NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JONATHAN E. ROBINSON and SALLY No. 14-15922
J. ROBINSON-BURKE,
D.C. No. 4:09-cv-00227-AWT
Plaintiffs - Appellants,
v. MEMORANDUM*
WMC MORTGAGE CORPORATION; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
A. Wallace Tashima, Senior Circuit Judge, Presiding
Submitted May 11, 2016**
San Francisco, California
Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.
Jonathan Robinson and Sally Robinson-Burke appeal from the dismissal of
their first amended complaint, which alleged violations of the Truth in Lending Act
*
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).
Page 2 of 4
(TILA) by Wells Fargo Bank, N.A. (Wells Fargo), and WMC Mortgage Corp.
(WMC). We affirm.
1. The district court correctly dismissed Plaintiffs’ TILA claim against
WMC as time-barred. An action for damages under TILA must be brought within
one year of the alleged violation. 15 U.S.C. § 1640(e); Cervantes v. Countrywide
Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir. 2011). Plaintiffs’ claim that
WMC committed various TILA violations in connection with the 2005 refinancing
of their residence was untimely, given that they did not file their complaint until
2009.
On appeal, Plaintiffs contend that their TILA claim against WMC was
timely because it was filed less than a year after their demand for rescission was
denied. Even assuming that this argument was adequately raised before the district
court, it is unavailing. Plaintiffs alleged only that they sent the notice of rescission
to Wells Fargo dba America’s Servicing Company, their loan servicer. But in
order to exercise their right to rescind, they needed to send notice to their
“creditor,” as TILA defines that term. See 15 U.S.C. §§ 1602(g), 1635(a); Miguel
v. Country Funding Corp., 309 F.3d 1161, 1165 (9th Cir. 2002). The amended
complaint failed to allege that WMC played any part in denying their purported
rescission. Although Plaintiffs now argue that they also sent notice to WMC, the
Page 3 of 4
creditor, they made no such allegation in their complaint. The district court
therefore did not err in dismissing the claim against WMC.
The district court did not abuse its discretion in denying leave to amend the
complaint further as to WMC. See Allen v. City of Beverly Hills, 911 F.2d 367,
373 (9th Cir. 1990). Plaintiffs failed to identify in the district court any additional
facts that they might be able to plead to salvage their complaint. See Metzler
Investment GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1072 (9th Cir.
2008). Nor have they identified any such facts on appeal.
2. The district court also correctly dismissed Plaintiffs’ TILA claim against
Wells Fargo. The amended complaint did not allege that Wells Fargo was a
“creditor” or assignee; to the contrary, it alleged that Wells Fargo acted as a loan
servicer and did not hold the promissory note. Accordingly, Plaintiffs failed to
state a claim under TILA, which limits civil liability to creditors and, in certain
circumstances, their assignees. 15 U.S.C. §§ 1640–41.
The district court did not abuse its discretion in denying leave to amend as to
Wells Fargo. Plaintiffs’ only response to Wells Fargo’s argument (made in its first
motion to dismiss) that it couldn’t be liable under TILA as a servicer was that
Wells Fargo’s involvement in their foreclosure suggested that it “believe[d] it ha[d]
an ownership interest in the Robinson property.” That contradicted both the
Page 4 of 4
amended complaint and judicially noticeable documents indicating that a third
party owned the loan. Dismissal with prejudice was proper, as Plaintiffs could not
salvage their TILA claim against Wells Fargo without contradicting the allegations
of their original complaint. See Reddy v. Litton Industries, Inc., 912 F.2d 291, 297
(9th Cir. 1990). Moreover, Plaintiffs waived this argument by failing to raise it in
response to Wells Fargo’s second motion to dismiss.
3. Plaintiffs’ motion for judicial notice is denied. See Fed. R. Evid. 201(b);
Flick v. Liberty Mutual Fire Insurance Co., 205 F.3d 386, 392–93 n.7 (9th Cir.
2000).
AFFIRMED.