                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-2646
                                    ___________

Gary Cox; Jill Cox,                   *
                                      *
            Appellants,               *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the District of
Mortgage Electronic Registration      * Minnesota.
Systems, Inc.; Aurora Loan Services,  *
Inc.,                                 *
                                      *
            Appellees.                *
                                 ___________

                              Submitted: March 15, 2012
                                  Filed: July 12, 2012
                                  ___________

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
                           ___________


GRUENDER, Circuit Judge.

       Gary and Jill Cox (“homeowners”) filed this lawsuit in Minnesota state court
against Mortgage Electronic Registration Systems, Inc. and Aurora Loan Services,
Inc. (collectively “lender”) seeking legal and equitable relief from the lender’s
foreclosure and sale of their home. The lender removed the case to federal court,
invoking jurisdiction under 28 U.S.C. § 1332, and subsequently moved to dismiss the
complaint for failure to state a claim upon which relief can be granted or alternatively
for summary judgment. The district court1 dismissed the suit, and the homeowners
appeal. We affirm.

I.    BACKGROUND

        In January 2004, the homeowners obtained $472,500 for a home purchase
through a mortgage agreement with the lender. In February 2009, the homeowners
were experiencing financial hardship and contacted the lender to explore potential
financial accommodations. They subsequently applied to the lender for a loan
modification pursuant to the United States Department of the Treasury’s Home
Affordable Mortgage Program (“HAMP”). In September 2009, the lender notified
the homeowners that they “potentially qualified for a modification” and would be put
on a trial modification plan with monthly payments of $2,779.38 to demonstrate their
capacity to make the payments if the loan was permanently modified. The
homeowners submitted the trial payments in October, November, and December. On
December 28, 2009, Terry Martin, one of the lender’s employees, “instructed [the
homeowners] to discontinue payment pursuant to the Trial Payment Plan, as [they]
had already demonstrated [their] ability to make payments pursuant to the
modification, and could expect to receive notice of the modification approval
shortly.” In reliance on Martin’s statements, the homeowners discontinued making
their trial payments and awaited notification of a permanent modification.

       On February 4, 2010, the lender denied the homeowners’ modification
application because the ratio of the loan to the home value was too high. The denial
letter informed the homeowners that “[i]f you do not bring your loan current
immediately, any foreclosure action will resume from the point at which it was
suspended without further notice.” The letter also stated that the homeowners “may


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                        -2-
be eligible for other alternatives to foreclosure.” On March 8, 2010, the lender
informed the homeowners that they “may not be eligible” for a HAMP modification
but that the loan had been placed in a thirty-day review period. The lender also stated
that the homeowners should continue to make monthly payments under the trial plan,
that they would “continue to be eligible for HAMP consideration,” and that they
would “receive an additional written communication of the status of [the]
modification” at the end of the thirty-day review period. On March 24, 2010, before
the end of the thirty-day review period, the lender served the homeowners with notice
of a foreclosure sale, which indicated that the homeowners needed to pay $31,846.30
to “bring your mortgage up to date.” The lender purchased the property at the
foreclosure sale on October 4, 2010, for $511,941.78.

       On November 4, 2010, the homeowners initiated the present lawsuit and
attached the February 4 letter, the March 8 letter, and the March 24 foreclosure notice
to the complaint. In Count I, the homeowners sought “a detailed accounting of [the
lender’s] activities relating to [the homeowners’] request for a forbearance or loan
modification.” The homeowners next alleged four counts under which they sought
to recover damages. In Count II, they alleged that the lender violated a duty of good
faith and fair dealing imposed by Minnesota Statute section 580.11. In Count III, the
homeowners alleged that the lender breached the implied duty of good faith and fair
dealing arising from their mortgage agreement. In Counts IV and V, respectively, the
homeowners alleged fraudulent and negligent misrepresentation. Finally, in Count
VI, the homeowners requested injunctive relief staying the foreclosure proceedings.
Upon the lender’s motion, the district court dismissed the suit pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure because “[the homeowners’] claims
are entirely based on the loan modification request under HAMP” and HAMP creates
no private right of action. The district court also held in the alternative that the
homeowners did not plead plausible claims under Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007). The homeowners appeal, contending that HAMP does not preempt



                                         -3-
their state-law claims and that they pled the claims with sufficient particularity to
state a claim.

II.   DISCUSSION

        We review de novo the district court’s grant of a motion to dismiss under Rule
12(b)(6). Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004). To survive such a
motion, “a complaint must contain sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff [has pleaded] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). We make this
determination by considering only the materials that are “necessarily embraced by the
pleadings and exhibits attached to the complaint.” Mattes v. ABC Plastics, Inc., 323
F.3d 695, 697 n.4 (8th Cir. 2003).

        The parties agree that Minnesota law governs our analysis of the homeowners’
state-law claims. See Kaufmann v. Siemens Med. Solutions USA, Inc., 638 F.3d 840,
843 (8th Cir. 2011). We review de novo the district court’s interpretation of
Minnesota law, Triton Corp. v. Hardrives, Inc., 85 F.3d 343, 345 (8th Cir. 1996), and,
unless the outcome of the case is dictated by Minnesota Supreme Court precedent, we
“must attempt to predict what that court would decide if it were to address the issue,”
Raines v. Safeco Ins. Co. of Am., 637 F.3d 872, 875 (8th Cir. 2011).

       A.     Count I: Accounting

       In Count I, the homeowners requested “a detailed accounting of [the lender’s]
activities relating to [the homeowners’] request for a forbearance or loan


                                          -4-
modification, including . . . an Order releasing the entire contents of [the
homeowners’] loan file from [the lender’s] custody.” The district court dismissed
Count I, concluding that an accounting is an extraordinary equitable remedy that is
unwarranted here because there is an adequate remedy available at law through
normal discovery requests. We agree that the information the homeowners seek is
available through discovery if they can plead any valid claim, and the existence of
this legal remedy renders an accounting unwarranted. See Border State Bank, N.A.
v. AgCountry Farm Credit Servs., FLCA, 535 F.3d 779, 784 (8th Cir. 2008) (holding
that the extraordinary equitable remedy of an accounting was not justified because the
plaintiff did not explain why it could not obtain the necessary information through
discovery). Furthermore, the homeowners’ reliance on Vernon J. Rockler & Co. v.
Glickman, Isenberg, Lurie & Co., 273 N.W.2d 647 (Minn. 1978), is unavailing
because that case involved a professional malpractice claim against an accounting
firm, not the equitable remedy of accounting requested here. Because the
homeowners have not explained why discovery is not an adequate remedy, the district
court did not err in dismissing Count I.

       B.     Count II: Violation of Section 580.11

       Minnesota’s foreclosure-by-advertisement statute provides that the sheriff or
sheriff’s deputy sell the premises foreclosed upon to the highest bidder at a public
venue. Minn. Stat. § 580.06, subdiv 1. The statute specifically authorizes “[t]he
mortgagee, the mortgagee’s assignee, or the legal representative of either or both [to
purchase the premises] fairly and in good faith” at the sale. Minn. Stat. § 580.11.
The district court dismissed Count II, concluding that any duty imposed under
section 580.11 applies only to the fairness of the purchase itself and that the
homeowners did not allege that the lender acted unfairly or in bad faith in purchasing
the home at the foreclosure sale. The homeowners do not contend on appeal that the
lender acted unfairly or in bad faith in making the purchase itself, but they contend
that the lender violated a duty imposed under section 580.11 by acting unfairly and


                                         -5-
in bad faith “while foreclosing.” The homeowners contend that the lender breached
this duty by first informing them that it would work with them to “resolve [their]
minor deficiency on the Mortgage,” and then later failing to respond to status requests
and refusing to release their loan file. The homeowners also contend that the lender
breached this duty by stating that they would have a permanent modification if they
made the trial payments.

        Section 580.11 imposes on a mortgagee a “duty to act ‘fairly and in good faith’
when it purchase[s] the property at the foreclosure sale.” Sprague Nat’l Bank v.
Dotty, 415 N.W.2d 725, 726-27 (Minn. App. 1987). The homeowners cite no
persuasive authority establishing that section 580.11 imposes a general fiduciary duty
on foreclosing lenders beyond conduct that has a material impact on the fairness of
the foreclosure sale itself. “When the language of a statute is plain and unambiguous,
it is assumed to manifest legislative intent and must be given effect.” Beardsley v.
Garcia, 753 N.W.2d 735, 737 (Minn. 2008) (quoting Burkstrand v. Burkstrand, 632
N.W.2d 206, 210 (Minn. 2001)). For example, in Sprague, the Minnesota Court of
Appeals held that a loan guarantor had raised a jury question as to the mortgagee’s
bad faith in obtaining a low purchase price at the foreclosure sale because the
mortgagee first discouraged the guarantor from bidding at the sale by telling him that
it would not bid lower than the balance owed on the loan and then bid significantly
lower than the loan balance without informing the guarantor of the change in plans.
415 N.W.2d at 727. Sprague’s application of section 580.11 is consistent with the
section’s plain language, which simply authorizes the mortgagee to purchase the
premises at the foreclosure sale so long as the lender’s actions relating to the sale
itself are fair and taken in good faith.

       The homeowners argue that the Minnesota Court of Appeals spoke generally
of the “fiduciary duty as a mortgagee to act fairly and to deal in good faith with the
mortgagor when foreclosing” while citing section 580.11 and Sprague in an



                                         -6-
unpublished opinion. See Resolution Trust Corp. v. River Props. of St. Paul Ltd.
P’ship., No. C7-94-2547, 1995 WL 295963, at *4 (Minn. Ct. App. May 16, 1995)
(unpublished) (emphasis added). However, Resolution Trust addressed whether a
party “breached this duty by failing to hold a foreclosure sale of the property in a
timely manner,” and ultimately held that the sale was timely and that no breach
occurred. Id. Furthermore, the court rejected the argument that section 580.11
imposed a duty on the mortgagee to enforce a court order against a guarantor
requiring the guarantor to make payments on the mortgage. Id. Although the
mortgagee “had the right to enforce the order,” the mortgagee was under no legal
obligation to do so. Id. Because the court refused to require the foreclosing lender
to take an action that was in the best interest of the mortgagor—an action unrelated
to the fairness of the foreclosure sale—Resolution Trust cannot be read reasonably
as imposing a general fiduciary duty on foreclosing lenders for conduct that has no
material impact on the fairness of the foreclosure sale itself.2

       Having concluded that the lender’s obligation under section 580.11 does not
reach conduct that has no material impact on the fairness of the sale itself, we must
now consider whether the homeowners’ complaint states a claim for relief under the
statute. Here, the homeowners pled only that the lender said it would work with them
to resolve their loan delinquency, failed to respond to their status requests on these
efforts, and refused to give them its files regarding the loan modification. Because



      2
       The homeowners also rely on Minnesota Statute section 58.13, which details
standards of conduct for mortgage originators and service-providers, but they do not
explain how these standards of conduct expand the duties imposed on mortgagees in
section 580.11 beyond the fairness of the foreclosure-sale purchase itself.
Furthermore, the district court refused to address this argument because the
homeowners did not plead a cause of action under section 58.13 in the complaint.
The homeowners do not contend on appeal that they pled any cause of action in the
complaint arising under section 58.13.

                                         -7-
the homeowners allege no connection between these actions and the fairness of the
foreclosure sale itself, we affirm the dismissal of Count II.

       C.     Count III: Breach of the Duty of Good Faith and Fair Dealing

       The district court dismissed Count III because the homeowners did not assert
an independent breach of contract claim, relying on the proposition that “a cause of
action for good faith and fair dealing cannot exist independent of the underlying
breach of contract claim.” Orthomet, Inc. v. A.B. Med., Inc., 990 F.2d 387, 392 (8th
Cir. 1993). To be sure, “a cause of action for good faith and fair dealing cannot exist
independent of the underlying breach of contract claim” in the sense that an
enforceable contract must exist before the duty of good faith and fair dealing can be
implied by law into it. See id. at 392 (holding that, because the underlying breach of
contract claim was barred by the statute of frauds, no breach of an implied covenant
of good faith and fair dealing can survive independently); Minnwest Bank Cent. v.
Flagship Props. LLC, 689 N.W.2d 295, 303 (Minn. Ct. App. 2004) (holding that a
bank’s refusal to grant long-term financing did not violate the duty of good faith and
fair dealing because the bank had no contractual duty to grant long-term financing
and because it did not unjustifiably frustrate the plaintiff’s performance under the
contract). However, a plaintiff alleging a claim for breach of the implied covenant
of good faith and fair dealing “need not first establish an express breach of contract
claim—indeed, a claim for breach of an implied covenant of good faith and fair
dealing implicitly assumes the parties did not expressly articulate the covenant
allegedly breached.” In re Hennepin Cnty. 1986 Recycling Bond Litig., 540 N.W.2d
494, 503 (Minn. 1995). Plaintiffs need not allege a breach of an express duty under
a contract so long as the claims are “based on the underlying . . . agreements” because
the implied covenant of good faith and fair dealing extends to actions within the
scope of the underlying enforceable contract. See id. Here, the homeowners’ claims
that the lender engaged in an “abuse of power” under the mortgage agreement and
“unjustifiably hindered” them from performing under the mortgage agreement are


                                         -8-
based on the parties’ mortgage agreement. The parties do not contest the
enforceability of that agreement. Thus, the district court erred in dismissing the
homeowners’ claim for breach of the duty of good faith based on the homeowners’
failure to assert an independent breach of an express contractual duty.

       Nevertheless, dismissal of Count III was proper because the homeowners failed
to plead adequately a claim for breach of the duty of good faith and fair dealing. The
homeowners contend that the lender abused its power under the mortgage agreement
by informing the homeowners that it “would work with [them] to provide a mortgage
modification” and by then failing to respond to their repeated requests for status
updates on the modification and refusing to release the homeowners’ loan file. It may
be true that a party’s “abuse of a power to specify terms” in an existing contract
violates the duty of good faith and fair dealing. See Restatement (Second) Contracts
§ 205, cmt. d; Hennepin Cnty., 540 N.W.2d at 502 (citing Restatement (Second)
Contracts § 205). However, the homeowners have failed to identify any term of the
mortgage agreement that the lender had power to specify and for which it abused this
power. We thus reject this argument.

       The homeowners also contend that the lender breached the duty of good faith
and fair dealing by unjustifiably hindering their performance under the mortgage
agreement. Minnesota law provides that “contract performance is excused when it
is hindered or rendered impossible by the other party.” Zobel & Dahl Constr. v.
Crotty, 356 N.W.2d 42, 45 (Minn. 1984). Furthermore, “a breach of contract occurs
under those circumstances.” Id. However, “[t]he implied covenant of good faith and
fair dealing does not limit [a party’s] right to act in accordance with the bargained-for
terms of the agreement.” Burnette Techno-Metrics, Inc. v. TSI Inc., 44 F.3d 641, 643
(8th Cir. 1994). “In contrast, the implied covenant of good faith and fair dealing
governs the parties’ performance and prohibits a party from failing to perform for the
purpose of thwarting the other party’s rights under the contract.” Team Nursing



                                          -9-
Servs., Inc. v. Evangelical Lutheran Good Samaritan Soc’y, 433 F.3d 637, 641-42
(8th Cir. 2006). Examples of breach of the duty of good faith and fair dealing by
unjustified hindrance include wrongfully repudiating a contract, Wormsbecker v.
Donovan Constr. Co. of Minn., 76 N.W.2d 643, 650 (Minn. 1956), “avoid[ing]
performance by affirmatively blocking the happening of a condition precedent,”
Hennepin Cnty., 540 N.W.2d at 501, refusing to allow a party to perform unless the
performing party waived other contractual rights, Zobel, 356 N.W.2d at 45-46, and
using a party’s rejection of an offer as a defense to contract liability when the
defendant persuaded the party to reject the offer in the first place, Nodland v.
Chirpich, 240 N.W.2d 513, 516-17 (Minn. 1976).

       In this case, the homeowners did not adequately plead a claim for breach of the
duty of good faith and fair dealing by unjustified hindrance. With respect to the
lender’s alleged failure to respond to status requests on the loan modification and
refusal to release the loan file, the homeowners alleged that they suffered damages,
but they never alleged that the lender’s actions prevented them from performing their
responsibilities under the mortgage agreement, thereby causing their damages.
Minnesota law requires a claim for breach of the duty of good faith and fair dealing
to allege “a causal link between the alleged breach and the party’s claimed damages.”
LaSociete Generale Immobiliere v. Minneapolis Cmty. Dev. Agency, 44 F.3d 629, 638
(8th Cir. 1994). Because the homeowners pled no connection between the lender’s
failure to respond to their status requests or refusal to release the loan file and the
homeowners’ failure to perform under the mortgage agreement, thereby causing their
damages, they did not adequately plead a cause of action for breach of the duty of
good faith and fair dealing based on these actions.

      With respect to the lender’s instruction to discontinue payments and its
requests that the homeowners submit documents that they had already submitted, the
homeowners similarly failed to adequately plead a causal connection between the



                                         -10-
lender’s actions and their damages. The homeowners did not plead plausible factual
allegations indicating that they would have been able to pay the mortgage absent their
reliance on the instructions. Cf. Zobel, 356 N.W.2d at 46 (affirming verdict of breach
by unjustified hindrance where “[t]he builders at all times were willing to make the
repairs on the punch list,” but the defendant “unreasonably prevented [them] from
completing construction”). The homeowners allege that they were current on their
mortgage payments in February 2009 but make no such allegation of currency as of
September 2009, when the trial program began. The homeowners allege that they
made the first three $2,779.38 trial payments from October through December 2009,
when the lender instructed them to stop payments. Yet, according to the foreclosure
notice attached to the complaint, the homeowners owed almost $32,000 on the
mortgage on March 19, 2010. Thus, most of the delinquency must have arisen before
the homeowners even entered the trial plan. Moreover, the homeowners did not plead
that they began making payments again after the March 8 letter instructed them to do
so. On the face of the complaint, it is not plausible that the homeowners were in a
position to settle the nearly $32,000 delinquency and avoid foreclosure but for the
instruction to stop payments in December 2009. Because the homeowners failed to
plead a plausible causal relationship between the lender’s actions and the
homeowners’ damages, they have failed to state a claim for unjustified hindrance.
See LaSociete Generale, 44 F.3d at 638. We affirm the dismissal of Count III.

      D.     Counts IV and V: Fraudulent and Negligent Misrepresentation

        “To succeed in a fraudulent misrepresentation claim under Minnesota law, a
plaintiff must prove ‘(1) there was a false representation by a party of a past or
existing material fact susceptible of knowledge; (2) made with knowledge of the
falsity of the representation or made as of the party’s own knowledge without
knowing whether it was true or false; (3) with the intention to induce another to act
in reliance thereon; (4) that the representation caused the other party to act in reliance



                                          -11-
thereon; and (5) that the party suffer[ed] pecuniary damage as a result of the
reliance.’” Trooien v. Mansour, 608 F.3d 1020, 1028 (8th Cir. 2010) (quoting Hoyt
Props., Inc. v. Prod. Res. Grp., LLC, 736 N.W.2d 313, 318 (Minn. 2007)) (alteration
in original). “The elements of a negligent misrepresentation claim differ from
fraudulent misrepresentation only with respect to the required state of mind . . . [in
that] a plaintiff must show that the defendant ‘supplie[d] false information for the
guidance of others in their business transactions’ and in doing so ‘fail[ed] to exercise
reasonable care or competence in obtaining or communicating the information.’” Id.
(quoting Florenzano v. Olson, 387 N.W.2d 168, 174 n.3 (Minn. 1986)). “Under
Minnesota law, any allegation of misrepresentation, whether labeled as a claim of
fraudulent misrepresentation or negligent misrepresentation, is considered an
allegation of fraud which must be pled with particularity.” Id. (citing Juster Steel v.
Carlson Co., 366 N.W.2d 616, 618 (Minn. Ct. App. 1985)). Thus, the homeowners
must plead “the time, place, and contents” of the false representations, the identity of
the individual who made the representations, and what was obtained thereby, to meet
the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See
BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007).

       The homeowners alleged that the lender (1) falsely told them via Martin’s
statement that they should cease making payments under the trial plan and (2) falsely
stated in the March 8 letter that the loan had been placed in a thirty-day review
period. The district court held that the homeowners failed to adequately plead that
they relied on these misrepresentations and that this reliance caused their damages.
The homeowners contend that they adequately pled reliance and causation because
they alleged that they ceased making payments in reliance on the instructions, the
modification was rejected less than a month later based on this failure to make the
payments, and the lack of a modification played a central role in the foreclosure of
the mortgage. They also contend that their “belief that the[] application for the
mortgage modification was again under review and anticipat[ion of] word from the



                                         -12-
lender at the close of the 30-day review period” constituted detrimental reliance
because it occurred “as a result of [the lender’s] March 8, 2010 letter.”

       The homeowners’ misrepresentation claims fail because they again did not
plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
The homeowners provided only conclusory allegations that they relied on the lender’s
representations and were damaged “as a direct and proximate result” of that reliance.
Although they allege that Martin’s instructions caused them to discontinue payment
and await word of modification approval, nowhere do the homeowners allege that
“awaiting word” caused their inability to pay the mortgage delinquency. In fact, the
attachments to the homeowners’ complaint establish that they were informed on
February 4 that they must bring their loan current immediately to avoid foreclosure
and were further informed on March 8 that they must continue making the trial
payments in excess of $2,700 per month. The homeowners make no allegation that
the failure to make payments between December 28, 2009, and March 8, 2010, or the
promise of a thirty-day review period was the actual and proximate cause of the
ultimate foreclosure. Even assuming that the homeowners reasonably relied on the
lender’s instructions in failing to make their January and February payments, the
February 4 letter instructed them to bring their loan current in order to avoid
foreclosure, and the two missed payments were only a small fraction of the amount
required to do so.3 Furthermore, the lender also informed them on February 4 that it
could not offer a modification because the ratio of the loan to the home value was too

      3
        The homeowners contend that the district court erroneously considered
evidence submitted by the lender that the lender informed the homeowners in January
that they must continue making their trial payments and that the homeowners did in
fact submit their trial payments for the months of January and February. Although
the lender submitted this evidence into the record before the district court, we can
find no indication that the district court relied on it. We similarly decide this case
without relying on material outside the complaint and its attachments.

                                         -13-
high. Because the homeowners’ factual allegations do not support a reasonable
inference that their reliance on the lender’s statements caused the modification denial
and the subsequent foreclosure, the homeowners have failed to state a claim based on
Martin’s statement. See Iqbal, 556 U.S. at 678. Similarly, the homeowners’
allegation that they relied on the March 8 letter promising a thirty-day review period
simply by “believing [they were] in a review period” provides no plausible
connection between this belief and the modification denial and resulting foreclosure.
The homeowners offer no explanation as to why delaying the foreclosure notice by
fourteen days would have prevented the foreclosure.

       The homeowners also contend that they adequately pled detrimental reliance
based on other misrepresentations in that they alleged: (1) making three trial
payments in reliance on a promise of a permanent modification; (2) providing
documents requested by the lender for the modification application; and (3)
complying with the lender’s requests to submit and sign documents which the
homeowners had already submitted and signed. However, the homeowners did not
adequately plead that the foreclosure was caused by these actions. With respect to
the trial payments, the homeowners admit that they were merely informed that they
“potentially qualified for a modification” before being asked to make the trial
payments, not that payment would ensure a permanent modification. With respect to
document submission, the homeowners did not allege that the lender misrepresented
which documents it had received or which documents were required for the
application. The homeowners instead merely alleged that they provided all requested
documents, including those that they had previously submitted. Thus, the
homeowners’ arguments regarding these alleged misrepresentations also fail to create
a viable cause of action.




                                         -14-
      E.     Count VI: Preliminary Injunction

       The district court dismissed Count VI because it dismissed Counts II through
V and therefore concluded that the impossibility of success on the merits of those
claims made a preliminary injunction unwarranted. See Dataphase Sys., Inc. v. C.L.
Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc) (listing the factors to be
considered in a preliminary injunction analysis). The homeowners contend that the
lender “offered no legal authority . . . that an independent cause of action loses legal
significance and merit simply because other counts of a complaint are dismissed.”
However, the homeowners pled in Count VI that they had no adequate remedy at law
for the “interference” with their property rights alleged in the previous Counts. Count
VI thus depends on the viability of Counts II through V. Because Counts II through
V were properly dismissed, Count VI was also properly dismissed.

      F.     Leave to Amend the Complaint

       The homeowners argue for the first time in their reply brief that we should
grant them leave to file a motion with the district court for leave to amend the
complaint. This argument was perhaps foreshadowed by a heading located only in
the table of contents of their opening brief, which otherwise contains no explanation
of the argument or citation to relevant authority. The homeowners waived this issue
by failing to provide a meaningful explanation of the argument and citation to
relevant authority in their opening brief. See United States v. Stanko, 491 F.3d 408,
415 (8th Cir. 2007). Thus, we deny the homeowners’ request to remand the case to
the district court to allow them to move for leave to amend the complaint.




                                         -15-
III.   CONCLUSION

       For the foregoing reasons, we affirm.4

                       _____________________________




       4
       While the district court’s analysis of HAMP preemption in this case may be
questionable, we need not address this issue because we find that the complaint fails
to meet the Twombly pleading standards.

                                        -16-
