Petition for Writ of Certiorari — Niki-Alexander Shetty, Petitioner v. Wells Fargo Bank, N.A., as Trustee, et al.

No. 17IN THE

15

'uprimE (Itnurt of t4t 3tnitib 'tatcn

NIKI-ALEXANDER SHETTY,

Petitioner,

Ul

WELLS FARGO BANK, N.A. AS TRUSTEE et al.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

NIKI-ALEXANDER SHETTY

20631 Ventura Boulevard, #301

Woodland Hills, California 91364

(818) 340-7600

chicoo@sbcglobal.net

Petitioner Pro se

277162

10

COUNSEL PRESS

(800) 274-3321 • (800) 359-6859

RECE WED

Nov 272017

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTIONS PRESENTED

Question 1: Where the language of a federal statute

is plain and clear and the words of the statute are

unambiguous, whether or not judicial inquiry is complete

and, if so in failing to enforce it according to its terms

would be an abuse of discretion and/or judicial error.

Question 2: Where the District Court and then the

Court of Appeals refused to address or resolve material

issues and issues raised on appeal of a party should this

court issue a writ of mandamus directing the Court of

Appeals to adjudicate the unresolved issues and issues

on appeal, or explain why its adjudication was deemed

unnecessary to the disposition of the case or in the

alternative grant a writ of certiorari?

vi

PARTIES

Petitioner (Plaintiff) is Niki-Alexander Shetty.

Respondent (Defendant) is WELLS FARGO BANK,

NATIONAL ASSOCIATION, as Trustee under POOLING

AND SERVICING AGREEMENT dated September 1,

2006 SECURITIZED ASSET BACKED RECEIVABLES

LLC TRUST 2006-HE2 MORTGAGE PASS-THROUGH

CERTIFICATES, SERIES 2006-HE2.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................i

PARTIES....................................... ii

TABLE OF CONTENTS.........................iii

TABLE OF APPENDICES .......................v

TABLE OF CITED AUTHORITITES.............vi

PETITION ...................................... 1

OPINIONS BELOW .............................. 1

STATEMENT OF JURISDICTION ................ 1

RELEVANT CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED IN THIS

CASE........................................1

STATEMENT OF THE CASE ....................2

RELIEF IS UNAVAILABLE IN ANY OTHER

FORUM...................................... 5

STANDARD FOR ISSUING A WRIT ..............5

THE WRIT WILL BE IN AID OF THE COURT'S

APPELLATE JURISDICTION . .............. ... 7

iv

Table of Contents

Page

EXCEPTIONAL CIRCUMSTANCE SWARRANT

THE EXERCISE OF THE COURT'S

DISCRETIONARY POWERS .................11

ADEQUATE RELIEF CANNOT BE

OBTAINED FROM ANY OTHER COURT

OR IN ANY OTHER FORM...................13

CONCLUSION .................................15

TABLE OF APPENDICES

Page

APPENDIX A

OPINION OF THE

UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED AUGUST 24,2017 ...................... la

-

APPENDIX B

ORDER OF THE

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA,

FILED AUGUST 19,2016 .................... .. . 4a

-

vz

TABLE OF CITED AUTHORITIES

CASES

Astoria Fed. Say. & Loan Assn. v. Solimino,

501 U. S. 104 (1991)............................12

Beacon Theatres, Inc. v. Westover,

359 U.S. 500,79 S.Ct. 948,3 L.Ed.2d 988 (1959). .10

.

Caminetti v. United States,

242 U.S. 470 (1917) ............................12

Connecticut Nat'l Bank v. Germain,

503 U.S. 249 (1992)............................12

Connor, v.Coleman,

440 U.S. 612, 99 S.Ct. 1523, 59 L.Ed.2d 619 (1970) .11

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009).............................12

In re Blodgett,

502 U.S. 236,112 S.Ct. 674,

116 L.Ed.2d 669 (1992) ........................11

In re Scott,

163 F.3d 282 (5th Cir. 1998).....................11

Jesinoski v. Countrywide Home Loans, Inc.,

135 S. Ct. 790, 190 L.Ed. 2d 650...........3, 4, 5, 12

vii

Cited Authorities

Page

Keiran v. Home Capital, Inc.,

720 F.3d 721 ..................................3

La Buy v. Howes Leather Co.,

352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) 6, 10

Madden v. Myers,

102 F.3d 74 (3d Cir. 1996) ......................11

Mallard v. United States District Court for

Southern District of Iowa,

490 U.S. 296,109 S.Ct. 1814,

104 L.Ed.2d 318 (1989) .........................6

McClellan v. Carl and,

217 U.S. 268,30 S.Ct. 501,54 L.Ed. 762 (1910).....11

Quenzer v. Advanta Mortg. Corp. USA,

(D.Kan.2003) 288 B.R. 884 ......................8

Riggs v. Government Emp. Financial Corp.,

(9th Cir.1980) 623 F.2d 68 .......................8

Roche v. Evaporated Milk Association,

319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943) .....6

Rubin v. United States,

449 U.S. 424 (1981)............................12

viii

Cited Authorities

Page

Semar v. Platte Valley Federal S & L Assn,

791 F.2datp ................................... 8

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 96 S.Ct. 5849 46 L.Ed.2d 542 (1976).. 10

United States v. Ron Pair Enters., Inc.,

489 U.S. 235 (1989)............................12

United States v. Tinklenberg,

131 S. Ct. 2007 (2011)..........................12

Wiggins v. Avco Financial Services,

62F.5upp.2datp ............................... 6

Will v. Calvert Fire Ins. Co.,

437 U.S. 655, 98 S.Ct. 2552,

57 L.Ed.2d 504 (1978) ....................6, 10, 13

Yamamoto v. Bank of New York,

(9th Cir.2003) 329 F.3d 1167 .....................8

Yvanova v. New Century Mortg. Corp.,

62 Ca1.4th 919 (2016) .......................3, 4, 8

STATUTES

28 U.S.C. § 1635(a).........................11, 12, 13

15 U.S.C. § 1635(b).......................... passim

'IX

Cited Authorities

15 U.S.C. § 1635(d)

Page

.4

15 U.S.C. § 1635(f)...................... ......... 2, 4

15 U.S.C. H 1601-1667(f) ....................... 31 4,5

28 U.S.C. § 1254(1)..................................1

28 U.S.C. § 1651 ..................................2

28 U.S.C. § 1651(a)................................1

CAL. civ. CODE § 1689(b)(5).......................4, 5

RULES

United States Supreme Court Rule 20.1 ...........1, 6

REGULATIONS

12 C.F.R. 226.................................3,4

.

12 C.F.R. § 226.23(d)..............................8

12 C.F.R. § 226.23(d)(2)...........................10

1

PETITION

Niki-Alexander Shetty respectfully petitions for a writ

of certiorari and in the alternative petitions for a Writ of

Mandamus to the United States Court of Appeals for the

Ninth Circuit.

OPINIONS BELOW

The memorandum of opinion of the Ninth Circuit

Court of Appeals Case No. 16-56207, August 24, 2017 is

reprinted here as Appendix A.

Order of the District Court for the Central District of

California, (Shetty v. Wells Fargo Bank, et al.) Case No.

16-01514-AB-MRWx , August 19, 2016 is reprinted here

as Appendix B.

STATEMENT OF JURISDICTION

Jurisdiction in this Court is invoked pursuant to 28

U.S.C. § 1254(1) AND 28 U.S. C. § 1651(a) and United

States Supreme Court Rule 20.1

The Memorandum affirming district Court's order

was entered by the United States Court of Appeals for

the Ninth Circuit on August 24, 2017.

RELEVANT CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED IN THIS CASE

The Fourteenth Amendment to the United States

Constitution provides in pertinent part as follows:

Section 1 No State shall make or enforce any law which

...

2

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

28 U.S.C. § 1651 states in relevant part: The Supreme

Court and all courts established by Act of Congress may

issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and

principles of law.

15 U.S.C. § 1635(b) states in relevant part: "...When

an obligor exercises his right to rescind under subsection

(a), he is not liable for afty finance or other charge, and

any security interest given by the obligor, including any

such interest arising by operation of law, becomes void

upon such a rescission. Within 20 days after receipt of

a notice of rescission, the creditor shall return to the

obligor any money or property given as earnest money,

down payment, or otherwise, and shall take any action

necessary or appropriate to reflect the termination of any

security interest created under the transaction..."

STATEMENT OF THE CASE

On October 3, 2008 long before any state or federal

litigation was initiated related to the loan transaction

and property subject of this litigation, the borrower

effectuated a rescission by a timely Notice of Intent to

Rescind and Rescission pursuant to 15 U.S.C. § 1635(f)

within three years of the disputed transaction.

The appeal concerns the application of two distinct

precedents established by United States Supreme Court

3

decision in Jesinoski v. Countrywide Home Loans,

Inc., 135 S. Ct. 790, 190 L.Ed. 2d 650, 574 U.S., (2015)

("Jesinoski") decided on January 13, 2015 AND California

Supreme Court decision in Yvanova v. New Century

Mortg. Corp., 62 Cal.4th 919 (2016), ("Yvanova") one

decided on 2/18/2016 that deals with federal Truth in

Lending Act ("TILA") codified in 15 U.S.C. §§ 1601-1667(f)

and its' enabling Regulation Z codified at 12 CFR § 226

et seq., that held that TILA only required written notice

of intent to seek rescission, rather than filing suit, within

three-year period for exercising that right, abrogating

Keiran v. Home Capital, Inc., 720 F.3d 721 leaving no

doubt that rescission is effected when the borrower notifies

the creditor of his intention to rescind and the other

that decided because in a non-judicial foreclosure only

the original beneficiary of a deed of trust or its assignee

or agent may direct the trustee to sell the property, an

allegation that the assignment was void, and not merely

voidable at the behest of the parties to the assignment,

will support an action for wrongful foreclosure and that a

borrower who has suffered a non-judicial foreclosure does

not lack standing to sue for wrongful foreclosure based

on an allegedly void assignment merely because he or

she was in default on the loan and was not a party to the

challenged assignment.

As in Jesinoski because this is all that a borrower

must do in order to exercise his right to rescind under

the Act, the District court erred in dismissing plaintiff's

complaint without addressing the merits of Plaintiff's

Rescission that automatically rendered the security

instrument void and subsequent wrongful foreclosure by

the defendants that led to litigation in state and federal

courts. There was no prior state or federal court litigation.

Res Judicata was inapplicable.

Instead of ruling on plaintiff rescission pursuant to

15 U.S.C. § 16011 1640, 1635 et. seq., 12 C.F.R. 226 CAL.

Civ. CODE § 1689(b)(5) and supported by Supreme court

precedent decision in Jesinoski v. Countrywide Home

Loans, Inc., 135 S. Ct. 790, 190 L.Ed. 2d 650, 574 U.S.,

(2015) the District court ignored plaintiff's rescission and

solely focused on defendant's 12(b)(6) motion to dismiss

based upon erroneous post rescission application of the

doctrine of resjudicata and other issues irrelevant to the

rescission that was effectuated prior to any state or federal

litigation relied upon by the defendants and the district

court to dismiss plaintiff's complaint. Appeal followed.

The primary issue on appeal was (1) Whether or not

the district court properly granted defendant's Motion

to dismiss in a TILA rescission, effectuated by a timely

Notice of Intent to Rescind and Rescission pursuant to

15 U.S.C. § 1635(f) within three years of the disputed

transaction and memorialized in the official Records

by a recorded instrument, and without addressing the

merits of the rescission cause of action that rendered the

security instrument void pursuant to 15 U.S.C. 1635(d).

See Jesinoski v. Countrywide Home Loans, Inc., 135 S.

Ct. 790,190 L.Ed. 2d 650,574 U.S. (2015) and (2) Whether

or not foreclosure by one without standing to foreclose

is valid and district court erred or abused its discretion

when it dismissed plaintiff's complaint without addressing

the merits of wrongful foreclosure by the defendants,

cancellation and expungement of void instruments, and

quiet title and requiring tender. See Yvanova v. New

Century Mortg. Corp., 62 Cal.4th 919 (2016).

Like the district court, the United States Court of

appeals totally ignored appellant's material issues on

5

appeal as to rescission pursuant to 15 U.S.C. § 1601,

1640, 1635 et. seq., 12 C.F.R. 226 CAL. civ. CODE § 1689(b)

(5) and supported by Supreme court precedent decision

in Jesinoski v. Countrywide Home Loans, Inc., 135 S.

Ct. 790, 190 L.Ed. 2d 650, 574 U.S., (2015), adopted and

affirmed district court's ruling dismissing plaintiff's

complaint. The word "rescission" does not appear

anywhere in the memorandum dated August 24, 2017 nor

does it provide any basis for ignoring appellant's issues

as to rescission on appeal.

RELIEF IS UNAVAILABLE IN ANY OTHER FORUM

Petitioner has unsuccessfully sought relief from two

forums, the United States District Court for the Central

District of California and the United States Court of

Appeals for the Ninth Circuit. The United States Supreme

Court is the only available forum remaining.

STANDARD FOR ISSUING A WRIT

Petitioner is keenly aware of the realities that face

him, as this Court considers whether the issues presented

by this petition are of sufficient importance to warrant

this Court's consideration. Also Petitions for Writs of

Certiorari Petitioner acknowledge are rarely granted.

Issues herein have significant constitutional impact but

are not complicated given the precedent established by

the Supreme Court in Jesinoski that lower courts have

declined to address and refused to enforce.

-

-

Further, "traditional use" of a writ of mandamus has

been "to confine an inferior court to a lawful exercise

of its prescribed jurisdiction or to compel it to exercise

LO

its authority when it is its duty to do so." See Roche v.

Evaporated Milk Association, 319 U.S. 21, 26,63 S.Ct.

938, 941, 87 L.Ed. 1185 (1943). See also Mallard v. United

States District Court for Southern District of Iowa, 490

U.S. 296,109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (Mallard);

Will v. Calvert Fire Ins. Co, 437 U.S. 655, 98 S.Ct. 2552,

57 L.Ed.2d 504 (1978); La Buy v. Howes Leather Co., 352

U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957).

This Court has also required petitioners to demonstrate

that their right to issuance of the writ is clear and

indisputable. See Mallard, 490 U.S. at 309.

Pursuant to Supreme Court Rule 20.1, to justify

the granting of a writ of mandamus, the petition "must

show that the writ will be in aid of the Court's appellate

jurisdiction that exceptional circumstances warrant the

exercise of the Court's discretionary powers, and that

adequate relief cannot be obtained in any other form or

from any other court."

Petitioner seeks a writ of certiorari and in the

alternative a writ of mandamus directing the panel of

the Court of Appeals for the Ninth Circuit which issued a

memorandum without addressing issues raised on appeal

and refusing to address issues raised on appeal as to

petitioner's statutory rescission or to issue an express

explanation as to why a ruling on plaintiffs' appeal was

deemed unnecessary to the disposition of the case.

7

THE WRIT WILL BE IN AID OF THE COURT'S

APPELLATE JURISDICTION

Petitioner is aware that the remedy of mandamus is a

drastic one, to be invoked only in extraordinary situations.

In this case, however, petitioner is entitled to a ruling on

his appeal, or an explanation for the lack of a ruling, and he

has nowhere else to turn. The issues raised and unresolved

on appeal was presented to the Court of Appeals, which

could have clarified or supplemented its panel opinion.

Instead it simply ignored petitioner's material issues that

would render secondary issues considered and ruled on

as moot. Petitioner recognizes that the Court of Appeals

is not required to decide issues that are unnecessary to

the disposition of the case. By the same token, however,

the Court of Appeals is obliged to decide those issues that

are necessary to the disposition of the case, or at least

to provide an explanation as to why it did not address or

decide an issue squarely presented to it.

It is fundamentally unfair for an appellate court to

refuse to adjudicate an issue without giving some reason

for its inaction. A refusal to adjudicate directly affects the

jurisdiction of this Court because the litigant has been

given no ruling to form the basis for a possible petition for

certiorari. The supervisory and appellate powers of this

Court are frustrated because there is no ruling to appeal

or reasoning or analysis provided by the lower. court. This

case illustrates the dangers of a refusal to adjudicate.

Pursuant to 15 U.S.C. § 1635(b) effective October

2, 2008, the date of notice of rescission, rescission and

recordation of the same in official records, any security

interest given by the [borrower] became void upon such

...

M

a rescission." As a consumer protection statute, TILA

"is to be liberally construed in favor of borrowers." See

Wiggins v. Avco Financial Services, supra, 62 F. Supp.2d

at p. 94; Riggs v. Government Emp. Financial Corp. (9th

Cir.1980) 623 F.2d 68, 71.

Under TILA, rescission "does not mean an

annulment that is definitively accomplished by unilateral

pronouncement, but rather a remedy that restores

the status quo ante. [Citation.]" See Quenzer v. Advanta

Mortg. Corp. USA (D.Kan.2003) 288 B.R. 884,888.) Once

borrowers exercise their right to rescind under TILA,

their liability for the loan ceases and any security interest

given becomes void. (15 U.S.C. § 1635(b).)

Procedurally, lenders must return to the borrowers

"any money or property given as earnest money,

downpayment, or otherwise, and

terminat[e the]

security interest," and borrowers must tender back to the

lenders property, e.g., the loan proceeds, received from the

lender. (15 U.S.C. § 1635(b); 12 C.F.R. § 226.23(d) (2006).)

[Yamamoto v. Bank of New York (9th Cir.2003) 329 F.3d

1167, 1173), each of these events constitutes a recognized

part of the process of rescission under title 15 of the United

States Code section 1635(b).]

...

Stated otherwise, after rescission, borrowers are

"'not liable for any finance or other charge' " such as

interest, commissions, or extra payments in a TILA

rescission. See Semar v. Platte Valley Federal S & L

Ass'n, supra, 791 F.2d at p. 705; 15 U.S.C. § 1635(b). The

lender's obligation to return the money paid to it is part of

the rescission remedy under title 15 of the United States

Code section 1635(b).

Neither has the lender responded to borrowers'

rescission of the unconsummated April 26, 2006 loan

transaction within 20 days nor has the lender returned

any monies paid by the borrower or returned any property

given as security.

Nothing about the word "rescission," moreover, limits

its applicability to the removal of a security interest

alone. While neither the Act nor the implementing

regulations define the term, common definitions of

"rescission" indicate that it covers more than simply

removing a security interest created through a loan.

According to one dictionary, the term means "[a] party's

unilateral unmaking of a contract," which "restores the

parties to their pre-contractual positions." Black's Law

Dictionary 1308 (7th ed.1999). According to another, the

term means "an act of cutting off" or "an act of rescinding,

annulling, or vacating or of cancelling or abrogating (as

by restoring to another party to a contract or transaction

what one has received from him)."Webster's Third New

International Dictionary 1930 (2002); see also id. (second

definition of "rescind" is: "[T]o abrogate (a contract) by

tendering back or restoring to the opposite party what

one has received from him.").

And, most importantly, § 1635(b) not only allows a

rescinding borrower to void the security interest but also

requires the creditor to return other fees generated by the

loan transaction, namely "any money or property given as

earnest money, down payment, or otherwise." 15 U.S.C.

§ 1635(b); see also id. ("When an obligor exercises his

right to rescind he is not liable for any finance or other

charge, and any security interest given by the obligor

becomes void upon such a rescission.") (emphasis

...

10

added); 12 C.F.R. § 226.23(d)(2) (requiring the creditor

upon rescission to return "any money or property that has

been given to anyone in connection with the transaction").

It was irrelevant whether or not the borrower later

filed a lawsuit in state and federal district court and the

rescission was denied. Jesinoski was only decided by the

Supreme Court on January 13, 2015, until which time

courts throughout California and Ninth Circuit Court

of appeals denied almost every case of rescission under

TILA on grounds that Regulation Z requires a consumer

to file suit within three years to exercise TILA rescission.

Nevertheless a rescission effectuated prior to later

filed lawsuit in state and federal district court that was

denied could not be a basis for the application of the

doctrine of res judicata.

The Court of Appeals should have ruled on plaintiffs'

appeal from this unwarranted and unprecedented

decision of the District Court, or at least made an express

determination that would explain to the bench and bar why

the Court deemed it unnecessary to address plaintiffs'

appeal.

Where a lower court persistently and without reason

refuses to adjudicate a case properly before it, the higher

court may issue a writ of mandamus in order that it

may exercise the jurisdiction of review given by law.

Will v. Calvert Fire Ins. Co., supra, 437 U.S. at 66162,

98 S.Ct. at 2557. See also Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d

542 (1976); La Buy v. Howes Leather Co., supra; Beacon

Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3

ii'

L.Ed.2d 988 (1959); McClellan v. Garland, 217 U.S. 268,

30 S.Ct. 501, 54 L.Ed. 762 (1910).

In some cases, this Court and other courts have

directed the lower court to act expeditiously to adjudicate

a matter without actually issuing the writ of mandamus.

See, e.g., In re Blodgett, 502 U.S. 236, 112 S.Ct. 674, 116

L.Ed.2d 669 (1992); Connor v. Coleman, 440 U.S. 612,99

S.Ct. 1523, 59 L.Ed.2d 619 (1970); Madden v. Myers, 102

F.3d 74 (3d Cir. 1996); In re Scott, 163 F.3d 282 (5th Cir.

1998).

Without the benefit of a ruling from the Court of

Appeals, or a clear explanation for a non-ruling, the

petitioners herein cannot properly evaluate their next

step in this case. By granting this petition, this Court

would encourage the Court of Appeals to write opinions

that address all necessary issues, so that future petitions

such as this one can be avoided and in the alternative this

court may grant a writ of certiorari.

EXCEPTIONAL CIRCUMSTANCES WARRANT

THE EXERCISE OF THE COURT'S

DISCRETIONARY POWERS

Statutory rescission pursuant to 15 U.S.C. § 1635(b)

is a fact not a theory or a claim. Section 1635(a) explains

in unequivocal terms how the right to rescind is to be

exercised: It provides that a borrower "shall have the right

to rescind. by notifying the creditor, in accordance

with regulations of the Board, of his intention to do so"

(emphasis added). The language leaves no doubt that

rescission is effected when the borrower notifies the

creditor of his intention to rescind. It follows that, so

.

.

12

long as the borrower notifies within three years after the

transaction is consummated, his rescission is timely. The

statute does not also require him to sue within three years.

Pursuant to Jesinoski, "Nothing in our jurisprudence,

and no tool of statutory interpretation, requires that a

congressional Act must be construed as implementing

its closest common-law analogue. Cf. Astoria Fed. Say.

& Loan Assn. v. Solimino, 501 U. S. 104, 108-109 (1991).

The clear import of §1635(a) is that a borrower need only

provide written notice to a lender in order to exercise his

right to rescind." "..Section 1635(a) nowhere suggests a

distinction between disputed and undisputed rescissions,

much less that a lawsuit would be required for the latter."

The text of Section 1635(a) is clear: a borrower

exercises "the right to rescind

by notifying the

creditor, in accordance with regulations of the Bureau,

of his intention to do so." 15 U.S.C. § 1635(a). The Court

"begin[s] with the Act's language." See United States v.

Tinklenberg, 131 S. Ct. 2007, 2012 (2011). "[W]here, as

here, the statute's language is plain, 'the *15 sole function

of the courts is to enforce it according to its terms."' See

United States v. Ron Pair Enters., Inc., 489 U.S. 235,

241 (1989)(quoting Caminetti v. United States, 242 U.S.

470, 485 (1917)); Connecticut Nat'l Bank v. Germain, 503

U.S. 249, 254 (1992)("When the words of a statute are

unambiguous,

'judicial inquiry is complete.' ")

(quoting Rubin v. United States, 449 U.S. 424,430 (1981)).

"Statutory construction must begin with the language

employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses

the legislative purpose." See Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, .175 (2009) (internal quotation marks

omitted). The ordinary meaning of the phrase "notifying

...

...

13

the creditor," confirmed by Congress's consistent usage

across the statute, requires only that the borrower inform

the creditor of the intention to rescind the transaction and

entails no further requirement.

Petitioner seeks nothing more than a decision on his

appeal. He should be entitled to that. This Court has

recognized that a writ of mandamus may be issued where

a lower court "obstinately refuses to adjudicate a matter

properly before it...." See Will v. Calvert Fire Ins. Co.,

supra, 437 U.S. at 666, 98 S.Ct. at 2559.

This case is exceptional for two reasons. Firstly the

Court of Appeals was squarely presented with this specific

issue on appeal but chose not to do anything about it.

Second, Petitioner's issue as to Rescission effectuated

pursuant to 15 U.S. C. 1635(a) is an issue of national

importance and public interest.

Finally, District Court's refusal to enforce rescission

and Court of Appeals refusal to rule on this material issue

raised on appeal issue will let stand as law an unacceptable

and unconstitutional, grant of power to the court to alter

established precedent established by the United States

Supreme court penned by Justice Scalia writing for a

unanimous Supreme Court of the United States.

ADEQUATE RELIEF CANNOT BE OBTAINED FROM

ANY OTHER COURT OR IN ANY OTHER FORM

The only form of relief potentially available to

petitioners would be a petition to this Court for a writ

of certiorari and in the alternative a writ of mandamus.

As established by this court, In Re Cheney, petitioner

lei

satisfies all the three conditions set forth for a grant of

a writ of mandamus. (1) the mandamus petitioner must

have 'no other means to attain the relief he desires,' (2)

the mandamus petitioner must show that his right to the

issuance of the writ is 'clear and indisputable,' and (3) the

court, "in the exercise of its discretion, must be satisfied

that the writ is appropriate under the circumstances." 542

U.S. at 380-81 (2004).

The Court of Appeals issued no ruling on the issue

of rescission plaintiffs' appeal and offered no explanation

for the lack of a ruling. Petitioner should not be required

to guess what the Court of Appeals intended, and neither

should this Court. Petitioners cannot reasonably be

expected to seek certiorari with respect to a nullity. At

this point, however, without the benefit of a ruling from

the Court of Appeals or an explanation for not ruling,

petitioners can only speculate. While that may well be

an insufficient basis on which to seek a writ of certiorari,

petitioner alternatively seeks a writ of mandamus.

The District court has no authority to compel the

Court of appeals to issue a ruling or explanation with

respect to issues raised by the plaintiff's appeal to the

Court of Appeals. Petitioner already unsuccessfully

sought relief from the Court of Appeals on this specific

issue. Although that Court has inherent power to recall

or amend its mandate, it would be futile to ask the Court

at this time. Petitioner is not aware of any potential

remaining avenues of relief from the Court of Appeals.

Petitioner respectfully submit that their only option

for obtaining adequate relief is the present petition to this

Court for a writ of certiorari and in the alternative for a writ

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of mandamus directing the panel of the Court of Appeals

which heard this case to adjudicate the issues presented by

plaintiffs' appeal or provide a clear and complete explanation

as to why a decision on those issues was thought to be

unnecessary to the Court's disposition of the case.

CONCLUSION

For the reasons argued above, Petitioner respectfully

requests this Court to issue a writ of certiorari or in the

alternative a writ of mandamus to the United States Court

of Appeals for. the Ninth Circuit and adjudicate the issues

presented by petitioner on appeal or to provide a clear and

complete explanation as to why the court deed a decision

on those issues unnecessary to its disposition of the case.

Dated: November 16, 2017

Respectfully Submitted

NIKI-ALEXANDER SHETTY

20631 Ventura Boulevard, #301

Woodland Hills, California 91364

(818) 340-7600

chicoo@sbcglobal.net

Petitioner Pro se