FILED
NOT FOR PUBLICATION MAR 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIN KUBOYAMA and DEBORAH No. 12-55916
KUBOYAMA,
D.C. No. 2:12-cv-00558-JFW-JC
Plaintiffs - Appellants,
v. MEMORANDUM*
WELLS FARGO BANK, NA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted March 6, 2014**
Pasadena, California
Before: BYBEE, BEA, and IKUTA, Circuit Judges.
Shin and Deborah Kuboyama appeal the district court’s order which
dismissed their cause of action that alleged that Deutsche Bank violated § 131(g)
of the Truth in Lending Act (TILA), 15 U.S.C. § 1641(g), because it did not timely
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
notify the Kuboyamas that it purchased the beneficial interest in their mortgage.
We affirm.
Deutsche Bank acquired the mortgage on December 10, 2010. It was
required to provide written notice to the Kuboyamas within 30 days of the transfer.
See 15 U.S.C. § 1641(g)(1). Assuming that Deutsche Bank failed to provide the
requisite notice, the alleged violation occurred January 9, 2011. The Kuboyamas
did not file their complaint in this action until January 20, 2012, which is outside of
the one year statute of limitations. See 15 U.S.C. § 1640(e) (“[A]ny action under
this section may be brought . . . within one year from the date of the occurrence of
the violation.”).
We agree with the district court that the statute of limitations was not
equitably tolled. There is no indication that the Kuboyamas were precluded from
diligently pursuing their TILA claim by circumstances outside of their control. See
Credit Suisse Sec. (USA) LLC v. Simmonds, 132 S. Ct. 1414, 1419 (2012);
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir. 2011).
To the contrary, the Kuboyamas do not allege “‘active conduct by a defendant,
above and beyond the wrongdoing upon which the plaintiff’s claim is filed, to
prevent the plaintiff from suing in time.’” Cervantes, 656 F.3d at 1045 (quoting
Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir. 2006)). Moreover, the public
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records include a notice of default advising the Kuboyamas to contact Deutsche
Bank and a notice of assignment stating that their mortgage had been purchased by
Deutsche Bank. The district court was entitled to resolve the plaintiffs’ equitable
tolling argument at the motion to dismiss stage because the contention relies on
“[c]onclusory allegations and unwarranted inferences.” Johnson v. Lucent Techs.
Inc., 653 F.3d 1000, 1010 (9th Cir. 2011).
The district court did not abuse its discretion by dismissing the plaintiffs’
TILA claim with prejudice. Any amendment would have been futile in light of the
court’s determination that the statute of limitations had run and that it was not
equitably tolled. See Deutsch v. Turner Corp., 324 F.3d 692, 718 (9th Cir. 2003).
Having dismissed the TILA claim as time-barred, the court was within its
discretion to decline to exercise supplemental jurisdiction over the plaintiffs’ state-
law claims. See Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir.
2013).
AFFIRMED.
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