Michael Grady v. Jonathan Levin

Ninth Circuit

Michael Grady v. Jonathan Levin

655 F. App'x 601

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 25, 2016

Docket14-16457

StatusUnpublished

Cited by1 cases

This text of 655 F. App'x 601 (Michael Grady v. Jonathan Levin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Michael Grady v. Jonathan Levin, 655 F. App'x 601 (9th Cir. 2016).

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Opinion

MEMORANDUM ***

This case centers on whether Michael and Jennifer Grady (the Gradys) can assert violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., against Tri City National Bank (TCNB) for conduct preceding its acquisition of the assets of a failed bank. In 2008, the Gradys entered into a loan with the Bank of Elm-wood. The bank was subsequently placed into receivership, and its assets were purchased by TCNB. The district court denied the Gradys’ motion for leave to amend *602 their complaint to add TILA claims against TCNB, finding that amendment would be futile. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We hold that the Gradys’ proposed TILA claims against TCNB “relat[e] to any act or omission” of the original bank— the Bank of Elmwood—and are subject to dismissal under the Financial Institutions, Reform, Recovery, and Enforcement Act (FIRREA) of 1989, 12 U.S.C. § 1821(d)(13)(D)(ii). The Gradys’ proposed TILA claim that stems from alleged disclosure defects in the original loan documents, see 15 U.S.C. § 1641(e), is “based on the conduct of the failed institution” because the operative loan documents were drafted and executed by the Bank of Elmwood, not TCNB. Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056, 1064 (9th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1560, 191 L.Ed.2d 639 (2015). And TCNB never assumed liability for the Bank of Elmwood’s potential malfeasance prior to the acquisition from the Federal Deposit Insurance Corporation.

Similarly, we find that the Gradys’ proposed TILA rescission claim against TCNB, see 15 U.S.C. § 1635, plainly qualifies as “functionally, albeit not formally against [the] failed bank.” Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1215 (9th Cir. 2012) (internal quotation marks omitted). Because the Gradys did not exercise their right to rescind within the unconditional three-day period, the timeliness of their notice of rescission is entirely contingent on the Bank of Elm-wood’s alleged “failfure] to satisfy [TILA’s] disclosure requirements.” Jesinoski v. Countrywide Home Loans, Inc., — U.S. —, 135 S.Ct. 790, 792, 190 L.Ed.2d 650 (2015).

In sum, we hold that the Gradys’ proposed TILA claims must first be exhausted under FIRREA.

AFFIRMED.

***

xhiS disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM ***

This case centers on whether Michael and Jennifer Grady (the Gradys) can assert violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., against Tri City National Bank (TCNB) for conduct preceding its acquisition of the assets of a failed bank. In 2008, the Gradys entered into a loan with the Bank of Elm-wood. The bank was subsequently placed into receivership, and its assets were purchased by TCNB. The district court denied the Gradys’ motion for leave to amend *602 their complaint to add TILA claims against TCNB, finding that amendment would be futile. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We hold that the Gradys’ proposed TILA claims against TCNB “relat[e] to any act or omission” of the original bank— the Bank of Elmwood—and are subject to dismissal under the Financial Institutions, Reform, Recovery, and Enforcement Act (FIRREA) of 1989, 12 U.S.C. § 1821(d)(13)(D)(ii). The Gradys’ proposed TILA claim that stems from alleged disclosure defects in the original loan documents, see 15 U.S.C. § 1641(e), is “based on the conduct of the failed institution” because the operative loan documents were drafted and executed by the Bank of Elmwood, not TCNB. Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056, 1064 (9th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1560, 191 L.Ed.2d 639 (2015). And TCNB never assumed liability for the Bank of Elmwood’s potential malfeasance prior to the acquisition from the Federal Deposit Insurance Corporation.

Similarly, we find that the Gradys’ proposed TILA rescission claim against TCNB, see 15 U.S.C. § 1635, plainly qualifies as “functionally, albeit not formally against [the] failed bank.” Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1215 (9th Cir. 2012) (internal quotation marks omitted). Because the Gradys did not exercise their right to rescind within the unconditional three-day period, the timeliness of their notice of rescission is entirely contingent on the Bank of Elm-wood’s alleged “failfure] to satisfy [TILA’s] disclosure requirements.” Jesinoski v. Countrywide Home Loans, Inc., — U.S. —, 135 S.Ct. 790, 792, 190 L.Ed.2d 650 (2015).

In sum, we hold that the Gradys’ proposed TILA claims must first be exhausted under FIRREA.

AFFIRMED.

***

xhiS disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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655 F. App'x 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-grady-v-jonathan-levin-ca9-2016.

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