Elliott Rodriguez v. Provident Savings Bank, F.S.B. , 676 F. App'x 712 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLIOTT ROMAN RODRIGUEZ, No. 15-56860
Plaintiff-Appellant, D.C. No. 5:15-cv-01301-VAP-KK
v.
MEMORANDUM *
PROVIDENT SAVINGS BANK, F.S.B.; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Elliott Roman Rodriguez appeals pro se from the district court’s judgment
dismissing his action alleging violations of the Truth in Lending Act (“TILA”).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
*
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).
court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), In re Mortg.
Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014), and we affirm.
The district court properly dismissed as time-barred Rodriguez’s TILA
claims because Rodriguez failed to establish that he delivered a timely notice of
rescission, see Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 792
(2015) (borrower must notify creditor of intent to rescind within three years after
the transaction is consummated), or that he timely filed an action for damages, see
15 U.S.C. § 1640(e) (an action for damages under TILA must be brought within
one year of the alleged violation). We reject as unsupported by the record
Rodriguez’s contention that the loan transaction was never consummated. See Cal.
Civ. Code § 1614 (“A written instrument is presumptive evidence of a
consideration.”); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
2010) (court not required to accept as true allegations that contradict exhibits
attached to the complaint).
The district court did not abuse its discretion in dismissing Rodriguez’s
rescission and restitution claims without leave to amend. See Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (leave to amend not required
“where the amended complaint would also be subject to dismissal”); see also
2 15-56860
Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (setting forth
standard of review).
We reject as unsupported by the record Rodriguez’s contentions that the
district court failed to comply with the Federal Rules of Evidence or provide him
with notice of the motion to dismiss filed on July 31, 2015.
We treat Rodriguez’s request to “File on Demand,” filed on January 23,
2017, as a motion to supplement the record, and deny the request.
AFFIRMED.
3 15-56860