NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 17-1775

___________

PEDRO J. PIZARRO, individually, Appellant

v.

WELLS FARGO BANK, N.A.; DOES 1-20 ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-16-cv-05419) District Judge: Honorable Peter G. Sheridan ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) November 23, 2018

Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges

(Opinion filed: January 7, 2019) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pedro J. Pizarro appeals pro se from the District Court’s order dismissing his

complaint with prejudice and the District Court’s subsequent order denying

reconsideration. For the following reasons, we will affirm.

This matter arises from a $165,000 loan that Pizarro received from Washington

Mutual Bank, FA. The loan is evidenced by a note and is secured by a mortgage on

Pizarro’s residence in Hamilton, New Jersey. Pizarro executed the note and mortgage on

June 10, 2005. On April 9, 2007, this mortgage was assigned to Wells Fargo Bank, N.A.

(Wells Fargo).

Pizarro defaulted on the loan, and Wells Fargo filed a foreclosure action against

him in New Jersey state court on June 24, 2009. On September 7, 2016, while the

foreclosure action was still pending, Pizarro filed this complaint before the District Court.

In his complaint, Pizarro claims that he has effected rescission of the note and mortgage

under the Truth in Lending Act (TILA) by mailing notice of that rescission to Wells

Fargo on March 21, 2016. Pizarro sought a declaration that Wells Fargo consequently

held no interest in the note or mortgage, an order directing Wells Fargo to return the note

and mortgage, and a declaration that no other unknown persons (named as Does 1-20 in

his complaint) held an interest in his residence.1

Wells Fargo moved to dismiss the complaint. Oral argument was scheduled for

January 17, 2017. At Pizarro’s request, argument was rescheduled for January 24, 2017.

Pizarro apparently sought again to reschedule argument, but for reasons that are not

1 As those Doe defendants were never served, the claims against them are not before us. See, e.g., United States v. Studivant,

(3d Cir. 1976).

2 apparent on the record, his efforts failed; argument was held on January 24, and Pizarro

did not attend. At the close of argument, the District Court stated that the motion to

dismiss would be granted, and the Court entered an order to that effect the next day.

Pizarro then wrote a letter to the Court explaining that his absence from the hearing was a

result of a misunderstanding and asking for an opportunity to present his case to the

Court. The Court granted Pizarro’s request and held argument on February 28, 2017.

After argument—which Pizarro attended—the Court entered another order. The Court

treated Pizarro’s letter as a motion for reconsideration and denied it, concluding, among

other things, that Pizarro’s claims were time-barred. Pizarro appealed.

We have jurisdiction over this appeal pursuant to

Because

Pizarro’s timely appeal from the denial of his timely motion for reconsideration “brings

up the underlying judgment for review,” we will review the District Court’s dismissal of

the complaint as well as its denial of the motion for reconsideration. See McAlister v.

Sentry Ins. Co.,

(3d Cir. 1992). We review de novo the District

Court’s decision to grant a motion to dismiss pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. Free Speech Coal., Inc. v. Att’y Gen.,

(3d Cir. 2012). We review the District Court’s denial of a motion for reconsideration for

abuse of discretion, but we review any underlying legal determinations de novo. Howard

Hess Dental Labs. Inc. v. Dentsply Int’l, Inc.,

(3d Cir. 2010).

2 Although the claims against the Doe defendants appear to be unresolved, the Doe defendants are not parties within the meaning of Rule 54(b) of the Federal Rules of Civil Procedure, so the District Court’s order is final. See Studivant,

n.2.

3 We will affirm the District Court’s judgment. At the outset, Pizarro argues that

the District Court violated his rights by holding the initial hearing on the motion to

dismiss in his absence. However, it appears that Pizarro received notice of the hearing

and just did not attend. See generally Davis v. Hutchins,

(7th Cir.

2003) (discerning no due-process violation where party “simply did not attend the

hearing”). In any case, because the District Court subsequently held a second hearing to

ensure that Pizarro had an opportunity to be heard (which Pizarro did attend), Pizarro is

entitled to no relief on this argument.

Turning to Pizarro’s TILA claims, the transaction between Pizarro and Wells

Fargo was consummated on the date of closing, June 10, 2005. See Zaman v. Felton,

(N.J. 2014); Compl. ¶ 19. Under TILA, Pizarro had three years

after that to serve defendants with a notice of rescission. See

(f);

Jesinoski v. Countrywide Home Loans, Inc.,

(2015). Section

1635(f) is a statute of repose that extinguishes not only the ability to seek rescission but

also the right of rescission itself, and it is not subject to tolling. See Beach v. Ocwen Fed.

Bank,

(1998); In re Cmty. Bank of N. Va.,

, 301 n.18 (3d

Cir. 2010). Pizarro did not serve his notice of rescission until more than ten years after

closing, in 2016. Thus, his purported rescission was long untimely.

Pizarro argues that Wells Fargo may not raise a timeliness defense because it did

not respond to his notice of rescission within the 20-day time period in

(b). Section 1635(b) requires a creditor to return any money or property given as

earnest money or down payment and take other action within 20 days after receipt of a

4 notice of rescission. § 1635(b). The provision does not preclude Wells Fargo from

defending Pizarro’s action. Pizarro also relies on Jesinoski, but that case does not support

Pizarro’s argument. In Jesinoski, the Supreme Court held that a borrower exercising his

right to rescind need only provide notice to his lender within the three-year period, not

file suit,

, but, as we have explained, Pizarro did not give timely

notice. Neither Jesinoski nor any other case we have found suggests that a failure to

respond to an untimely notice of rescission results in the waiver of affirmative defenses in

a subsequent court proceeding.3

Finally, the District Court did not err in denying Pizarro’s motion for

reconsideration. In his motion, Pizarro merely reiterated his original arguments or raised

arguments that could have been raised before; he did not provide a basis for

reconsideration. See Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros,

, 677 (3d Cir. 1999) (explaining that reconsideration is appropriate if the moving

party shows: (1) an intervening change in controlling law; (2) the availability of new

evidence not available when the court entered its original order; or (3) that

reconsideration was necessary to correct a clear error of law or fact or to prevent manifest

injustice).

3 Because of this conclusion, we need not consider the District Court’s alternative grounds for decision (including its application of New Jersey’s preclusion doctrine and the Rooker-Feldman doctrine). We note only that, because the New Jersey state action was ongoing at the time that Pizarro filed his federal complaint, we are satisfied that the District Court had jurisdiction. See generally Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

, 292–93 (2005).

5 Accordingly, we will affirm the District Court’s judgment.

6