Anthony J. Hampton v. BARCLAYS BANK DELAWARE; DISCOVER BANK; MARKETPLACE LOAN GRANTOR TRUST, Series 2016-LD1

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ANTHONY J. HAMPTON,
Plaintiff - Appellant,
v.
BARCLAYS BANK DELAWARE;
DISCOVER BANK; MARKETPLACE
LOAN GRANTOR TRUST, Series
2016-LD1,
Defendants - Appellees,
and
LOANDEPOT.COM, INC., f/k/a Loan
Depot, LLC; EQUIFAX, INC.; EQUIFAX
INFORMATION SERVICES, LLC;
EXPERIAN INFORMATION
SOLUTIONS, INC.; TRANSUNION,
LLC; DOES 1 THROUGH 10,
Defendants.
No. 20-3175
(D.C. No. 5:18-CV-04071-DDC-ADM)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
FILED
United States Court of Appeals
Tenth Circuit
July 30, 2021
Christopher M. Wolpert
Clerk of Court
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Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Anthony Hampton, proceeding pro se, appeals the district court’s entry of final
judgment against him in his suit that alleged violations of consumer protection laws
by various creditors. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. FCRA Claim Against Discover
Mr. Hampton alleged that Discover Bank as his creditor violated two
provisions of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681–1681x:
(1) § 1681s-2(a), by providing inaccurate information to consumer reporting agencies;
and (2) § 1681s-2(b), by failing to investigate his complaints about the information
Discover provided.
The district court dismissed these claims under Fed. R. Civ. P. 12(b)(6). It
said § 1681s-2(a) does not create a private cause of action for furnishing inaccurate
credit information to consumer reporting agencies. As to § 1681s-2(b), the court said
Mr. Hampton failed to allege that (1) the consumer reporting agencies alerted
Discover to his dispute about the information Discover provided to them, and
(2) Discover failed to investigate the dispute.
B. FCRA Claim Against Barclays
Mr. Hampton borrowed $5,000 from Barclays Bank Delaware, made a few
payments, and then defaulted. Barclays reported his default to consumer reporting
agencies. Mr. Hampton lodged disputes with these agencies about Barclays’s
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reported information. The agencies then asked Barclays to confirm its reporting.
Barclays did so.
The district court construed Mr. Hampton’s complaint as alleging Barclays
violated § 1681s-2(b) by providing inaccurate information to the consumer reporting
agencies and by failing to investigate his disputes. It granted summary judgment to
Barclays “because the undisputed facts in the . . . record show that (1) Barclays
furnished accurate information to [the agencies] about [Mr. Hampton’s] account, and
(2) Barclays conducted reasonable investigations into each of the dispute notices it
received from [the agencies].” Supp. R. at 53.
C. TCPA Claim Against Marketplace
Marketplace Loan Grantor Trust, Series 2016-LD1 (“Marketplace”), held debt
owed by Mr. Hampton. It hired First Associates Loan Servicing, LLC (“First
Associates”) to collect the debt. First Associates employees used a calling system
that drew a list of phone numbers from customer records to place calls to debtors like
Mr. Hampton. Mr. Hampton claimed Marketplace violated the Telephone Consumer
Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, because it used an automatic
telephone dialing system to call Mr. Hampton’s cell phone without his consent.
The district court granted summary judgment to Marketplace. It said devices
that exclusively dial numbers stored in a customer database, such as the one used by
First Associates, are not automatic telephone dialing systems under the TCPA.
Because First Associates did not use an automatic telephone dialing system,
Marketplace did not violate the TCPA.
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II. DISCUSSION
“Although a pro se litigant’s pleadings are to be construed liberally and held to
a less stringent standard than formal pleadings drafted by lawyers, this court has
repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (brackets, citation, and quotations omitted). Also, we do not
“fashion . . . arguments for him,” United States v. Fisher, 38 F.3d 1144, 1147
(10th Cir. 1994), and we may not “assume the role of advocate,” Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
“The first task of an appellant is to explain to us why the district court’s
decision was wrong.” Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366
(10th Cir. 2015); accord Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995)
(“Because the appellant comes to the court of appeals as the challenger, he bears the
burden of demonstrating the alleged error and the precise relief sought.”). Advancing
other “arguments will not help the appellant if the reasons that were given by the
district court go unchallenged.” Nixon, 784 F.3d at 1366. We are “not required to
manufacture an appellant’s argument on appeal when it has failed in its burden to
draw our attention to the error below.” Hernandez, 69 F.3d at 1093 (quotations
omitted). An appellant must “explain what was wrong with the reasoning that the
district court relied on in reaching its decision.” Nixon, 784 F.3d at 1366.
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Rule 28(a)(8)(A) of the Federal Rules of Appellate Procedure requires the
argument section of an appellant’s brief to contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which the
appellant relies.” “Under Rule 28, which applies equally to pro se litigants, a brief
must contain . . . more than a generalized assertion of error, with citations to
supporting authority.” Garrett, 425 F.3d at 841 (alteration in original) (quotations
omitted). “Consistent with this requirement, we routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). Indeed,
“issues designated for review are lost if they are not actually argued in the party’s
brief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012)
(quotations omitted).
Mr. Hampton’s opening brief fails to (1) adequately challenge the district
court’s conclusions that his claims against Discover should be dismissed and that
summary judgment should be granted to Barclays and Marketplace, or (2) explain
why the court’s application of the law or assessment of the evidence was wrong. He
largely avoids rather than address the district court’s reasoning, and has not shown
how the district court erred. Mr. Hampton’s arguments on appeal are misplaced,
incomplete, factually unsupported, and unpersuasive. In short, his arguments are
inadequately briefed to invoke appellate review.
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III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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