Tanethia Holden v. Holiday Inn Club Vacations Incorporated

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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-11014 ____________________

TANETHIA HOLDEN, an individual, Plaintiff-Appellant, versus HOLIDAY INN CLUB VACATIONS INCORPORATED, a foreign for-profit corporation, f.k.a. Orange Lake Country Club, Inc.,

Defendant-Appellee,

EXPERIAN INFORMATION SOLUTIONS, INC. a foreign for-profit corporation,

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22-11014 Opinion of the Court 5

through Holiday. 2 Because their cases differ slightly, we recap the rest of Holden’s and Mayer’s cases individually. A. Holden’s Case On June 25, 2016, Holden entered into a purchase agree- ment with Holiday to buy a timeshare in Las Vegas. The same day, Holden obtained a promissory note to finance most of the pur- chase. The note required Holden to make 120 monthly payments. Also on the same day, Holden executed a mortgage securing pay- ment of the note. Among other conditions, the closing and title provision of the purchase agreement stated that the transaction would not close until Holden made the first three monthly payments and Holiday recorded the declaration in Holden’s name. The purchase agree- ment also included a purchaser’s default provision.3 That provision stated, “[u]pon [Holden’s] default or breach of any term or condi- tion of this Agreement, all sums paid hereunder by [Holden] shall be retained by [Holiday] as liquidated damages, not as a penalty, and the parties hereto shall be relieved from all obligations

² Technically, Holden and Mayer financed their timeshares through Wilson

Resort Finance, LLC. However, as the District Court in Holden’s case noted, the parties treat Holiday and Wilson as the same entity. 3 The parties and the District Courts sometimes refer to the purchaser’s default

provision as the “liquidated damages provision,” “liquidation provision,” or “liquidation clause.” We use “purchaser’s default provision” since that is how it appears in the purchase agreements.

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hereunder.” The agreement also said that “[a]ny Note Payments made by [Holden] prior to closing shall be subject to the default provisions.” After making her third payment, Holden defaulted and hired an attorney. On March 9, 2017, Holden’s attorney notified Holiday that Holden “no longer intend[ed] to make further payments” be- cause “she allege[d] her sales transaction was fraudulently repre- sented at the time of sale and/or another reason exist[ed] for non- payment, such as [her] inability to continue to fund the purchase.” Two weeks later, Holden’s attorney sent another letter. In the sec- ond letter, Holden tried to cancel the agreement citing language from the closing and purchaser’s default provisions. Holiday disagreed that the agreement was canceled. On June 19, 2017, it recorded the timeshare deed. It also reported the delinquent debt to Experian. In response, Holden’s attorney sent three dispute letters to Holiday. Holiday investigated the dispute but determined that its reporting was accurate because it con- cluded that Holden was still obligated under the note. Holden then sued Holiday alleging various violations of Florida law and the FCRA. Pertinent here is Count IV of Holden’s complaint. Under Count IV, Holden claimed that Holiday re- ported inaccurate information to Experian, failed to conduct an ap- propriate investigation, and failed to correct the inaccuracies—all of which were required under the FCRA. The parties later cross-

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moved for partial summary judgment on Count IV—the only re- maining claim against Holiday.4 The District Court granted Holiday’s motion and denied Holden’s. The court reasoned that a plaintiff asserting a claim against a furnisher for fail- ure to conduct a reasonable investigation cannot pre- vail on the claim without demonstrating that had the furnisher conducted a reasonable investigation, the result would have been different; i.e., that the fur- nisher would have discovered that the information it reported was inaccurate or incomplete. Holden v. Holiday Inn Club Vacations Inc., No. 6:19-cv-2373-CEM-EJK, 2022 WL 993572, at *2 (M.D. Fla. Feb. 28, 2022) (quoting Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1313 (11th Cir. 2018)). And citing our unpublished opinion in Bat- terman v. BR Carroll Glenridge, LLC, 829 F. App’x 478, 481–82 (11th Cir. 2020), it reasoned that “[g]enerally, unresolved contract dis- putes constitute legal disputes and not factual inaccuracies.” Id. at *3. Because there remained a legal dispute on whether Holden still owed a debt, the court found that Holden’s FCRA claim must fail. Holden timely appealed.

4 Holiday offered judgment on Holden’s other claims under Federal Rule of

Civil Procedure 68, which Holden accepted. On June 22, 2020, the District Court entered judgment for Holden on those claims.

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B. Mayer’s Case On September 15, 2014, Mayer entered into a purchase agreement to buy a timeshare with Holiday in Cape Canaveral. That purchase agreement contained nearly identical closing and default provisions as Holden’s agreement. Like Holden, Mayer ex- ecuted a promissory note to finance the purchase. Under the note’s terms, he too was required to make 120 monthly payments. On July 13, 2015, Holiday recorded the deed in Mayer’s name. Meanwhile, Mayer made timely monthly payments until May 2017. 5 When Mayer stopped making payments, Holiday re- ported the delinquency to Experian. Around August 17, 2019, Mayer obtained a copy of his credit report from Experian where he learned that Holiday had reported a past-due balance. In response, Mayer sent multiple letters to Experian disputing the debt because he believed the agreement was terminated under the default pro- vision. Experian communicated each dispute to Holiday, who cer- tified that the information was accurate. Mayer then sued Holiday. In his sole count against Holiday, Mayer alleged that Holiday violated 15 U.S.C. § 1681s-2(b) of the FCRA because Holiday furnished inaccurate information and failed to “fully and properly re-investigate” the disputes. In turn, Holiday moved to dismiss, and the District Court partially granted

5 Mayer made a partial monthly payment in June 2017, but he made his last

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Holiday’s motion.6 In permitting Mayer’s claims to proceed, the District Court read our decision in Losch v. Nationstar Mortgage LLC, 995 F.3d 937 (11th Cir. 2021), to mean that a disputed legal issue can change into an undisputed fact. Mayer v. Holiday Inn Club Vaca- tions Inc., No. 6:20-cv-2283-GAP-EJK, 2021 WL 2942654, at *3 (M.D. Fla. June 8, 2021). Given that Mayer cited two other cases in which courts ruled against Holiday in nearly identical circum- stances, the District Court found that Mayer had “raised a merito- rious factual dispute as to the accuracy of his credit report.” Id. Holiday then moved for partial summary judgment as to Count I. As in Holden’s case, the District Court also granted Holi- day’s motion. The court noted that although it permitted Mayer’s claims to proceed under Losch’s rationale, it now faced a different picture. Though Mayer had cited two unfavorable decisions to Holiday, Holiday presented “a string of cases where courts ha[d] sided with its interpretation of the contract” that the default provi- sion did not excuse Mayer’s obligation to keep paying. The court found that the “conflicting outcomes in these cases only serve[d] to emphasize that the underlying issue here [was] a legal dispute, not a factual one.” Relying on Batterman, the court therefore found that Mayer’s claim was not actionable under the FCRA. Mayer timely appealed.

6 The District Court dismissed Mayer’s claims as they related to factual inac-

curacies with payments he made in 2016 because he failed to allege that he disputed the accuracy of those payments with Experian.

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II. Legal Standards “We review grants of summary judgment de novo.” Mil- gram v. Chase Bank USA, N.A., 72 F.4th 1212, 1217 (11th Cir. 2023) (per curiam). “Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to any material fact and the mo- vant is entitled to judgment as a matter of law.’” Id. (quoting Brown v. Nexus Bus. Sols., LLC, 29 F.4th 1315, 1317 (11th Cir. 2022)); see also Fed. R. Civ. P. 56(a). “On summary-judgment review, we view all evidence in ‘the light most favorable to the nonmoving party’ and draw ‘all justifiable inferences in that party’s favor.’” Milgram, 72 F.4th at 1217 (quoting Brown, 29 F.4th at 1317). “Likewise, we exercise de novo review over questions of statutory interpreta- tion.” Pinares v. United Techs. Corp., 973 F.3d 1254, 1259 (11th Cir. 2020). III. Discussion On appeal, Holden and Mayer argue that the District Courts erred in finding that FCRA claims based on legal disputes—such as theirs—are not actionable. They contend that the District Courts’ interpretation of the FCRA conflicts with the statute’s text, struc- ture, and purposes. According to Holden and Mayer, the FCRA does not distinguish between factual and legal disputes. Holiday asserts that disputed legal issues based on consumer allegations—like contractual interpretations that have not been re- solved by a court—are not actionable under the FCRA. It explains that the existence of a legal conclusion about the invalidity of the

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debt is a necessary condition precedent to an FCRA claim of this type. Neither party has it right, though we agree with Holiday that Holden’s and Mayer’s claims are not actionable. We split our discussion into two parts. First, we describe how the FCRA oper- ates. And second, we explain why no FCRA claims exist here. A. The Fair Credit Reporting Act “Congress enacted the [FCRA] to protect consumers from unfair reporting methods while also ensuring that the credit system would retain the accuracy required by the banking system to effi- ciently allocate credit.” Milgram, 72 F.4th at 1217; see 15 U.S.C. § 1681. The FCRA imposes two duties on furnishers. First, “furnishers have a duty not to furnish information about a consumer to a reporting agency if the furnisher ‘knows or has rea- sonable cause to believe’ that the information is inaccurate.” Mil- gram, 72 F.4th at 1217 (quoting 15 U.S.C. § 1681s-2(a)(1)(A)). Sec- ond, furnishers must take certain actions once notified that a con- sumer disputes the accuracy or completeness of his or her fur- nished information. 15 U.S.C. § 1681s-2(b). “Consumers can dispute the accuracy of the information in their credit reports in one of two ways.” Milgram, 72 F.4th at 1217. Consumers may either dispute the information “(1) directly with the furnisher or (2) indirectly with the credit reporting agency.” Id.; see also 15 U.S.C. § 1681s-2(a)(8) (directing the CFPB to prom- ulgate regulations for direct disputes); 12 C.F.R. § 1022.43

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(regulations related to direct disputes); 15 U.S.C. § 1681i(a)(2) (re- lating to indirect disputes). When a furnisher is notified of such a dispute, “the furnisher must (1) conduct an investigation with respect to the disputed in- formation; (2) review all relevant information provided by the [consumer reporting agency]; and (3) report the results of the in- vestigation to the [consumer reporting agency].” Felts, 893 F.3d at 1312; 15 U.S.C. § 1681s-2(b)(1). “If the furnisher finds, following an investigation, that an item of information disputed by a consumer is incomplete, inaccurate, or cannot be verified, the furnisher must either modify, delete, or permanently block reporting of that infor- mation.” Felts, 893 F.3d at 1312; 15 U.S.C. § 1681s-2(b)(1)(E). And, “with respect to information the furnisher finds to be inaccurate or incomplete, the furnisher also must report those results to all other [consumer reporting agencies].” Felts, 893 F.3d at 1312; 15 U.S.C. § 1681s-2(b)(1)(D). “Consumers have no private right of action against furnish- ers for reporting inaccurate information to [consumer reporting agencies] regarding consumer accounts. Instead, the only private right of action consumers have against furnishers is for a violation of § 1681s-2(b) . . . .” Felts, 893 F.3d at 1312 (citing 15 U.S.C. § 1681s-2(c)(1)). B. The Alleged Inaccuracies Are Not Objectively and Readily Verifiable With that framework in mind, we now explain why Holden’s and Mayer’s FCRA claims are not actionable. “To suc- ceed on an FCRA claim, a plaintiff must establish (at least) two

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things.” Milgram, 72 F.4th at 1218. First, a plaintiff must “identify[] inaccurate or incomplete information that the furnisher provided to the reporting agency.” Id. “And second, to prove an investiga- tion was unreasonable, a plaintiff must point out ‘some facts the furnisher could have uncovered that establish that the reported in- formation was, in fact, inaccurate or incomplete.’” Id. (emphasis omitted) (quoting Felts, 893 F.3d at 1313). Because Holden and Mayer cannot identify inaccurate or incomplete information that Holiday provided to the consumer reporting agencies, they cannot prevail. 7 This case turns on the meaning of “accuracy” in the FCRA. As we have explained, the FCRA “requires ‘maximum possible ac- curacy.’” Erickson v. First Advantage Background Servs. Corp., 981 F.3d 1246, 1251 (11th Cir. 2020). “The words ‘maximum’ and ‘possible’ mean ‘greatest in quantity or highest in degree attainable’ and ‘falling or lying within the powers’ of an agent or activity.” Id.

7 To be clear, Holden and Mayer do not argue in their briefs before us that the

information Holiday reported was incomplete. At best, they make a passing reference that the “question before the district court on summary judgment should have been whether the plaintiffs demonstrated that Holiday . . . fur- nished inaccurate or incomplete information.” Plaintiffs-Appellants’ Consoli- dated Opening Br. at 29, Holden v. Holiday Inn Club Vacations Inc., No. 22-11014 (11th Cir Dec. 9, 2022), 2022 WL 17843086, at *29. “Merely making passing references to a claim . . . is insufficient. Instead, the party must clearly and unambiguously demarcate the specific claim and devote a discrete section of his argument to it so the court may properly consider it.” Brown v. United States, 720 F.3d 1316, 1332 (11th Cir. 2013) (citation omitted). Holden and Mayer have therefore forfeited any argument that the information was incom- plete.

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(first quoting Maximum, Webster’s Third New International Dictionary (3d ed. 1961); and then quoting Possible, Webster’s Third New Inter- national Dictionary (3d ed. 1961)). “‘Accuracy,’ in turn, means ‘free- dom from mistake or error.’ And being free from ‘mistake’ or ‘er- ror’ means being free from ‘a misunderstanding of the meaning or implication of something’ and not deviating from ‘truth or accu- racy.’” Id. at 1251–52 (first quoting Accuracy, Webster’s Third New International Dictionary (3d ed. 1961); then quoting Mistake, Web- ster’s Third New International Dictionary (3d ed. 1961); and then quot- ing Error, Webster’s Third New International Dictionary (3d ed. 1961)) (other citations omitted). 8 We have also stated that “when evaluating whether a report is accurate under the [FCRA], we look to the objectively reasonable interpretations of the report.” Id. at 1252. Putting this altogether, “a report must be factually incorrect, objectively likely to mislead its intended user, or both to violate the maximal accuracy standard of the [FCRA].” Id.; see also Sessa v. Trans Union, LLC, 74 F.4th 38, 40 (2d Cir. 2023) (“[A]n FCRA claim alleges an ‘inaccuracy’ so long

8 12 C.F.R. § 1022.41(a) also defines “accuracy” as

meanin[ing] that information that a furnisher provide[d] to a consumer reporting agency about an account or other rela- tionship with the consumer correctly: (1) Reflect[ed] the terms of and liability for the account or other relationship; (2) Reflect[ed] the consumer’s performance and other conduct with respect to the account or other relationship; and (3) Identifie[d] the appropriate consumer.

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as the challenged information is objectively and readily verifia- ble.”). The problem for Holden and Mayer is that the alleged inac- curate information is not objectively and readily verifiable because it stems from a contractual dispute without a straightforward an- swer. It may be true, as some of our sister circuits have reasoned, that “the furnisher of credit information stands in a far better posi- tion to make a thorough investigation of a disputed debt than [a consumer reporting agency] does.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1156 (9th Cir. 2009); accord Mader v. Experian Info. Sols., Inc., 56 F.4th 264, 271 (2d Cir. 2023). If so, that would mean that the FCRA “will sometimes require furnishers to investi- gate, and even to highlight or resolve, questions of legal signifi- cance.” Gross v. CitiMortgage, Inc., 33 F.4th 1246, 1253 (9th Cir. 2022). And we agree that “furnishers are qualified and obligated to assess issues such as whether debts are actually due and/or are col- lectible,” as the Consumer Financial Protection Bureau stresses in its amicus brief. Brief for Consumer Financial Protection Bureau as Amici Curiae Supporting Appellants at 22, Holden v. Holiday Inn Club Vacations Inc., No. 22-11014 (11th Cir. Dec. 16, 2022), 2022 WL 17843088, at *22. But that is what Holiday did. Holden and Mayer just disagree with Holiday’s assessment that the debt was due and collectible. This is not to say the furnishers “are never required by the FCRA to accurately report information derived from the readily verifiable and straightforward application of law to facts.” Mader,

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Footnotes

[2] Opinion of the Court 22-11014 Defendant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:19-cv-02373-CEM-EJK ____________________ ____________________ No. 22-11734 ____________________ MARK S. MAYER, an individual, Plaintiff-Appellant, versus HOLIDAY INN CLUB VACATIONS INCORPORATED, a foreign for-profit corporation f.k.a. Orange Lake Country Club, Inc., Defendant-Appellee, 22-11014 Opinion of the Court 3 EXPERIAN INFORMATION SOLUTIONS, INC., a foreign for-profit corporation, Defendant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:20-cv-02283-GAP-EJK ____________________ Before BRANCH, LUCK, and TJOFLAT, Circuit Judges. TJOFLAT, Circuit Judge: Our country’s credit reporting system relies on accurate re- porting both by consumer reporting agencies and entities, known as furnishers, that provide information to those agencies about con- sumers’ debts. Under the Fair Credit Reporting Act (FCRA),

[15] U.S.C. § 1681s-2, furnishers must conduct a reasonable investi- gation when a consumer challenges the accuracy of the infor- mation. In this consolidated appeal, we face the question of what amounts to an actionable inaccuracy under the FCRA. Two con- sumers, Tanethia Holden and Mark Mayer, entered into purchase agreements for timeshares with Holiday Inn Club Vacations Inc. Holden and Mayer stopped making monthly payments and 4 Opinion of the Court 22-11014 considered their agreements to be canceled. Holiday disagreed and reported their debts to Experian—a consumer reporting agency. After unsuccessful attempts to resolve their disputes with Holiday, 1 Holden and Mayer filed individual FCRA actions alleging that Hol- iday violated § 1681s-2 by inaccurately reporting that they owed debts and that Holiday failed to reasonably investigate their dis- putes. The District Courts granted summary judgment for Holiday in both cases, finding the alleged inaccuracies were legal disputes and therefore not actionable under § 1681s-2. After careful review, and with the benefit of oral argument, we affirm—though for a different reason. Whether the alleged in- accuracy is factual or legal is beside the point. Instead, what mat- ters is whether the alleged inaccuracy was objectively and readily verifiable. Here it was not. Thus, Mayer and Holden had no ac- tionable FCRA claims. I. Background Holiday is a timeshare company. Its customers pay to use one or more of its vacation properties for a few weeks per year. Holiday’s customers also agree to pay homeowner association dues that cover maintenance and property taxes. Like many of Holiday’s customers, Holden and Mayer financed their timeshares 1 Holden and Mayer also claimed that Experian violated the FCRA by failing to ensure that their credit reports were accurate. Those claims are not at issue because Holden and Mayer settled and dismissed their claims against Ex- perian.

[16] Opinion of the Court 22-11014

[56] F.4th at 270; see, e.g., Losch, 995 F.3d at 944–46 (holding that mis- reporting the clear effect of a bankruptcy discharge order on certain types of debt is a cognizable inaccuracy under the FCRA). “As cases like Losch . . . show, if a legal question is sufficiently settled so that the import on a particular debt is readily and objectively verifiable, the FCRA sometimes requires that the implications of that decision be reflected in credit reports.” Mader, 56 F.4th at 271. Still, contrary to Holden and Mayer’s contentions, the reso- lution of this contract dispute is not a straightforward application of law to facts. As the Mayer District Court noted, Florida state courts that have reviewed timeshare agreements—like the ones here—have come to conflicting conclusions about whether the de- fault provisions excused a consumer’s obligation to keep paying. Compare Holiday Inn Club Vacations v. Granger, No. 2018-CA-011778-O, 2021 WL 6254518, at *3 (Fla. 9th Cir. Ct. Mar. 15, 2021) (awarding Holiday a deficiency judgment against de- fendants based on a similar timeshare agreement), with Orange Lake Country Club, Inc. v. Arndt, No. 2016-CA-006342-O, ¶ 5 (Fla. 9th Cir. Ct. Aug. 14, 2019) (finding that Holiday (formerly Orange Lake Country Club) was not entitled to a deficiency judgment under an identical provision). Although “[t]he ultimate resolution of this case is surely frus- trating for some consumers,” consumers in Holden and Mayer’s position are not without recourse. Milgram, 72 F.4th at 1221 (Ros- enbaum, J., concurring). As noted by Judge Rosenbaum’s concur- rence in Milgram, consumers in Holden’s and Mayer’s shoes could 22-11014 Opinion of the Court 17 sue a furnisher for a declaration that they no longer owed a debt. 9 Id. at 1222. “With that declaration in hand, [a consumer] would have a much stronger cudgel with which to force a furnisher to stop reporting [a] debt to a reporting agency.” Id. Or a consumer “could go directly to the reporting agency with the declaration and get the reporting agency to take it off [his or] her credit history.” Id.; see also 15 U.S.C. § 1681i. 10 9 Holden and Mayer made one additional argument point at oral argument: because there was a bona fide dispute, it was misleading for Holiday not to report the dispute. True, “other circuits . . . have allowed a consumer’s claim to proceed against a furnisher on the basis of misleading statements or omis- sions,” even where the information reported “was technically accurate.” Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1318 (11th Cir. 2018). For example, the Fourth Circuit has stated that a consumer may have an FCRA claim against a furnisher who reports a debt “without any mention” that the consumer dis- puted the debt. See, e.g., Saunders v. Branch Banking & Tr. Co. of Va.,

[526] F.3d 142, 150 (4th Cir. 2008) (“The jury could reasonably conclude that [the furnisher’s] decision to report the debt without any mention of a dispute was ‘misleading . . . .’”). But Holden’s and Mayer’s complaints contain no such allegation. And alt- hough Holden and Mayer cited Saunders in their summary judgment briefing, they did not do so for this proposition. Nor does this argument appear in their briefing before us. Instead, Holden and Mayer made this argument for the first time at oral argument. In the absence of briefing on this issue—either before the District Courts or us—we decline to address whether such a claim would be viable here. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding that arguments that were not raised at the dis- trict court in the first instance cannot be raised on appeal); United States v. Cu- chet, 197 F.3d 1318, 1321 n.6 (11th Cir. 1999) (declining to address an argument made for the first time at oral argument). 10 Under 15 U.S.C. § 1681i(a)(1)(A), 18 Opinion of the Court 22-11014 IV. Conclusion We decline to impose a bright-line rule “that only purely fac- tual or transcription errors are actionable under the FCRA.” Sessa, 74 F.4th at 43. “Rather, in determining whether a claimed inaccu- racy is potentially actionable under [§ 1681s-2], a court must deter- mine, inter alia, whether the information in dispute is ‘objectively and readily verifiable.’” Id. (quoting Mader, 56 F.4th at 269). Be- cause the information in dispute here fails to meet that standard, we hold that Mayer and Holden do not have actionable FCRA claims against Holiday. Accordingly, we affirm the District Courts’ judgments. AFFIRMED. if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dis- pute, the agency shall, free of charge, conduct a reasonable re- investigation to determine whether the disputed information is inaccurate and record the current status of the disputed in- formation, or delete the item from the file . . . before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.