              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 13-1367
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                              Kevin L. Schriener

                    lllllllllllllllllllll Plaintiff - Appellant

                                         v.

                              Quicken Loans, Inc.

                    lllllllllllllllllllll Defendant - Appellee

                  Wolters Kluwer Financial Services, Inc.

                           lllllllllllllllllllll Defendant
                                   ____________

                 Appeal from United States District Court
               for the Eastern District of Missouri - St. Louis
                               ____________

                         Submitted: March 13, 2014
                          Filed: December 16, 2014
                               ____________

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

GRUENDER, Circuit Judge.
      Kevin Schriener appeals from the district court’s1 dismissal of his claims
against Quicken Loans, Inc. and the denial of his motion to alter or amend the
judgment. We affirm.

       Schriener’s complaint sets forth the following facts. In June 2011, Schriener
obtained a residential mortgage from Quicken Loans that was secured by a deed of
trust. Quicken Loans acquired the deed of trust that the parties used from Wolters
Kluwer Financial Services, Inc. (“Wolters Kluwer”) for a fee. Quicken Loans also
assisted Wolters Kluwer in preparing the deed of trust by providing necessary
information. The deed of trust, however, was not written or reviewed by an attorney
licensed to practice law in Missouri. In connection with Schriener’s residential
mortgage, Quicken Loans charged him an “origination charge” of $575.00 and
“adjusted origination charges” of $1,705.63. These charges are reflected on the
parties’ HUD-1 settlement statement (“HUD-1”),2 which Schriener attached to his
complaint. The HUD-1 does not list a fee for the preparation of the deed of trust.

       Schriener filed a putative class action against Quicken Loans in Missouri state
court, alleging that Quicken Loans improperly engaged in law business under Mo.
Rev. Stat. § 484.020; violated the Missouri Merchandising Practices Act (“MMPA”),
Mo. Rev. Stat. § 407.010 et seq.; and was unjustly enriched. After Quicken Loans
removed the matter to federal court, the district court dismissed Schriener’s claims
with prejudice for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) and denied Schriener’s motion to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e). This appeal followed.

      1
        The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
      2
        A HUD-1 is “a form developed by the United States Department of Housing
and Urban Development that itemizes all the costs paid in association with obtaining
a residential mortgage.” Binkley v. Am. Equity Mortg., Inc., --- S.W.3d ---, 2014 WL
5857324, at *1 n.3 (Mo. Nov. 12, 2014).

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       We review de novo the district court’s grant of Quicken Loans’s motion to
dismiss, accepting the well-pleaded allegations in the complaint as true and drawing
all reasonable inferences in favor of Schriener. See Varga v. U.S. Bank Nat’l Ass’n,
764 F.3d 833, 838 (8th Cir. 2014). In addition to the allegations in the complaint, we
may consider those materials that are necessarily embraced by the pleadings. Id. “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.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). The parties agree that Missouri law applies.

       We begin with Schriener’s claim that Quicken Loans improperly engaged in
law business under Mo. Rev. Stat. § 484.020 by procuring the deed of trust from
Wolters Kluwer. Missouri law defines “law business,” in relevant part, as “the
drawing or the procuring of or assisting in the drawing for a valuable consideration
of any paper, document or instrument affecting or relating to secular rights.” Mo.
Rev. Stat. § 484.010.2. The valuable-consideration aspect of this claim is at issue
here. Although Schriener alleged that Quicken Loans paid Wolters Kluwer for the
deed of trust, Schriener conceded at oral argument that Quicken Loans did not charge
him for the preparation of the deed of trust. Schriener’s counsel was unequivocal on
this point: “It’s undisputed by us that no document preparation fee was charged.”3
This admitted absence of any charge to Schriener by Quicken Loans for the
preparation of the deed of trust is dispositive under the Supreme Court of Missouri’s
recent decision in Binkley v. American Equity Mortgage, Inc., --- S.W.3d ---, 2014


      3
        We note that, in his complaint, Schriener did allege, upon information and
belief, that Quicken Loans charged him a separate fee or increased its customary
charges for the preparation of the deed of trust. However, during oral argument,
Schriener’s counsel expressly disavowed this allegation, stating “I’ve boiled it down,
and [this allegation is] gone. I don’t think I can show it.” As a result, we need not
consider the plausibility of this allegation. See Duff v. United States, 999 F.2d 1280,
1281 n.4 (8th Cir. 1993).

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WL 5857324 (Mo. Nov. 12, 2014), which was decided after this case was submitted.
In Binkley, the court considered a claim against a mortgage company for improperly
engaging in law business due to its act of procuring legal documents, including a deed
of trust, and concluded that such a claim requires proof that the mortgage company
charged the plaintiffs for the preparation of these documents. Id. at *2-3. In light of
the conceded absence of any charge to Schriener by Quicken Loans for preparing the
deed of trust, under Binkley, Schriener has not alleged that Quicken Loans procured
the deed of trust “for a valuable consideration.” See id. at *3; Mo. Rev. Stat.
§ 484.010.2. Schriener admitted as much during oral argument, conceding that if the
Supreme Court of Missouri rejected the Binkley plaintiffs’ claim for improperly
engaging in law business—where there was no evidence that the plaintiffs were
charged for document preparation—then Schriener’s analogous claim would fail. We
agree and accordingly affirm the dismissal of Schriener’s claim for improperly
engaging in law business.

         Schriener’s concession that Quicken Loans did not charge him for the
preparation of the deed of trust also undermines his MMPA claim. The MMPA
provides a cause of action for any person who “made a purchase or lease for personal,
family, or household purposes and suffered an ascertainable loss of money or property
as a result of an act declared unlawful under [the MMPA].” Binkley, 2014 WL
5857324, at *4; see Mo. Rev. Stat. § 407.025. Schriener contends that he pleaded a
violation of the MMPA based upon Quicken Loans’s procurement of the deed of trust
from Wolters Kluwer. However, it follows from the conceded absence of any charge
to Schriener by Quicken Loans for preparing the deed of trust that Schriener failed to
plead an ascertainable loss of money or property as a result of Quicken Loans’s
conduct, as required by the MMPA. See Binkley, 2014 WL 5857324, at *4 (reasoning
that because the plaintiffs “were not charged a fee for preparation of legal documents
. . . they failed to demonstrate they suffered an ascertainable loss of money or property
as a result of an [act declared unlawful by the MMPA]”). We therefore affirm the
dismissal of Schriener’s MMPA claim.

                                          -4-
       Schriener’s unjust-enrichment claim fails for much the same reason. For this
claim, Schriener had to plead that (1) he conferred a benefit on Quicken Loans (2)
Quicken Loans appreciated the benefit and (3) Quicken Loans “accepted and retained
the benefit under inequitable and/or unjust circumstances.” See id. (quoting Hargis
v. JBL Corp., 357 S.W.3d 574, 586 (Mo. 2011)). Schriener initially premised this
claim upon Quicken Loans’s procurement of the deed of trust from Wolters Kluwer,
contending in briefing that unjust enrichment can be used to recover fees that Quicken
Loans charged for improperly engaging in law business. But here again, Schriener’s
concession at oral argument that Quicken Loans did not charge him for the preparation
of the deed of trust undercuts his claim. In the absence of such a charge, Schriener has
not alleged that he conferred a benefit on Quicken Loans. See id. (concluding
plaintiffs did not confer a benefit on mortgage company because their unjust-
enrichment claim “depends on the [plaintiffs] having directly paid a fee for the
preparation of the legal documents” that they did not pay). We thus affirm the
dismissal of Schriener’s unjust-enrichment claim.

       Schriener also appeals the district court’s denial of his motion to alter or amend
the judgment. Schriener first contends that the court should have granted him post-
dismissal leave to amend his complaint. The district court concluded that Schriener’s
delay in seeking leave to amend was unjustified and that, in any event, Schriener’s
proposed amendments to his complaint would be futile. We review the denial of a
motion for leave to amend for abuse of discretion, Mountain Home Flight Serv., Inc.
v. Baxter Cnty., Ark., 758 F.3d 1038, 1045 (8th Cir. 2014), but we review de novo the
underlying legal conclusion that an amendment to a complaint would be futile, Reuter
v. Jax Ltd., Inc., 711 F.3d 918, 921 (8th Cir. 2013). In light of Schriener’s concession
that Quicken Loans did not charge him for preparing the deed of trust, for the reasons
discussed above, we agree with the district court that Schriener’s proposed
amendments would be futile. Second, Schriener argues that the district court should
have amended its judgment to make its dismissal of his claims to be without prejudice,
thereby allowing him to file another complaint. We review the district court’s

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decision in this regard for abuse of discretion. Springdale Educ. Ass’n v. Springdale
Sch. Dist., 133 F.3d 649, 653 (8th Cir. 1998). Because we agree with the district court
that Schriener’s proposed amendments to his complaint would be futile, we discern
no abuse of discretion in the district court’s failure to modify its dismissal to allow
Schriener to file another complaint. See id.; Wright v. Anthony, 733 F.2d 575, 577
(8th Cir. 1984).

      The judgment of the district court is affirmed.
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