Peter Zeppeiro v. Ditech Financial, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2019
• Docket: 18-56241
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PETER ZEPPEIRO, No. 18-56241

Plaintiff-Appellant, D.C. No. 2:18-cv-04183-SJO-AGR

v. MEMORANDUM* DITECH FINANCIAL, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

Defendants-Appellees,

and

BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP; DOES, 1 to 10 inclusive,

Defendants.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Peter Zeppeiro appeals from the district court’s order dismissing his

foreclosure action alleging violations of the Truth In Lending Act (“TILA”). We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal for claim preclusion. Furnace v. Giurbino, 838 F.3d 1019, 1023 n.1 (9th

Cir. 2016). We may affirm on any basis supported by the record. Kwan v.

SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.

Dismissal of Zeppeiro’s TILA rescission claim was proper because Zeppeiro

failed to send a notice of rescission to defendants within three years of

consummation of the loan. See 15 U.S.C. § 1635(f) (providing a right of rescission

within three years of the date of the consummation of a loan if the lender fails to

make required disclosures to the borrower); Jesinoski v. Countrywide Home Loans,

Inc., 135 S. Ct. 790, 792-93 (2015) (a borrower may exercise a right of rescission

by notifying the lender of borrower’s intent to rescind within three years after the

transaction is consummated); Miguel v. Country Funding Corp., 309 F.3d 1161,

1164 (9th Cir. 2002) (“[Section] 1635(f) is a statute of repose, depriving the courts

of subject matter jurisdiction when a § 1635 claim is brought outside the three-year

limitation period.”), abrogated on other grounds by Hoang v. Bank of America,

N.A., 910 F.3d 1096 (9th Cir. 2018).

Dismissal of Zeppeiro’s TILA damages claim was proper because this claim

is barred by the applicable statute of limitations, and Zeppeiro failed to allege facts

2 18-56241 demonstrating that equitable tolling should apply. See 15 U.S.C. § 1640(e) (TILA

damages claims are subject to a one-year statute of limitations); Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir. 2011) (federal

standard for equitable tolling).

The district court did not abuse its discretion in denying leave to amend

because amendment would have been futile. See Leadsinger, Inc. v. BMG Music

Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (setting forth standard of review and

explaining that the court need not grant leave to amend if amendment would be

futile).

Zeppeiro’s request for judicial notice (Docket Entry No. 15) is granted.

This case has been administratively closed as to appellee Ditech Financial

LLC. See Docket Entry No. 31. We therefore do not reach Zeppeiro’s contentions

regarding dismissal of his claims against Ditech.

AFFIRMED.

3 18-56241