                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              DEC 11 2003
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 AMERIQUEST MORTGAGE
 COMPANY,

          Plaintiff-Counter-Defendant-
          Appellee,
 v.                                                          No. 03-5111
 JOSEPH N. HERNANDEZ, also known                       (D.C. No. 00-CV-785-E)
 as Joseph Norberto Hernandez,                            (N.D. Oklahoma)

          Defendant-Counter-Claimant-
          Appellant.




                              ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Defendant Joseph Hernandez, appearing pro se, appeals the district court's grant of

summary judgment to plaintiff Ameriquest Mortgage Company. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

       On July 27, 1999, Hernandez executed a promissory note in favor of Ameriquest in

the principal amount of $206,400 with interest at the rate of 9.99% per annum, payable in

monthly installments of $2,012.03. The note was secured by a mortgage on real property

located in Owasso, Oklahoma. Hernandez received all disclosures required by the Truth

in Lending Act, 15 U.S.C. § 1601 et seq., including a Notice of Right to Cancel, and the

mortgage was properly recorded. The Notice of Right to Cancel provided that Hernandez

could cancel the transaction within three days of the date of the transaction by notifying

Ameriquest in writing at “1100 Town & Country Rd., Ste. 200, Orange, CA 92868,” and

the final date for cancellation was noted as July 30, 1999. ROA, Vol. I, Doc. 24, Exh. G.

       Hernandez alleged that he learned the day after he signed the note that the

Veterans Administration was taking back $21,000 of his disability pay and that, as a

result, he needed to cancel the mortgage agreement immediately. Hernandez alleged he

was aware of the three-day rule to cancel and immediately began trying to call

Ameriquest, but was unable to speak to anyone. On the third day, he allegedly spoke to

an assistant at Ameriquest and prepared an undated letter of cancellation and mailed it to

Ameriquest at an address different than the address stated in Notice. The loan was not

cancelled as a result of Hernandez's actions and the loan proceeds were disbursed. The


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loan proceeds were used to pay off Hernandez' first mortgage with additional funds of

approximately $4,800 disbursed in a check payable to Hernandez, which he negotiated on

October 4, 1999. Hernandez thereafter defaulted on the note and mortgage.

       Ameriquest filed an action in Oklahoma state court seeking to have Hernandez

declared in default and to foreclose on the mortgage. Hernandez removed the action to

federal court. Ameriquest filed a motion for summary judgment and Hernandez did not

respond. In granting summary judgment in favor of Ameriquest, the district court found

that Hernandez was “in default on his debt to [Ameriquest], that the transaction was not

rescinded, and there [was] no genuine issue of fact that would bar summary judgment.”

ROA, Doc. 30 at 3.

       Hernandez contends on appeal that (1) he complied with the three-day rescission

rule; (2) the court failed to require that his deposition be taken; and (3) the court refused

to hear his testimony.

       We review the grant of summary judgment de novo. See Jurasek v. Utah State

Hosp., 158 F.3d 506, 510 (10th Cir. 1998). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavit, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       The district court found that Ameriquest properly informed Hernandez of his right

to rescind in accordance with federal regulations. The court further found that Hernandez


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failed to file a rescission by the July 30, 1999, deadline with Ameriquest at the address

stated on the Notice of Right to Cancel. Hernandez, who was represented by counsel, did

not respond to the motion for summary judgment and did not provide contrary facts to the

district court.

       Although Hernandez contends that his deposition should have been taken, there is

no rule or case law requiring the taking of his deposition. “In the absence of a specific

federal rule, the Federal Rules of Civil Procedure permit federal judges to regulate

practice 'in any manner consistent with federal law, rules adopted under 28 U.S.C.

§§ 2072 and 2075, and local rules of the district.'” Beaird v. Seagate Technology, Inc.,

145 F.3d 1159, 1164 (10th Cir. 1998) (quoting Fed. R. Civ. P. 83(b)). Further, the district

court gave Hernandez the opportunity to respond to Ameriquest's motion for summary

judgment and provide the court with his own affidavit or any other evidence to support

his position. The court properly concluded that on the evidence before it there was no

factual dispute and Ameriquest was entitled to summary judgment.

       AFFIRMED.

                                          Entered for the Court

                                          Mary Beck Briscoe
                                          Circuit Judge




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