Case: 4:20-cv-00302-MTS Doc. #: 43 Filed: 09/16/20 Page: 1 of 19 PageID #: 417
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`Case No. 4:20-CV-302
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`IN RE THE JOYCE C. DALTON TRUST
`________________________________________ )
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`DAVID P. OETTING, Trustee,
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`Plaintiff,
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`v.
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`WELLS FARGO BANK, N.A.,
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`Former Co-Trustee,
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`Defendant.
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`AMENDED COMPLAINT
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`COMES NOW plaintiff David P. Oetting, as Trustee of the Joyce C. Dalton Trust (the
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`“Trust”), and for his Amended Complaint against defendant and former co-trustee Wells Fargo
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`Bank, N.A. (“Wells Fargo”)1 brings the following claims as successor trustee to recover funds of
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`the Trust that were wrongly disbursed by the former co-trustee Wells Fargo, without Mr. Oetting’s
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`knowledge, and to recover attorney fees from Wells Fargo for litigation that Wells Fargo
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`wrongfully commenced and then abruptly terminated relating to the Trust. In further support of
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`this Amended Petition, Mr. Oetting states:
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`1
`Wells Fargo is the successor of A.G. Edwards Trust Company, the original corporate
`Trustee of the Trust. In October 2007, Wachovia acquired A.G. Edwards and succeeded as
`corporate co-trustee. In December 2008, Wells Fargo became the corporate Trustee of the Trust
`when Wells Fargo acquired Wachovia. For simplicity, this Amended Petition uses “Wells Fargo”
`to refer to Wells Fargo Bank, N.A. as well as its predecessor corporate trustees.
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`Also, since Mr. Oetting originally filed this case in state court, his initial pleading was denominated
`a “Petition.” Mr. Oetting now uses the term “Complaint” to reflect that this case is now pending
`in federal court.
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`1
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`Facts Giving Rise to All Claims
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`A. The Joyce Dalton Revocable Trust
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`1.
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`2.
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`In or about 1988, Joyce Dalton created a Revocable Living Trust (the “Trust”).
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`On January 19, 1998, Joyce Dalton executed a “Total Restatement of Revocable
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`Trust Agreement” that restated the terms of the Trust. The January 1998 Total Restatement is
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`attached as Exhibit A to the Petition and incorporated herein by reference.
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`3.
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`On or about May 11, 1998; June 19, 1998; and July 2, 1998, Joyce Dalton amended
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`the Trust instrument as restated in January 1998. True and complete copies of the May 1998, June
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`1998, and July 1998 amendments are attached hereto as Exhibits B, C, and D respectively, and are
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`incorporated herein by reference (collectively as restate and amended, the “Trust”).
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`4.
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`The primary beneficiary of the Trust is Andrea B. Dalton (“Andrea”), the
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`incapacitated adult daughter of Joyce C. Dalton.
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`5.
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`Joyce Dalton died in 1998. Upon Joyce Dalton’s death, the Trust became
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`irrevocable.
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`6.
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`The Trust instrument named attorney and plaintiff David P. Oetting and defendant
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`Wells Fargo as co-successor trustees of the Trust, upon the death or incapacity of Joyce Dalton.
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`7.
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`After Joyce Dalton died in 1998, Mr. Oetting and Wells Fargo served as co-trustees
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`of the Trust until Wells Fargo resigned as trustee effective January 1, 2018.
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`8.
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`Mr. Oetting currently serves as the sole trustee of the Trust.
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`B. David Oetting challenges Wells Fargo for its handling of Trust assets.
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`9.
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`In or about 2014, Mr. Oetting’s then-co-trustee Wells Fargo was paying expenses
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`for Andrea, including for Andrea’s housing, board and medical care at Emmaus Home. Mr. Oetting
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`disputed Wells Fargo’s payment of these expenses, concerned Wells Fargo’s payments would
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`2
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`interfere with Andrea qualifying for government benefits and thus unnecessarily dissipate Trust
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`assets.
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`10. Mr. Oetting also became concerned whether Wells Fargo and/or Emmaus Homes
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`had taken or were taking appropriate steps to ensure Andrea received all government assistance
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`for which she qualified.
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`11.
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`In or about 2014, Emmaus Homes also advised Mr. Oetting and Wells Fargo that it
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`intended to move Andrea to a new facility. This move would significantly increase expenses that
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`would be deducted from the Trust to pay for Andrea’s care and living arrangements.
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`12.
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`Based upon the foregoing developments, Mr. Oetting repeatedly asked Wells Fargo
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`for information regarding management of Trust assets.
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`13. Wells Fargo provided some information including monthly statements regarding
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`investments and information regarding invoices from and payments to Emmaus Homes. But Mr.
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`Oetting did not receive adequate information from Wells Fargo regarding efforts to qualify Andrea
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`for government assistance, such as Social Security Disability and Medicaid payments.
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`14. Mr. Oetting also repeatedly requested that Wells Fargo produce materials relating
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`to the internal and external investigation by various government agencies (reported in the business
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`media) regarding a variety of malfeasance and fraud that allegedly were committed by Wells
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`Fargo, including how such fraud and related investigations might impact Wells Fargo’s service as
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`trustee. Mr. Oetting’s requests for such information include written requests on January 17, 2018,
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`January 22, 2018 and January 25, 2018, which are attached as Exhibit E and incorporated herein
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`by reference.
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`3
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`15.
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`Other than the documentation directly related to the Trust administration, Wells
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`Fargo continually failed and refused to provide Mr. Oetting with the information that he has
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`requested relating to the investigations.
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`C. Wells Fargo resigns as trustee, leaving Mr. Oetting as sole trustee of
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`the Trust.
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`16.
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`On or about November 9, 2017, Wells Fargo provided notice that it intended to
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`resign as co-trustee of the Trust.
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`17.
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`By subsequent notice, Wells Fargo extended its resignation date to December 31,
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`2017, but did not remedy the error in its attempted resignation.
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`18.
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`On or about December 22, 2017, Wells Fargo sent a letter to Request for Delivery
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`Instructions of Trust Assets indicating its resignation from the Trust would now be effective on
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`January 1, 2018.
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`19.
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`Since January 1, 2018, Mr. Oetting has served as sole Trustee of the Trust.
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`D. Wells Fargo’s Lawsuit Seeking Judicial Approval of Accounts.
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`20.
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`On or about January 30, 2018, Wells Fargo filed a Petition for Judicial Approval of
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`the Trustee Accounts in this Court as Cause No. 18SL-PR00274 (hereinafter the “Wells Fargo
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`Lawsuit”). A copy of Wells Fargo’s Petition without exhibits is attached hereto as Exhibit F and
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`is incorporated herein by reference.
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`21.
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`In the Wells Fargo Lawsuit, Wells Fargo named as parties itself; Mr. Oetting in his
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`capacity as trustee of the Trust; Andrea in her capacity as primary beneficiary of the Trust; Colleen
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`and David Barringer in their capacity as co-guardians of Andrea B. Dalton; and Arthur Rex Dalton,
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`Jr. and Tresa Dalton, in their capacity as living beneficiaries of the Trust.
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`4
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`22. Wells Fargo did not consult with or obtain permission from Mr. Oetting in his
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`capacity as trustee – and as Wells Fargo’s former co-trustee – prior to filing the Wells Fargo
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`Petition.
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`23.
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`At the time it filed its lawsuit, Wells Fargo was undergoing an independent
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`investigation of its wealth-management business at the direction of the United States Department
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`of Justice.
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`24.
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`At no time prior to, during or after Wells Fargo’s filing of the Wells Fargo Lawsuit
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`did Wells Fargo disclose to the Court the existence of or any information regarding the U.S.
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`Department of Justice’s investigation of Wells Fargo’s wealth-management business.
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`25.
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`In the Wells Fargo Lawsuit, Wells Fargo admitted that Wells Fargo was no longer
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`the co-trustee of the Trust. Wells Fargo also affirmatively alleged that it “asserts no claim for relief
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`against Mr. Oetting” or any of the other defendants. See Petition Exhibit F at 2-3.
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`26.
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`On May 1, 2018, Wells Fargo filed a Motion for Leave to File a First Amended
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`Petition.
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`27.
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`On May 10, 2018, Wells Fargo by consent set its Motion for Leave to File a First
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`Amended Petition for hearing on May 17, 2018.
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`28.
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`On or about March 14, 2018, Mr. Oetting filed a Motion to Collect Trust Property
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`against Wells Fargo in the Wells Fargo Lawsuit, seeking to collect certain property and records of
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`the Trust from Wells Fargo. A true and complete copy of Mr. Oetting’s Motion to Collect Trust
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`Property without exhibits is attached to the Petition as Exhibit G and is incorporated herein by
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`reference. Mr. Oetting anticipated that, by agreement, his Motion to Collect Trust Property would
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`also be heard on May 17, 2018.
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`5
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`29.
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`On May 15, 2018, Wells Fargo filed its opposition memorandum to Oetting’s
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`Motion to Collect Trust Property.
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`30.
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`The next day, May 16, 2018 – the day before the scheduled hearing on May 17,
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`2018 – Wells Fargo voluntarily dismissed its Petition in the Wells Fargo Lawsuit without
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`prejudice, without providing Mr. Oetting of any advance notice of this filing.
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`31. Wells Fargo’s dismissal of its Petition in the Wells Fargo Lawsuit prevented Mr.
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`Oetting from being heard on his Motion to Collect Trust Property, as well as on his effort to recover
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`fees that Mr. Oetting and other parties had incurred due to Wells Fargo’s Lawsuit.
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`32. Mr. Oetting therefore brings this lawsuit to obtain any property and records relating
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`to operation of the Trust that remain in the sole possession of Wells Fargo.
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`33. Mr. Oetting also brings this lawsuit to recover funds that were disbursed because
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`(a) Wells Fargo as trustee failed to take reasonable steps to qualify Andrea for government
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`assistance, causing the Trust to unnecessarily dispense and waste as much as $800,000 in Trust
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`assets; and (b) failed to provide Mr. Oetting with adequate information regarding Andrea’s
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`government assistance for him to address or remedy Wells Fargo’s failure.
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`34. Mr. Oetting has the authority to bring this lawsuit under Missouri Revised Statute
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`456.10-1001 to remedy a breach of trust that has occurred.
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`Parties, Jurisdiction, and
`Venue
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`This lawsuit concerns the operation of the Trust created by Joyce C. Dalton. The
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`35.
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`principal place of administration of the Trust is in St. Louis County, Missouri.
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`36. Ms. Dalton’s 1998 death rendered the Trust irrevocable and caused plaintiff David
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`Oetting and defendant Wells Fargo to become the co-trustees of the Trust.
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`6
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`37.
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`Plaintiff David P. Oetting is an attorney licensed in Missouri who resides and works
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`in St. Louis County, Missouri.
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`38.
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`Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) is a national bank whose main
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`office is located in Sioux Falls, South Dakota.
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`39. Wells Fargo is a subsidiary of Wells Fargo & Company, which also has a brokerage
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`subsidiary called Wells Fargo Advisors that has its headquarters in St. Louis, Missouri and offices
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`in St. Louis County, Missouri.
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`40.
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`Venus is proper in this Court under 28 U.S.C. § 1446(a) because this matter was
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`removed from the Circuit Court of St. Louis County to this Court. Venue is also proper under 28
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`U.S.C. § 1391 because Wells Fargo a substantial part of the events and omissions giving rise to
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`this matter occurred in this judicial district, and because the principal place of administration of
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`the Trust is in St. Louis County, Missouri, which is within this judicial district.
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`COUNT I
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`Suit against Former Co-Trustee Wells Fargo for Attorney Fees and Costs Relating to
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`Failure to Timely Turn Over Trust Property
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`41.
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`Plaintiff David P. Oetting incorporates paragraphs 1 through 40 as if fully set out
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`herein.
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`42.
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`Following its resignation as co-trustee of the Trust effective January 1, 2018, Wells
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`Fargo informed Mr. Oetting that Wells Fargo intended to withhold the amount of $25,000 from
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`the transfer of Trust to reimburse attorney’s fees and expenses that Wells Fargo anticipated it
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`would incur by filling the Wells Fargo Lawsuit.
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`43. Mr. Oetting objected to Wells Fargo withholding the $25,000 that Wells Fargo
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`stated it intended to withhold when Wells Fargo had already resigned as co-trustee.
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`7
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`44.
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`After Mr. Oetting objected, and with no authorization from Mr. Oetting or
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`otherwise, Wells Fargo unilaterally withheld approximately $12,500 from the Trust when
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`transferring Trust funds to Mr. Oetting.
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`45.
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`Again, Mr. Oetting objected to Wells Fargo withholding the approximately $12,500
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`in funds without proper authorization, but Wells Fargo ignored those objections.
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`46. Missouri Revised Statute § 456.7-703 requires that co-trustees assent to actions
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`involving the Trust.
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`47. Wells Fargo withheld the approximately $12,500 from the Trust without assent or
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`authorization from its co-trustee.
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`48. Wells Fargo also apparently failed to obtain approval from any court for
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`withholding the approximately $12,500 to cover fees and expenses that Wells Fargo caused itself
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`to incur.
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`49.
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`In addition, Wells Fargo continued to charge fees against the wrongfully withheld
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`funds as if Wells Fargo were still a co-trustee for a period of at least five months after Wells Fargo
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`had resigned as trustee.
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`50. Wells Fargo’s deduction of the approximately $12,500 was ultra vires and
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`unlawful.
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`51. Mr. Oetting repeatedly protested Wells Fargo’s withholding or withdrawal of Trust
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`funds and demanded that Wells Fargo return the funds to the Trust.
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`52.
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`On or about May 17, 2018, shortly after the dismissal of the Wells Fargo Lawsuit,
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`Wells Fargo informed Mr. Oetting that it would be refunding the approximately $12,500, and make
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`the Trust whole for Wells Fargo’s ultra vires actions.
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`8
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`53. Wells Fargo ultimately did repay the $12,500 that Wells Fargo had wrongfully
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`misappropriated from the Trust.
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`54. Wells Fargo did not, however, repay the funds until approximately six months after
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`Wells Fargo had taken the funds and received Mr. Oetting’s initial demand for Wells Fargo to
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`return the wrongfully withdrawn money.
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`55. Missouri Revised Statute § 456.7-707.2 mandates a “trustee who has resigned or
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`been removed shall proceed expeditiously to deliver the trust property within the trustee’s
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`possession to the co-trustee, successor trustee, or other person entitled to it.”
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`56. Wells Fargo’s failure to expeditiously deliver the trust property violates Missouri
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`Revised Statute § 456.7-707.2.
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`57. Missouri Revised Statute § 456.8-812 states as follows: “a trustee shall take
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`reasonable steps to compel a former trustee or other person to deliver trust property to the trustee,
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`and to redress a breach of trust known to the trustee to have been committed by a former trustee.”
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`58. Wells Fargo’s actions in wrongfully withholding $12,500 from the Trust forced Mr.
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`Oetting to needlessly expend time and attorney fees, which Mr. Oetting reasonably valued at
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`$8,900.00 as of June 2018.
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`WHEREFORE, plaintiff David P. Oetting prays that this Court enter judgment in his favor
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`and against defendant Wells Fargo Bank, N.A. with respect to the wrongfully withheld Trust
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`property as provided by Missouri Revised Statutes §§ 456.7-707.2, 456.8-812, and 456.10-1001.3;
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`award David P. Oetting all attorney fees and costs incurred to Wells Fargo’s misconduct; and grant
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`David P. Oetting any additional relief this Court deems just and proper.
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`9
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`COUNT II
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`Recovery Against Wells Fargo of Extraordinary Fees
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`and Attorney’s Fees and Costs
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`59.
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`Plaintiff David P. Oetting incorporates paragraphs 1 through 58 as if fully set out
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`herein.
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`60.
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`Under Missouri Revised Statute § 456.10-1004, this Court has authority to award
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`fees and expenses including attorney’s fees in favor of and against any party as it deems just in “a
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`judicial proceeding involving the administration of a trust.
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`61.
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`In addition, under Missouri Revised Statute § 456.7-708, this Court may award
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`additional trustee fees for extraordinary services to the trust if the duties of the trustee are
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`“substantially different from those contemplated when the trust was created.”
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`62. Mr. Oetting is trustee of the Trust and served as his own attorney, pro se, in the
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`Wells Fargo Lawsuit at the instance and behest of Wells Fargo.
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`63.
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`Due to Wells Fargo’s malfeasance in wrongfully filing and then abruptly dismissing
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`its Petition in the Wells Fargo Lawsuit, Mr. Oetting has spent a considerable amount of time,
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`money, and resources to issues and concerns that are outside the duties contemplated by the Trust,
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`specifically involving abandoned court proceedings.
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`64. Wells Fargo lacked a reasonable basis for withholding Trust assets when it resigned
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`as co-trustee of the Trust, and in commencing the Wells Fargo Lawsuit without authorization from
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`this Court or its co-trustee.
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`65.
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`Therefore, Mr. Oetting asks that this Court award attorney fees and additional
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`trustee fees, which should be surcharged against Wells Fargo.
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`10
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`66. Mr. Oetting’s defense of the Wells Fargo Lawsuit resulted in incurring fees of
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`approximately $8,900.00 for the period of January through June 2018.
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`67.
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`In addition, Wells Fargo caused Colleen and David Barringer as co-guardians of
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`Andrea B. Dalton to engage counsel and participate in the Wells Fargo Lawsuit.
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`68.
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`Colleen and David Barringer incurred attorney’s fees of approximately $3,500.00
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`participating in the Wells Fargo Lawsuit for the period of January through June 2018.
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`69.
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`The Trust is liable for the attorney fees that Colleen and David Barringer incurred
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`participating in the Wells Fargo Lawsuit.
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`WHEREFORE, plaintiff David P. Oetting prays that this Court enter judgment in his favor
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`and against defendant Wells Fargo Bank, N.A.; order Wells Fargo to pay Mr. Oetting the
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`reasonable value of services rendered, which amount that exceeds $8,900.00, and pay the Trust
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`the sum of $3,500 as the reasonable value paid for counsel for Barringers; award Mr. Oetting all
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`attorney fees and costs incurred herein; and grant Mr. Oetting any additional relief this Court
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`deems just and proper.
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`COUNT III
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`Negligence Against Wells Fargo for Using Trust Assets
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`To Pay Andrea Dalton’s Living Arrangements
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`Instead of Obtaining State Assistance
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`Count III and paragraphs 70 through 87 were dismissed pursuant to this Court’s Order
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`dated June 15, 2020. Mr. Oetting therefore reserves Count III and paragraphs 70-87.
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`11
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`COUNT IV
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`Wrongful Retention and Conversion of Trust Property
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`Against Wells Fargo
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`88.
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`Plaintiff David P. Oetting incorporates paragraphs 1 through 87 as if fully set out
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`herein.
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`89. Wells Fargo of its own accord resigned and terminated its role as co-trustee of the
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`Trust effective January 1, 2018.
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`90. Missouri Revised Statute § 456.7-707.2 mandates a “trustee who has resigned or
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`been removed shall proceed expeditiously to deliver the trust property within the trustee’s
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`possession to the co-trustee, successor trustee, or other person entitled to it.”
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`91. Missouri Revised Statute § 456.8-812 states as follows: “a trustee shall take
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`reasonable steps to compel a former trustee or other person to deliver trust property to the trustee
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`and to redress a breach of trust to the trustee to have been committed by a former trustee.”
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`92.
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`Despite resigning as co-trustee, until approximately June 2018, Wells Fargo
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`continued to retain Trust property, including papers and records relating to Wells Fargo’s
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`management of the Trust and $12,500 in funds that Wells Fargo improperly withdrew from the
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`Trust.
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`93.
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`Between December 2017 and June 2018, Mr. Oetting made several demands for
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`the return of trust property since Wells Fargo resigned as co-trustee, but Wells Fargo failed and
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`refused to comply with its obligation to deliver trust property until June 2018.
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`94.
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`By intentionally failing to deliver Mr. Oetting the Trust’s property, Wells Fargo
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`deprived the Trust of its right to possession of the property and engaged in the tort of conversion.
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`12
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`95.
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`On information and belief, Wells Fargo’s conversion of the Trust’s property was
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`wanton willful and with reckless disregard as to the rights of the Trust. Further, Wells Fargo acted
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`contrary to the interests of the Trust and its beneficiaries.
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`WHEREFORE, plaintiff David P. Oetting prays that this Court enter judgment in his favor
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`and against defendant Wells Fargo Bank, N.A.; order Wells Fargo to return all Trust property;
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`order Wells Fargo to compensate Mr. Oetting and the Trust for all injuries Wells Fargo has caused
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`by its conversion and wrongful retention of Trust property, and to pay exemplary and punitive
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`damages in an amount sufficient to deter such misconduct in the future; award Mr. Oetting all
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`attorney fees and costs incurred; and grant Mr. Oetting any additional relief this Court deems just
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`and proper.
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`COUNT V
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`Frivolous and Wrongful Use of Civil Proceedings
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`by Wells Fargo
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`96.
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`Plaintiff David P. Oetting incorporates paragraphs 1 through 95 as if fully set out
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`herein.
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`97.
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`In January 2018, Wells Fargo filed the Wells Fargo Lawsuit to obtain judicial
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`approval and settle its accounts as former co-trustee of the Trust.
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`98. Wells Fargo acted wantonly and willfully, and with no reasonable basis when filing
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`the Wells Fargo Lawsuit including because (a) Wells Fargo had already received payment for its
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`services as trustee and (b) because Wells Fargo had already effected its resignation as co-trustee
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`of the Trust and therefore had no standing to bring the Wells Fargo Lawsuit.
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`99.
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`Further, there was evidence in the public domain immediately prior to the
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`resignation and filing of the action which would have prevented the relief sought by Wells Fargo.
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`13
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`However, Wells Fargo failed to voluntarily disclose such information to the party or the court and
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`declined to provide additional information about like matters.
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`100. Wells Fargo dismissed the Wells Fargo Lawsuit on or about May 16, 2018, before
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`the Court could award trustee and attorney fees to the defendants who had incurred costs due to
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`Wells Fargo’s improper conduct.
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`101. As a result of drafting motions and litigating the Wells Fargo Lawsuit for a short
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`period of time, Mr. Oetting incurred approximately $8,900.00 in legal fees as of June 2018, with
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`more fees incurred to the present day.
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`102. On information and belief, Wells Fargo filed the Wells Fargo Lawsuit (a) without
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`probable cause and (b) primarily for an ulterior motive, such as harassing annoying and
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`intimidating Mr. Oetting.
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`WHEREFORE, plaintiff David P. Oetting prays that this Court enter judgment in his favor
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`and against defendant Wells Fargo Bank, N.A.; order Wells Fargo to compensate Mr. Oetting and
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`the Trust for all injuries Wells Fargo has caused by its conversion and wrongful retention of Trust
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`property, and to pay exemplary and punitive damages in an amount sufficient to deter such
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`misconduct in the future; award Mr. Oetting all attorney fees and costs incurred; and grant Mr.
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`Oetting any additional relief this Court deems just and proper.
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`COUNT VI
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`Disgorgement of Fees Against Wells Fargo
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`103. Plaintiff David P. Oetting incorporates paragraphs 1 through 102 as if fully set out
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`herein.
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`104. Mr. Oetting and Wells Fargo were co-trustees of the Trust prior to Wells Fargo’s
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`resignation effective January 1, 2018.
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`Case: 4:20-cv-00302-MTS Doc. #: 43 Filed: 09/16/20 Page: 15 of 19 PageID #: 431
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`105. Mr. Oetting is a trustee of the Trust and sole trustee since Wells Fargo’s resignation.
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`106.
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`In its capacity as corporate trustee of the Trust, Wells Fargo made decisions
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`concerning the Trust and distributed funds without prior or proper consent of its co-trustee Mr.
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`Oetting.
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`107. Wells Fargo committed multiple breached of its fiduciary duties to the Trust,
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`including but not limited to:
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`a.
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`Failing to take reasonable and necessary steps to ensure that the
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`Joyce C. Dalton’s manifested intentions were carried out
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`regarding the operation of the trust and its assets;
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`b.
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`Negligently or recklessly spending Trust funds, including to pay
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`the living expenses of Andrea when government assistance was
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`available to pay those expenses;
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`c.
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`Withholding Trust property without the permission of Mr.
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`Oetting;
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`d.
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`e.
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`Refusing to return withheld Trust property to Mr. Oetting; and
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`Refusing
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`to provide Mr. Oetting with
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`information and
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`documentation pertaining to itself as co-trustee when requested.
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`108. Having breached its obligation as fiduciary for the Trust, Wells Fargo should
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`disgorge all fees paid by the Trust from the date of the first breach of duty.
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`WHEREFORE, plaintiff David P. Oetting prays that this Court enter judgment in his favor
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`and against defendant Wells Fargo Bank, N.A.; order Wells Fargo to disgorge all fees collected
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`for administration of the Trust from Wells Fargo’s first breach of duty to the present; award Mr.
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`Oetting all attorney fees and costs incurred; and grant Mr. Oetting any additional relief this Court
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`Case: 4:20-cv-00302-MTS Doc. #: 43 Filed: 09/16/20 Page: 16 of 19 PageID #: 432
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`deems just and proper.
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`COUNT VII
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`Claim Against Wells Fargo for Violation of the
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`Missouri Merchandising Practices Act
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`109. Plaintiff David P. Oetting incorporates paragraphs 1 through 108 as if fully set out
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`herein.
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`110. The Missouri Merchandising Practices Act (“MMPA”), Missouri Revised Statute
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`§ 407.020.1, makes it unlawful to “act, use or employ….deception, fraud, false pretense, false
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`promise, misrepresentation, unfair practice or the concealment, suppression, or the omission of
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`any material fact in connection with the sale or advertisement of any merchandise in trade or
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`commerce in or from the State of Missouri.”
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`111.
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`“Merchandise” is defined by the MMPA as “any objects, wares, goods,
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`commodities, intangibles, or services.” Mo. Rev. Stat. § 407.010(4) (emphasis added).
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`112. On information and belief, since the date of Joyce C. Dalton’s death, when the Trust
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`became irrevocable, Wells Fargo – and its predecessors – as co-trustee have been the financial
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`institution managing assets for the Trust and making investment and distribution decisions based
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`on the best interest of the Trust’s beneficiaries, particularly Andrea B. Dalton.
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`113. On information and belief, Wells Fargo – and its predecessors – was selected as co-
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`trustee due to its alleged expertise in managing special-needs trusts.
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`114. On information and belief, Mr. Oetting’s father, then Mr. Oetting were selected as
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`co-trustee to Wells Fargo because the Oettings had been Joyce C. Dalton’s personal attorneys and
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`Mr. Oetting’s father had a close familial relationship with the Dalton family.
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`115. Wells Fargo represented, and Mr. Oetting believed based on information received
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`Case: 4:20-cv-00302-MTS Doc. #: 43 Filed: 09/16/20 Page: 17 of 19 PageID #: 433
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`from the Daltons , that Wells Fargo had the requisite expertise to manage special needs trusts, and
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`was using its expertise to manage the Trust. This includes that Wells Fargo represented that it had
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`special expertise in managing special needs trusts, and would use that expertise to make prudent
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`financial and investment decisions that would ensure the Trust would be able to afford expenses
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`for Andrea’s care on a long-term basis.
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`116. Wells Fargo never informed Mr. Oetting that Wells Fargo lacked the expertise to
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`evaluate or had failed to seek or obtain all available government aid for Andrea. Rather, Wells
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`Fargo represented the contrary, that it had the expertise and would use that expertise to seek and
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`obtain all available government aid for Andrea.
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`117. On information and belief, contrary to its representations, Wells Fargo made no
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`effort to evaluate available government aid. Wells Fargo also did not seek or obtain all government
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`aid available for Andrea.
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`118. On information and belief, Wells Fargo paid all bills and debts associated with
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`Andrea’s care without inquiring as to why so much money was being expended by the Trust and
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`whether those continued expenditures of trust funds were reasonably necessary for Andrea’s care.
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`119. Wells Fargo’s false assurances about its expertise and use of expertise in managing
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`special needs trusts caused Mr. Oetting to believe that he could serve as a somewhat passive co-
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`trustee, allowing Wells Fargo to serve as the trustee managing the Trust’s assets for the benefit of
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`Trust beneficiary Andrea B. Dalton, an incapacitated adult.
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`120.
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`Instead, on information and belief, Wells Fargo failed to use any special expertise
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`and mismanaged the Trust’s assets, causing unnecessary expenditures of approximately $800,000
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`in Trust assets to pay for care that government assistance would have funded.
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`121. On information and belief, Wells Fargo’s violation of the MMPA was wanton and
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`Case: 4:20-cv-00302-MTS Doc. #: 43 Filed: 09/16/20 Page: 18 of 19 PageID #: 434
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`willful and with reckless disregard for the consequences of its actions. Further, Wells Fargo acted
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`contrary to the interests of the Trust’s beneficiaries, particularly Andrea B. Dalton, despite
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`knowing that Andrea was an incapacitated adult with special needs who requires a continuous
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`source of monies to fund her living expenses for the remainder of her life.
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`WHEREFORE, plaintiff David P. Oetting prays that this Court enter judgment in his favor
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`on behalf of the Trust and against Wells Fargo Bank, N.A., for violation of the Missouri
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`Merchandising Practices Act; award Mr. Oetting on behalf of the Trust all relief available under
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`the MMPA; actual damages in an amount in excess of $800,000, plus punitive damages in an
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`amount sufficient to deter such misconduct in the future; attorney fees and costs; and grant Mr.
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`Oetting any other or further relief this Court deems just and proper.
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`Respectfully submitted,
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`DAVID P. OETTING
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`/s/ David P. Oetting
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`David P. Oetting, Mo. Bar # 26435
`8 Glenview Road
`Saint Louis, MO 63124
`(314) 607-6274
`dpoetting@gmail.com
`doetting@charter.net
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`Pro se
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`18
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`Case: 4:20-cv-00302-MTS Doc. #: 43 Filed: 09/16/20 Page: 19 of 19 PageID #: 435
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`Certificate of Service
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`The undersigned hereby certifies that on this 19th day of August, 2020, the foregoing was filed
`and served electronically using the Court’s CM/ECF system to the following counsel of record:
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`Christopher M. Blaesing MO #60685
`Sasha D. Riedisser MO # 71141
`Bryan Cave Leighton Paisner LLP
`One Metropolitan Square
`211 North Broadway, Suite 3600
`St. Louis, Missouri 63102-2750
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`Counsel for Defendant Wells Fargo Bank
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` /s/ David P. Oetting
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`19
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