Michael Williams v. Bank of America, N.A. , 695 F. App'x 327 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL EDWARD WILLIAMS, No. 16-16450
Plaintiff-Appellant, D.C. No. 2:16-cv-00199-JCM-PAL
v.
MEMORANDUM*
BANK OF AMERICA, N.A.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Michael Edward Williams appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law violations related to Williams’
mortgage. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal on the basis of the statute of limitations and under Fed. R. Civ. P.
*
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).
12(b)(6). Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004). We
affirm.
The district court properly dismissed Williams’ Truth in Lending Act
(“TILA”), Real Estate Settlement Procedures Act (“RESPA”), intentional
misrepresentation, and rescission based upon fraud claims because these claims are
barred by the applicable statutes of limitations and Williams failed to plead facts
demonstrating that equitable tolling should apply. See 12 U.S.C. § 2614 (RESPA
claims under 12 U.S.C. § 2607 are subject to a one-year statute of limitations); 15
U.S.C. § 1640(e) (TILA damages claims are subject to a one-year statute of
limitations); Nev. Rev. Stat. § 11.190(3)(d) (fraud claims under Nevada law are
subject to a three-year statute of limitations); see also Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir. 2011) (federal standard for
equitable tolling); Howard v. Howard, 239 P.2d 584, 588-89 (Nev. 1952) (fraud
claim accrues under Nevada law when the defrauded person knows, or could have
known through proper diligence, of the fraud).
The district court did not abuse its discretion by denying leave to amend
because amendment would be futile. See Gardner v. Martino, 563 F.3d 981, 990
(9th Cir. 2009) (setting forth standard of review and permitting denial of leave to
amend where amendment would be futile).
We do not consider issues not specifically and distinctly raised and argued in
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the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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