Stephen Chohrach; Donna Chohrach v. Bank of America Na

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN CHOHRACH; DONNA
CHOHRACH,
Plaintiffs - Appellants,
v.
BANK OF AMERICA NA; BAC HOME
LOANS SERVICING, LP; C&M
MCGEE, INC., DBA Wincester McGee
Financial,
Defendants - Appellees.
No. 12-16807
D.C. No. 1:10-cv-02029-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Argued and Submitted November 18, 2014
San Francisco, California
Before: BERZON and RAWLINSON, Circuit Judges, and LYNN, District Judge. **
FILED
FEB 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Barbara M. G. Lynn, District Judge for the United
States District Court for the Northern District of Texas, sitting by designation.

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Stephen and Donna Chohrach (Chohrachs) appeal the district court’s orders
granting summary judgment in favor of defendants Bank of America, N.A.; BAC
Home Loans Servicing, LP; and C&M McGee, Inc. (collectively BOA). The
Chohrachs contend that genuine issues of material fact existed regarding the
applicable statutes of limitations and BOA’s negligent and fraudulent
misrepresentations.
California law provides that a fraud claim is subject to a three-year statute
of limitations, which starts to run when the plaintiff discovers the facts constituting
the fraud. See Cal. Code of Civ. Proc. § 338(d). A two-year statute of limitations
is provided for a negligence claim, which also starts to run when the plaintiff
discovers the loss or damage. See Cal. Code of Civ. Proc. § 339(1). It is
undisputed that “within a couple of days” after December 2, 2006, the Chohrachs
discovered that the loan they received was not the loan they anticipated. They
acknowledge that they discovered the facts underlying the alleged wrong before
December 6, 2006, when they signed the Notice of Right to Cancel, and so before
the permitted three-day period for cancellation had run. Yet, they did not file suit
until September, 2010, over three years later. Thus, the bulk of the Chohrachs’
claims were barred by the applicable statutes of limitations.
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The only statements made within the limitations period–that the Chohrachs
could refinance at anytime, and that, therefore, the loan they received was
functionally the same as the one for which they had applied–could be interpreted in
one of two ways. Either the statements were a prediction, in which case they are
not actionable and reliance upon them was unreasonable, see, e.g., Cansino v. Bank
of America, 224 Cal. App. 4th 1462, 1469-70 (2014), or the statements were a
promise, in which case summary judgment was proper because there was a lack of
evidence that the defendants had no intention to perform when the promise was
made. See Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n,
55 Cal. 4th 1169, 1183 (2013). Under either interpretation, the claim fails.
AFFIRMED.
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