                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 16 2013

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



                            FOR THE NINTH CIRCUIT


ROCKY FUJIO TAKUSHI, individually                No. 12-15211
and as Trustee of The Albert G. Takushi
Revocable Living Trust dated April 11,           D.C. No. 1:11-cv-00189-LEK-
2007,                                            KSC

              Plaintiff - Appellant,
                                                 MEMORANDUM*
  v.

BAC HOME LOANS SERVICING, LP, a
Texas limited partnership and DOES 1-50,

              Defendants - Appellees.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                           Submitted October 10, 2013**
                                Honolulu, Hawaii

Before: KOZINSKI, Chief Judge, and CLIFTON and WATFORD, Circuit Judges.




        *
             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).
      The district court properly dismissed Takushi’s Truth in Lending Act

(TILA) claim because it is time barred. Under TILA, a borrower seeking to

rescind a mortgage loan must bring suit within three years of consummation of the

loan (with one exception not relevant here). 15 U.S.C. § 1635(f). Takushi’s loan

closed on September 21, 2007, but he did not file suit until February 9, 2011. That

Takushi sent a notice of rescission within the three-year period is irrelevant under

our decision in McOmie-Gray v. Bank of America Home Loans, 667 F.3d 1325,

1329 (9th Cir. 2012). The rule announced in McOmie-Gray applies retroactively to

“all cases still open on direct review,” regardless of whether the underlying events

pre-date announcement of the rule. Harper v. Va. Dep’t of Taxation, 509 U.S. 86,

97 (1993); see also Morales-Izquierdo v. DHS, 600 F.3d 1076, 1087–88 (9th Cir.

2010).

      AFFIRMED.




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