NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MAXINE GILLIAM, Trustee of The Lou No. 21-56257 Easter Ross Revocable Trust, D.C. No. Plaintiff-Appellant, 2:18-cv-02580-PSG-MRW
v. MEMORANDUM* JOEL LEVINE, Trustee of The Joel Sherman Revocable Trust,
Defendant-Appellee.
MAXINE GILLIAM, Trustee of The Lou No. 22-55158 Easter Ross Revocable Trust, D.C. No. Plaintiff-Appellant, 2:18-cv-02580-PSG-MRW
v.
JOEL LEVINE, Trustee of The Joel Sherman Revocable Trust,
Defendant-Appellee,
Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted March 16, 2023** Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
Maxine Gilliam appeals the district court’s grant of summary judgment in
favor of Joel Levine and its order awarding attorney’s fees to Levine. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review the district court’s grant of summary judgment de novo.
Roley v. Google LLC, 40 F.4th 903, 908 (9th Cir. 2022). “Summary judgment is
appropriate when, viewing the evidence in the light most favorable to the
nonmoving party, ‘there is no genuine dispute as to any material fact.’” United
States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162
(9th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). We review the district court’s
evidentiary rulings and award of attorney’s fees for abuse of discretion. Domingo
ex rel. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002); Barrientos v. 1801-
1825 Morton LLC, 583 F.3d 1197, 1207 (9th Cir. 2009).
1. The district court correctly granted summary judgment for Levine on all
of Gilliam’s claims because the statutes she invokes do not apply to loans obtained
for a business purpose. See Gilliam v. Levine (Gilliam I), 955 F.3d 1117, 1120–21
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 (9th Cir. 2020). Gilliam’s accounting, reimbursement, and declaratory relief claims
are derivative of the statutory claims, so they also fail if the loan was for a business
purpose.
In determining whether a loan was for a business purpose, we apply the
factors articulated in Thorns v. Sundance Properties: (1) “[t]he relationship of the
borrower’s primary occupation to the acquisition”; (2) “[t]he degree to which the
borrower will personally manage the acquisition”; (3) “[t]he ratio of income from
the acquisition to the total income of the borrower”; (4) “[t]he size of the
transaction”; and (5) “[t]he borrower’s statement of purpose for the loan.” 726 F.2d
1417, 1419 (9th Cir. 1984); see Gilliam I, 955 F.3d at 1123; Johnson v. Wells
Fargo Home Mortg., Inc., 635 F.3d 401, 417 (9th Cir. 2011). Gilliam bears the
burden of proving that the loan was obtained for personal purposes rather than
business purposes. See Gilliam I, 955 F.3d at 1120.
The first factor supports a business-purpose determination. The broker
representations and Gilliam’s documents identified her as a “real estate investor
(retired teacher).” That Gilliam is also a retired teacher does not change the fact
that she was identified primarily as an investor for the purposes of this loan.
Gilliam cites no record evidence in support of the second and third factors. As the
district court acknowledged, the fourth factor does not support a business purpose
because the loan amount was relatively small. The fifth factor supports a business
3 purpose. Gilliam executed an affidavit certifying that the secured property was
used for “investment.” Additionally, the broker, in his capacity as Gilliam’s agent,
told Levine that Gilliam was a real estate investor, owned multiple rental
properties, and sought the loan in order “to invest in a small rental.” Levine relied
on those representations and wired the loan funds to a corporate account. In sum,
“‘[e]xamin[ing] the transaction as a whole,’ paying particular attention to ‘the
purpose for which the credit was extended,’” the undisputed facts establish that the
loan was obtained primarily for a business purpose. Slenk v. Transworld Sys., Inc.,
236 F.3d 1072, 1075 (9th Cir. 2001) (quoting Bloom v. I.C. Sys., Inc., 972 F.2d
1067, 1068 (9th Cir. 1992)).
Gilliam’s arguments to the contrary do not show otherwise. First, Gilliam
argues that the broker representations were inaccurate because she never actually
purchased a new rental property, but the fifth factor focuses on the borrower’s
statement of purpose, not any undisclosed purpose the borrower might have had in
mind. Gilliam claims that she acquired the loan to make repairs to a property, but
she points to no evidence that she conveyed this purpose to Levine before the loan
was made.
Second, Gilliam argues that various documents from the loan files
demonstrate that the loan was governed by the Truth in Lending Act and the Real
Estate Settlement Procedures Act (RESPA). The district court correctly found that
4 the good faith estimate and the intent to proceed with application from June 7,
2015 could not support Gilliam’s argument that the loan was intended to be a
consumer credit transaction because those documents were dated before her broker
had contacted Levine. Gilliam points to a June 13, 2015 Mortgage Loan Disclosure
Statement and a June 12, 2015 Deed of Trust, both of which are form documents
that mention RESPA. Even assuming these documents were properly before the
district court, their cursory references to the statute and use of its definitions do
nothing to transform the nature of the loan. Gilliam also emphasizes that a June 12,
2015 Truth in Lending Act disclosure document lists Levine as a creditor. But
again, that fact does not control whether the loan was exempt. CFPB, Comment for
12 C.F.R. § 1026.3(a) – Exempt Transactions, Official Interpretation 1026.3(a)-1
(explaining that a creditor can make disclosures regardless of whether a transaction
is exempt).
Third, law of the case does not apply because this appeal concerns a motion
for summary judgment, whereas the prior appeal involved a motion to dismiss,
which is governed by a different legal standard.
2.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MAXINE GILLIAM, Trustee of The Lou No. 21-56257 Easter Ross Revocable Trust, D.C. No. Plaintiff-Appellant, 2:18-cv-02580-PSG-MRW
v. MEMORANDUM* JOEL LEVINE, Trustee of The Joel Sherman Revocable Trust,
Defendant-Appellee.
MAXINE GILLIAM, Trustee of The Lou No. 22-55158 Easter Ross Revocable Trust, D.C. No. Plaintiff-Appellant, 2:18-cv-02580-PSG-MRW
v.
JOEL LEVINE, Trustee of The Joel Sherman Revocable Trust,
Defendant-Appellee,
Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted March 16, 2023** Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
Maxine Gilliam appeals the district court’s grant of summary judgment in
favor of Joel Levine and its order awarding attorney’s fees to Levine. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review the district court’s grant of summary judgment de novo.
Roley v. Google LLC, 40 F.4th 903, 908 (9th Cir. 2022). “Summary judgment is
appropriate when, viewing the evidence in the light most favorable to the
nonmoving party, ‘there is no genuine dispute as to any material fact.’” United
States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162
(9th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). We review the district court’s
evidentiary rulings and award of attorney’s fees for abuse of discretion. Domingo
ex rel. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002); Barrientos v. 1801-
1825 Morton LLC, 583 F.3d 1197, 1207 (9th Cir. 2009).
1. The district court correctly granted summary judgment for Levine on all
of Gilliam’s claims because the statutes she invokes do not apply to loans obtained
for a business purpose. See Gilliam v. Levine (Gilliam I), 955 F.3d 1117, 1120–21
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 (9th Cir. 2020). Gilliam’s accounting, reimbursement, and declaratory relief claims
are derivative of the statutory claims, so they also fail if the loan was for a business
purpose.
In determining whether a loan was for a business purpose, we apply the
factors articulated in Thorns v. Sundance Properties: (1) “[t]he relationship of the
borrower’s primary occupation to the acquisition”; (2) “[t]he degree to which the
borrower will personally manage the acquisition”; (3) “[t]he ratio of income from
the acquisition to the total income of the borrower”; (4) “[t]he size of the
transaction”; and (5) “[t]he borrower’s statement of purpose for the loan.” 726 F.2d
1417, 1419 (9th Cir. 1984); see Gilliam I, 955 F.3d at 1123; Johnson v. Wells
Fargo Home Mortg., Inc., 635 F.3d 401, 417 (9th Cir. 2011). Gilliam bears the
burden of proving that the loan was obtained for personal purposes rather than
business purposes. See Gilliam I, 955 F.3d at 1120.
The first factor supports a business-purpose determination. The broker
representations and Gilliam’s documents identified her as a “real estate investor
(retired teacher).” That Gilliam is also a retired teacher does not change the fact
that she was identified primarily as an investor for the purposes of this loan.
Gilliam cites no record evidence in support of the second and third factors. As the
district court acknowledged, the fourth factor does not support a business purpose
because the loan amount was relatively small. The fifth factor supports a business
3 purpose. Gilliam executed an affidavit certifying that the secured property was
used for “investment.” Additionally, the broker, in his capacity as Gilliam’s agent,
told Levine that Gilliam was a real estate investor, owned multiple rental
properties, and sought the loan in order “to invest in a small rental.” Levine relied
on those representations and wired the loan funds to a corporate account. In sum,
“‘[e]xamin[ing] the transaction as a whole,’ paying particular attention to ‘the
purpose for which the credit was extended,’” the undisputed facts establish that the
loan was obtained primarily for a business purpose. Slenk v. Transworld Sys., Inc.,
236 F.3d 1072, 1075 (9th Cir. 2001) (quoting Bloom v. I.C. Sys., Inc., 972 F.2d
1067, 1068 (9th Cir. 1992)).
Gilliam’s arguments to the contrary do not show otherwise. First, Gilliam
argues that the broker representations were inaccurate because she never actually
purchased a new rental property, but the fifth factor focuses on the borrower’s
statement of purpose, not any undisclosed purpose the borrower might have had in
mind. Gilliam claims that she acquired the loan to make repairs to a property, but
she points to no evidence that she conveyed this purpose to Levine before the loan
was made.
Second, Gilliam argues that various documents from the loan files
demonstrate that the loan was governed by the Truth in Lending Act and the Real
Estate Settlement Procedures Act (RESPA). The district court correctly found that
4 the good faith estimate and the intent to proceed with application from June 7,
2015 could not support Gilliam’s argument that the loan was intended to be a
consumer credit transaction because those documents were dated before her broker
had contacted Levine. Gilliam points to a June 13, 2015 Mortgage Loan Disclosure
Statement and a June 12, 2015 Deed of Trust, both of which are form documents
that mention RESPA. Even assuming these documents were properly before the
district court, their cursory references to the statute and use of its definitions do
nothing to transform the nature of the loan. Gilliam also emphasizes that a June 12,
2015 Truth in Lending Act disclosure document lists Levine as a creditor. But
again, that fact does not control whether the loan was exempt. CFPB, Comment for
12 C.F.R. § 1026.3(a) – Exempt Transactions, Official Interpretation 1026.3(a)-1
(explaining that a creditor can make disclosures regardless of whether a transaction
is exempt).
Third, law of the case does not apply because this appeal concerns a motion
for summary judgment, whereas the prior appeal involved a motion to dismiss,
which is governed by a different legal standard.
2. In evaluating the loan, the district court relied on statements made by
Gilliam’s loan broker, whom it treated as Gilliam’s agent. Gilliam objects that the
loan broker was not acting as her agent, but she forfeited that objection because she
did not raise it before the district court. See AMA Multimedia, LLC v. Wanat, 970
5 F.3d 1201, 1213 (9th Cir. 2020). Moreover, Levine’s statement of undisputed facts
included the statement that “Plaintiff . . . had engaged . . . Broker Perez to act as
her agent in order to procure a lender to fund a loan,” to which Gilliam responded,
“Undisputed.”
3. The district court did not abuse its discretion in its evidentiary decisions.
Gilliam objects to the admission of Levine’s declaration and the loan file on the
grounds of authentication, hearsay, personal knowledge, and best evidence. The
documents are properly authenticated: Levine’s declaration states that he received
them, and a recipient’s declaration may authenticate an emailed document. Fed. R.
Evid. 901(b)(1). The documents are not hearsay because Levine did not introduce
them for the truth of their contents, but rather for their effect on Levine—namely,
that he read them to understand that Gilliam would use the loan for investment
purposes. Fed. R. Evid. 801(c)(2). That use resolves any personal knowledge
concerns. Any best-evidence objections fail because copies of documents are
admissible as duplicates. See Fed. R. Evid. 1003.
Gilliam also objects to the admission of the bank wire transfer on hearsay
grounds. That document was admissible as an opposing-party statement because
the wire transfer was made by Gilliam, signed by Gilliam, and offered against
Gilliam. See Fed. R. Evid. 801(d)(2).
6 4. The district court did not abuse its discretion in awarding attorney’s fees
to Levine. Most of Gilliam’s arguments either do not concern the fee award or are
forfeited because she did not make them before the district court. Her remaining
arguments do not show an abuse of discretion. This was an action on a contract
under California Civil Code § 1717(a). See Dell Merk, Inc. v. Franzia, 33 Cal.
Rptr. 3d 694, 703 (Cal. Ct. App. 2005). And the district court correctly interpreted
the promissory note to provide for an award of fees.
The motion to take judicial notice (Dkt. No. 52) is DENIED.
AFFIRMED.