FILED
NOT FOR PUBLICATION MAY 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN MATZA, No. 09-16072
Plaintiff - Appellant, D.C. No. 2:09-cv-00217-JCM
v.
MEMORANDUM*
COUNTRYWIDE HOME LOANS, INC.,
a Delaware corporation; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware corporation;
RECONTRUST COMPANY, a Nevada
corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted May 12, 2011
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and ST. EVE, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
Because the facts and procedural history are familiar to the parties, we do
not recite them here except as necessary to explain our disposition.
As the Defendants-Appellees concede, Matza’s claim under the Truth in
Lending Act (TILA), 15 U.S.C. § 1641(f)(2), is not barred by the statute of
limitations. TILA claims must be filed “within one year from the date of the
occurrence of the violation,” 15 U.S.C. § 1640(e), and Matza alleges that
Countrywide violated § 1641(f)(2) by failing to respond to his written requests
mailed on June 19, 2008, and August 9, 2008. The complaint, filed on February 3,
2009, was therefore timely.
Because the district court erroneously dismissed the TILA claim on
timeliness grounds, and because we need “not consider an issue not passed upon
below,” we remand for the district court to consider the merits of the TILA claim
in the first instance. Golden Gate Hotel Ass’n v. City & Cnty. of San Francisco, 18
F.3d 1482, 1487 (9th Cir. 1994) (internal quotation marks omitted).
With respect to Matza’s remaining claims, the district court abused its
discretion by dismissing the complaint without granting leave to amend. Doe v.
United States, 58 F.3d 494, 497 (9th Cir. 1995). “Because the district court did not
determine, nor can we conclude, that the allegation of other facts could not
possibly cure the deficiencies in [Matza’s] complaint, the district court abused its
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discretion in dismissing the complaint with prejudice.” Id. (alteration and internal
quotation marks omitted). “[T]he rule favoring liberality in amendments to
pleadings is particularly important for the pro se litigant” such as Matza. Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (internal quotation marks
omitted). On remand, the district court should give Matza an opportunity to amend
the complaint, see id. at 1130–31, including an opportunity to “state an alternative
theory for recovery,” Foman v. Davis, 371 U.S. 178, 182 (1962).
Matza’s motion requesting judicial notice is denied.
REVERSED and REMANDED.
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