                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 13 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

JAMES C. PIERRO, III,                             No. 10-55968

              Plaintiff - Appellant,              D.C. No. 2:09-cv-02312-CAS-
                                                  PLA
  v.

SPIEGEL DEVELOPMENT, INC.; et al.,                MEMORANDUM *

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted December 7, 2011
                               Pasadena, California

Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.

       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.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           -2-

       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:

       [o]rder that, because the Defendants failed to respond to the Plaintiff’s
       notice of rescission, the Plaintiff has no duty to tender, but in the
       alternative, if tender is required, determine the amount of the tender
       obligation in light of all of the Plaintiff’s claims, and offsets under his
       agreements with defendants, and order the Defendants to accept
       tender on reasonable terms and over a reasonable period of time if any
       money is due defendants.

Giving the plaintiff all reasonable inferences, the plaintiff’s 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 plaintiff’s

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 that

sequence. See 12 C.F.R. § 226.23(d)(1)–(4); see also Yamamoto v. Bank of N.Y.,

329 F.3d 1167, 1172 (9th Cir. 2003). If not, the district court may also consider
                                         -3-

under Yamamoto whether to reorder the default rescission sequence, in which the

creditor must release its lien before the consumer must tender. See id. at 1173.

      Additionally, the district court erred in dismissing the plaintiff’s monetary

damages claim as time-barred. The district court is correct that the original loan

transaction occurred in July 2007, more than one year before the plaintiff filed his

complaint in April 2009. See 15 U.S.C. § 1640(e). But the complaint also pled a

damages claim based on the defendants’ subsequent failure to comply with the

Act’s rescission procedures following his November 7, 2008 letter — events

occurring less than one year prior to the filing of this complaint. If on remand the

district court concludes that the November 7, 2008 letter effected a rescission, that

claim would be timely.

      REVERSED AND REMANDED.
