Lpp Mortgage Ltd., Lp v. David Gates ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LPP MORTGAGE LTD., LP, No. 17-55355
Plaintiff-counter-defendant- D.C. No. 2:15-cv-10008-DSF-PLA
Appellee,
v. MEMORANDUM*
DAVID W. GATES, Trustee of the David
W. Gates Trust dated August 5, 1996,
Defendant-counter-claimant-
Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
David W. Gates appeals from the district court’s summary judgment for LPP
Mortgage Ltd., LP in its diversity action seeking judicial foreclosure and order
dismissing Gates’s counterclaim. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We
affirm.
The district court properly dismissed as time-barred Gates’s Truth in
Lending Act (“TILA”) counterclaim because Gates filed his action after the
applicable statute of limitations had run. See 15 U.S.C. § 1635(f) (three-year
period to exercise right of rescission under TILA); Miguel v. Country Funding
Corp., 309 F.3d 1161, 1164 (9th Cir. 2002) (three-year limitation period under
TILA is a statute of repose that once expired completely extinguishes the
underlying right).
The district court properly granted summary judgment on LPP’s judicial
foreclosure claim because LPP established each of the required elements for
judicial foreclosure by competent evidence at summary judgment, and Gates failed
to raise a genuine dispute as to any material fact. See Cal. Civ. Proc. Code § 725a,
§ 726; Arabia v. BAC Home Loans Servicing, L.P., 145 Cal. Rptr. 3d 678, 685 (Ct.
App. 2012) (requirements for judicial foreclosure).
The district court did not abuse its discretion by awarding attorney’s fees in
the amount of $17,474.50, jointly and severally, as a sanction against Gates and his
attorney. See Christian v. Mattel, Inc., 286 F.3d 1118, 1126-28 (9th Cir. 2002)
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(setting forth standard of review and describing grounds for Rule 11 sanctions); see
also Riverhead Sav. Bank v. Nat’l Mortg. Equity Corp., 893 F.2d 1109, 1113 (9th
Cir. 1990) (concluding that jurisdiction to hear an appeal exists where a sanctions
award was imposed jointly and severally on the defendants and their non-party
counsel). Contrary to Gates’s contention, there are no nonfrivolous arguments to
support his theory that the Supreme Court’s decision in Jesinoski v. Countrywide
Home Loans, Inc., 135 S. Ct. 790 (2015), revived his time-barred claim for
rescission. See Fed. R. Civ. P. 11(b) & advisory committee’s note to 1993
amendment (arguments for modification or reversal of existing law do not violate
Rule 11(b)(2) if they are nonfrivolous under an objective standard).
In his opening brief, Gates fails to challenge the district court’s
determination under Rule 11 that he brought his counterclaim for an improper
purpose, and he has therefore waived any such challenge. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in
its opening brief are deemed waived.”); Greenwood v. FAA, 28 F.3d 971, 977 (9th
Cir. 1994) (“We will not manufacture arguments for an appellant . . . .”).
AFFIRMED.
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