Don Hogan v. Nw Trust Services, Inc. , 441 F. App'x 490 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 1 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DON M. HOGAN; LINDA M. HOGAN, Nos. 10-35534,
10-35536
Plaintiffs - Appellants,
D.C. Nos. 6:10-cv-06027-HO,
v. 6:10-cv-06028-HO
NW TRUST SERVICES, INC.; et al.,
MEMORANDUM *
Defendants - Appellees.
Appeals from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
In these consolidated appeals, Don M. Hogan and Linda M. Hogan appeal
pro se from the district court judgments dismissing their actions arising out of two
foreclosure proceedings. 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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly dismissed appellants’ Truth in Lending Act
(“TILA”) claim seeking damages as time-barred because their actions were 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).
The district court properly dismissed appellants’ TILA claim seeking
rescission because appellants did not allege the ability to tender the proceeds of the
loan. 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.” (citation, internal
quotation marks and alteration omitted)).
The district court properly dismissed appellants’ Real Estate Settlement
Procedures Act claim as time-barred because appellants brought it more than one
year after the alleged violation. See 12 U.S.C. § 2607 (prohibition against
kickbacks and unearned fees); 12 U.S.C. § 2614 (proscribing a one-year statute of
limitations for violations of § 2607).
Contrary to appellants’ contention, the district court did not abuse its
discretion by concluding that equitable tolling did not apply to the federal causes
of action because appellants did not allege facts suggesting that the alleged
violations could not have been discovered by a reasonable plaintiff when they
2 10-35534
occurred. See Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003) (decision to
apply equitable tolling reviewed for an abuse of discretion).
Appellants’ remaining contentions are unpersuasive.
We do not consider arguments and allegations raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Halligan & Associates’ motions to dismiss the appeals are denied as moot.
AFFIRMED.
3 10-35534