David Merritt v. Countrywide Financial Corporat

dissenting:

I respectfully dissent.

We review a 12(b)(6) dismissal de novo, 1 and can affirm on any ground, regardless of whether the district court relied on it.

This complaint violated Federal Rule of Civil Procedure 8(a)(2). The Rule requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” 3 We are indulgent with pro se complaints, but even for them, there are limits.

The Merritt complaint is neither “short” nor “plain.” It is 68 pages long, 398 paragraphs. Nor were they deprived of opportunities to clarify what their claims were. Though they call the complaint their “Second Amended Complaint,” the truth is that it is their fifth version. They got leave to file this version of their complaint by filing a motion explaining that the amendments would be “clarifications,” along with a “stipulation” to which Countrywide did not stipulate. The leave to amend they thus obtained mooted out Countrywide’s pending motion to dismiss, so it was not adjudicated. The plaintiffs then filed their amended complaint which was materially different from the one submitted to the district court with their motion for leave to amend. Far from…

Once again, we address issues arising from Countrywide Financial Corporation’s residential lending business during the period shortly before novel practices by lenders resulted in widespread distress in the housing markets. See, e.g., Balderas v. Countrywide Bank, N.A., 664 F.3d 787 (9th Cir.2011); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir.2011). David Merritt and Salma Merritt (“the Merritts”) sued Countrywide Financial Corporation and various other defendants (collectively “Countrywide” or “CHL”) involved in their residential mortgage, alleging violations of numerous federal statutes. The district court dismissed the claims pleaded, with prejudice. 1 This appeal followed.

We consider in this opinion two issues raised by that dismissal: (1) whether the district court properly dismissed the Mer-ritts’ Truth in Lending Act (“TILA”) rescission claim because they did not tender the rescindable value of their loan prior to filing suit or allege ability to tender its value in their complaint; and (2) whether the Merritts’ claims under Section 8 of the Real Estate Settlement Practices Act (“RESPA”) may proceed, including whether the RESPA limitations…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID MERRITT; SALMA MERRITT, No. 09-17678 Plaintiffs-Appellants, D.C. No. v. 5:09-cv-01179- JW

COUNTRYWIDE FINANCIAL

CORPORATION, a Delaware corporation; COUNTRYWIDE HOME OPINION LOANS, INC., a New York corporation; ANGELO MOZILO, an individual; MICHAEL COLYER, an individual; DAVID SAMBOL, an individual; BANK OF AMERICA, NA; KEN LEWIS, an individual; JOHN

BENSON,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding

Argued and Submitted November 9, 2012—San Francisco, California

Filed July 16, 2014 Before: Andrew J. Kleinfeld and Marsha S. Berzon, Circuit Judges, and William E. Smith, District Judge.*

Opinion by Judge Berzon; Dissent by Judge Kleinfeld

SUMMARY**

Truth in Lending Act / Real Estate Settlement Practices Act

The panel reversed in part and vacated in part the district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of an action under the Truth in Lending Act and the Real Estate Settlement Practices Act against Countrywide Financial…