United States District Court, N.D. California
ORDER GRANTING RTR'S MOTION TO DISMISS RE: DKT.
PHYLLIS J. HAMILTON United States District Judge.
the court is defendant Real Time Resolutions, Inc.'s
motion to dismiss plaintiff's first amended complaint.
The matter is briefed and suitable for decision without oral
argument. Accordingly, the hearing set for April 12, 2017 is
VACATED. Having read the parties' papers and carefully
considered their arguments and the relevant legal authority,
and good cause appearing, the court hereby GRANTS the motion,
for the following reasons.
The October 27, 2016 Dismissal Order
case centers on former plaintiff Nathaniel Sobayo's
efforts to purchase the property located at 329 Hawk Ridge
Drive, Richmond, CA 94806 (the “Property”) from
Martin Musonge via a short sale. The original complaint
asserted three causes of action-breach of contract,
promissory estoppel, and fraud-relying primarily on a
February 11, 2015 letter from defendant Bank of America, N.A.
(“BANA”) to Musonge, approving a short sale. Dkt.
1-1 Ex. A (the “Letter” or “February 11
Letter”). BANA, Caliber Home Loans, Inc.
(“Caliber”), Summit Management Company, LLC
(“Summit”), and Real Time Resolutions, Inc.
(“RTR”) were named as defendants.
order dated October 27, 2016, the court granted RTR's and
BANA's motions to dismiss the original complaint. Dkt.
88. The court held that Sobayo did not have standing to
pursue the claims pro se on behalf of Kingsway Capital
Partners, LLC (“Kingsway”). Id. at 8. In
addition, the court dismissed the complaint on the merits for
failure to state a claim, with leave to amend. Id.
at 8-9. The court instructed the plaintiff as follows
First, any amended complaint must be brought on behalf of
Kingsway Capital Partners, LLC. Kingsway must be represented
by legal counsel, who shall enter an appearance on the
Second, to the extent that Kingsway wishes to rely on the
Letter as the operative contract/promise, it must allege
specific facts that explain why the April 10, 2015 deadline
was inapplicable and/or had been extended by the defendants.
A similar explanation must be made with regard to the fact
that the purchase price in the contract between Kingsway and
Musonge is lower than that approved in the Letter. To the
extent that Kingsway wishes to rely on other short sale
approvals by defendants, those facts must be pled in the
Third, to the extent that Kingsway seeks to assert claims
against RTR, Caliber, and Summit, it must allege a contract,
promise, or misrepresentation made by these
defendants. As pled, the complaint focuses on
representations made by [BANA] to Musonge in the Letter. Even
presuming that Kingsway can claim to be a third party
beneficiary to the Letter, it is not clear to the court why
RTR, Caliber, or Summit would be bound by the representations
in the Letter. Any amended complaint shall make clear what
specific contracts/promises/representations were made by
each defendant, or why each defendant is bound by
the contracts/promises/representations of another defendant.
It is not sufficient to treat all of the defendants as an
Fourth, to the extent Kingsway seeks to rely on the theory
that defendants failed to notify it regarding the transfer of
servicing of Musonge's loans, Kingsway must explain why
any defendant had a duty to notify Kingsway about the
transfer of servicing. . . .
Finally, no new causes of action may be asserted in the
Dkt. 88 at 9-10.
Sobayo secured counsel, substituted Kingsway as plaintiff,
and filed the first amended complaint (“FAC”) on
December 22, 2016. Dkt. 96.
The Allegations in ...