                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 18 2015

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


STEPHEN CHOHRACH; DONNA                          No. 12-16807
CHOHRACH,
                                                 D.C. No. 1:10-cv-02029-DLB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

BANK OF AMERICA NA; BAC HOME
LOANS SERVICING, LP; C&M
MCGEE, INC., DBA Wincester McGee
Financial,

              Defendants - Appellees.


                   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.**




        *
             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.
      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.




                                           2
      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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