James Pierro, III v. Spiegel Development, Inc.

MEMORANDUM

Plaintiff James Pierro appeals the district court’s dismissal of his claims under the Truth in Lending Act, 15 U.S.C. § 1635 , for rescission of his mortgage loan with the defendants and for monetary damages. Reviewing de novo, see Cafasso ex rel. U.S. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 , 1053-54 & n. 4 (9th Cir.2011), we reverse and remand.

The district court’s ruling that the plaintiff failed to state a rescission claim under the Truth in Lending Act for failure to allege tender or intent to tender is incorrect. Paragraph 9 of the complaint’s prayer for relief specifically asks the district court to:

Giving the plaintiff all reasonable inferences, the plaintiffs request that the district court determine how much he was required to tender, and to order the defendants to accept his tender, fairly indicates that he intended to comply with his duty to tender.

On remand, the district court should consider whether the plaintiffs November 7, 2008 letter, which the defendants failed to answer within 20 days, effected a rescission, thus triggering the default rescission sequence under the regulations and depriving the district court of the authority to modify…