Loanna Hernandez v. Experian Information Solutions ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOANNA HERNANDEZ, No. 21-55588
Plaintiff-Appellant, D.C. No.
2:20-cv-09908-DOC-RAO
v.
EXPERIAN INFORMATION SOLUTIONS, MEMORANDUM*
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted March 7, 2022
Phoenix, Arizona
Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges.
Loanna Hernandez appeals the dismissal of her claims under the Fair Credit
Reporting Act (“FCRA”). We have jurisdiction under 28 U.S.C. § 1291, and we
reverse and remand.
1. Hernandez is not collaterally estopped from asserting that Experian’s
post-bankruptcy credit reporting procedures violate 15 U.S.C. § 1681e(b) based on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the settlement order in White v. Experian Info. Sols., No. 05-cv-1073-DOC (MLGx),
2008 WL 11518799 (C.D. Cal. Aug. 19, 2008) (“the White Order”).1 See Sec. &
Exch. Comm’n v. Stein, 906 F.3d 823, 828 (9th Cir. 2018) (noting that the availability
of collateral estoppel is reviewed de novo). Hernandez was not a party in White, nor
a member of the class. None of the other exceptions to nonparty issue preclusion
apply. See Taylor v. Sturgell, 553 U.S. 880, 892–95 (2008).
Nor is Hernandez bound by the White Order’s proclamation that the
procedures it outlines “conclusively” comply with the FCRA in the post-bankruptcy
credit reporting context and that all consumers are barred from asserting otherwise.
Particularly because “[t]he reasonableness of the procedures and whether the agency
followed them [are] jury questions in the overwhelming majority of cases,”
Hernandez is entitled to discovery into Experian’s actual procedures before they can
be assessed as “reasonable . . . to assure maximum possible accuracy” in compliance
with § 1681e(b). See Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333
(9th Cir. 1995) (citation omitted). Reasonableness is not a static issue, and
procedures that met the high bar of § 1681e(b) fourteen years ago may no longer do
so today.
2. Hernandez has stated a claim for a violation of § 1681e(b) by alleging
facts “tending to show that [Experian] prepared a report containing inaccurate
1
On appeal, Experian no longer defends the application of collateral estoppel.
2
information.” See Guimond, 45 F.3d at 1332‒33 (citation omitted). The first
amended complaint plausibly alleges that Experian was aware of Hernandez’s
bankruptcy discharge, that the account at issue was discharged, and that Experian
inaccurately reported the discharged account on the report it prepared. Hernandez
also alleged that Experian initially removed the account at issue and then reinserted
it onto her credit report seven years after she filed for bankruptcy, plausibly
suggesting that Experian should have known the account was discharged.2
Our recent decision in Moran v. Screening Pros, LLC, 25 F.4th 722 (9th Cir.
2022), does not prevent Hernandez from proceeding past the pleading stage. In that
case, we held that the defendant consumer reporting agency could not be liable for
its violation of the FCRA because its interpretation of § 1681c(a), while incorrect,
was not “objectively unreasonable.” Moran, 25 F.4th at 729; see id. at 728 (noting
that “[t]he FCRA imposes liability for negligent or willful violations of its terms.”
(citations omitted)). By contrast with the seven-year reporting window at issue in
Moran, here Hernandez alleges a violation of the fact-intensive “reasonableness”
standard. See id. It is too soon to decide as a matter of law that Experian’s
interpretation of its obligations under § 1681e(b) was not objectively unreasonable.
2
Experian argues that because Hernandez’s claim is based on the reinsertion of an
obsolete tradeline with inaccurate information on her credit report, it is foreclosed
by the plain text of the FCRA. This misunderstands the statutory basis of
Hernandez’s claim, which arises under 15 U.S.C. § 1681e(b).
3
Further, assuming White’s procedures remain not objectively unreasonable,
Experian’s compliance with White is inappropriate for resolution at this early stage.3
Hernandez’s requests for judicial notice [Docket Entry Nos. 13, 30] are
DENIED.
REVERSED AND REMANDED. Each party shall bear its own costs on
appeal.
3
Experian’s compliance is not obvious, as evidenced by Hernandez’s allegations
that neither TransUnion nor Equifax made the same reporting errors even though
they were equally bound by White’s terms.
4