                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 18 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


STEVEN MATZA,                                    No. 09-16072

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00217-JCM

  v.
                                                 MEMORANDUM*
COUNTRYWIDE HOME LOANS, INC.,
a Delaware corporation; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware corporation;
RECONTRUST COMPANY, a Nevada
corporation,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                       Argued and Submitted May 12, 2011
                            San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and ST. EVE, District Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
      Because the facts and procedural history are familiar to the parties, we do

not recite them here except as necessary to explain our disposition.

      As the Defendants-Appellees concede, Matza’s claim under the Truth in

Lending Act (TILA), 15 U.S.C. § 1641(f)(2), is not barred by the statute of

limitations. TILA claims must be filed “within one year from the date of the

occurrence of the violation,” 15 U.S.C. § 1640(e), and Matza alleges that

Countrywide violated § 1641(f)(2) by failing to respond to his written requests

mailed on June 19, 2008, and August 9, 2008. The complaint, filed on February 3,

2009, was therefore timely.

      Because the district court erroneously dismissed the TILA claim on

timeliness grounds, and because we need “not consider an issue not passed upon

below,” we remand for the district court to consider the merits of the TILA claim

in the first instance. Golden Gate Hotel Ass’n v. City & Cnty. of San Francisco, 18

F.3d 1482, 1487 (9th Cir. 1994) (internal quotation marks omitted).

      With respect to Matza’s remaining claims, the district court abused its

discretion by dismissing the complaint without granting leave to amend. Doe v.

United States, 58 F.3d 494, 497 (9th Cir. 1995). “Because the district court did not

determine, nor can we conclude, that the allegation of other facts could not

possibly cure the deficiencies in [Matza’s] complaint, the district court abused its


                                          2
discretion in dismissing the complaint with prejudice.” Id. (alteration and internal

quotation marks omitted). “[T]he rule favoring liberality in amendments to

pleadings is particularly important for the pro se litigant” such as Matza. Lopez v.

Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (internal quotation marks

omitted). On remand, the district court should give Matza an opportunity to amend

the complaint, see id. at 1130–31, including an opportunity to “state an alternative

theory for recovery,” Foman v. Davis, 371 U.S. 178, 182 (1962).

      Matza’s motion requesting judicial notice is denied.

      REVERSED and REMANDED.




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