Hutsler stands for the proposition that a significant lapse of time between (1) advertising and sale of merchandise and (2) an alleged unfair practice will make it difficult for a plaintiff to satisfy the statutory requirement that latter be “in connection with” the former.

In 2001, plaintiffs refinanced their home with Wells Fargo.

Eleven years passed.

In 2012, due to financial difficulty, plaintiffs couldn’t make their payments.  Well Fargo foreclosed on plaintiffs’ home.

Plaintiffs sued, claiming that Wells Fargo violated the MMPA “in connection with the sale of the property and/or mortgage loan” based on the way Wells Fargo handled the 2012 foreclosure (e.g., failing to provide plaintiffs with loss mitigation opportunities, foreclosing on plaintiffs’ home without explanation as to why they did not qualify for mortgage assistance; and making plaintiffs wait before answering their telephone calls, and transferring plaintiffs’ calls).

Wells Fargo moved to dismiss the MMPA claim, arguing that actions occurring years after the initial sales transaction (i.e. the 2012 foreclosure) cannot be considered “in connection with” the initial sale (i.e. the 2001 refinancing).

The Court agreed and found that any actionable conduct during the foreclosure process in 2012 was not “in connection with” the sale or advertisement of the refinancing of plaintiffs’ loan in 2001.  The Court highlighted the statutory requirement that an unfair trade practice must be made “in connection with the sale or advertisement of any merchandise” to violate the MMPA, and that in prior cases, the Court has been “unwilling to stretch the ‘in connection with’ language of the MMPA to include events occurring years after the initial sale.”  Hutsler v. Wells Fargo Home Mortgage, Inc., 2013 WL 5442559, at *3 (E.D. Mo. Sept. 30, 2013).

So, if the alleged unfair practice occurs long after the initial sale or advertisement, an MMPA claim probably won’t fly . . .

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