IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION COREY J. STRUTTON, on behalf of himself and all others simil...
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION COREY J. STRUTTON, on behalf of himself and all others similarly situated, Plaintiffs, v. MERSCORP HOLDINGS, INC., and MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., Defendants.

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Case No. 12-01149-CV-W-BP

ORDER This case comes before the Court on Defendants’ Motion to Dismiss.

(Doc. 11.)

Defendants move under Fed. R. Civ. P. 12(b)(6) to dismiss Corey J. Strutton’s Complaint with prejudice. Strutton’s Complaint asserts three causes of action based on the 2009 foreclosure sale of his home. As Strutton explains in his Opposition, his allegations raise a narrow issue of law: Here, the principal issue framed by the Complaint is whether, under Chapter 443 of the Missouri statues and common law, … a non-mortgagee such as MERS has a right to foreclose on property. (Pl.’s Opp’n at 2, Doc. 15.) As discussed below, the Court finds that nothing in Missouri law prohibits a mortgagee 1 from employing a non-mortgagee agent to act on its behalf during the foreclosure process. As a result, Strutton’s allegations do not state a violation of Missouri law. Defendants’ Motion will be GRANTED. 1

Black’s Law Dictionary defines “mortgagee” as “One to whom property is mortgaged; the mortgage creditor, or lender.” Black's Law Dictionary (9th ed. 2009); see Roark v. Plaza Sav. Ass'n, 570 S.W.2d 825, 828 (Mo. Ct. App. 1978) (“This court holds the term ‘foreclosing mortgagee’ as used in [Mo. Rev. Stat. §] 443.325 refers to the holder of the debt or obligation under both a mortgage with a power of sale and a deed of trust.”).

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I.

Introduction.

Plaintiff Corey J. Strutton filed this case in Missouri state court against Defendants MERSCORP Holdings, Inc. and Mortgage Electronic Registration System, Inc.’s (collectively, MERS). (Compl., Doc. 23-1. 2) In his Complaint, Strutton alleges MERS “violated Missouri statutes when [it] falsely denominated [itself] – a non-mortgagee – as a party entitled to undertake foreclosures in its own name on residential properties in the State of Missouri.” (Id. ¶ 1.) In this way, Strutton alleges “MERS orchestrated a non-judicial foreclosure sale” of his property. (Id. ¶ 5.) Strutton seeks relief for himself and for a class of similarly-situated persons. (Id. ¶¶ 60-65.) MERS removed the case to federal court. 3 Strutton’s Complaint alleges the following. On April 9, 2008, Strutton purchased a home in Independence, Missouri. (Id. ¶ 14.) Strutton signed a mortgage loan note with lender Housing Solutions, Inc. (Id. ¶ 15.) Strutton alleges this note does not mention MERS, and that MERS has no legal basis for enforcing this note. (Id. ¶¶ 2, 16-24, 35, 39.) Strutton’s note was secured by a deed of trust. (Id. ¶ 25.) This deed designates MERS as its beneficiary. (Id.) Strutton alleges this deed is MERS’s sole source of legal authority over Strutton’s mortgage. (Id. ¶¶ 26-29, 31-32, 34-39.) With respect to MERS, the deed states: Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this [deed of trust]; but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, 2

Page 16 was inadvertently omitted from the initial copy of Strutton’s Complaint that was filed with the Court. (See Compl., Doc. 1-2; Order, Doc. 21; Notice, Doc. 23.) Subsequently, the parties filed a complete copy of his Complaint. (Notice, Doc. 23; Compl., Doc. 23-1.) 3 MERS removed the case based on diversity jurisdiction. (Notice of Removal, Doc. 1.) Strutton is a citizen of Missouri, each Defendant is incorporated in Delaware and has its principal place of business in Virginia, and Strutton alleges wrongful foreclosure of a home mortgage loan totaling $97,230.00. (Id.) Thus, the Court has subject-matter jurisdiction over this case. 28 U.S.C. § 1441; id. § 1132; e.g., Carden v. Arkoma Assocs., 494 U.S. 185, 199-200 (1990) (discussing application of diversity jurisdiction principles to class actions). 2 Case 4:12-cv-01149-BP Document 24 Filed 02/06/13 Page 2 of 13

the right to foreclose and sell [Strutton’s home]; and to take any action required of Lender including, but not limited to, releasing or canceling this [deed of trust]. (Id. ¶ 33. 4) On February 5, 2009, MERS recorded a document entitled “Appointment of Successor Trustee.” (Id. ¶ 30.) This Appointment states that MERS, acting solely as nominee for Flagstar Bank FSB, appoints South & Associates as the deed’s successor trustee. (Id.) Strutton alleges this Appointment is void, because MERS had no right to enforce Strutton’s loan note. (Id. ¶ 31.) Then, on July 21, 2009, MERS recorded a document entitled “Assignment of Deed of Trust.” (Id. ¶ 29.) This Assignment states that MERS assigned the deed over to itself. (Id.) Strutton alleges MERS had no written authority to assign the deed. (Id. ¶¶ 27-29.) Finally, on July 30, 2009, South & Associates conducted a foreclosure sale of Strutton’s home. (Id. ¶¶ 43, 49-51.) Strutton alleges this sale occurred at MERS’s instruction, and that MERS had no right to give this instruction. (Id. ¶¶ 43-44.) Ultimately, MERS purchased Strutton’s home in this sale for $106,961.09. (Id. ¶ 52.) Based on these facts, Strutton alleges MERS “foreclosed the Strutton loan in its own name” and that “the foreclosure sale is void.” (Id. ¶¶ 56, 59.) Strutton alleges MERS had no authority under the deed to appoint South & Associates as successor trustee, and thus South & Associates had no authority to hold the foreclosure sale. (Id. ¶¶ 30-31, 40, 43-44.) As a result, Strutton alleges the foreclosure sale violated the deed and is void, because it was conducted by a non-Trustee (South & Associates) at the instruction of a non-mortgagee (MERS). (Id. ¶¶ 53-54; see generally id. ¶¶ 40-54.) 4

Black’s Law Dictionary defends a “nominee” as “A person designated to act in place of another, usu. in a very limited way[,]” and as “A party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.” See also In re Tucker, 441 B.R. 638, 645 (Bankr. W.D. Mo. 2010) (finding that MERS was an agent, even though deed of trust used term “nominee”). 3 Case 4:12-cv-01149-BP Document 24 Filed 02/06/13 Page 3 of 13

Strutton asserts three causes of action against MERS.

Count One is for wrongful

foreclosure. (Id. ¶¶ 66-76.) Strutton alleges that because MERS could not enforce Strutton’s note and could not appoint South & Associates as Successor Trustee, the resulting foreclosure sale did not comply with the deed of trust and is void. (Id. ¶¶ 71-74.) Count Two is to quiet title. (Id. ¶¶ 77-84.) Strutton alleges that because the foreclosure sale was void and did not pass title, he has a superior interest in the property. (Id. ¶¶ 78, 82.) Count Three is for violation of the Missouri Merchandising Practices Act (MMPA), Mo. Rev. Stat. § 407.020.1. (Id. ¶¶ 85-99.) Strutton alleges that MERS concealed material facts concerning its inability to transfer interests in land and to enforce Strutton’s loan note, the identity of the true mortgagee and of the real party-in-interest, and the void appointment of South & Associates. (Id. ¶¶ 87, 90, 93, 97.) MERS moves to dismiss each of these claims with prejudice. II.

Standard of Review.

A party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In reviewing the motion, the court accepts as true the complaint’s factual allegations, and it draws all inferences from them in favor of the non-moving party. Id. In contrast, a court may disregard a complaint’s allegations that contain mere legal conclusions. Id. Generally, a court must resolve a Rule 12(b)(6) motion based on the pleadings alone. Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012); Fed. R. Civ. P.

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12(d). However, a court may also consider “materials that are necessarily embraced by the pleadings.” Redwood Toxicology, 688 F.3d at 931. In the Complaint, Strutton quotes from three documents: the deed of trust; the Appointment of Successor Trustee; and the Assignment of Deed of Trust. (Compl. ¶¶ 25, 29-30, 33.) Strutton’s Complaint necessarily embraces these documents, and thus the Court will consider them here. However, Strutton did not quote from the mortgage loan note. Therefore, the Court excludes this document from consideration. III.

Discussion.

Missouri law governs Strutton’s three state law causes of action. Walker v. Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011). When applying Missouri law, the Court is bound by Missouri Supreme Court decisions regarding issues of substantive law. Id. “If the Missouri Supreme Court has not spoken on an issue, [the Court] may consider opinions from the Missouri Court of Appeals as particularly relevant and must follow them when those opinions provide the best evidence of Missouri law.” Id. (quotations omitted). As an initial matter, the Court finds that many of Strutton’s allegations do not concern facts, but instead present mere legal conclusions. (E.g., Compl. ¶¶ 21-23, 36-39, 44, 47-48, 5354, 56.) Those legal conclusions are not well-pleaded factual allegations, and the Court will disregard them here. Gallagher, 699 F.3d at 1016. a.

Wrongful Foreclosure.

In Count One, Strutton alleges MERS is liable for wrongful foreclosure.

Strutton

contends that under Missouri law, a mortgagee itself is the exclusive party entitled to foreclose on a property, and so a mortgagee cannot employ a non-mortgagee to act on its behalf. Because MERS was not a mortgagee of Strutton’s note, Strutton alleges its involvement in the foreclosure process was unlawful. Therefore, he alleges that MERS could not lawfully participate in the

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foreclosure process, regardless of whether it was acting as an agent or nominee on behalf of another party. (See Compl. ¶¶ 1-5, 23, 56-58; Opp’n at 1-7, 9-10, 12-13.) Strutton makes this argument by citing Missouri statutes and case law. First, Strutton cites Mo. Rev. Stat. § 443.290. This statute does not support Strutton’s position. Section 443.290 provides that if a mortgagee exercises a mortgage’s power of sale provision, the resulting sale “shall be valid and binding by the laws of this state[.]” This statute establishes “extrajudicial foreclosure” in Missouri, and it ensures that a “power of sale and sales made pursuant thereto would be valid and binding.” Fed. Nat. Mortg. Ass'n v. Howlett, 521 S.W.2d 428, 431 (Mo. 1975). This statute does not provide that only a mortgagee itself may foreclose. Strutton also cites Williams v. Kimes, 996 S.W.2d 43 (Mo. 1999). In Williams, the Missouri Supreme Court stated that a foreclosure sale is void “where the foreclosing party does not hold title to the secured note[.]” Williams v. Kimes, 996 S.W.2d 43, 45 (Mo. 1999). In support, Williams cited Graham v. Oliver and Cobe v. Lovan. Id. at 45 n.6. None of these cases support Strutton’s position. Williams concerned whether a foreclosure sale was void because certain parties did not receive actual notice of it. Id. at 44. Graham concerned whether a foreclosure sale conveyed title to a certain parcel of land, when that parcel was omitted from the published notice of sale. Graham v. Oliver, 659 S.W.2d 601, 602 (Mo. Ct. App. 1983). Cobe concerned whether a company’s foreclosure sale of land was void, when the company claimed an interest in the land based on an improper and unauthorized transfer from a business association. Cobe v. Lovan, 92 S.W. 93, 96-97 (Mo. 1906). None of these cases holds that address only a mortgagee itself may foreclose. Contrary to Strutton’s argument, Missouri law permits a mortgagee to employ an agent to act on its behalf. First, Missouri’s foreclosure statute speaks of a foreclosure sale “made by such

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mortgagee, secured party or his personal representatives[.]” Mo. Rev. Stat. § 443.290. 5 On its face, this statute permits someone other than the mortgagee himself to foreclose. A recent Missouri decision supports this conclusion. Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619 (Mo. Ct. App. 2009). In Bellistri, the court wrote: Generally, a mortgage loan consists of a promissory note and security instrument, usually a mortgage or a deed of trust, which secures payment on the note by giving the lender the ability to foreclose on the property. Typically, the same person holds both the note and the deed of trust. In the event that the note and the deed of trust are split, the note, as a practical matter becomes unsecured. … The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. Id. at 623 (internal citations omitted). The Bellistri court specifically discussed an agent holding a deed of trust on behalf of a mortgagee. A plain reading of this passage shows that Missouri law permits a mortgagee to act through an agent. Indeed, another court reviewing this passage concluded that “one who holds rights under a deed of trust may appoint an agent to exercise some or all of those rights on its behalf.” In re Tucker, 441 B.R. 638, 645 (Bankr. W.D. Mo. 2010). In light of this authority, the Court finds that Missouri law permits a mortgagee to employ a non-mortgagee agent to act on its behalf during the foreclosure process. Strutton resists this conclusion by citing contrary authority from other jurisdictions. Of course, this authority is not controlling here, because Missouri law governs this case. Walker v. Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011).

However, Strutton’s authority is also

distinguishable for other reasons. For instance, the Washington Supreme Court has held that

5

The Missouri statutes do not define “personal representative.” See Mo. Rev. Stat. § 443.703 (definitions). Black’s Law Dictionary defines the term as “A person who manages the legal affairs of another because of incapacity or death, such as the executor of an estate.” Black’s Law Dictionary defines the broader term “representative” as “One who stands for or acts on behalf of another.” 7 Case 4:12-cv-01149-BP Document 24 Filed 02/06/13 Page 7 of 13

where MERS never held the loan note secured by the mortgage deed, it is not a lawful beneficiary under the Washington Deed of Trust Act. Bain v. Metro. Mortg. Group, Inc., 285 P.3d 34, 47 (Wash. 2012) (interpreting Wash. Rev. Code Ann. § 61.24.005.2). Bain decided an issue of Washington state statutory law. Id. at 41-42. Washington’s statutes do not control here, and Missouri’s statutes are not analogous. Thus, Bain is not persuasive authority. Similarly, the Maine Supreme Court has held that MERS does not have standing to initiate judicial foreclosure proceedings in the Maine courts. Mortgage Elec. Registration Sys., Inc. v. Saunders, 2 A.3d 289, 292, 297 (Me. 2010). Maine is a judicial foreclosure state. Id. at 292, 296-97; Me. Rev. Stat. tit. 14, §§ 6321-6325. In contrast, Missouri is a non-judicial foreclosure state. Fed. Nat. Mortg. Ass'n v. Howlett, 521 S.W.2d 428, 431-32 (Mo. 1975). Saunders is not persuasive here. Applying Missouri law to this case, the Court finds that MERS was acting as an agent on a mortgagee’s behalf. Missouri follows traditional agency law principles. See, e.g., State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. 2002). Put simply, an agent is “a person authorized by another to act for him, one intrusted with another's business.” State ex rel. Elson v. Koehr, 856 S.W.2d 57, 60 (Mo. 1993) (quotations omitted). When an agent acts within the authority a principal confers on him, the agent acts for the principal and can alter the principal’s legal relations. Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. 2008). Here, the Strutton deed of trust states: Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this [deed of trust]; but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell [Strutton’s home]; and to take any action required of Lender including, but not limited to, releasing or canceling this [deed of trust]. (Deed of Trust at 2, Defs.’ Mot. Ex. B, Doc. 11-2; see also Compl. ¶ 33.) Others courts have reviewed this same language and concluded that it creates an agency relationship between MERS 8 Case 4:12-cv-01149-BP Document 24 Filed 02/06/13 Page 8 of 13

and the mortgagee. In re Tucker, 441 B.R. at 645); Kulovic v. BAC Home Loans Servicing, L.P., No. 4:10-CV-2058 CAS, 2011 WL 1483374 at *6 (E.D. Mo. Apr. 19, 2011). Furthermore, the Appointment and Assignment are additional evidence that MERS acted as an agent for a mortgagee. In the Appointment, MERS, acting “solely as nominee for Flagstar Bank, FSB[,]” removed the deed’s initial trustee and appointed South & Associates as its successor. (Appointment at 2, Mot. Ex. C, Doc. 11-3.) In the Assignment, MERS, again acting “as nominee for Housing Solutions, Inc,” transferred the deed of trust over to MERS, “solely as nomine for Flagstar Bank, FSB.” (Assignment at 1, Mot. Ex. D, Doc. 11-4.) Next, the Court finds that the scope of MERS’s authority was broad. Under the deed of trust, the mortgagee is entitled to foreclose on Strutton’s property, and to appoint a successor trustee. (Deed of Trust at 6 ¶¶ 18, 20.) The deed of trust also states that MERS has the right “to exercise any or all of [the Lender’s] interests, including, but not limited to, the right to foreclose and sell [Strutton’s home]; and to take any action required of Lender[.] (Deed of Trust at 2.) The Court finds that this language granted MERS broad authority to act on the Lender’s behalf. See In re Tucker, 441 B.R. at 645; Kulovic, 2011 WL 1483374 at *6; Mortg. Elec. Registration Sys., Inc. v. Bellistri, No. 4:09–CV–731 CAS, 2010 WL 2720802, at *14 (E.D.Mo. July 1, 2010.) Finally, each of the actions Strutton alleges is unlawful – that is, recording the Assignment, recording the Appointment, and instructing South & Associates to foreclose – fall within MERS’s broad authority. Therefore, in taking these actions MERS was acting as the mortgagee’s agent. Because nothing in Missouri law prohibits a mortgagee from employing an agent to act on its behalf during the foreclosure process, MERS’s actions were not unlawful. In conclusion, the Court has been mindful that it is resolving a Rule 12(b)(6) motion to dismiss. Thus, the Court has accepted Strutton’s factual allegations as true, and it has drawn all

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inferences from them in his favor. Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655, 660 (8th Cir. 2012). Even so, after reviewing the pleadings and the materials they embrace, the Court finds that these allegations do not state a violation of Missouri law. Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 769 (8th Cir. 2012) (courts may review documents incorporated into the pleadings “for all purposes, including to determine whether a plaintiff has stated a plausible claim.”). Accordingly, Count One will be dismissed. b.

Action to Quiet Title.

Count Two is an action to quiet title. In it, Strutton alleges MER’s interest in his home arises from a void foreclosure sale, so that he holds a superior interest in the property. As discussed above, the Court finds MERS’s actions did not violate Missouri law. Strutton’s action to quiet title fails to state a plausible claim for relief, and Count Two will be dismissed. c.

Violation of the MMPA.

In Count Three, Strutton alleges MERS violated the MMPA during the foreclosure process by concealing its inability to transfer interests in land and to enforce Strutton’s loan note. (Compl. ¶¶ 87, 90, 93, 97; see also Opp’n at 16-17.) Under the MMPA’s broad language, it is unlawful to use deception or to conceal material facts “in connection with the sale or advertisement of any merchandise[.]” Mo. Ann. Stat. § 407.020.1; see Ports Petro. Co., Inc. of Ohio v. Nixon, 37 S.W.3d 237, 240 (Mo. 2001) (“For better or worse, the literal words cover every practice imaginable and every unfairness to whatever degree.”). If a practice is unlawful under this section, then it violates the MMPA regardless of “whether committed before, during or after” the sale or advertisement. Mo. Ann. Stat. § 407.020.1. Under the statutory language discussed above, an MMPA claim must be based on either a sale or an advertisement. Id. Strutton’s MMPA allegations concern actions MERS took during

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the foreclosure process.

These actions cannot be understood as either a “sale” or an

“advertisement” within meaning of the MMPA.

See id. § 407.010 (statutory definitions).

Instead, the only “sale” or “advertisement” at issue here is Strutton’s initial purchase of the home.

(Compl. ¶ 14.)

Therefore, the Court will analyze Strutton’s claim based on this

transaction. MERS argues that Strutton’s MMPA claim fails, because MERS’s actions during the foreclosure process did not occur “in connection with” his initial property purchase. Two authorities guide the Court’s analysis of this point. The first is State ex rel. Koster v. Prof'l Debt Mgmt., LLC, 351 S.W.3d 668 (Mo. Ct. App. 2011). In Koster, the plaintiff alleged a debt collector violated the MMPA when it attempted to collect debt arising from an earlier consumer transaction. Id. at 670. The issue for the court was “whether the broad reach of the [MMPA] extends to unfair or deceptive debt collection activities that are alleged to have occurred after the initial sale of merchandise, and by a third-party debt collector who was not a party to the original consumer transaction.” Id. at 671. The court found that unlike other language within the MMPA, the phrase “in connection with” had not been given a broad interpretation. Id. at 672. Thus, the court interpreted this phrase as requiring a “relationship in fact” between the allegedly unlawful acts and the initial transaction.

Id.

Because the plaintiff’s petition alleged “no

deception or unfair practice made to the consumer at or prior to the initial sales transaction between the consumer and the seller” – and instead targeted only the third-party’s subsequent debt collection practices – the court found that there was no relationship-in-fact between the initial transaction and the third party’s subsequent actions. Id. at 675. Therefore, the court held that the plaintiff’s allegations did not violate the MMPA. Id. at 673, 675.

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The second authority is Hess v. Wells Fargo Home Mortg., Case No. 4:12CV22 TIA, 2012 WL 872752 (E.D. Mo. Mar. 14, 2012). Hess concerned a home mortgage foreclosure, and it is highly analogous to the instant case.

Id. at *1.

In Hess, the plaintiffs alleged “the

Defendants violated the MMPA by representing that the Deed of Trust was properly transferred.” Id. at *4. Relying upon Koster, the court held that “[t]hese purported actions occurred after the sale of the home and do not demonstrate a relationship between the alleged unfair practice or deception and the initial sale of the property.” Id. (emphasis removed). Following these authorities, the Court concludes that Strutton’s MMPA claim fails as a matter of law. MERS was not a party to Strutton’s initial home purchase, and his Complaint does not allege MERS acted unlawfully during that initial transaction. Instead, Strutton alleges MERS acted unlawfully during the subsequent foreclosure process, which occurred many months later. The Court finds there is no “relationship in fact” between Strutton’s initial home purchase and MERS’s subsequent practices, and so his allegations target actions that did not occur “in connection with” the initial sale transaction. Accordingly, Strutton’s MMPA claim does not state a violation of Missouri law, and Count Three will be dismissed.

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IV.

Conclusion.

As discussed above, the Court finds that nothing in Missouri law prohibits a mortgagee from employing a non-mortgagee agent to act on its behalf during the foreclosure process. As a result, Counts One and Two do not state violations of Missouri foreclosure law. In addition, Strutton’s allegations concern actions that did not occur “in connection with” his initial purchase of his home. Therefore, Count Three does not state a violation of the MMPA. Accordingly, it is hereby ORDERD that Defendants’ Motion to Dismiss, (Doc. 11), is GRANTED. Strutton’s Complaint is DISMISSED WITH PREJUDICE. IT IS SO ORDERED. /s/ Beth Phillips BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT DATE: February 6, 2013

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