Damon Lyman v. Loan Correspondents Inc. , 470 F. App'x 688 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAMON LYMAN; CLAUDIA LYMAN, No. 09-56958
Plaintiffs - Appellants, D.C. No. 8:06-cv-01174-CJC-AN
v.
MEMORANDUM *
LOAN CORRESPONDENTS INC., a
California corporation, DBA Capital
Funding Group; et al.,
Defendants - Appellees.,
and
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as indenture trustee of the
indenture relating to IMH Assets Corp.,
collaterized asset-backed bonds, Series
2004-7,
Intervenor.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Damon and Claudia Lyman appeal from the district court’s order dismissing
on the pleadings their action alleging violations of the Truth in Lending Act
(“TILA”), the Real Estate Settlement and Procedures Act (“RESPA”), and
California’s Unfair Competition Law (“UCL”). We have jurisdiction under 28
U.S.C. § 1291. We review de novo, Dunlap v. Credit Prot. Ass’n, LP, 419 F.3d
1011, 1012 n.1 (9th Cir. 2005) (per curiam), and we affirm.
The district court properly dismissed the Lymans’ TILA damages claim as
time-barred because their action was not filed within one year of the alleged
violations. See 15 U.S.C. § 1640(e) (an action for damages must be brought within
one year of the alleged violation); King v. California, 784 F.2d 910, 915 (9th Cir.
1986) (holding that “the limitations period in Section 1640(e) runs from the date of
consummation of the transaction”).
The district court properly dismissed the Lymans’ RESPA claim as time-
barred because their action was not filed within one year of the alleged violations.
See 12 U.S.C. § 2607 (prohibition against kickbacks and unearned fees); 12 U.S.C.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 09-56958
§ 2614 (proscribing a one-year statute of limitations for violations of § 2607).
Contrary to the Lymans’ contention, the district court did not abuse its discretion
by declining to apply equitable tolling because the Lymans did not allege facts
showing that the alleged violations could not have been discovered by a reasonable
plaintiff within the limitations period. See Huynh v. Chase Manhattan Bank, 465
F.3d 992, 1003 (9th Cir. 2006) (decision to apply equitable tolling reviewed for an
abuse of discretion).
The district court properly dismissed the Lymans’ UCL claim as preempted
by the Home Owners’ Loan Act because their allegations fall within the categories
listed in 12 C.F.R. § 560.2(b). See Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001,
1005-06 (9th Cir. 2008) (Home Owners’ Loan Act preempted UCL claims based
on loan-related fees and lender’s disclosure obligations).
The Lymans’ remaining contentions, including those regarding bringing
their TILA damages claims as a recoupment defense, are unpersuasive.
AFFIRMED.
3 09-56958