
    Michael GRADY and Jennifer Grady, Plaintiffs-Appellants, v. Jonathan LEVIN; et al., Defendants-Appellees, Tri City National Bank, a national bank, Defendant-counter-claimant-Appellee, and Federal Deposit Insurance Corporation, as Receiver for Bank of Elmwood, a Wisconsin corporation, Intervenor-Defendant.
    No. 14-16457
    United States Court of Appeals, Ninth Circuit.
    Submitted July 21, 2016  San Francisco, California
    Filed July 25, 2016
    Kyle Andrew Kinney, Attorney, Law Offices of Kyle A. Kinney, PLLC, John R. Politan,Politan & Associates, Pic, Scottsdale, AZ, for Plaintiffs-Appellants Michael Grady, Jennifer Grady
    Brian Bergin, Esquire, Attorney, Ken Frakes, Attorney, Bergin, Frakes, Smalley & Oberholtzer, PLLC, Phoenix, AZ, for Defendants-Appellees Jonathan Levin, Sarah Levin, Michael E. Benben, Lynn Ben-ben, William Pugh, Helen Pugh, S. John May, Cathy-Lynn May, David Easley
    Neal H. Bookspan, Attorney, Laura A. Rogal, Attorney, Jaburg Wilk, P.C., Phoenix, AZ, for Defendant-counter-claimant-Appellee
    Before: GRABER and TALLMAN, Circuit Judges, and RAKOFF, District Judge.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    
    
      
       The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation,
    
   MEMORANDUM

This case centers on whether Michael and Jennifer Grady (the Gradys) can assert violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., against Tri City National Bank (TCNB) for conduct preceding its acquisition of the assets of a failed bank. In 2008, the Gradys entered into a loan with the Bank of Elm-wood. The bank was subsequently placed into receivership, and its assets were purchased by TCNB. The district court denied the Gradys’ motion for leave to amend their complaint to add TILA claims against TCNB, finding that amendment would be futile. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We hold that the Gradys’ proposed TILA claims against TCNB “relat[e] to any act or omission” of the original bank— the Bank of Elmwood—and are subject to dismissal under the Financial Institutions, Reform, Recovery, and Enforcement Act (FIRREA) of 1989, 12 U.S.C. § 1821(d)(13)(D)(ii). The Gradys’ proposed TILA claim that stems from alleged disclosure defects in the original loan documents, see 15 U.S.C. § 1641(e), is “based on the conduct of the failed institution” because the operative loan documents were drafted and executed by the Bank of Elmwood, not TCNB. Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056, 1064 (9th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1560, 191 L.Ed.2d 639 (2015). And TCNB never assumed liability for the Bank of Elmwood’s potential malfeasance prior to the acquisition from the Federal Deposit Insurance Corporation.

Similarly, we find that the Gradys’ proposed TILA rescission claim against TCNB, see 15 U.S.C. § 1635, plainly qualifies as “functionally, albeit not formally against [the] failed bank.” Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1215 (9th Cir. 2012) (internal quotation marks omitted). Because the Gradys did not exercise their right to rescind within the unconditional three-day period, the timeliness of their notice of rescission is entirely contingent on the Bank of Elm-wood’s alleged “failfure] to satisfy [TILA’s] disclosure requirements.” Jesinoski v. Countrywide Home Loans, Inc., — U.S. —, 135 S.Ct. 790, 792, 190 L.Ed.2d 650 (2015).

In sum, we hold that the Gradys’ proposed TILA claims must first be exhausted under FIRREA.

AFFIRMED. 
      
       xhiS disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     