Laura Gens v. Wachovia Mortgage, Corporation;

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NOT FOR PUBLICATION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
LAURA GENS,
Plaintiff - Appellant,
v.
WACHOVIA MORTGAGE,
CORPORATION; et al.,
Defendants - Appellees.
No. 11-16476
D.C. No. 5:10-cv-01073-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Laura Gens appeals pro se from the district court’s order dismissing her
action alleging federal and state law claims arising out of foreclosure proceedings.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
FILED
JAN 03 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-16476 2
dismissal. King v. California, 784 F.2d 910, 912 (9th Cir. 1986). We review for
an abuse of discretion a district court’s decision whether to apply equitable tolling.
Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003 (9th Cir. 2006). We affirm.
The district court properly dismissed Gens’s Truth in Lending Act (“TILA”)
claims for damages and rescission as time-barred because Gens did not file her
action within three years of the alleged violation. See 15 U.S.C. § 1640(e) (an
action for damages under TILA must be brought within one year of the alleged
violation); 15 U.S.C. § 1635(f) (permitting up to three years to rescind under
TILA). Moreover, the district court did not abuse its discretion by declining to
apply equitable tolling to Gens’s TILA claim seeking damages because Gens did
not act with due diligence. See Cervantes v. Countrywide Home Loans, Inc., 656
F.3d 1034, 1045 (9th Cir. 2011) (noting that equitable tolling applies “in situations
where, despite all due diligence, the party invoking equitable tolling is unable to
obtain vital information bearing on the existence of the claim” (citation and
internal quotation marks omitted)).
We do not consider whether the district court properly concluded that Gens’s
state law claims were preempted by the Home Owners’ Loan Act because Gens
neither raised nor argued the issue in her opening brief. See Padgett v. Wright, 587

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11-16476 3
F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.

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