

timely payments, the trade line should reflect

that the payments were made timely. The fail-

ure to report this information is misleading

lenders into believing that I did not make pay-

ments throughout 2017.

***

Please also review the attached April 17, 2018

letter stating that my modification payments

were being made timely. As you can see, there

is reason to believe Ocwen is reporting errone-

ously.

Chaitoff attached Ocwen’s confirmation that his “trial pay-

ments for the modification were completed on time. The due

dates were May 1, 2017, June 1, 2017, and July 1, 2017.”

Chaitoff also attached Ocwen’s original TPP offer letter, but

he did not attach the TPP’s complete terms.

No. 21-2632 7

Experian processed the dispute through its Automated

Consumer Dispute Verification (ACDV) system, which trans-

mitted Chaitoff’s letter and attachments to Ocwen. See

§ 1681i(a)(2)(A) (requiring CRAs to transmit “all relevant in-

formation regarding the dispute” that it receives from the

consumer to the furnisher). Ocwen confirmed that Experian’s

reporting was correct—it reported that Chaitoff was six

months behind from January through July 2017. Experian

then reported the results to Chaitoff and stood by its original

reporting.

Chaitoff filed a substantially similar dispute letter in July

2018. He maintained that he “made each monthly payment on

time consistently throughout 2017.” Experian did the same

thing it did the first time: sent an ACDV request to Ocwen,

which confirmed exactly what it had reported all along. In

2019, Ocwen asked that the account be deleted from Chaitoff’s

report.

C

Chaitoff then sued Experian alleging violations of the Fair

Credit Reporting Act. Chaitoff made three claims. First, he al-

leged that Experian negligently and willfully failed to follow

reasonable procedures to ensure the maximum possible accu-

racy of its reports, in contravention of § 1681e(b). Second,

Chaitoff alleged that Experian negligently and willfully failed

to reasonably reinvestigate the accuracy of its reporting after

his letters alerted it to the potential errors, in contravention of

§ 1681i(a). Finally, Chaitoff alleged that Experian failed to in-

clude a statement of dispute in its subsequent reporting ex-

plaining Chaitoff’s view that his Ocwen loan should be re-

ported, in contravention of § 1681i(c).

8 No. 21-2632

Experian moved for summary judgment, contending that

its reporting was accurate. It argued that the existence and ef-

fect of Chaitoff’s TPP were both legal questions beyond its

competency to resolve. Even if its reporting were inaccurate,

Experian argued that it was entitled to summary judgment

because its policies and reinvestigation were both reasonable

beyond dispute. Experian’s final argument was that Chaitoff

hadn’t demonstrated any harm from the purported inaccura-

cies.

The district court granted Experian’s motion. It concluded

that there was nothing inaccurate about Experian’s report be-

cause Chaitoff’s dispute was with how Ocwen had reported

the TPP. The district court reasoned that Chaitoff’s gripe was

“about the legal accuracy of his loan modification, but not the

factual accuracy.” And since the FCRA does not require Ex-

perian to evaluate unadjudicated legal defenses to consum-

ers’ debts, there was nothing inaccurate about the report Ex-

perian prepared. The district court alternatively concluded

that the reasonableness of Experian’s procedures and reinves-

tigation was beyond dispute, thus entitling it to summary

judgment despite any inaccuracy. The district court said noth-

ing about Chaitoff’s third claim. Nor did the district court

reach Experian’s third argument (about harm), so we say no

more on the subject. Chaitoff sought reconsideration, which

the district court denied. This timely appeal follows.

II

We give no deference to a district court’s grant of sum-

mary judgment. And like the district court, we view the facts

in the light most favorable to the nonmoving party—here,

Chaitoff.

No. 21-2632 9

A CRA’s liability under both § 1681e(b) and § 1681i(a) de-

pends on inaccurate information—if the credit report is accu-

rate, the consumer has suffered no damages. See DeAndrade v.

Trans Union LLC, 523 F.3d 61, 66−68 (1st Cir. 2008); Chuluunbat

v. Experian Info. Sols., Inc., 4 F.4th 562, 567 (7th Cir. 2021) (“A

threshold requirement for claims under both sections is that

there must be an inaccuracy in the consumer’s credit report.”).

Chaitoff argues that his Experian report was inaccurate in two

ways.

First Chaitoff argues that Experian’s report was inaccurate

because it reported his Ocwen mortgage as delinquent in

May, June, and July 2017. We disagree. The TPP’s terms stated

that Chaitoff’s account would be reported delinquent until

the TPP’s conditions were satisfied and that his payments un-

der the TPP would be applied to his most-delinquent months.

Although Chaitoff may have sent Ocwen payments in each of

May, June, and July 2017, those payments were applied to ear-

lier delinquent months in accordance with the TPP’s terms.

Experian’s reporting of those three months as delinquent was

accurate beyond any doubt. The district court recognized as

much, and we agree. We therefore affirm the district court’s

grant of summary judgment as it relates to Experian’s report-

ing of the May, June, and July 2017 payments.

Chaitoff fares better on his second alleged inaccuracy—the

omission of his TPP from his credit report. The district court

granted summary judgment after concluding that Experian

could not be liable for omitting Chaitoff’s TPP from its report-

ing. After taking a fresh look, we disagree. Chaitoff alleged

(1) an inaccuracy in his credit report that (2) adversely af-

fected his creditworthiness and (3) was within the compe-

tency of a CRA to identify and correct. We take each in turn.

10 No. 21-2632

A

Experian concedes that the omission of material infor-

mation can render technically accurate information mislead-

ing and, thus, actionable under the FCRA. It is right to do so.

Courts have long understood that, when it comes to the

FCRA, “accurate” means more than just “technically correct.”

E.g., Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 40 (D.C. Cir.

1984). But somehow we have never resolved whether an omis-

sion constitutes an inaccuracy under § 1681e(b) and

§ 1681i(a). We avoided the question in Henson v. CSC Credit

Services, 29 F.3d 280, 285 n.4 (7th Cir. 1994), but can no longer

do so: A credit report is inaccurate under § 1681e(b) and

§ 1681i(a) if it omits accurate information that could reasona-

bly be expected to adversely affect a consumer’s creditworthi-

ness. (In the interest of brevity, at times we refer in this section

only to § 1681e(b); the analysis and conclusions are the same

as to § 1681i(a).)

We recently adopted this materially misleading standard

for another of the FCRA’s provisions, § 1681s-2, which gov-

erns furnishers’ responsibilities when reporting information

to CRAs. In Frazier v. Dovenmuehle Mortgage, Inc., 72 F.4th 769

(7th Cir. 2023), we held that to sue under that section, a con-

sumer must show that his report was “(1) patently incorrect,

or (2) materially misleading, including by omission.” Id. at

776. We added that, “[b]y materially misleading, we mean

‘misleading in such a way and to such an extent that it can be

expected to adversely affect credit decisions.’” Id. (quoting

Sepulvado v. CSC Credit Servs., Inc., 158 F.3d 890, 895 (5th Cir.

1998)). In adopting that standard, Frazier joined us with every

other circuit to consider the question. Id. at 776 n.5 (collecting

cases).

No. 21-2632 11

But Experian is not a furnisher, so § 1681s-2 is, by its own

terms, inapplicable. Chaitoff’s claims against Experian is un-

der § 1681e(b), and the text of the two sections differ. Sec-

tion 1681s-2 at times uses “incomplete or inaccurate.” E.g.,

15 U.S.C. § 1681s-2(b)(1)(E). Section 1681e, on the other hand,

speaks only in terms of “maximum possible accuracy.” One

might draw the inference, then, that accuracy and complete-

ness are different, and that § 1681e is thus unconcerned with

omissions.

We think not. While we acknowledge the textual differ-

ences between § 1681s-2 and § 1681e, those differences do not

compel a rule allowing CRAs off the hook for omitting mate-

rial facts. Frazier and its counterparts addressing § 1681s-2 de-

fine accuracy by reference to cases addressing § 1681e(b). See,

e.g., Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163

(9th Cir. 2009) (§ 1681s-2 case citing Sepulvado, 158 F.3d at 895,

a § 1681e(b) case); Carvalho v. Equifax Info. Servs., LLC, 629 F.3d

876, 890 (9th Cir. 2010); Chiang v. Verizon New Eng. Inc., 595

F.3d 26, 37 (1st Cir. 2010) (treating “inaccurate” in § 1681i(a)

“essentially the same” as “incomplete or inaccurate” in

§ 1681s-2(b)). The Fourth Circuit recognized the overlap in

analysis and results:

Although the majority of cases involve the duty

of a CRA to report accurately under § 1681e,

BB & T concedes that the same standard of ac-

curacy applies to a furnisher’s response under

§ 1681s-2. Both § 1681e and § 1681s-2 serve the

same purpose: ensuring accuracy in consumer

credit reporting. A CRA can best fulfill its obli-

gation to report accurately under § 1681e if it

12 No. 21-2632

receives accurate information from a furnisher

under § 1681s-2.

Saunders v. Branch Banking & Tr. Co. of Va., 526 F.3d 142, 148

n.3 (4th Cir. 2008). To be sure, courts cannot engage in textual

adverse possession, relying on a practice of misreading a stat-

ute to justify continued deviation from plain text. But the text

of § 1681e(b) is far from plain. The FCRA never defines “accu-

racy,” let alone “maximum possible accuracy.” Like our sister

circuits, we look to context to give meaning to the text of

§ 1681e(b). And however ambiguous the text may be, the con-

text is clear: material omissions render a credit report inaccu-

rate.

One of the earliest cases to recognize the need to treat ma-

terial omissions as inaccuracies was Alexander v. Moore & As-

sociates, Inc., 553 F. Supp. 948 (D. Haw. 1982). There, the court

explained the difference between “accurate” and “maximum

possible accuracy” by reference to a credit report stating that

a consumer was “involved” in a credit card scam without not-

ing that the consumer was a victim of the scam. Id. at 952. That

the consumer was a victim of a scam creates an impression

that is the polar opposite of that created by the statement that

she was “involved” in a scam. For a statute designed to pro-

mote accuracy, false impressions can be just as damaging as

false information. E.g., Cortez v. Trans Union, LLC, 617 F.3d

688, 709−10 (3d Cir. 2010) (“Congress surely did not intention-

ally weave an exception into the fabric of the FCRA that

would destroy its remedial scheme by allowing a credit re-

porting agency to escape responsibility for its carelessness

whenever misleading information finds its way into a credit

report through the agency of a third party.”). Section

1681i(a)(5)(A) confirms this understanding; it requires CRAs

No. 21-2632 13

to delete information if its reasonable reinvestigation of a dis-

pute finds the information “inaccurate or incomplete” (empha-

sis added). For the FCRA to make sense, then, “accuracy” un-

der § 1681e(b) must encompass both truthfulness and com-

pleteness. The alternative rule—that omissions are not action-

able—would dilute § 1681e(b)’s command for “maximum

possible accuracy” to a request for “minimal technical accu-

racy.” Thus, a credit report that creates a materially mislead-

ing impression of the borrower’s creditworthiness through

the omission of accurate information is not accurate under

§ 1681e(b). Of course, an inaccuracy is a necessary, but not

sufficient, condition for holding a CRA liable under

§ 1681e(b). We hold only that, as with § 1681s-2, a material

omission satisfies that condition.

B

All agree that Experian’s report said nothing about

Chaitoff’s TPP. The question then becomes whether that

omission is material—whether it “can be expected to ad-

versely affect credit decisions.” Frazier, 72 F.4th at 776. Ex-

perian does not meaningfully contest the premise. And for

good reason: it requires little imagination to see how the omis-

sion of a TPP might affect a consumer’s creditworthiness.

Say two debtors have identical credit reports showing pat-

terns of delinquent payments. Neither is likely to obtain credit

on favorable terms, if at all. Now imagine one of the debtors

completed a TPP with her creditors, but that fact is not re-

ported in her credit file. The debtor without the TPP has no

evidence that she can make timely and complete payments,

but the debtor who completed the TPP does. The Sixth Circuit

recognized as much. Reporting that a consumer “was delin-

quent on his loan payments without reporting the TPP

14 No. 21-2632

implies a much greater degree of financial irresponsibility.”

Pittman v. Experian Info. Sols., 901 F.3d 619, 639 (6th Cir. 2018).

The Eleventh Circuit recognized the flip side of this rule in

Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1318−19 (11th Cir.

2018):“[I]t was not misleading for Wells Fargo to report that

[the plaintiff] was not making payments under the Note as

agreed, particularly in light of Wells Fargo’s additional state-

ment that [the plaintiff] was paying under a partial payment

agreement.” Because a TPP gives potential furnishers more

accurate information on a consumer’s creditworthiness, omit-

ting it precludes “maximum possible accuracy.”

C

After clearing the first two hurdles, Chaitoff’s § 1681e(b)

and § 1681i(a) claim stumbled on the third. The district court

determined that Chaitoff’s dispute “lies with Ocwen about

their reporting to Experian of his loan modification.” From

this premise, the district court determined that Chaitoff’s

claim is “about the legal accuracy of his loan modification, but

not the factual accuracy.” We disagree. The existence of a TPP

is a factual, not legal, question within the competency of a

CRA to identify and correct.

We have long held that CRAs are not well suited to adju-

dicate legal defenses to a debt, so they are not liable for re-

porting information that may be legally inaccurate. Put an-

other way, while “accuracy” may mean more than just “tech-

nically correct,” it never reaches beyond questions of fact.

Although the line separating legal from factual questions

can be slippery, two of our recent opinions have sharpened it.

Denan v. Trans Union LLC, 959 F.3d 290 (7th Cir. 2020),

involved consumers who borrowed from Indian tribes at

No. 21-2632 15

interest rates prohibited by state usury laws. Id. at 292−93.

They contended their credit reports were inaccurate because

they reported the debts even though the debts were (to their

minds) uncollectible (since they violated state law). Id. at 293.

We held that the alleged inaccuracies were legal, rather than

factual, because determining whether the debts were

enforceable required applying choice-of-law and sovereign-

immunity principles to an undisputed set of facts. Id. at 295.

“The power to resolve these legal issues exceeds the

competencies of consumer reporting agencies.” Id. Denan

reflects the classic case of a legal dispute: Everyone agreed

that the consumers borrowed the amounts reflected on their

credit reports, but the parties disputed whether the furnishers

could do anything about those debts. The CRA could not

resolve that dispute—only a court could. And since no

amount of investigation by the CRA could substitute for a

binding adjudication of the parties’ legal dispute, the CRA’s

reporting was accurate.

In Chuluunbat v. Experian Information Solutions, 4 F.4th 562,

(7th Cir. 2021), consumers challenged the accuracy of their

credit reports by disputing to whom their debts were owed.

Id. at 564. We held that dispute to be legal. Id. at 565. “[A]s

with a pure challenge to a debt’s legal validity, the plaintiffs

here question the legal relationship of different parties to

these debts, which is a task for a court.” Id. at 568. Chuluunbat

reaffirmed one of our seminal cases on the FCRA, Henson v.

CSC Credit Services, 29 F.3d 280 (7th Cir. 1994), where we said

that CRAs could not be required “to go beyond the face of

numerous court records to determine whether they correctly

report the outcome of the underlying action.” Id. at 285. “Re-

quiring credit reporting agencies to look beyond the face of

every court document to find the rare case when a document

16 No. 21-2632

incorrectly reports the result of the underlying action would

be unduly burdensome and inefficient.” Id. at 285−86. Without

notice from a consumer that a court document may be erro-

neous, a CRA “may rely on the accuracy of public court doc-

uments in preparing a credit report without being subject to

liability under the FCRA.” Id. at 286. Unstated but implicit in

Henson is that CRAs can read and understand legal docu-

ments.

“The paradigmatic example of a legal dispute is when a

consumer argues that although his debt exists and is reported

in the right amount, it is invalid due to a violation of law.”

Chuluunbat, 4 F.4th at 567. In other words, legal disputes

amount to collateral attacks on the disputed debt. But while

“[t]aking notice of a previously resolved legal dispute in-

volves some knowledge of the legal impact of court decisions,

[ ] it does not require the consumer reporting agency to make

any legal determinations about the underlying claim.” Id. at

568.

Whether Chaitoff’s TPP existed is a factual question be-

cause Experian was not asked to apply law to facts. Nothing

in Chaitoff’s complaint can be read to collaterally attack his

Ocwen mortgage. Rather, Chaitoff asked that his credit report

reflect his TPP, something well within Experian’s capabilities.

It is, after all, a credit reporting agency. Nothing about

Chaitoff’s alleged inaccuracy required Experian to investigate

beyond the face of the documents it was provided. Henson

held that CRAs act reasonably when they rely on legal docu-

ments of unquestioned authenticity. Chuluunbat recognized

the flip side of the rule: a CRA might be liable if it ignores or

overlooks documents of unquestioned authenticity, even if

they relate to a legal dispute. Such is the case here. The

No. 21-2632 17

existence of Chaitoff’s TPP was a factual—not legal—dispute,

and the district court was wrong to conclude otherwise.

We are not the first to reach this conclusion. Pittman held

that “failing to report the existence of [a] TPP constitutes in-

complete reporting.” 901 F.3d at 639. Pittman involved a fur-

nisher’s, rather than a CRA’s, failure to report a TPP, and the

district court sought to distinguish Pittman along that line. It

narrowed Pittman to furnishers only: “Nothing in [Pittman]

could be construed to hold a consumer reporting agency lia-

ble for reporting accurate information regarding the TPP that

it received from the loan servicer.” That begs the question,

though. Whether a CRA is ultimately liable under § 1681e(b)

or § 1681i(a) is distinct from whether its reporting was accu-

rate. Experian tries to distinguish Mileva v. Trans Union, LLC,

No. 20-cv-123 2021 WL 1172704 (N.D. Ill. Mar. 29, 2021), on

the same grounds, but that opinion correctly recognized that

“the failure to report the existence of the Plan or the trial pe-

riod payments [can] create[] at least a triable issue of fact as to

whether the [CRA’s] credit report created a materially mis-

leading impression about Plaintiff’s payment and credit his-

tory.” Id. at *7 (citing Pittman, 901 F.3d at 639). Given today’s

holding that a material omission is actionable under

§ 1681e(b) and § 1681s-2 alike, Mileva was prescient.

While there may be a separate legal dispute about whether

the debtor in fact entered into a TPP with his furnisher, that is

not this case. See Brill v. TransUnion LLC, 838 F.3d 919 (7th Cir.

2016) (affirming dismissal where consumer proposed that

CRA hire a handwriting expert to determine whether he

signed loan documents). Here, all agree that Chaitoff entered

into a TPP and that Experian would have known about it

based on the documents Chaitoff sent it. Given the FCRA’s

18 No. 21-2632

command for maximal accuracy, the omission of Chaitoff’s

TPP was a misleading factual inaccuracy that can give rise to

liability under § 1681e(b). The district court’s contrary conclu-

sion was incorrect. The FCRA may place different investiga-

tive obligations on furnishers and CRAs, but the end goal is

the same: an accurate credit report. And a credit report that

omits a TPP is not accurate. We see no reason to treat a TPP

any differently than the myriad legal documents CRAs deal

with day in and day out.

Experian argues that Chaitoff never challenged the omis-

sion of the TPP from his credit report, but even a cursory

glance at his briefing below and the district court’s opinion

shows that’s incorrect. We likewise reject Experian’s fallback

position on waiver—that Chaitoff’s disputes should have

been more explicit about the alleged omission. The FCRA is a

remedial statute designed to protect consumers. See Sullivan

v. Greenwood Credit Union, 520 F.3d 70, 73 n.3 (1st Cir. 2008).

That Chaitoff’s letters could have been clearer does not pre-

clude relief; it may make relief less likely given the statute’s

requirement for only “reasonable” procedures. But in the era

of notice pleading, Chaitoff’s complaint alleging that Ex-

perian’s reporting of his Ocwen loan was “false, misleading,

and inaccurate” was more than enough to allow Experian to

defend itself. That it did so with the TPP’s own terms dispels

any notion of waiver.

III

Even when inaccurate information makes its way into a

credit report, a CRA’s liability under both § 1681e(b) and

§ 1681i(a) turns on whether a CRA acted reasonably. Since

§ 1681e(b) asks whether a CRA adopted “reasonable proce-

dures to assure maximum possible accuracy,” summary

No. 21-2632 19

judgment may be appropriate when a CRA adopted proce-

dures no jury could find unreasonable. Similarly, § 1681i(a)

requires only “reasonable reinvestigations.” Chaitoff alleges

that Experian neither enforced reasonable policies nor con-

ducted reasonable reinvestigations. We disagree with

Chaitoff and agree with the district court that Experian’s pol-

icies were reasonable as a matter of law, so we affirm its grant

of summary judgment as to Chaitoff’s § 1681e(b) claim. But

we conclude that a reasonable jury could find that, after being

put on notice of the alleged inaccuracy in Chaitoff’s report,

Experian’s reinvestigations of his dispute were unreasonable.

We therefore reverse the district court’s grant of summary

judgment as to Chaitoff’s § 1681i(a) claim.

A

“The reasonableness of a reporting agency’s procedures is

normally a question for trial unless the reasonableness or un-

reasonableness of the procedures is beyond question.” Sarver

v. Experian Info. Sols., 390 F.3d 969, 971 (7th Cir. 2004). We

agree with the district court that Experian’s reliance on

Ocwen’s initial reporting was reasonable beyond dispute.

Chaitoff alleges a material omission from his credit report.

But to Experian, Chaitoff’s TPP was an unknown unknown.

Without notice of the alleged omission, Experian had no rea-

son to suspect that Ocwen’s reporting was incomplete. Ocwen

is a major financial institution, and Experian regularly relies

on its reporting. See Sarver, 390 F.3d at 972 (explaining that

requiring CRAs to engage in background research on infor-

mation furnished by financial institutions would balloon the

costs of their services, which in turn would be passed to con-

sumers). Chaitoff did not offer any evidence suggesting that

Experian knew of the TPP based on the information Ocwen

20 No. 21-2632

furnished or that there were systemic problems with Ocwen’s

data. Furnishers bear responsibility for accurately reporting

information to CRAs in the first instance. See 15 U.S.C.

§ 1681s-2; Denan, 959 F.3d at 294−95. Given Ocwen’s demon-

strated reliability, it was reasonable for Experian to trust that

Ocwen’s original information was complete and accurate. See

Sarver, 390 F.3d at 972 (CRA’s procedures not unreasonable

unless the agency has reason to believe a furnisher’s infor-

mation is unreliable); see also Losch v. Nationstar Mortg. LLC,

995 F.3d 937, 945 n.6 (11th Cir. 2021) (affirming summary

judgment under § 1681e(b) for reports prepared with reliable

information before CRA had notice of alleged inaccuracy).

This is not to say that a material omission can never give

rise to liability under § 1681e(b). Whether a CRA’s procedures

are reasonable turns, predictably, on balancing the costs of a

marginal return to accuracy against the potential harm to con-

sumers from declining to incur those costs. See, e.g., Brill, 838

F.3d at 921 (“Forcing a credit reporting agency to hire a hand-

writing expert in every case of alleged forgery would impose

an expense disproportionate to the likelihood of an accurate

resolution of the dispute.”); Henson, 29 F.3d at 287 (“The credit

reporting agency’s duty will also depend on the cost of veri-

fying the accuracy of the source versus the possible harm in-

accurately reported information may cause the consumer.”);

cf. United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir.

1947). But Chaitoff never proposed an additional reasonable

measure Experian could have taken to detect the omission of

his TPP before he flagged the issue; doing so might have

shown a dispute about the reasonableness of Experian’s cur-

rent procedures. Nor did Chaitoff offer evidence that Ex-

perian failed to follow its standard procedures in his case. On

the record before us, no jury could find Experian’s procedures

No. 21-2632 21

unreasonable, so we affirm the district court’s grant of sum-

mary judgment as to Chaitoff’s § 1681e(b) claim.

B

When a consumer disputes an item in his credit report

with a CRA, the CRA’s first step is to transmit that dispute to

the furnisher. 15 U.S.C. § 1681i(a)(2). The furnisher then in-

vestigates the consumer’s dispute and reports its findings to

the CRA. The CRA then must conduct a “reasonable reinves-

tigation” of the dispute. Id. § 1681i(a)(1)(A).

Chaitoff argues that Experian did not reasonably reinves-

tigate either of his disputes. The district court rejected his

claims, concluding that Experian’s reinvestigations were rea-

sonable as a matter of law—that they were reasonable beyond

dispute. We disagree. On this record, a reasonable jury could

find that either or both of Experian’s reinvestigations were

unreasonable. This is not to say that Experian cannot pre-

vail—only that reasonable juries might differ.

While Experian might not be liable for failing to notice the

missing TPP in the first place, “[a] credit reporting agency that

has been notified of potentially inaccurate information in a

consumer’s credit report is in a very different position than

one who has no such notice.” Henson, 29 F.3d at 286. Since rea-

sonableness is a question of costs and benefits, “[w]hen a

credit reporting agency receives such notice, it can target its

resources in a more efficient manner and conduct a more thor-

ough investigation.” Id. at 286−87. Thus, reasonable proce-

dures under § 1681e(b) are not proof of a reasonable reinves-

tigation under § 1681i(b). See id.; Cushman v. Trans Union

Corp., 115 F.3d 220, 225 (3d Cir. 1997) (recognizing that, be-

cause § 1681i(a)’s reinvestigation requirement mandates a

22 No. 21-2632

more thorough investigation than § 1681e(b), a CRA’s liability

under the two sections may diverge depending on the facts).

“Although the parameters of a reasonable investigation will

often depend on the circumstances of a particular dispute, it

is clear that a reasonable reinvestigation must mean more

than simply including public documents in a consumer report

or making only a cursory investigation into the reliability of

information that is reported to potential creditors.” Cortez v.

Trans Union LLC, 617 F.3d 688, 713 (3d Cir. 2010) (citing Cush-

man, 115 F.3d at 225).

The Eleventh Circuit reached a similar conclusion in Col-

lins v. Experian Information Solutions, Inc., 775 F.3d 1330 (11th

Cir. 2015). There, Experian used the Automated Consumer

Dispute Verification process to verify a furnisher’s infor-

mation, but it conducted no independent investigation of the

consumer’s dispute. Id. at 1331−33. The Eleventh Circuit af-

firmed that “an issue of material fact remained as to whether

Experian’s investigation was reasonable when it disregarded

the … information [the consumer] provided and instead re-

lied solely on [the furnisher] to verify the debt.” Id. at 1333.

The Eleventh Circuit reaffirmed Collins in Losch v. Nation-

star Mortgage, LLC, 995 F.3d 937 (11th Cir. 2021), which in-

volved a mortgage debt that at first survived but was eventu-

ally extinguished by the consumer’s bankruptcy. Id. at 940−41.

Experian reported the debt long after the consumer earned

the fresh start that bankruptcy promises. After the consumer

alerted Experian to his fresh start, Experian resorted to the

ACDV process. Id. at 941. The once-creditor (incorrectly) con-

firmed that the debt was still owed, and Experian trusted it.

Id. The Eleventh Circuit vacated summary judgment in Ex-

perian’s favor on the plaintiff’s § 1681i(a) claim. Id. at 940.

No. 21-2632 23

Experian was not entitled to summary judgment as to the rea-

sonableness of its investigation because “[i]t did nothing, alt-

hough it easily could have done something with the infor-

mation that [the consumer] provided.” Id. at 946.

So too here. There is a facial mismatch between the letter

Ocwen sent Chaitoff and the ACDV response it sent to Ex-

perian. Ocwen’s letter to Chaitoff stated that his trial pay-

ments were made on time and were due on the first of May,

June, and July 2017; Ocwen’s ACDV response stated that

Chaitoff was six-months delinquent in each of those months.

Once Experian had a copy of Chaitoff’s TPP documents, it

could have cross-referenced them with Ocwen’s ACDV re-

sponse. Ocwen’s reporting was technically accurate, but Ex-

perian could not have known that at the time—it didn’t have

the portions of the TPP explaining that trial payments would

not be credited to the months in which they were made. Had

Experian asked Ocwen to explain the mismatch, Ocwen

might have reported the TPP’s existence. A reasonable jury

could conclude that Experian should have taken additional

steps to investigate the mismatch between Ocwen’s ACDV re-

sponse and its letter to Chaitoff. Experian defends its resort to

the ACDV system alone by noting that Chaitoff never pre-

sented proof of payment during the disputed months. That is

incorrect: Chaitoff attached Ocwen’s letter confirming that

timely payments were made in May, June, and July 2017.

Again, Experian could not know at the time—since it lacked

the TPP’s full terms—that those payments would not be cred-

ited in the months they were made. But Chaitoff did present

evidence that he made timely payments in those months. A

reasonable jury could find that Experian could have taken an-

other cost-effective step that might have resolved Chaitoff’s

dispute.

24 No. 21-2632

Experian’s second reinvestigation offers Chaitoff an even

stronger case. In response to Chaitoff’s renewed complaint,

Experian repeated the same steps it took in response to his

first dispute. It could not reasonably expect a different out-

come. To be clear, a CRA’s reinvestigation does not have to

fix the mistake to preclude liability—it need only be reasona-

ble. Still, a jury could find that repeating the same ineffective

steps was not a reasonable response to Chaitoff’s second let-

ter.

A jury could not find, however, that Experian willfully

failed to comply with § 1681i(a) with respect to its reinvesti-

gation of Chaitoff’s first dispute. Recall, the FCRA provides

different remedies for negligent and willful violations by

CRAs. 15 U.S.C. § 1681o (negligent); Id. § 1681n (willful).

Chaitoff brought his claims under both theories. A willful vi-

olation is one committed in “reckless disregard of [its] statu-

tory duty.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007).

Reckless conduct is that which creates a risk substantially

greater than that necessary to render the conduct negligent.

Id. at 69 (quoting Restatement (Second) of Torts § 500); see

also Farmer v. Brennan, 511 U.S. 825, 837–38 (1994) (discussing

“excessive,” “significant,” “substantial,” and “intolerable”

risks). “But probability isn’t everything.” Boim v. Holy Land

Found. for Relief & Dev., 549 F.3d 685, 695 (7th Cir. 2008). Reck-

lessness also looks to the social utility (or lack thereof) of the

conduct at issue. Id.

On this record, a jury could not find that Experian will-

fully failed to undertake a reasonable reinvestigation of

Chaitoff’s first dispute. Chaitoff’s claim, at its core, is that Ex-

perian failed to detect an omission. None of the facts Chaitoff

offers supports a finding that Experian was indifferent to the

No. 21-2632 25

harms Chaitoff alleges. And it is uncontested that Experian

followed its normal procedures by transmitting Chaitoff’s dis-

pute to Ocwen; it did not wholly ignore the dispute. Nor is

the discrepancy between Ocwen’s response and the docu-

ments Chaitoff provided with his dispute letter so obvious

that Experian’s failure to pick up on it constitutes a gross de-

viation from what might be reasonable. Experian’s response

to Chaitoff’s first letter may have been negligent, but it was

not reckless. The record leaves no dispute that Experian was

entitled to summary judgment as to Chaitoff’s willfulness

claim arising from his first dispute letter.

*

We establish no hard and fast rules about what is or isn’t

a reasonable reinvestigation. Experian’s reinvestigations

might have been reasonable; they might not have been, too.

Likewise, the first might have been reasonable but the second

not. The reasonableness of a CRA’s reinvestigation is a ques-

tion for the jury unless reasonableness is beyond dispute. That

isn’t the case here, so we reverse the district court’s grant of

summary judgment to Experian as to Chaitoff’s § 1681i(a)

claims. The district court did not address willfulness. As ex-

plained above, Experian is entitled to summary judgment as

to willfulness with respect to Chaitoff’s first dispute letter. On

remand, the district court is free to consider anew the ques-

tion of willfulness as to the second dispute letter.

IV

A consumer may continue to believe that his credit report

contains a mistake even after a CRA undertakes a reasonable

reinvestigation of the purported mistake. To break that log-

jam, Congress enacted a provision that allows consumers to

add a “statement of dispute” to their credit reports—

26 No. 21-2632

§ 1681i(b). Those statements do not alter, but add to, the in-

formation provided by furnishers and transmitted to poten-

tial creditors. And because those statements can inform a con-

sumer’s creditworthiness, they help achieve the “maximum

possible accuracy” at the core of a CRA’s obligations. See Car-

valho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir.

2010).

If the reinvestigation [described in § 1681i(a)]

does not resolve the dispute, the consumer may

file a brief statement setting forth the nature of

the dispute. The consumer reporting agency

may limit such statements to not more than one

hundred words if it provides the consumer with

assistance in writing a clear summary of the dis-

pute.

Section 1681i(c) operationalizes the preceding subsection by

requiring CRAs to “clearly note” nonfrivolous relevant dis-

putes in later reports “[w]henever a statement of a dispute is

filed.” CRAs must note that the information “is disputed by

the consumer and provide either the consumer’s statement or

a clear and accurate codification or summary thereof.” Id. Fail-

ure to comply with § 1681i(c) is an independent basis for lia-

bility.

Chaitoff alleges that Experian ignored his requests that

such a statement be added to his credit report to reflect his

understanding of the TPP, in violation of § 1681i(c). Ex-

perian’s defense—one the district court credited seemingly

without explanation—is that Chaitoff never filed a statement

of dispute in the first place. Again, we disagree. Congress pre-

scribed no magic words a consumer must incant to request

the inclusion of a dispute statement.

No. 21-2632 27

The rights-creating language of § 1681i(b) is straightfor-

ward: “If the reinvestigation does not resolve the dispute, the

consumer may file a brief statement setting forth the nature of

the dispute.” Chaitoff sent two letters to Experian explaining

his discontent with its reporting. The first letter can’t trigger

§ 1681i(b) because that is what triggered Experian’s initial re-

investigation, and the statute only requires a statement of dis-

pute to be added if the reinvestigation “does not resolve the

dispute.” Experian could not know whether Chaitoff believed

his dispute had been resolved until it heard back from him.

But it did, and Chaitoff’s second letter satisfies § 1681i(b)’s

simple formulation. That was enough to trigger Experian’s

obligations to note the dispute under § 1681i(c).

Experian leans on the use of the word “filed” in § 1681i(c)

to suggest Chaitoff had to do more. But what counts as

“more” Experian does not, or cannot, say. That alone is tell-

ing. Experian concedes that § 1681i(b) requires no magic

words. Still, it insists that the statute requires some formal no-

tice that the consumer wishes for his dispute to be reflected in

his report. We cannot square that assertion with its earlier

concession. Experian makes no model language or dedicated

form available to consumers. Neither Congress nor the Con-

sumer Financial Protection Bureau has undertaken such an ef-

fort. Nor is there a centralized system for filing and distrib-

uting consumer disputes. None of this is surprising given the

remedial nature of the FCRA. See Cortez, 617 F.3d at 715 n.33

(3d Cir. 2010) (“Congress did not require that consumers sub-

mit disputes on specific forms, and any such technical re-

quirement seems inconsistent with the remedial focus of the

FCRA.”). All of this undermines Experian’s claim that “filed”

can absolve it of liability under § 1681i(c) in this case.

28 No. 21-2632

To the extent Experian asks us to parse the word “filed,”

we think it draws its meaning from the FCRA’s context and

purpose. Throughout the credit reporting industry, consum-

ers’ data are reported in “files.” See, e.g., 15 U.S.C. § 1681a(g)

(defining “file” as “all of the information on that consumer

recorded and retained by a consumer reporting agency re-

gardless of how the information is stored”); § 1681i(a)(1)(A)

(describing “any item of information contained in a con-

sumer’s file” (emphasis added)). At the time of enactment, that

meant a physical file—Section 1681i(c) predates the internet

and most computerized data systems. Pub. L. 91-508 § 601, 84

Stat. 1114, 1132 (1970). Even today, we refer to computer

“files” stored in “folders.” The simplest reading of “filed”

happens to be the best: Like every other piece of relevant in-

formation provided to it, the credit reporting agency places

the consumer’s statement of dispute in her file at the CRA, so

all a consumer needs to do is transmit that dispute to the CRA

in a reasonable fashion. Comparing § 1681i(c) to other provi-

sions reinforces that understanding. Other documents a con-

sumer submits, like a “notice of dispute,” see § 1681i(a), trig-

ger some action on the CRA’s part, but they are not neces-

sarily included in the consumer’s file for disclosure to pro-

spective furnishers. The statement of dispute, by contrast, re-

quires the CRA to do nothing other than include it in subse-

quent reporting. They may elect to shorten the statement or

seek clarification, but by the FCRA’s plain text, Experian

would have fulfilled its statutory obligations under § 1681i(c)

if it had copied Chaitoff’s letter verbatim and included it in

later reports. Read alongside the FCRA’s other verbs and with

an eye towards the era of the FCRA’s enactment, “filed” offers

Experian neither the support nor illumination it hopes for.

No. 21-2632 29

Experian next argues that it provided Chaitoff with all the

information he needed to clarify that he was filing a statement

of dispute. It points to § 1681i(b)’s second sentence: “The con-

sumer reporting agency may limit such statements to not

more than one hundred words if it provides the consumer

with assistance in writing a clear summary of the dispute.”

But what a CRA may do in response to a statement of dispute

tells us nothing about what constitutes such a statement in the

first place. Experian says that its responses to Chaitoff’s letters

told him that he could file a statement of dispute if he wished.

Again, the FCRA contains no magic words requirement; Con-

gress placed the burden on CRAs to recognize a statement of

dispute and act accordingly. Chaitoff’s letters provided more

than enough for Experian to fulfil its obligations. As best we

can tell, it simply chose not to. Finally, Experian suggests that

Chaitoff had to propose the text of his own statement of dis-

pute—its proposed language is in its brief. This understand-

ing turns the language of § 1681i(b) on its head.

After receiving Chaitoff’s disputes, Experian had two op-

tions: it could include “either the consumer’s statement or a

clear and accurate codification or summary thereof.”

§ 1681i(c) (emphases added). The onus was on Experian to

seek or author a clarified version of Chaitoff’s dispute if it be-

lieved his version was ambiguous or verbose.

V

In sum, we hold that the omission of the TPP from

Chaitoff’s credit report presents a factual question, not a legal

one. We also hold that it is disputable whether Experian’s re-

liance on an ACDV response that conflicted with other docu-

ments in its possession amounted to a reasonable reinvestiga-

tion. Finally, we hold that the FCRA’s statement-of-dispute

30 No. 21-2632

provision does not require consumers to use any magic words

or specific form to request that such a statement be added to

her report. Rather, the burden rests with the CRA. It can either

accept a consumer’s statement of dispute as-is and add it to

her file, or it can initiate a collaborative process for synthesiz-

ing that statement into an accurate and complete synopsis of

the consumer’s concern.

We affirm the district court’s grant of summary judgment

on Chaitoff’s § 1681e(b) claim. But on the record before us,

there was a genuine dispute of material fact as to whether Ex-

perian’s reinvestigations were reasonable. We therefore re-

verse the district court’s grant of summary judgment on the

§ 1681i(a) and § 1681i(c) claims. The district court can struc-

ture the proceedings on remand as it sees fit.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED