FILED
NOT FOR PUBLICATION
AUG 13 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REGINA H. FLORENCE; WILLIAM F. No. 18-15413
FLORENCE,
DC No. CV 16-0587 GMN
Plaintiffs-Appellants, DC No. CV 16-0692 GMN
v.
EXPERIAN INFORMATION MEMORANDUM*
SOLUTIONS, INC.,
Defendant-Appellee,
and
CENLAR FEDERAL SAVINGS AND
LOAN; SELECT PORTFOLIO
SERVICING, INC.; SELECT
PORTFOLIO SERVICING, INC.;
REALTIME RESOLUTIONS, INC.;
STATE FARM BANK;
COMMONWEALTH FINANCIAL
SYSTEMS; PLUSFOUR, Southwest
Medical; EQUIFAX INFORMATION
SERVICES, LLC,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted June 10, 2019
Anchorage, Alaska
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
Plaintiffs-Appellants Regina and William Florence (together, the
“Florences”) contend that Experian Information Solutions, Inc. (“Experian”)
violated the Fair Credit Reporting Act (“FCRA”) by failing to correct inaccurate
information on the Florences’ consumer reports following reinvestigations of
disputed information. See 15 U.S.C. § 1681i. We have jurisdiction under 28
U.S.C. § 1291 of the Florences’ appeal from the district court’s grant of summary
judgment to Experian. We review the grant of summary judgment de novo.. Shaw
v. Experian Info. Sols., Inc., 891 F.3d 749, 755 (9th Cir. 2018). We affirm.
1. The Florences did not identify any inaccuracy in Experian’s
rereporting of the Shellpoint, SPS, and Cendar accounts. An item on a consumer
credit report can be inaccurate under the FCRA if it is either “patently incorrect or
materially misleading.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876,
890–91 (9th Cir. 2010). The rereported accounts at issue are not patently incorrect
because they show that they were either closed or discharged in bankruptcy. The
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reports do not show any negative information, such as inaccurate payment history
or balances due, for any period after the bankruptcy discharge or even after the
Florences had begun their Chapter 13 confirmed plan. And even if the “account
history” section on the Shellpoint account is inaccurate, this section only appears
on the disclosure to consumers for informational purposes, not on the reports
provided to creditors. Therefore, it could not form the basis of an FCRA claim
under § 1681i, where a plaintiff must make a “prima facie showing of inaccurate
reporting.” Id. at 890 (emphasis added) (internal quotation marks and citations
omitted). There is no information on the Shellpoint account reported to creditors
that suggests that the Florences had a balance or were late on a payment after the
discharge.
Next, Experian’s rereporting was not rendered materially misleading by
failure to comply with the Metro 2 guidelines. A deviation from the guidelines did
not render the reporting “misleading in such a way and to such an extent that it
[could] be expected to adversely affect credit decisions,” because the tradelines on
the Florences’ reports clearly indicated to lenders that either the relevant accounts
had been closed or the debts had been discharged in bankruptcy. See Shaw, 891
F.3d at 757 (citation omitted).
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Finally, the rereporting was not rendered materially misleading by the
report’s absence of a statement of dispute from the Florences. The FCRA states
that, “[i]f the reinvestigation does not resolve the dispute, the consumer may file a
brief statement setting forth the nature of the dispute.” 15 U.S.C. § 1681i(b).
Importantly, a “reinvestigation is a predicate to the filing of a statement of
dispute.” Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1332 (9th Cir.
1995). After Experian finished the reinvestigations, the Florences did not submit
any subsequent statement of dispute. Therefore, the absence of a statement of
dispute does not make the rereporting materially misleading.
2. Mr. Florence also does not have a cognizable FCRA claim against
Experian regarding the default judgment in favor of Wells Fargo. Here, the
Florences appear to be arguing that the Wells Fargo judgment was inaccurate
because the bankruptcy court incorrectly issued the judgment.1 This argument fails
because there is no doubt about the accuracy of Experian’s reporting of the
judgment, and “reinvestigation claims are not the proper vehicle for collaterally
1
In their opening brief, the Florences seem to argue that the district
court failed to consider whether Experian violated 15 U.S.C. § 1681i(a)(2)(A) by
never sending any notice of Mr. Florence’s dispute of the Wells Fargo judgment to
the relevant data furnisher. But in their reply brief, the Florences disclaim this
argument, saying that the theory that “Experian should have confirmed the
accuracy of the Judgment with Wells Fargo” was “not a basis for Appellants’
appeal.”
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attacking the legal validity of consumer debts.” Carvalho, 629 F.3d at 892. “A
[credit reporting agency] is not required as part of its reinvestigation duties to
provide a legal opinion on the merits.” Id. Here, the Florences are trying to
collaterally attack the legal validity of the Wells Fargo judgment, which cannot
form the basis of an FCRA claim against Experian.2
AFFIRMED.
2
Plaintiffs-Appellants’ unopposed motion to take judicial notice [Dkt.
40] is GRANTED.
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