NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT MAY 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BOBBY ALEXANDER, No. 19-15824
Plaintiff-Appellant, D.C. No.
2:17-cv-00139-APG-NJK
v.
EXPERIAN INFORMATION SOLUTIONS, MEMORANDUM*
INC.,
Defendant-Appellee,
and
EQUIFAX INFORMATION SERVICES,
LLC; et al.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted April 16, 2020**
San Francisco, California
Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,*** Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
In this action arising under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§§ 1681 et seq., Appellant Bobby Alexander (“Alexander”) appeals from the district
court’s orders granting summary judgment in favor of Appellee Experian
Information Solutions, Inc. (“Experian”) and denying Alexander’s post-judgment
motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
after careful de novo review, see Shaw v. Experian Info. Sols., Inc., 891 F.3d 749,
755 (9th Cir. 2018), we affirm.1
In 2011, Alexander was notified that the mortgage account on his primary
residence was in default. Thereafter, Alexander petitioned for a voluntary Chapter
13 bankruptcy, identified the lender as a secured creditor, and the bankruptcy court
confirmed the plan on May 17, 2012. In June 2012, the lender’s agent served
Alexander with a notice of trustee’s sale and then sold the property to a third party
at a public auction in July 2012 – a process that Nevada law defines as a foreclosure.
See Benko v. Quality Loan Serv. Corp., 454 P.3d 1263, 1267 (Nev. 2019) (en banc).
After the bankruptcy was completed in July 2016, Alexander requested and
received a consumer report disclosure from Experian, a Credit Reporting Agency
(“CRA”) subject to the FCRA. See 15 U.S.C. §§ 1681a(d), (f), 1681g(a). Experian
1
We are unpersuaded by Experian’s argument that Alexander lacks Article
III standing. Sections 1681e and 1681i of the FCRA were enacted to protect
consumers’ concrete reputational interests, and Alexander alleges economic
damages stemming from the alleged violations.
2
prepared a consumer report, indicating correctly that the mortgage account was past
due for several months in 2012 and was foreclosed in July 2012, and sent the report
to Alexander. Alexander disputed these notations, asserting that he had no payment
obligations to the lender in 2012 and that there was no foreclosure in July 2012. He
did not apprise Experian of his May 2012 bankruptcy. Pursuant to its statutory
obligation, see id. § 1681i(a)(1), Experian reinvestigated the disputed account and,
in October 2016, communicated the results of its reinvestigation to Alexander.
With benefit of counsel, Alexander sought compensatory, statutory, and
punitive damages, together with attorney’s fees and costs, for Experian’s allegedly
negligent and willful noncompliance with the FCRA. See id. §§ 1681n(a), 1681o(a).
The complaint alleges that Alexander’s confirmed bankruptcy plan absolved his
personal liability on the mortgage account as of May 2012, so Experian’s foreclosure
reporting as to the account was both incorrect and materially misleading, see id. §§
1681e(b), 1681i, and that the format of Experian’s communications was
incomprehensible. See id. § 1681g(a).
Each contention fails as a matter of law. First, a Chapter 13 bankruptcy does
not affect a secured creditor’s interests in a debtor’s primary residence, even if the
secured accounts are listed in the debtor’s confirmed bankruptcy plan. See Dewsnup
v. Timm, 502 U.S. 410, 417 (1992); In re Lane, 589 B.R. 399, 404 (B.A.P. 9th Cir.
2018). Second, to prevail on a section 1681g claim, a plaintiff must demonstrate
3
that the CRA’s disclosures would not be “understandable to the average consumer.”
Shaw, 891 F.3d at 759 (internal quotation marks omitted). Alexander has not
provided evidence demonstrating that Experian’s communications are unclear or
inaccurate to a reasonable consumer; evidence that he alone misunderstands them is
insufficient. See id. (citing 15 U.S.C. § 1681g(a)). Accordingly, the district court
properly entered summary judgment in Experian’s favor on both scores.
Additionally, Alexander raised a novel allegation in his summary judgment
briefing: that Experian’s foreclosure notations in both June 2012 and July 2012
violated sections 1681e and 1681i. Under Federal Rule of Civil Procedure 8(a)(2),
allegations in a complaint must “give the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.” Pickern v. Pier 1 Imports (U.S.), Inc.,
457 F.3d 963, 968 (9th Cir. 2006) (internal quotation marks omitted). Alexander’s
complaint alleges only that Experian failed to consider the bankruptcy’s purported
legal effect upon his personal repayment obligations to the lender, and thus gave
Experian no notice of the new allegations that he presented for the first time at
summary judgment. Nor did Alexander seek leave to amend his complaint.
Accordingly, the district court properly declined to consider the merits of
Alexander’s dual-notation argument.
Because the district court committed no legal error in granting Experian’s
motion for summary judgment, it did not abuse its discretion in denying Alexander’s
4
motion for reconsideration. See Micha v. Sun Life Assurance of Can., Inc., 874 F.3d
1052, 1056 (9th Cir. 2017).
AFFIRMED.
5
Bobby Alexander v. Experian Information Solutions
Combined Opinion