Horace Friend v. Homecomings Financial Network

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2010
• Docket: 09-56922
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 27 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T O F AP PE ALS

FOR THE NINTH CIRCUIT

HORACE G. FRIEND and TERESITA S. No. 09-56922 FRIEND, D.C. No. 8:09-cv-00457-DOC- Plaintiffs - Appellants, MLG

v. MEMORANDUM * HOMECOMINGS FINANCIAL NETWORK, INC.; et al.,

Defendants - Appellees,

and

JANE DOE, (Nisia) former agent of EFHL and FRED KIANI, former agent of EFHL,

Defendants.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted December 14, 2010 **

* 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). Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.

Horace G. Friend and Teresita S. Friend appeal pro se from the district

court’s order dismissing their Third Amended Complaint (“TAC”) alleging Truth

in Lending Act (“TILA”) violations. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. King v. California, 784 F.2d 910, 912 (9th Cir. 1986). We

affirm.

The district court properly dismissed Appellants’ TILA claim seeking

damages because it was time-barred. See 15 U.S.C. § 1640(e) (an action for

damages must be brought within one year of the date of alleged violation); King,

784 F.2d at 915. We do not consider Appellants’ contentions concerning alleged

TILA violations that were not plead in the TAC. See McMichael v. Cnty. of Napa,

709 F.2d 1268, 1273 n.4 (9th Cir. 1983) (declining to consider claims not included

in the complaint).

The district court properly dismissed Appellants’ TILA claim seeking

rescission because they did not allege an ability to tender in either their TAC or in

their oppositions to the motions to dismiss. See Yamamoto v. Bank of N.Y., 329

F.3d 1167, 1171 (9th Cir. 2003). (“[I]n applying TILA, a trial judge has the

discretion to condition rescission on tender by the borrower of the property he had

received from the lender.”) (internal quotation marks and brackets omitted).

2 09-56922 Appellants’ remaining contentions are unpersuasive.

Appellee Aurora Loan Services’s motion to take judicial notice is denied.

AFFIRMED.

3 09-56922