Cruz v. Bank of America CA2/6

Filed 1/6/14 Cruz v. Bank of America CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MICHAEL S. CRUZ et al., 2d Civil No. B247763 (Super. Ct. No. CV110315) Plaintiffs and Appellants, (San Luis Obispo County)

v.

BANK OF AMERICA, N.A. et al.,

Defendants and Respondents.

Michael S. Cruz and Rebecca J. Cruz appeal from an order enforcing a mediation settlement agreement to dismiss their fraud action against Bank of America, N.A., Bank of American Home Loans, BAC Home Loans Servicing, L.P., Reconstruct Company, N.A., Alternative Loan Trust 2005-J11 (erroneously sued as C. Walt, Inc.), and Bank of New York Mellon. (Code Civ. Proc., § 664.6.) Appellants contend that the trial court erred in not rescinding the settlement agreement based on fraud, mistake, or public policy grounds. We affirm. On May 23, 2011, appellants sued respondents for contract and fraud damages after defaulting on a $486,000 deed of trust. The complaint alleged that Bank of America, N.A. (BoA) breached its agreement to suspend the foreclosure sale, accepted mortgage payments, and fraudulently represented that appellants' home loan would be modified. Appellants claimed the foreclosure was based on a "securitized" promissory

note and that respondents "no longer hold legal title to the securitized property" and were conducting a fraudulent foreclosure. On April 19, 2012, the parties entered into a mediated settlement agreement providing that appellants would be paid $10,000 and could remain on the property until August 31, 2012, at which time it would be sold at a trustee's sale. Pursuant to the settlement agreement, the trial court dismissed the action on June 7, 2012, and retained jurisdiction to enforce the settlement terms. (Code Civ. Proc., § 664.6.) On December 27, 2012, respondents filed a motion to enforce the settlement agreement after appellants refused to vacate the property. Appellants filed a cross motion to set aside the settlement agreement on the ground that the mediator and 1 their attorney told them that the trial court had already decided the case against them. Appellants also claimed that respondents breached a duty to advise them that a mortgage modification fraud action (the Mackler Qui tam action) was pending against BoA in New York. The trial court ruled that statements made during mediation are inadmissible. (Evid. Code, § 1119, subd. (a) Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, 358.) It denied the motion to set aside the settlement agreement and granted respondents' motion to enforce the settlement agreement. Appellants were ordered to vacate the premises on or before February 28, 2013. Discussion We review for substantial evidence. (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1166.) As in any substantial evidence case, the order is presumed correct and all intendments and presumptions are indulged to support the judgment on matters on which the record is silent. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)