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Kingsway Capital Partners LLC v. Caliber Home Loans Inc.

United States District Court, N.D. California

March 30, 2017

KINGSWAY CAPITAL PARTNERS, LLC, Plaintiff,
v.
CALIBER HOME LOANS, INC., et al., Defendants.

          ORDER GRANTING RTR'S MOTION TO DISMISS RE: DKT. NO. 108

          PHYLLIS J. HAMILTON United States District Judge.

         Before 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.

         BACKGROUND

         A. The October 27, 2016 Dismissal Order

         This 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.

         In an 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 regarding amendment:

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 docket.
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 complaint.
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 undifferentiated group.
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 amended complaint.

Dkt. 88 at 9-10.

         Subsequently, Sobayo secured counsel, substituted Kingsway as plaintiff, and filed the first amended complaint (“FAC”) on December 22, 2016. Dkt. 96.

         B. The Allegations in ...


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