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 2010-12

Richard Shelley v. Quality Loan Service Corp. ( 2010 )


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  •                                                                           FILED
NOT FOR PUBLICATION                           DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                     U .S. C O U R T O F AP PE ALS
FOR THE NINTH CIRCUIT
RICHARD SHELLEY, pro se,                         No. 09-56133
Plaintiff - Appellant,            D.C. No. 8:09-cv-00291-CJC-
MLG
v.
QUALITY LOAN SERVICE CORP. and                   MEMORANDUM *
LITTON LOAN SERVICING, LLP,
Defendants - Appellees,
and
FREMONT INVESTMENT & LOAN,
Defendant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted December 14, 2010 **
Before:        GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Richard Shelley appeals pro se from the district court’s order dismissing his
Truth in Lending Act (“TILA”) action. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. King v. California,
    784 F.2d 910
    , 912 (9th Cir.
1986). We affirm.
The district court properly dismissed Shelley’s TILA claim seeking damages
because his action, filed nearly three years after the alleged violation, was time-
barred. See 15 U.S.C. § 1640(e) (an action for damages must be brought within
one year of the date of the alleged violation).
The district court also properly dismissed Shelley’s TILA claim seeking
rescission because Shelley did not allege the ability to tender the proceeds of the
loan despite being warned by the district court of this requirement and being given
the opportunity to do so. See Yamamoto v. Bank of N.Y.,
    329 F.3d 1167
    , 1171 (9th
Cir. 2003). (“[I]n applying TILA, a trial judge has the discretion to condition
rescission on tender by the borrower of the property he had received from the
lender.”) (internal quotation marks and brackets omitted).
We do not consider contentions arising from claims that were not included
in the complaint or arguments that were not raised before the district court. See
O’Guinn v. Lovelock Corr. Ctr.,
    502 F.3d 1056
    , 1063 n.3 (9th Cir. 2007); Forsyth
v. Humana, Inc.,
    114 F.3d 1467
    , 1474 (9th Cir. 1997).
2                                      09-56133
Shelley’s remaining contentions are unpersuasive.
All pending motions are denied.
AFFIRMED.
3                 09-56133