Peter Zeppeiro v. Ditech Financial, LLC; Mortgage Electronic Registration Systems, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER ZEPPEIRO,
Plaintiff-Appellant,
v.
DITECH FINANCIAL, LLC; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.,
Defendants-Appellees,
and
BARRETT DAFFIN FRAPPIER TREDER
& WEISS, LLP; DOES, 1 to 10 inclusive,
Defendants.
No. 18-56241
D.C. No. 2:18-cv-04183-SJO-AGR
MEMORANDUM*
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).
FILED
OCT 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-56241
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

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3 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.

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