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ZEPPEIRO v. LLP 10 (2019)

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United States Court of Appeals, Ninth Circuit.

Peter ZEPPEIRO, Plaintiff-Appellant, v. DITECH FINANCIAL, LLC; Mortgage Electronic Registration Systems, Inc., Defendants-Appellees, Barrett Daffin Frappier Treder & Weiss, LLP; Does, 1 to 10 inclusive, Defendants.

No. 18-56241

Decided: October 24, 2019

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges. Charles Thomas Marshall, Charles T. Marshall, Attorney at Law, San Diego, CA, for Plaintiff - Appellant Cathy Lynn Granger, Esquire, Attorney, Wolfe & Wyman LLP, Irvine, CA, for Defendants - Appellees


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., 574 U.S. 259, 135 S. Ct. 790, 792-93, 190 L.Ed.2d 650 (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 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.


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