HORACE G. FRIEND and TERESITA S. FRIEND v. Homecomings Financial Network, Inc.;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HORACE G. FRIEND and TERESITA S.
FRIEND,
Plaintiffs - Appellants,
v.
HOMECOMINGS FINANCIAL
NETWORK, INC.; et al.,
Defendants - Appellees,
and
JANE DOE, (Nisia) former agent of EFHL
and FRED KIANI, former agent of EFHL,
Defendants.
No. 09-56922
D.C. No. 8:09-cv-00457-DOC-
MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted December 14, 2010**
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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09-56922 2
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
Horace G. Friend and Teresita S. Friend appeal pro se from the district
court’s order dismissing their Third Amended Complaint (“TAC”) alleging Truth
in Lending Act (“TILA”) violations. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. King v. California, 784 F.2d 910, 912 (9th Cir. 1986). We
affirm.
The district court properly dismissed Appellants’ TILA claim seeking
damages because it was time-barred. See 15 U.S.C. § 1640(e) (an action for
damages must be brought within one year of the date of alleged violation); King,
784 F.2d at 915. We do not consider Appellants’ contentions concerning alleged
TILA violations that were not plead in the TAC. See McMichael v. Cnty. of Napa,
709 F.2d 1268, 1273 n.4 (9th Cir. 1983) (declining to consider claims not included
in the complaint).
The district court properly dismissed Appellants’ TILA claim seeking
rescission because they did not allege an ability to tender in either their TAC or in
their oppositions to the motions to dismiss. See Yamamoto v. Bank of N.Y., 329
F.3d 1167, 1171 (9th Cir. 2003). (“[I]n applying TILA, a trial judge has the
discretion to condition rescission on tender by the borrower of the property he had
received from the lender.”) (internal quotation marks and brackets omitted).

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09-56922 3
Appellants’ remaining contentions are unpersuasive.
Appellee Aurora Loan Services’s motion to take judicial notice is denied.
AFFIRMED.

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