Hazel et al v. Bank of America Corporation

Filing 19

ORDER granting 16 Motion for Reconsideration; Granting Leave to Amend. Plaintiffs has an additional 10 days from the date of entry of this order to file the amended complaint, including a claim for rescission. Signed by Judge Jeffrey T. Miller on 3/10/2010. (knh) (mam).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEN and NELIE HAZEL, vs. Plaintiffs, CASE NO. 09cv2432 JM(CAB) ORDER GRANTING MOTION FOR RECONSIDERATION; GRANTING LEAVE TO AMEND

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

BANK OF AMERICA CORPORATION, Defendant.

Plaintiffs Ben and Nellie Hazel move for reconsideration of this court's February 11, 2010 order granting Defendant's motion to dismiss ("Order"). Specifically, Plaintiffs move to reconsider the court's dismissal of the rescission claim with prejudice and without leave to amend. Plaintiffs correctly argue that the court misconstrued the tolling date for TILA's three year statute of limitations and therefore the motion for reconsideration is GRANTED. Reconsideration is generally appropriate "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. . . . There may also be other, highly unusual circumstances warranting reconsideration." School Dist. No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted). Here, reconsideration is appropriate to correct a clear error. In the Order ,the court concluded that the October 30, 2009 filing date came three days too late to be timely under TILA's three year statute of limitations. However, as correctly noted by Plaintiffs,

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the operative date for calculating the statute of limitations is October 6, 2009, the date Plaintiffs exercised their right to rescind. As the October 6, 2009 letter occurred within the three year statute of limitations, the claim is timely. See Beach v. Ocwen Federal Bank, 523 U.S. 410, 417 (1998). In sum, the court grants the motion for reconsideration and grants Plaintiffs an additional 10 days from the date of entry of this order to file the amended complaint, including a claim for rescission. IT IS SO ORDERED. DATED: March 10, 2010 Hon. Jeffrey T. Miller United States District Judge
cc: All parties

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