NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAXINE GILLIAM, Trustee of The Lou 

Easter Ross Revocable Trust, 

 Plaintiff-Appellant, 

 v. 

JOEL LEVINE, Trustee of The Joel Sherman 

Revocable Trust, 

 Defendant-Appellee.

No. 21-56257 

D.C. No. 

2:18-cv-02580-PSG-MRW 

MEMORANDUM* 

MAXINE GILLIAM, Trustee of The Lou 

Easter Ross Revocable Trust, 

 Plaintiff-Appellant, 

 v. 

JOEL LEVINE, Trustee of The Joel Sherman 

Revocable Trust, 

 Defendant-Appellee, 

No. 22-55158 

D.C. No. 

2:18-cv-02580-PSG-MRW 

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, Chief District Judge, Presiding

 * This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

APR 4 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

Submitted March 16, 2023** 

Pasadena, California

Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.

Maxine Gilliam appeals the district court’s grant of summary judgment in 

favor of Joel Levine and its order awarding attorney’s fees to Levine. We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm. 

We review the district court’s grant of summary judgment de novo.

Roley v. Google LLC, 40 F.4th 903, 908 (9th Cir. 2022). “Summary judgment is 

appropriate when, viewing the evidence in the light most favorable to the 

nonmoving party, ‘there is no genuine dispute as to any material fact.’” United 

States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162 

(9th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). We review the district court’s 

evidentiary rulings and award of attorney’s fees for abuse of discretion. Domingo 

ex rel. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002); Barrientos v. 1801-

1825 Morton LLC, 583 F.3d 1197, 1207 (9th Cir. 2009). 

1. The district court correctly granted summary judgment for Levine on all 

of Gilliam’s claims because the statutes she invokes do not apply to loans obtained 

for a business purpose. See Gilliam v. Levine (Gilliam I), 955 F.3d 1117, 1120–21

 

 ** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
 3 

(9th Cir. 2020). Gilliam’s accounting, reimbursement, and declaratory relief claims 

are derivative of the statutory claims, so they also fail if the loan was for a business 

purpose. 

In determining whether a loan was for a business purpose, we apply the 

factors articulated in Thorns v. Sundance Properties: (1) “[t]he relationship of the 

borrower’s primary occupation to the acquisition”; (2) “[t]he degree to which the 

borrower will personally manage the acquisition”; (3) “[t]he ratio of income from 

the acquisition to the total income of the borrower”; (4) “[t]he size of the 

transaction”; and (5) “[t]he borrower’s statement of purpose for the loan.” 726 F.2d 

1417, 1419 (9th Cir. 1984); see Gilliam I, 955 F.3d at 1123; Johnson v. Wells 

Fargo Home Mortg., Inc., 635 F.3d 401, 417 (9th Cir. 2011). Gilliam bears the 

burden of proving that the loan was obtained for personal purposes rather than 

business purposes. See Gilliam I, 955 F.3d at 1120.

The first factor supports a business-purpose determination. The broker 

representations and Gilliam’s documents identified her as a “real estate investor

(retired teacher).” That Gilliam is also a retired teacher does not change the fact 

that she was identified primarily as an investor for the purposes of this loan. 

Gilliam cites no record evidence in support of the second and third factors. As the 

district court acknowledged, the fourth factor does not support a business purpose 

because the loan amount was relatively small. The fifth factor supports a business 
 4 

purpose. Gilliam executed an affidavit certifying that the secured property was 

used for “investment.” Additionally, the broker, in his capacity as Gilliam’s agent, 

told Levine that Gilliam was a real estate investor, owned multiple rental 

properties, and sought the loan in order “to invest in a small rental.” Levine relied 

on those representations and wired the loan funds to a corporate account. In sum, 

“‘[e]xamin[ing] the transaction as a whole,’ paying particular attention to ‘the 

purpose for which the credit was extended,’” the undisputed facts establish that the 

loan was obtained primarily for a business purpose. Slenk v. Transworld Sys., Inc., 

236 F.3d 1072, 1075 (9th Cir. 2001) (quoting Bloom v. I.C. Sys., Inc., 972 F.2d 

1067, 1068 (9th Cir. 1992)). 

Gilliam’s arguments to the contrary do not show otherwise. First, Gilliam 

argues that the broker representations were inaccurate because she never actually 

purchased a new rental property, but the fifth factor focuses on the borrower’s 

statement of purpose, not any undisclosed purpose the borrower might have had in 

mind. Gilliam claims that she acquired the loan to make repairs to a property, but 

she points to no evidence that she conveyed this purpose to Levine before the loan 

was made. 

Second, Gilliam argues that various documents from the loan files 

demonstrate that the loan was governed by the Truth in Lending Act and the Real 

Estate Settlement Procedures Act (RESPA). The district court correctly found that 
 5 

the good faith estimate and the intent to proceed with application from June 7, 

2015 could not support Gilliam’s argument that the loan was intended to be a 

consumer credit transaction because those documents were dated before her broker 

had contacted Levine. Gilliam points to a June 13, 2015 Mortgage Loan Disclosure 

Statement and a June 12, 2015 Deed of Trust, both of which are form documents 

that mention RESPA. Even assuming these documents were properly before the 

district court, their cursory references to the statute and use of its definitions do 

nothing to transform the nature of the loan. Gilliam also emphasizes that a June 12, 

2015 Truth in Lending Act disclosure document lists Levine as a creditor. But

again, that fact does not control whether the loan was exempt. CFPB, Comment for 

12 C.F.R. § 1026.3(a) – Exempt Transactions, Official Interpretation 1026.3(a)-1 

(explaining that a creditor can make disclosures regardless of whether a transaction 

is exempt). 

Third, law of the case does not apply because this appeal concerns a motion 

for summary judgment, whereas the prior appeal involved a motion to dismiss, 

which is governed by a different legal standard. 

2. In evaluating the loan, the district court relied on statements made by 

Gilliam’s loan broker, whom it treated as Gilliam’s agent. Gilliam objects that the 

loan broker was not acting as her agent, but she forfeited that objection because she

did not raise it before the district court. See AMA Multimedia, LLC v. Wanat, 970 
 6 

F.3d 1201, 1213 (9th Cir. 2020). Moreover, Levine’s statement of undisputed facts 

included the statement that “Plaintiff . . . had engaged . . . Broker Perez to act as 

her agent in order to procure a lender to fund a loan,” to which Gilliam responded, 

“Undisputed.” 

3. The district court did not abuse its discretion in its evidentiary decisions. 

Gilliam objects to the admission of Levine’s declaration and the loan file on the 

grounds of authentication, hearsay, personal knowledge, and best evidence. The 

documents are properly authenticated: Levine’s declaration states that he received 

them, and a recipient’s declaration may authenticate an emailed document. Fed. R. 

Evid. 901(b)(1). The documents are not hearsay because Levine did not introduce 

them for the truth of their contents, but rather for their effect on Levine—namely, 

that he read them to understand that Gilliam would use the loan for investment 

purposes. Fed. R. Evid. 801(c)(2). That use resolves any personal knowledge 

concerns. Any best-evidence objections fail because copies of documents are 

admissible as duplicates. See Fed. R. Evid. 1003.

Gilliam also objects to the admission of the bank wire transfer on hearsay 

grounds. That document was admissible as an opposing-party statement because

the wire transfer was made by Gilliam, signed by Gilliam, and offered against 

Gilliam. See Fed. R. Evid. 801(d)(2). 
7 

4. The district court did not abuse its discretion in awarding attorney’s fees 

to Levine. Most of Gilliam’s arguments either do not concern the fee award or are 

forfeited because she did not make them before the district court. Her remaining 

arguments do not show an abuse of discretion. This was an action on a contract 

under California Civil Code § 1717(a). See Dell Merk, Inc. v. Franzia, 33 Cal.

Rptr. 3d 694, 703 (Cal. Ct. App. 2005). And the district court correctly interpreted

the promissory note to provide for an award of fees.

The motion to take judicial notice (Dkt. No. 52) is DENIED. 

AFFIRMED.