                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2128
                        ___________________________

                                Samvel G. Topchian

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                           JPMorgan Chase Bank, N.A.

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: March 12, 2014
                               Filed: July 28, 2014
                                 ____________

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
                         ____________

WOLLMAN, Circuit Judge.

      Samvel G. Topchian appeals from the district court’s dismissal of his amended
complaint against JPMorgan Chase Bank (Chase). Because we hold that Topchian
has stated a claim for breach of contract, we affirm in part, reverse in part, and
remand for further proceedings.
                                    I. Background

       We recount the facts as described in the amended complaint and in the
permanent loan modification agreement (the Agreement) that Topchian attached to
his petition. See In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000)
(“[A]n amended complaint supercedes an original complaint and renders the original
complaint without legal effect.”); see also Mattes v. ABC Plastics, Inc., 323 F.3d 695,
697 n.4 (8th Cir. 2003) (“[I]n considering a motion to dismiss, the district court may
sometimes consider materials outside the pleadings, such as materials that are
necessarily embraced by the pleadings and exhibits attached to the complaint.”). The
amended complaint fails to set forth facts detailing the origins of Topchian’s
relationship with Chase. Presumably, Topchian entered into a loan agreement with
Chase for a mortgage and subsequently encountered financial difficulties that
prevented him from making the full payments under the loan agreement. As a result,
Topchian entered into the mortgage modification process with Chase under the Home
Affordable Modification Program (HAMP).

      HAMP modifications proceed in two steps.1 Step One involves the mortgage
servicer of an eligible homeowner offering the homeowner a Trial Period Plan (TPP)
agreement. A TPP agreement allows the homeowner to make modified mortgage
payments for a specified term. If all conditions of the TPP agreement are satisfied,
the homeowner then proceeds to Step Two, at which point he is offered a permanent
loan modification agreement that outlines the terms of the final modification.




      1
       “The court may consider, in addition to the pleadings, materials ‘embraced by
the pleadings’ and materials that are part of the public record.” In re K-tel Int’l, Inc.
Sec. Litig., 300 F.3d 881, 889 (8th Cir. 2002) (quoting Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). We have done so here to provide
background information regarding HAMP.
                                          -2-
       Under the TPP agreement, Topchian made seven required monthly payments
of $985, making the last payment in December 2009. In January 2010, Topchian
received the Agreement from Chase for the permanent modification of his loan. The
Agreement provided that Topchian’s loan modification would automatically become
effective on March 1, 2010, as long as all the preconditions set forth in the Agreement
were satisfied. Two of these preconditions are relevant to this appeal. First, the loan
would not be modified unless and until Chase signed and returned a copy of the
Agreement to Topchian. Second, Topchian was required to make all the payments
specified by the TPP agreement. Topchian signed the Agreement and mailed it to
Chase before the January 14, 2010, deadline. Less than a week after mailing the
Agreement, Topchian called Chase to check on the status of the Agreement, at which
point Chase assured him that the Agreement was in its processing center.

      In March 2010, Topchian made his first monthly payment of $957.32 in
accordance with the terms of the Agreement. Chase rejected this payment. Upon
discovering that Chase had not accepted his payment, Topchian called Chase and
spoke with Lad Freeman, an executive director. Freeman told Topchian that Chase
had not received the signed Agreement.

      Topchian immediately sent Chase another copy of the signed Agreement and
payments for March and April 2010. Freeman apologized for the “mess,” explaining
that Chase’s loan files were in disorder because of its recent merger with Washington
Mutual Bank. Topchian sought proof of the finalization of the loan modification by
requesting that Chase sign and return the Agreement to him. Freeman responded by
assuring Topchian that the Agreement had been accepted, but informed Topchian that
Chase would not send proof of this acceptance.

      Chase accepted Topchian’s March and April payments. Topchian continued
to make payments, which Chase accepted for the following eight months, through
December 2010. In December 2010, Topchian was contacted by Freeman, who

                                         -3-
notified him that he needed to send more paperwork to update his existing HAMP
paperwork and that he would receive a signed copy of the Agreement from Chase
after the paperwork was updated. Topchian cooperated with a Chase representative
for several months to update his HAMP paperwork.

        In January 2011, Chase instructed Topchian to stop making payments because
of the paperwork update, which he did. Seven months later, in August 2011, Chase
sent Topchian a letter denying his request for a loan modification. Following this
letter, Chase attempted to foreclose on Topchian’s property on at least two occasions.

       On June 21, 2012, Topchian filed a pro se petition in Missouri state court
seeking $3 million in damages from Chase. Topchian’s petition was styled as a letter
that detailed facts but did not contain legal theories for his claims. Chase removed
the case to federal district court on the basis of diversity jurisdiction. Chase then filed
a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, a motion for a more definite statement pursuant to Federal Rule of Civil
Procedure 12(e). The district court denied the motion to dismiss but granted the
motion for a more definite statement, directing Topchian to file an amended
complaint.

       Topchian’s amended complaint restated some of the facts from his petition and
introduced new facts but still did not include legal theories for his claims. Chase
moved to dismiss the amended complaint pursuant to Rule 12(b)(6) for failure to state
a claim upon which relief can be granted. Although Topchian had not mentioned any
legal theories in his amended complaint, Chase proposed to the court six legal
theories under which Topchian could conceivably seek recovery: violation of
HAMP, negligent infliction of emotional distress, intentional infliction of emotional
distress, attempted wrongful foreclosure, violations of the Fair Credit Reporting Act,
and fraud. Chase argued in its motion to dismiss that each of these claims failed on
the pleadings. Topchian did not file a response to Chase’s motion before the

                                           -4-
deadline, and the district court ordered Topchian to show cause for why it should not
grant Chase’s motion to dismiss. Topchian thereafter filed a response, but it did not
address any of Chase’s six proposed legal theories. The district court then granted
Chase’s motion to dismiss, analyzing each of Chase’s proposed legal theories and
reasoning that HAMP creates no private right of action and that, to the extent that
Topchian attempted to state a claim under Missouri law, Topchian had not pleaded
a plausible claim under Ashcroft v. Iqbal, 556 U.S. 662 (2009). The district court
later denied Topchian’s motion for reconsideration. Topchian appeals.

                                      II. Discussion

       Topchian argues that the district court erred by dismissing his case because his
allegations of fact sufficiently state a claim for breach of contract, fraudulent
misrepresentation, negligent misrepresentation, and unjust enrichment. “We review
de novo the district court’s grant of a motion to dismiss, accepting as true all factual
allegations in the complaint and drawing all reasonable inferences in favor of the
nonmoving party.” Simes v. Ark. Judicial Discipline & Disability Comm’n, 734 F.3d
830, 834 (8th Cir. 2013) (quoting Richter v. Advance Auto Parts, Inc., 686 F.3d 847,
850 (8th Cir. 2012) (per curiam)). Because Chase removed this case to federal court
based on diversity of citizenship, we apply federal procedural rules but Missouri
substantive law. Ashley County v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

       “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.’” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Fed. R. Civ. P. 8(a) (requiring “a short and plain statement of the claim showing
that the pleader is entitled to relief”). “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.” Iqbal, 556 U.S. at 678.
“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s

                                            -5-
liability, it ‘stops short of the line between possibility and plausibility of entitlement
to relief.’” Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S. at
557).

       “The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999) (quoting Redland Ins. Co. v. Shelter
Gen. Ins. Cos., 121 F.3d 443, 446 (8th Cir. 1997)). “The well-pleaded facts alleged
in the complaint, not the legal theories of recovery or legal conclusions identified
therein, must be viewed to determine whether the pleading party provided the
necessary notice and thereby stated a claim in the manner contemplated by the federal
rules.” Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1057-58 (8th Cir. 2002);
see also Quinn-Hunt v. Bennett Enters., Inc., 122 F. App’x 205, 207 (6th Cir. 2005)
(“The failure in a complaint to cite a statute, or to cite the correct one, in no way
affects the merits of the claim. Factual allegations alone are what matters.” (quoting
Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1998))). “Accordingly, a
complaint should not be dismissed merely because a plaintiff’s allegations do not
support the particular legal theory he advances, for the court is under a duty to
examine the complaint to determine if the allegations provide for relief on any
possible theory.” Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974).

       A pro se complaint must be liberally construed, Estelle v. Gamble, 429 U.S. 97,
106 (1976), and “pro se litigants are held to a lesser pleading standard than other
parties[,]” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008).

      When we say that a pro se complaint should be given liberal
      construction, we mean that if the essence of an allegation is discernible,
      even though it is not pleaded with legal nicety, then the district court
      should construe the complaint in a way that permits the layperson’s
      claim to be considered within the proper legal framework.

Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004).
                                           -6-
                                      A. Waiver

      As a threshold matter, we must determine whether Topchian’s claims are
properly before us. Chase contends that they are not, because Topchian has asserted
them for the first time on appeal.

       Although we do not address legal or factual claims presented for the first time
on appeal, Stone, 364 F.3d at 914, there is a difference “between adding claims on
appeal and fleshing out claims that were initially inartfully pled[,]” Jackson v. Nixon,
747 F.3d 537, 544 (8th Cir. 2014). Construed properly, Topchian’s factual
allegations may provide foundation for the claims that he advances on appeal.
Because it is the facts alleged in a complaint, and not the legal theories, that state a
claim, Parkhill, 286 F.3d at 1057-58, and because federal courts must examine a
complaint to determine if the allegations set forth a claim for relief, Bramlet, 495 F.2d
at 716, we must decide whether Topchian has pleaded sufficient facts in his amended
complaint to state a claim under any legal theory. If he has, his amended complaint
should not have been dismissed. Topchian has not alleged new facts, nor does his
appeal raise claims that are not based on the facts that he has alleged in his amended
complaint. Cf. Stone, 364 F.3d at 914-15 (refusing to supply additional facts or to
construct a legal theory for the plaintiff that assumed facts that had not been pleaded).

      Accordingly, we look to Topchian’s amended complaint to determine whether
Topchian has alleged sufficient facts to state a claim for breach of contract, fraudulent
misrepresentation, negligent misrepresentation, and unjust enrichment.2 “[W]e


      2
        Chase additionally argues that we should affirm the dismissal because
Topchian failed to raise the claims in his opposition to Chase’s motion to dismiss.
Chase relies upon two cases from the United States Court of Appeals for the Seventh
Circuit. See McHenry v. Ins. Co. of the W., 438 F.3d 813, 817-20 (7th Cir. 2006)
(holding that the district court did not err by failing to address the represented
plaintiff’s waiver argument because although the plaintiff mentioned its waiver
                                          -7-
interpret Missouri law in determining whether the elements of the offenses have been
pled.” Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052,
1062 (8th Cir. 2005).

                                      B. Merits

                                1. Breach of Contract

       Topchian contends that he has pleaded a breach-of-contract claim. “A breach
of contract action includes the following essential elements: (1) the existence and
terms of a contract; (2) that plaintiff performed or tendered performance pursuant to
the contract; (3) breach of the contract by the defendant; and (4) damages suffered by
the plaintiff.” Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. 2010) (en
banc). “A valid contract contains the essential elements of ‘offer, acceptance, and
bargained for consideration.’” Holmes v. Kansas City Mo. Bd. of Police Comm’rs
ex rel. Its Members, 364 S.W.3d 615, 622 (Mo. Ct. App. 2012) (quoting Johnson v.
McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. 1988) (en banc)).

      Chase argues that Topchian has not stated a claim for breach of contract
because Chase did not accept Topchian’s offer to permanently modify his loan in the
form prescribed by the Agreement. According to Chase, the Agreement required


argument in a few paragraphs of its complaint, it failed to make any reference to the
argument in its opposition to the defendant’s motion to dismiss); Kirksey v. R.J.
Reynolds Tobacco Co., 168 F.3d 1039, 1041-42 (7th Cir. 1999) (affirming the district
court’s dismissal of the plaintiff’s complaint because the facts that the plaintiff had
alleged did not state a claim that was based on existing law and the plaintiff failed to
show that her claim lay in the natural line of the law’s development and should have
been recognized as part of the law). These cases are inapposite. Topchian is a pro
se plaintiff who repeated in his opposition to Chase’s motion to dismiss some of the
factual allegations that support his claims and whose claims have a basis in existing
law.
                                          -8-
Chase to manifest its acceptance by signing and returning a copy of the Agreement
to Topchian. Chase thus argues that no contract was formed because it did not
manifest its acceptance in the form prescribed by the offer. See Shortridge v. Ghio,
253 S.W.2d 838, 845 (Mo. Ct. App. 1952) (“The offerer has the right to prescribe the
time, place, form or other condition of acceptance, in which case the offer can be
accepted only in the way prescribed by the offer.” (emphasis omitted) (quoting Hunt
v. Jeffries, 156 S.W.2d 23, 27 (Mo. Ct. App. 1941))).

       We disagree with the manner in which Chase has framed the issue. In our
view, Chase made a written offer to permanently modify Topchian’s original loan
agreement when it sent the Agreement to him. See Young v. Wells Fargo Bank,
N.A., 717 F.3d 224, 234 (1st Cir. 2013) (“The TPP’s plain terms therefore required
Wells Fargo to offer [the homeowner] a permanent modification.”); Wigod v. Wells
Fargo Bank, N.A., 673 F.3d 547, 557 (7th Cir. 2012) (“After the trial period, if the
borrower complied with all terms of the TPP Agreement—including making all
required payments and providing all required documentation—and if the borrower’s
representations remained true and correct, the servicer had to offer a permanent
modification.”). Topchian accepted the offer when he signed and returned the
Agreement to Chase. That Chase was to sign and return the fully executed
Agreement to Topchian is more properly characterized as a condition precedent.3
Because a condition precedent must be satisfied before the contract becomes
effective—and it is undisputed that Chase did not sign and return the

      3
       Other courts that have considered HAMP agreements suggest that these types
of provisions are conditions precedent. See, e.g., Pennington v. HSBC Bank USA,
N.A., 493 F. App’x 548, 553 (5th Cir. 2012) (“We need not determine whether TPPs
in general are contracts, because these plaintiffs have not met the conditions set by
the TPPs and Modification Agreements. [The plaintiff’s] allegations demonstrate her
financial disqualification from the program; the bank never signed the . . .
Modification Agreement for [the plaintiff], which is required for the provisions to
take effect.”); Wigod, 673 F.3d at 562 (“Here the TPP spelled out two conditions
precedent to Wells Fargo’s obligation to offer a permanent modification[.]”).
                                         -9-
Agreement—Topchian has stated a claim only if he has alleged facts showing that
Chase had waived the condition. See Dallas v. Am. Gen. Life & Accident Ins. Co.,
709 F.3d 734, 738 (8th Cir. 2013) (“[A] condition precedent is an act or event that
must be performed or occur, after the contract has been formed, before the contract
becomes effective.” (quoting Morgan v. City of Rolla, 947 S.W.2d 837, 840 (Mo. Ct.
App. 1997))); see also Gillis v. New Horizon Dev. Co., 664 S.W.2d 578, 580 (Mo.
Ct. App. 1983) (“A party suing for breach of a contract must allege and prove
performance of all conditions precedent, or he must allege and prove an excuse for
their nonperformance.” (quoting Iola Portland Cement Co. v. Ullmann, 140 S.W. 620,
626 (Mo. Ct. App. 1911))).

      “A party may waive any condition of a contract in the party’s favor and that
waiver may be implied from conduct.” Spencer Reed Grp., Inc. v. Pickett, 163
S.W.3d 570, 574 (Mo. Ct. App. 2005) (citation omitted). “Whether a condition
precedent is for the benefit of the [plaintiff], or the [defendant], or both, must be
determined under the facts and circumstances of each case and by the language of the
contract entered into between the parties.” Pelligreen v. Wood, 111 S.W.3d 446, 451
(Mo. Ct. App. 2003). Waiver has been defined as:

      The intentional relinquishment of a known right, on the question of
      which intention of the party charged with waiver is controlling, and if
      not shown by express declarations but implied by conduct, there must
      be a clear, unequivocal, and decisive act of the party showing, such
      purpose, and so consistent with intent to waive that no other reasonable
      explanation is possible.

Morgan, 947 S.W.2d at 840 (quoting Errante v. Kadean Real Estate Serv., Inc., 664
S.W.2d 27, 29 (Mo. Ct. App. 1984)).

     Topchian has alleged sufficient facts to show waiver. As an initial matter, we
assume that the condition was for the benefit of Chase and thus that it was Chase’s

                                        -10-
condition to waive. See Pennington, 493 F. App’x at 553 (holding in favor of the
bank because the conditions of the modification agreement had not been met since
the bank never signed the modification agreement for the plaintiff). The amended
complaint alleges that Chase waived the condition in two ways. First, Chase
expressly waived the condition when Freeman told Topchian that Chase had accepted
the Agreement and that Chase would not provide proof of the finalization of the
modification by signing and returning the Agreement to Topchian.4 Second, Chase
manifested its intent to waive the condition by accepting payments in the amount set
forth in the Agreement for ten months because Chase does not accept payments that
are less than the amount upon which it has agreed. We thus conclude that Topchian
has alleged sufficient facts to show that Chase waived the condition precedent in
order to effectuate the modification of the loan.

        Even if Chase’s characterization is correct—that the provision requiring Chase
to sign and return the Agreement is a limitation on the mode of acceptance rather than
a condition precedent—Topchian has pleaded sufficient facts to support a claim for
breach of contract. “An offer in writing need not be assented to by signing the offer,
but may be accepted orally, unless the offer requires its acceptance to be in writing,
in which case it must be thus accepted and a verbal acceptance is insufficient unless
it is assented to by the offerer[.]” Shortridge, 253 S.W.2d at 845 (quoting 17 C.J.S.
Contracts § 42); accord Keltner v. Sowell, 926 S.W.2d 528, 531 (Mo. Ct. App. 1996)
(stating that the requirement of a written notice of acceptance in a contract may also
be waived by an oral agreement of the parties or by their conduct). The amended


      4
       Because the amended complaint alleges that when Freeman made these
statements an enforceable contract was formed, a reasonable inference may be made
that Freeman is an agent of Chase with the authority to bind Chase to the contract.
See Agri Process Innovations, Inc. v. Envirotrol, Inc., 338 S.W.3d 381, 387, 387 n.3
(Mo. Ct. App. 2011) (recognizing that Missouri law permits an agent to bind a
disclosed principal when the agent enters into a contract within the scope of his actual
or apparent authority).
                                         -11-
complaint alleges that Freeman told Topchian that Chase had accepted the Agreement
and that Chase would not send proof of the acceptance in writing as set forth in the
Agreement. Thereafter, Topchian proceeded to make payments pursuant to the
Agreement. Thus, Topchian has alleged that he assented to Chase’s verbal
acceptance. See, e.g., Kopff v. Deves, 324 S.W.2d 768, 771 (Mo. Ct. App. 1959)
(“There is no doubt that the [offeree] told the [offerer] to proceed with the work after
he made the offer and he did proceed. . . . The contention that because the offer was
not signed by [the offeree] made invalid the oral contract embodying the offer, is
without merit.”).

       Chase also argues that no enforceable contract was formed because Topchian
failed to satisfy the condition precedent that all payments under the TPP agreement
be made to effectuate the permanent loan modification. Chase contends that
Topchian did not make payments in January and February 2010, but Topchian has
alleged that he made the required payments under the TPP agreement. Accordingly,
taking as true the facts alleged in the amended complaint, Topchian has satisfied the
condition.

      Lastly, Chase contends that, in the event that we conclude that it had orally
accepted the Agreement, Topchian has not stated a claim for breach of contract
because the statute of frauds prohibits an oral agreement to modify a mortgage.
Equitable exceptions to the statute of frauds generally fall into three broad categories:
perpetration of fraud, partial or full performance, and promissory estoppel. Mika v.
Cent. Bank of Kansas City, 112 S.W.3d 82, 88-89 (Mo. Ct. App. 2003). At a
minimum, Topchian has alleged the partial performance of his obligations under the
Agreement and thus has alleged sufficiently that an equitable exception applies. See
Piazza v. Combs, 226 S.W.3d 211, 227 (Mo. Ct. App. 2007) (“The requirement of full
performance . . . ‘has been relaxed in recent years to require only partial performance
upon the party seeking the benefit of the oral contract, where the party has so
materially changed his position that the use of the statute of frauds to deny

                                          -12-
enforcement of the agreement would, itself, amount to a fraud.’” (quoting Straatmann
v. Straatmann, 809 S.W.2d 95, 99 (Mo. Ct. App. 1991))).

       Thus, by alleging sufficient facts to show that the elements of a contract exist,
that the conditions precedent were satisfied or waived, and that an exception to the
statute of frauds applies, Topchian has stated a claim for breach of contract.

                          2. Fraudulent Misrepresentation

      Topchian contends that Freeman’s assurance that Chase had accepted the
Agreement constituted a fraudulent misrepresentation.5 To state a claim for
fraudulent misrepresentation, a plaintiff must allege facts to support the following
elements:

      (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s
      knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent
      that it should be acted on by the person in the manner reasonably
      contemplated; (6) the hearer’s ignorance of the falsity of the
      representation; (7) the hearer’s reliance on the representation being true;
      (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and
      proximately caused injury.

Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 131-32 (Mo. 2010)
(en banc).

       Topchian has not alleged that Freeman knew that his representation was false
or that he was reckless as to whether it was true or false. The amended complaint


      5
        Again, Topchian’s allegations impute Freeman’s statements to Chase. See
Gibson v. Brewer, 952 S.W.2d 239, 245-46 (Mo. 1997) (en banc) (delineating the rule
that a principal is liable for its agent’s acts that are within the scope of employment
and done as a means or for the purpose of doing the work assigned by the principal).
                                          -13-
alleges that the Agreement required that Chase sign and return the Agreement to
Topchian in order to effectuate the loan modification. It also alleges that Topchian
was assured by Freeman, an executive director at Chase, that Chase had accepted the
Agreement despite the fact that Chase would not sign and return the Agreement. The
amended complaint, however, does not allege any circumstances surrounding
Freeman’s statement from which we may reasonably infer that Freeman either knew
that his statement was false or that he was reckless as to its falsity. The facts that
Topchian has alleged might be consistent with Freeman having known that his
statement was false, but the alleged facts are equally consistent with a scenario in
which Freeman fully and reasonably believed that his statement was true. See Iqbal,
556 U.S. at 678. Accordingly, Topchian has failed to state a claim for fraudulent
misrepresentation.

                          3. Negligent Misrepresentation

      Topchian bases his negligent misrepresentation claim on the same
representation that is the basis of his fraud claim. To state a claim for negligent
misrepresentation, a plaintiff must allege facts that support the following elements:

      (1) the speaker supplied information in the course of his business; (2)
      because of the speaker’s failure to exercise reasonable care, the
      information was false; (3) the information was intentionally provided by
      the speaker for the guidance of limited persons in a particular business
      transaction; (4) the hearer justifiably relied on the information; and (5)
      due to the hearer’s reliance on the information, the hearer suffered a
      pecuniary loss.

Renaissance Leasing, 322 S.W.3d at 134.

      We conclude that Topchian has failed to state a claim for negligent
misrepresentation based on reasoning that parallels our reasoning above. Topchian
has not alleged facts to support a finding that Freeman failed to exercise reasonable

                                        -14-
care. Topchian did not describe any steps that Freeman took or failed to take to
determine whether Chase had, in fact, accepted the Agreement. Again, Topchian has
alleged facts that might be consistent with Freeman having acted negligently, but the
alleged facts are equally consistent with Freeman having exercised reasonable,
though perhaps ultimately ineffective, care to investigate the truth of his statement.
See Iqbal, 556 U.S. at 678. As such, Topchian has failed to state a claim for negligent
misrepresentation.

                               4. Unjust Enrichment

      Topchian argues that even if the Agreement is not enforceable, he has stated
a claim for unjust enrichment because he made the payments under the TPP
agreement and ten months of payments under the Agreement, which were retained by
Chase even though Chase made attempts to foreclose on Topchian’s property.
Topchian also argues that while he may have owed Chase the money, late fees and
penalties accrued on the original note while he made the payments.

       “A claim for unjust enrichment has three elements: a benefit conferred by a
plaintiff on a defendant; the defendant’s appreciation of the fact of the benefit; and
the acceptance and retention of the benefit by the defendant in circumstances that
would render that retention inequitable.” Hertz Corp. v. RAKS Hospitality, Inc., 196
S.W.3d 536, 543 (Mo. Ct. App. 2006). There can be no unjust enrichment claim,
however, where an express contract exists. Howard v. Turnbull, 316 S.W.3d 431,
436 (Mo. Ct. App. 2010).

       Assuming the Agreement is not enforceable, an express contract nevertheless
exists because the parties are still bound by the original loan agreement. Moreover,
Topchian has failed to allege that he provided a benefit to Chase to which Chase was
not entitled. Topchian’s amended complaint makes no reference to fees or penalties
that accrued on the original note. The only benefit that Topchian conferred on Chase

                                         -15-
that Topchian has alleged is the value of the mortgage payments under the TPP
agreement and the Agreement. These payments were conferred in exchange for his
property, which he retained for the months that he made the payments. Thus,
Topchian has not stated a claim for unjust enrichment because an express contract
exists and he has failed to allege that he has conferred a benefit on Chase whose
retention by Chase would be unjust. See, e.g., Bohnhoff v. Wells Fargo Bank, N.A.,
853 F. Supp. 2d 849, 857 (D. Minn. 2012) (dismissing an unjust enrichment claim
when the mortgagor had a preexisting duty to make loan payments).

                                   III. Conclusion

       Topchian’s amended complaint alleges sufficient facts to state a claim for
breach of contract. Our holding should not be read as imposing any sweeping duty
upon district courts to devise legal theories for pro se plaintiffs. Rather, a complaint
should be found to raise a claim only “if the essence of an allegation is discernable,
even though it is not pleaded with legal nicety[.]” Stone, 364 F.3d at 915. Here, the
essence of Topchian’s breach-of-contract claim was discernable because he attached
the Agreement—a contract—to his pleadings and alleged that Chase had not
complied with that contract. See Rabé v. United Air Lines, Inc., 636 F.3d 866, 872
(7th Cir. 2011) (recognizing that, where the pro se plaintiff had attached her
employment contract to her complaint, she had raised “implicit state law claims for
breach of contract and/or promissory estoppel[,]” even though her “complaints ha[d]
not articulated breach of contract and promissory estoppel theories”); cf. Coleman v.
Correct Care Solutions, 559 F. App’x 601, 602 (8th Cir. 2014) (per curiam) (holding
that the pro se plaintiff adequately raised a race-discrimination claim by attaching the
EEOC complaint containing race-discrimination allegations to her pleadings).

       The judgment is affirmed in part and reversed in part. The case is remanded
to the district court for further proceedings consistent with this opinion.
                         ______________________________

                                         -16-
