Joan Demarest v. Ocwen Loan Servicing, LLC

MEMORANDUM

Joan A. Demarest appeals pro se from the district court’s summary judgment in her action arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a summary judgment order. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir.2009). We review for an abuse of discretion the application of judicial estoppel. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001). We affirm.

The district court properly granted summary judgment on Demarest’s Truth in Lending Act (“TILA”) claim seeking rescission because Demarest failed to raise a genuine dispute of material fact that she could tender the proceeds of the loan in the event that the court granted her this remedy. See Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1171 (9th Cir.2003) (district court has the discretion to condition rescission under TILA on tender by the borrower)

The district court did not abuse its discretion by applying judicial estoppel to Demarest’s TILA damages claim because she attempted to pursue the claim without having disclosed it during her bankruptcy proceedings. See Hamilton, 270 F.3d at 784 (“Judicial estoppel will be imposed when the debtor…