Opinion
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R.App. P. 34(a), Ninth Circuit Rule 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding
Before: BROWNING, SKOPIL and BRUNETTI, Circuit Judges
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The Berruetas appeal pro se from the district court's grant of judgment in favor of the government in its action seeking money judgment on three promissory notes. The Berruetas contend that the district court erred in concluding that (1) the government's action was timely filed; (2) there existed no genuine issue of material fact as to whether the promissory notes were altered, breached, usurious or discriminatory; and (3) the government's records as to payments made on the loans were accurate. We affirm in part, vacate the judgment, and remand for further fact finding and entry of a new judgment consistent with this disposition.
I.
In the Berruetas' first appeal, we remanded for the district court to assess, among other things, the impact of our intervening opinion in United States v. Dos Cabezas Corp., 995 F.2d 1486 (9th Cir.1993). In Dos Cabezas, we held that the FmHA's action seeking a post-foreclosure deficiency judgment against a borrower was subject to the six-year limitations period of 28 U.S.C. § 2415(a). 995 F.2d at 1490. Without expressly referring to section 2416(b), we concluded that "the Coleman injunctions extended by 21.5 months the time for filing claims on which time was still running when the injunctions were entered." Id. at 1491.
On remand, the district court concluded that the government's complaint was timely filed "in light of the tolling provision of 28 U.S.C. § 2416(b) because the defendants were exempt from legal process by reason of the Coleman injunctions." The Berruetas challenge the district court's conclusion that the statute of limitations was tolled by the Coleman injunctions.
They first contend that since they did not "opt-in" to the Coleman class they were never "exempt from legal process" within the meaning of section 2416(b). They assert that, because they did not join or participate as members of that class, or receive notice of the class action, it would violate their "free will" to conclude that the statute of limitations was tolled as applied to them.
The Coleman class was certified in accordance with Fed.R.Civ.P. 23(b)(2). See Coleman v. Block, 562 F.Supp. 1353, 1358 (D.N.D.1983) (certifying statewide class); Coleman v. Block, 100 F.R.D. 705, 706 (D.N.D.1983) (expanding statewide class to nationwide class). Thus, the Berruetas were neither entitled to notice, Coleman, 562 F.Supp. at 1358; Crawford v. Honig, 37 F.3d 485, 487 n. 2 (9th Cir.1994), nor required to "opt in" to be subject to the Coleman injunction. See Crawford, 37 F.3d at 487 n. 2. Their status as FmHA borrowers made them part of the class. See United States v. Rich, 853 F.Supp. 341, 345 (E.D.Cal.1994). Moreover, on at least one occasion the Berruetas received the benefit of the Coleman injunctions in that their loans were deaccelerated. The Berruetas' "opting in" argument is therefore meritless.
The Berruetas next rely on the district court's decision in Hines v. United States, 760 F.Supp. 549 (D.S.C.1991) (withdrawn), where the court opined that the FmHA was in fact using the Coleman injunctions in a sinister fashion to circumvent the statute of limitations. Because the ines opinion was subsequently rescinded and vacated by the court which issued it, however, the opinion is of no precedential value and we decline to consider the Berruetas' assertions arising from that decision.
Finally, the Berruetas' attempt to distinguish Dos Cabezas on the ground that it "appears" the defendants in that case "opted in" to the Coleman class. There is, however, no indication of "opting in" in that case. Further, as already established, "opting in" is not required to be bound by the judgment in a class action for injunctive relief certified under Rule 23(b)(2). Crawford, 37 F.3d at 487 & n. 2. Thus, Dos Cabezas is controlling in this case.
We conclude that the district court's order with respect to tolling cannot be faulted on any of the grounds asserted by the Berruetas. Nevertheless, the district court erred by entering judgment in favor of the government in the amount of $172,058.18. The only way the court could have reached this figure is by disregarding the 21.5 month period of Coleman tolling announced in Dos Cabezas, and instead adopting the analysis of the district court in United States v. Rich, 853 F.Supp. 341, 345-46 (E.D.Cal.1994). In Rich, the court determined that the time for filing claims was extended for not only 21.5 months due to the Coleman injunctions, but also an additional 12 months due to the injunctions issued in Matzke v. Block, 732 F.2d 799 (10th Cir.1984), and Curry v. Block, 738 F.2d 1556 (11th Cir.1984). Rich, 853 F.Supp. at 345-46.
We reject the Rich analysis. Unlike the Coleman injunctions, Matzke and Curry did not purport to apply to nationwide classes and were therefore not binding within the Ninth Circuit where this cause of action originated. In other words, the FmHA was in no way prevented at any time from accelerating the Berruetas' loans by virtue of those injunctions. The Rich court's conclusion that the Matzke/Curry injunctions affected the regulations under which all offices of the FmHA were operating and thus had national effect, is unpersuasive. We conclude expressly, as we did impliedly in Dos Cabezas, that the Matzke/Curry injunctions did not render the Berruetas and other FmHA borrowers within this Circuit exempt from legal process.
Our conclusion necessitates a recalculation of the judgment amount in this case. According to the government's own calculations, it is entitled to a judgment of $157,233.05 if the 21.5 months of tolling announced in Dos Cabezas is applied. The district court granted judgment in the government's favor in the amount of $172,058.18. Because tolling on the basis ofMatzke/Curry was inappropriate, the district court's judgment amount is incorrect. Accordingly, we remand for entry of a judgment amount consistent with 21.5 months of tolling.
II.
In its original judgment in this case, the district court summarily rejected the Berruetas' allegations that the contracts at issue were altered, breached, usurious or discriminatory. The court concluded that the Berruetas failed to establish that there were any genuine issues of material fact as to those charges. Our disposition in the Berruetas' first appeal did not acknowledge those allegations.
The government declined to address those charges in its brief on this appeal, reasoning that the issues were beyond the scope of the remand and thus not properly presented on appeal. We disagree. The Berruetas did not receive appellate review of the district court's conclusion that they failed to raise a genuine issue of material fact as to those allegations in their first appeal. We have therefore reviewed the Berruetas' various allegations of impropriety on the part of the FmHA, and conclude that the district court correctly determined that the Berruetas failed to raise a genuine issue of material fact as to whether the contracts were altered, breached, usurious or discriminatory.
III.
Finally, the Berruetas contend that the district court granted judgment in favor of the government based on an inaccurate loan balance. They claim that they paid $17,245.46 more than the FmHA's payment records reflect and that the judgment should be reduced accordingly. To support this assertion, the Berruetas submitted to the district court photocopies of their cancelled checks allegedly sent to and cashed by the FmHA in partial payment of their loans.
The district court did not acknowledge this dispute in its order. The court's judgment amount, however, was obviously based on the FmHA's records rather than those of the Berruetas. Because there is a discrepancy in the parties' records as to the current loan balance, and because we are unable to definitively conclude that the district court made a factual finding that the government's records, rather than the Berruetas', were accurate, we remand for an express determination whether the Berruetas made the alleged payments.
AFFIRMED in part, VACATED in part, and REMANDED for further fact finding and entry of judgment in an amount consistent with this disposition. Each side is to bear its own costs.
BRUNETTI, Circuit Judge, dissenting in part and concurring in part:
I respectfully dissent from the opinion's Part I reversal of the district court's calculation of the amount of the judgment and the rejection of the analysis of United States v. Rich, 853 F.Supp. 341 (E.D.Cal.1994). In reversing, the opinion rejects Rich's conclusion that Matzke v. Block, 732 F.2d 799 (10th Cir.1984), and Curry v. Block, 738 F.2d 1556 (11th Cir.1984), tolled the statute of limitations for an additional 12 months. I must disagree.
The majority correctly notes that "Matzke and Curry did not purport to apply to nationwide classes and were therefore not binding within the Ninth Circuit where this cause of action originated." However, arguing that out of circuit precedent does not bar the FmHA from acting in the Ninth Circuit ignores the prudential considerations favoring national application of Matzke and Curry. We need not belabor this point, as the court in Rich cogently argued for uniform application of the additional time:
To hold otherwise would require litigation of the same issue in every circuit, and would force the government to adopt a rigid posture of nonacquiescence in the face of persuasive authority from other circuits merely to prevent the statute of limitations from running. Such a rule would be wholly impractical and would ignore the nationwide responsibilities of the FmHA.
Rich, 853 F.Supp. at 346.
I would accept the Rich analysis and affirm the district court's calculation of the amount of the judgment.
I concur in Parts II and III of the opinion.