Carlos Pacheco v. Homecomings Financial, LLC

FILED
NOT FOR PUBLICATION DEC 27 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CARLOS PACHECO, an individual, No. 10-16734

Plaintiff - Appellant, D.C. No. 5:08-cv-03002-JF

v.
MEMORANDUM *
HOMECOMINGS FINANCIAL, LLC, a
Delaware limited liability company; et al.,

Defendants - Appellees,

and

MORTGAGEIT, INC.,

Third-party-plaintiff,

v.

RELC, INC., DBA Real Estate Loan
Center; et al.,

Third-party-defendants.

Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Argued and Submitted November 18, 2011
San Francisco, California

Before: FARRIS, NOONAN, and BEA, Circuit Judges.

Carlos Pacheco appeals the district court’s order granting summary

judgment in favor of lender defendants on his claim for rescission under the Truth

in Lending Act, 15 U.S.C. § 1601 et seq. Reviewing the district court’s order de

novo, see Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 796 (9th Cir.

2011), we affirm.

Because the parties contest Pacheco’s ability to tender the loan proceeds, this

court’s holding in Yamamoto v. Bank of New York, 329 F.3d 1167 (9th Cir. 2003)

controls. Pacheco failed to produce any admissible evidence showing his ability to

tender. The district court properly sustained objections to statements in Philip

Lewis’s declaration. Thus, Pacheco did not meet his burden of showing the

existence of a triable issue of fact as to his ability to tender, a necessary element for

the remedy of rescission. Accordingly, the district court properly granted summary

judgment. See Yamamoto, 329 F.3d at 1173.

AFFIRMED.

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