Sylwester Slojewski v. Polam Federal Credit Union

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NOT FOR PUBLICATION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
SYLWESTER SLOJEWSKI,
Plaintiff - Appellant,
v.
POLAM FEDERAL CREDIT UNION,
Defendant - Appellee.
No. 11-15018
D.C. No. 3:09-cv-03011-JCS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Submitted March 16, 2012**
San Francisco, California
Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Sylwester Slojewski appeals from the district court’s
summary judgment dismissal of his lawsuit alleging that Polam Federal Credit
Union (Polam) refused to honor his demand for rescission under the Truth in
FILED
MAR 29 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Lending Act (TILA), 15 U.S.C. § 1601, et seq. We review de novo an appeal of
the grant of summary judgment. Universal Health Servs., Inc. v. Thompson, 363
F.3d 1013, 1019 (9th Cir. 2004). We review for abuse of discretion the district
court's evidentiary rulings. Wong v. Regents of Univ. of California, 410 F.3d 1052,
1060 (9th Cir. 2005). Slojewski sought restoration of the title to his home on the
grounds that Polam conducted a non-judicial foreclosure sale after he rescinded the
loan under TILA. As the facts and procedural history are familiar to the parties,
we do not recite them here except as necessary to explain our disposition. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court correctly dismissed Slojewski’s claims under TILA on the
grounds that Slojewski failed to present evidence showing a triable issue of
material fact regarding (1) whether the financing charge stated by the Credit Union
was permitted under TILA and (2) whether Slojewski could tender the proceeds of
the loan back to the Credit Union to warrant rescission. See Yamamoto v. Bank of
New York, 329 F.3d 1167, 1173 (9th Cir. 2003) (explaining that the court may
require a plaintiff to prove an ability to tender before deciding whether rescission is
warranted on a “case-by-case basis, in light of the record adduced”).
First, the district court did not abuse its discretion in finding that Slojewski’s
declaration submitted in his response to the Credit Union’s motion for summary

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Although the district court erred in excluding evidence presented on1
summary judgment on the basis that it was inadmissible hearsay, this error was
harmless because the court cited multiple alternative grounds upon which to
discount the proffered evidence. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003) (holding that evidence presented on summary judgment need not be
admissible, but only contain evidence that could be presented in admissible form at
trial).
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judgment was a “sham affidavit” because it contradicted his earlier deposition
testimony taken just ten days earlier. Kennedy v. Allied Mut. Ins. Co., 952 F.2d
262, 266–67 (9th Cir. 1991) (holding that a court may discount a “sham”
declaration that (1) “flatly contradicts” earlier deposition testimony, and (2) was
provided for the sole purpose of creating a genuine issue of material fact).
Slojewski made no attempt in his declaration to explain his prior deposition
testimony, nor did he claim that he was confused during his deposition.
Accordingly, the district court did not abuse its discretion in discounting his
declaration as a “sham” declaration.
Second, with respect to his ability to tender back the proceeds of the loan
upon rescission, the district court properly discounted Slojewski’s own declaration,
as well as the declarations of his mother and niece, on the grounds that they were
conclusory, speculative, and lacked foundation. See Yamamoto, 329 F.3d at 11711
(holding that when applying TILA the district court has “the discretion to condition

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rescission on tender by the borrower of the property”) (internal citations and
quotations omitted).
Further, Slojewski’s claim for damages has not yet accrued for Polam’s
alleged failure to honor his rescission. The district court properly found that
Slojewski has no right to rescind in this case. Accordingly, no damages may flow
from Slojewski’s alleged right to rescind because it does not exist. See Yamamoto,
329 F.3d at 1172 (“. . . the security interest ‘becomes void’ only when the
consumer ‘rescinds’ the transaction. In a contested case, this happens when the
right to rescind is determined in the borrower’s favor.”). For the reasons stated
above, Slojewski’s claim for damages stemming from Polam’s refusal to honor his
rescission also fails.
For the foregoing reasons, the district court properly granted Polam’s motion
for summary judgment.
AFFIRMED.

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