Litigation Lawyer
Practice Areas: Litigation
OUTCOME: Dismissal upheld on appeal
I represented the Defendants/Respondents in this case where the Plaintiffs/Appellants failed to bring the case to trial within five years under the Cal. Code of Civil Procedure. The case was dismissed ... for failure to prosecute and the Plaintiffs appealed. In a published decision, the Court of Appeal upheld the trial court's decision to dismiss.
OUTCOME: Pending
This case is currently pending before the Ninth Circuit Court of Appeal. The Plaintiffs/Appellants sought to rescind a mortgage loan made by Countrywide Bank. The notice of right to rescind provide ... d failed to include material disclosures. However, the Plaintiffs/Appellants signed (and returned to Countrywide) a completed copy of the notice of right to rescind that included an acknowledgement of receipt. The trial court found that the Plaintiffs could not overcome the rebuttable presumption of delivery, and dismissed the claim under Federal Rule of Civil Procedure 12(b)(6). At issue on appeal is whether the complaint stated sufficient facts to establish a claim under the Truth in Lending Act. In particular, whether the incomplete disclosure attached to the complaint can overcome the presumption established by the signed and returned notice. Additionally, the issue will be presented as to whether the evidentiary tool of a rebuttable presumption can be considered in a Motion to Dismiss under Rule 12(b)(6).
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