William Fayant v. US Bank National Association ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM ROBERT FAYANT; JULIE No. 17-35097
LORRAINE FAYANT,
D.C. No. 2:16-cv-00139-SMJ
Plaintiffs-Appellants,
v. MEMORANDUM*
U.S. BANK,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
William Robert Fayant and Julie Lorraine Fayant appeal from the district
court’s judgment dismissing their action alleging a Truth in Lending Act (“TILA”)
claim for rescission. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Serra
*
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).
v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010). We affirm.
The district court properly dismissed the Fayants’ action as time-barred
because the Fayants did not send a notice of rescission to defendant 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 (2015) (a borrower may exercise 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.”). We reject as without merit the Fayants’ contention
that the subject loan transaction was not consummated.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 17-35097