Daniel Anderson, on behalf of himself and all others similarly situated v. Hsbc Bank Nevada, N.a.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL ANDERSON, on behalf of
himself and all others similarly situated,
Plaintiff - Appellant,
v.
HSBC BANK NEVADA, N.A.,
Defendant - Appellee.
No. 12-56891
D.C. No. 2:09-cv-04271-DDP-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 14, 2014 **
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
1. The district court correctly dismissed Anderson’s complaint for failure to
state a claim under Nevada Revised Statutes § 97A.140(4). That section’s notice
and opportunity-to-avoid provisions are triggered only if a credit card issuer
FILED
MAR 03 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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unilaterally changes a term or condition that adversely affects or increases the cost
to the cardholder of using the credit card. Nev. Rev. Stat. § 97A.140(4)(a), (b).
Here, Anderson’s “Cardmember Agreement” with HSBC Nevada, N.A. (HSBC)
entitled him to a promotional interest rate unless he defaulted on his payments; in
that event, Anderson agreed that HSBC could increase his interest rate up to a
default rate. When Anderson defaulted, HSBC increased his interest rate up to the
agreed-upon default rate, per the terms of the Agreement. HSBC thus applied,
rather than unilaterally changed, an agreed-upon term or condition. Accordingly,
the district court correctly held that § 97A.140(4) did not require HSBC to provide
Anderson with further notice or an opportunity to avoid the additional charges.
2. The district court also correctly held that § 97A.140(4)(b) is preempted
by the National Bank Act and its implementing regulations. See 12 U.S.C. § 21 et
seq.; 12 C.F.R. § 7.4008. Anderson does not challenge the district court’s holding
that § 97A.140(4)(a) is preempted, so the only question before us is whether
subsection (4)(b) is divisible from subsection (4)(a) for preemption purposes. It is
not. The two provisions are explicitly joined by a conjunctive “and,” and the right
to avoid a change under subsection (4)(b) depends on receiving advance notice of
the change under subsection (4)(a). We agree with the district court that the most
logical reading of the statute is that it aims to allow cardholders to avoid the

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imposition of adverse new terms after receiving the prescribed 30 days’ notice,
rather than to seek refunds after the fact.
AFFIRMED.

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