Svetlana Tyshkevich v. Wells Fargo Bank, N.A. , 708 F. App'x 339 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SVETLANA TYSHKEVICH, No. 16-16592
Plaintiff-Appellant, D.C. No. 2:15-cv-02010-JAM-AC
v.
MEMORANDUM*
WELLS FARGO BANK, N.A., as Trustee
on behalf of Harbor View Mortgage Loan
Pass-Through Trust Certificates Series 2006-
12; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Svetlana Tyshkevich appeals pro se from the district court’s judgment
dismissing her action alleging federal and state law claims related to her mortgage
loans. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
*
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).
discretion a denial of leave to amend. Rich v. Schrader, 823 F.3d 1205, 1208 (9th
Cir. 2016). We affirm.
The district court did not abuse its discretion in denying leave to amend
because amendment of Tyshkevich’s claims would have been futile. See
AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006)
(setting forth standard of review and explaining that leave to amend can be denied
if amendment would be futile); see also 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.”).
The district court did not abuse its discretion in granting judicial notice
because the documents were matters of public record. See Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (court may take judicial notice of
matters of public record).
We do not consider matters not specifically and distinctly raised and argued
2 16-16592
in the opening brief, or 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.
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