                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                                MAR 03 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DANIEL ANDERSON, on behalf of                    No. 12-56891
himself and all others similarly situated,
                                                 D.C. No. 2:09-cv-04271-DDP-E
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

HSBC BANK NEVADA, N.A.,

              Defendant - Appellee.


                    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

        *
             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).
                                                                            Page 2 of 3
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
                                                                        Page 3 of 3
imposition of adverse new terms after receiving the prescribed 30 days’ notice,

rather than to seek refunds after the fact.

      AFFIRMED.
