Carlos Pacheco, an individual v. HOMECOMINGS FINANCIAL, LLC, a Delaware limited liability company;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS PACHECO, an individual,
Plaintiff - Appellant,
v.
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.
No. 10-16734
D.C. No. 5:08-cv-03002-JF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
FILED
DEC 27 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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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