gno.law

Mikel Toye v. Newrez LLC

Court of Appeals for the Ninth Circuit · 20-55935 · 2021-09-22 · Unpublished

Proceeding
appeal
Trial court
United States District Court for the Southern District of California
Trial judge
Cynthia Ann Bashant (district judge)
Outcome
affirmed — AFFIRMED.
Area
civil
Appeal from
Toye v. Shellpoint Mortgage Servicing (2020-08-07) — the district court's order on this docket in the record

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIKEL A. TOYE, husband; LOUISE No. 20-55935 TOYE, wife, D.C. No. 3:19-cv-02322-BAS-LL Plaintiffs-Appellants, v. MEMORANDUM* NEWREZ LLC, DBA Shellpoint Mortgage Servicing; et al., Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding Submitted September 14, 2021** Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Mikel A. Toye and Louise Toye appeal from the district court’s judgment dismissing their action alleging violations of the Truth in Lending Act (“TILA”).

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). based on the statute of limitations. Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1100 (9th Cir. 2018). We affirm.

The district court properly dismissed plaintiffs’ action as time-barred because plaintiffs failed to bring their action to enforce their recission rights within the applicable statute of limitations. See id. at 1100-02 (explaining that because TILA does not provide a statute of limitations for rescission enforcement claims, the state contract law statute of limitations applies); see also Cal. Civ. Code § 337(a) (actions upon a contract are subject to a four-year statute of limitations);

Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 917 (Cal. 2005) (under the delayed discovery rule, cause of action accrues and statute of limitations begins to run “when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for [the] cause of action”).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

2 20-55935

Cites, in this corpus