     14-3533-cv
     Truman Capital Advisors LP v. Nationstar Mortgage, LLC

                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                       SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary
     order filed on or after January 1, 2007, is permitted and is governed by Federal
     Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a
     summary order in a document filed with this court, a party must cite either the
     Federal Appendix or an electronic database (with the notation “summary order”). A
     party citing a summary order must serve a copy of it on any party not represented
     by counsel.

 1   At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 31st day of March, two thousand fifteen.
 4
 5   PRESENT:
 6
 7            CHESTER J. STRAUB
 8            ROBERT D. SACK,
 9            CHRISTOPHER F. DRONEY,
10                               Circuit Judges,
11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
12
13   TRUMAN CAPITAL ADVISORS LP, US BANK, N.A., solely as Legal
14   Title Trustee for the Truman 2012 SC2 Title Trust, and as
15   Participation Agent for the Truman 2012 SC2 Title Trust, TRUMAN
16   2012 SC2 TITLE TRUST
17
18                                 Plaintiffs-Appellants,
19
20                       v.                                           No. 14-3533-cv
21
22   NATIONSTAR MORTGAGE, LLC,
23
24                                 Defendant-Appellee.
25
26   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
27
28   FOR PLAINTIFFS-APPELLANTS:                               ROBERT D. PILIERO
29                                                            Piliero & Associates, PLLC, New York, NY
 1
 2   FOR DEFENDANT-APPELLEE:                  ROSS MORRISON (Matthew Previn, of counsel),
 3                                            BuckleySandler LLP, New York, NY
 4
 5
 6   Appeal from a judgment of the United States District Court for the Southern District of
 7   New York (Buchwald, J.).
 8
 9   UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
10   DECREED that the judgment of the District Court is AFFIRMED.
11
12          Plaintiff-Appellant Truman Capital Advisors LP (“TCA”) is an investment
13   manager for institutional investors. Defendant-Appellee Nationstar Mortgage, LLC
14   (“Nationstar”) is a mortgage servicing company that holds about $100 billion in non-
15   performing mortgages. TCA sued Nationstar, alleging breach of contract and promissory
16   estoppel after TCA participated in an auction conducted by Auction.com to purchase a
17   number of Nationstar’s non-performing residential mortgage loan notes. TCA alleged
18   that it was declared the “Winning Bidder” by Auction.com, but that Nationstar
19   subsequently refused to consummate the sale. Nationstar moved to dismiss the complaint
20   under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing there
21   was no contract between Nationstar and TCA. The district court granted Nationstar’s
22   motion to dismiss, concluding that Nationstar was under no obligation to sell according to
23   the terms of the auction (“Auction Terms”) and thus, no contract had been formed
24   between the parties. The district court also dismissed TCA’s alternative promissory
25   estoppel claim. We assume the parties’ familiarity with the facts and record of prior
26   proceedings, referencing them only as necessary to explain our decision to affirm.
27
28          “We review de novo a district court’s order granting a motion to dismiss under
29   Rule 12(b)(6), ‘accepting as true all allegations in the complaint and drawing all
30   reasonable inferences in favor of the nonmoving party.’” Wilson v. Dantas, 746 F.3d 530,
31   535 (2d Cir. 2014) (quoting Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011)). The
32   complaint must include “enough facts to state a claim to relief that is plausible on its
33   face” in order to survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
34   570 (2007).
35
36           According to the complaint, TCA bid on two pools of mortgage loans notes on
37   Auction.com. TCA alleges that on or about February 21, 2013, “[a]t the conclusion of
38   the [first] auction, Auction.com confirmed in writing that TCA was the winning bidder.”
39   J.A. 22. TCA also alleges that on or about March 6, 2013, “Auction.com confirmed in
40   writing that TCA was the winning bidder” in the second auction of mortgage loan notes.
                                                 2
 1   J.A. 23. TCA alleges that on March 15, 2013, Auction.com notified TCA that Nationstar
 2   would not proceed with the sale.
 3
 4           It is undisputed that TCA and Nationstar never entered into a final agreement to
 5   sell as required by the Auction Terms (“Loan Sale Agreement”). TCA did not allege in
 6   its complaint that Auction.com or Nationstar ever sent a Loan Sale Agreement, which
 7   under the Auction Terms is to “contain the exact terms and conditions of the sale.” J.A.
 8   29, § 3 ¶ 3. Therefore, we only look to the Auction Terms to determine whether a
 9   contract was formed between TCA and Nationstar that obligated Nationstar to complete
10   the sale. See Waller v. Trucks Ins. Exch., Inc., 11 Cal. 4th 1, 18 (1995) (“The rules
11   governing [contract] interpretation require us to look first to the language of the contract
12   in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach
13   to it.”). The Auction Terms explicitly state that “[n]o obligation to sell shall be binding
14   on Seller unless and until a written contract of sale or loan sale agreement is signed and
15   delivered by Seller.” J.A. 32, § 6 ¶ 3. Under this provision, even after Auction.com
16   declared TCA the “Winning Bidder,” Nationstar did not have an obligation to sell the
17   mortgage loan notes until a Loan Sale Agreement was executed. We conclude that
18   because there was no final contract between Nationstar and TCA that compelled
19   Nationstar to complete the sale of the mortgage loan notes, the district court properly
20   dismissed TCA’s complaint for failure to state a claim for breach of contract.
21
22           Finally, TCA’s argument that promissory estoppel precludes Nationstar from
23   refusing to complete the sale also fails. Under California law a claim for promissory
24   estoppel requires “1) a promise clear and unambiguous in its terms, 2) reliance by the
25   party to whom the promise is made, 3) [the] reliance must be both reasonable and
26   foreseeable; and 4) the party asserting estoppel must have been injured by his reliance.”
27   US Ecology, Inc. v. State, 129 Cal. App. 4th 887, 901 (Ct. App. 2005) (alteration in
28   original) (internal quotations omitted). Here, the complaint does not allege there was a
29   clear promise from Nationstar to TCA that it would sell TCA the mortgage loan notes.
30   Thus, the district court properly dismissed TCA’s promissory estoppel claim for failure to
31   state a claim.
32
33                 For the foregoing reasons, we AFFIRM the district court.
34
35                                             FOR THE COURT:
36                                             Catherine O’Hagan Wolfe, Clerk of Court




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