132763P.pdf   11/19/2014  Kenneth Wivell  v.  Wells Fargo Bank, N.A.
   U.S. Court of Appeals Case No:  13-2763
   U.S. District Court for the Western District of Missouri - Springfield   
   [PUBLISHED] [Gruender, Author, with Smith and Colloton, Circuit Judges] 
   Civil Case - diversity. Because there was no reasonable basis in fact and 
   law to assert claims against trustee, joinder of trustee as defendant was 
   fraudulent and the district court properly denied the motion to remand for 
   lack of diversity jurisdiction. Dismissal of claims against trustee, as a 
   fraudulently-joined defendant, should have been without prejudice for lack 
   of subject matter jurisdiction under Rule 12(b)(1), and judgment should be 
   so modified. Dismissal of claims against Wells Fargo were proper. Missouri 
   would not extend lulling theory to a situation where deed of trust 
   prohibits oral agreements. Fraudulent misrepresentation claims were not 
   plead with sufficient particularity and reliance on oral representations 
   was unreasonable. In light of Missouri Supreme Court decisions, denial of 
   claims of violations of MMPA are vacated and remanded for further 
   proceedings. Negligence and negligent misrepresentation claims fail. 
  
132763P.pdf   06/25/2014  Kenneth Wivell  v.  Wells Fargo Bank, N.A.
   U.S. Court of Appeals Case No:  13-2763
   U.S. District Court for the Western District of Missouri - Springfield   
   [PUBLISHED] [Gruender, Author, with Smith and Colloton, Circuit Judges] 
   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.