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BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”

BALDERAS v. COUNTRYWIDE | CA 9th Cir. Court of Appeals Reverses/ Remands “Truth in Lending Act (TILA), Right To Rescind”


FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICTOR BALDERAS and BELEN
BALDERAS,
Plaintiffs-Appellants,

v.

COUNTRYWIDE BANK, N.A., a
National Banking Association;
AAA FUNDING, INC., DBA
USA Funding, a California corporation;
COUNTRYWIDE HOME MMA-JMA
LOANS, INC., DBA America’s
Wholesale Lender, a New York
corporation; MOR CAZAKOV, an
individual; GALENA KOROL, an
individual; DOES 1 through 10,
inclusive,
Defendants-Appellees. þ

Appeal from the United States District Court
for the Southern District of California

Michael M. Anello, District Judge, Presiding
Argued and Submitted

June 9, 2011—Pasadena, California

Filed December 29, 2011

EXCERPT:

KOZINSKI, Chief Judge:

The Balderases allege that they are immigrants who were
rooked by a bank that signed them up for loans it knew they
couldn’t afford, on terms they didn’t agree to. These are the
facts as recited in the complaint: Mor Cazakov, a mortgage
broker, cold-called the Balderases, representing that he could
refinance their home, switch them to a fixed rate mortgage
and let them cash out $50,000, all without a penalty. Subsequently,
Soraya Qassim, a “duly authorized agent” of Countrywide
Bank (Countrywide), filled out a uniform residential
loan application (URLA) for them and showed up unannounced
at their home, urging the Balderases to sign it. But
the form was in English, which they can’t read, and it overestimated
their income by over $40,000 per year. Qassim told
them it was an informal document the bank needed, so the
Balderases signed.

Three days later, on the evening of Monday, September 25,
2006, Cazakov showed up at their home with a notary public
and loan documents also written in English. He told them that
Countrywide “demanded” their signatures “that night” and he
couldn’t and wouldn’t leave without getting them. The
Balderases protested and asked to arrange the loan signing
when their English-literate daughter could attend. But Cazakov
said that Countrywide had instructed him to stay until he
got the signatures, and he “engaged in a series of actions
designed to intimidate, harass, and pressure [the Balderases]
into signing the loan documents.” After six hours of unrelenting
pressure by Cazakov and several unsuccessful attempts to
read the paperwork, the Balderases capitulated and signed the
documents just after midnight. On Wednesday, they called
Cazakov and asked him to rescind the loans. He refused. They
then called Countrywide a day later seeking the same relief.
Countrywide also refused, falsely representing it was too late.
In fact, the three-day statutory rescission period extended
through the next day, Friday, September 29.

The Balderases filed a complaint alleging, among other
things, a violation of the Truth In Lending Act (TILA). See
15 U.S.C. §§ 1601 et seq. Countrywide filed a 12(b)(6)
motion, which the district court granted. This timely appeal
followed.

* * *

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