Tuesday, January 03, 2012

Balderas v. Countrywide Bank (9th Cir. - Dec. 29, 2011)

Well, 2012 is off to a somewhat slow start.  Yesterday's a holiday, so nothing then.  Then nothing at all published by the Ninth Circuit today.  And nothing so far from the California appellate courts either.  I assume some jurists and their staff had an awesome New Year's Eve.

But that shall not detain us.  Because 2011 still has some good stuff worth mentioning.

For example, Judge Ikuta writes a neat concurrence in this one.  Which says, in its entirety:

I concur in the opinion except for the penultimate paragraph, in which the majority takes the opportunity to give the Balderases some helpful legal advice. After clarifying that a lender must leave the TILA Notice of Right to Cancel with the borrower in order to “deliver” it (an interpretation with which I agree), the majority worries that the broker may in fact have left the Balderases with two copies of the completed form, as per Exhibit 14 of the complaint. Maj. op. at 21516. To address its concerns, the majority seizes on a footnote in the complaint, where the Balderases asserted that “[b]ecause the signing occurred after midnight, the actual signing date was the 26th of September, 2006.” Although the Balderases’ counsel didn’t make anything of this fact, the majority opines that if the Notice of Right to Cancel was indeed signed on September 26th, but incorrectly dated September 25, the notice itself would violate TILA. See maj. op. at 21516. Regardless whether the majority is better at spotting issues than the Balderases’ attorneys, it is not the job of judges to make up arguments and then purport to rule on them. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Our appearance of neutrality is damaged when we step outside our role and give a helping hand to one of the parties. Accordingly, I decline to participate in that portion of the opinion."

I'll add some subtext to that concurrence, which I think would go as follows:  "I say this in part because I think the Balderases are baldface liars.  They lost their house because they didn't pay their loan, and thereafter made up some absurd claims that are flatly belied by the documents they signed.  Nonetheless, they're willing to lie, and at this stage of the process, we have to believe their lies, and those lies -- if true -- would indeed state a cause of action.  So I join the majority opinion, as is my (and our) duty.  But that doesn't mean I have to like it, and that surely doesn't mean that we should go out of our way to assist the Balderases in obtaining the fruits of their perjury.  Let their lawsuit go forward, with faith that a jury will reject it.  But don't actively help 'em.  No need to make our test of faith harder than it already is."

Which I get.