Wivell, et al v. Wells Fargo Bank, N.A., et al., No. 13-2763 (8th Cir. 2014)
Annotate this CasePlaintiffs appealed from the district court's denial of their motion to remand and its dismissal on the merits of their claims against Wells Fargo and Kozeny. The court concluded that, because plaintiffs did not allege that Kozeny owed a tort duty enumerated in the deed of trust, no reasonable basis in fact and law supported plaintiffs' negligence claim against Kozeny; because there was no reasonable basis in fact and law for either of plaintiffs' negligence and breach of fiduciary claims, it follows that Kozeny was fraudulently joined and that the district court properly denied plaintiffs' motion to remand; the court modified the district court's dismissal of the claims against Kozeny to be without prejudice for lack of subject matter jurisdiction; and because Kozeny - the only nondiverse defendant - was dismissed, the district court properly retained federal diversity jurisdiction over plaintiffs' remaining claims against Wells Fargo. Because plaintiffs failed to state a claim of wrongful foreclosure, fraudulent misrepresentation, violation of the Missouri Merchandising Practices Act, Mo. Rev. Stat. 407.020.1, negligence, or negligent misrepresentation, the district court properly granted Wells Fargo's motion to dismiss.
Court Description: Civil case - Foreclosures. District court did not err in denying plaintiffs' motion to remand to state court as the joinder of defendant Kozeny was fraudulent since there was no basis in law or fact for either of plaintiffs' claims against Kozeny; claims against Kozeny should have been dismissed without prejudice for lack of subject matter jurisdiction, and the district court's dismissal of the claims is so modified; district court did not err in dismissing plaintiffs' claims against defendant Wells Fargo for wrongful foreclosure, fraudulent misrepresentation, violation of the Missouri Merchandising Practices Act, negligence and negligent misrepresentation for failure to state a claim.
The court issued a subsequent related opinion or order on November 19, 2014.
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