Dianna Wittenberg v. First Independent Mortgage Company , 599 F. App'x 463 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1323
DIANNA WITTENBERG,
Plaintiff - Appellant,
v.
FIRST INDEPENDENT MORTGAGE COMPANY, a subsidiary of First
Independent Bank; GEORGE W.R. GLASS; WELLS FARGO BANK, N.A.,
Successor by Merger to Wells Fargo Home Mortgage; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.; US BANK NATIONAL
ASSOCIATION, Trustee for BANC of America Corporation; BANK
OF AMERICA, NATIONAL ASSOCIATION, parent corporation of Banc
of America Funding Corporation & Banc of America Funding
Corporation 2006-G Trust; SAMUEL I. WHITE; SENECA TRUSTEES,
LLC,
Defendants – Appellees,
and
CAMERON TITLE, LLC; DOES 1-50, being parties to be named
later,
Defendants.
No. 13-1366
DIANNA WITTENBERG,
Plaintiff - Appellant,
v.
FIRST INDEPENDENT MORTGAGE COMPANY, a subsidiary of First
Independent Bank; GEORGE W.R. GLASS; WELLS FARGO BANK, N.A.,
Successor by Merger to Wells Fargo Home Mortgage; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.; US BANK NATIONAL
ASSOCIATION, Trustee for BANC of America Corporation; BANK
OF AMERICA, NATIONAL ASSOCIATION, parent corporation of Banc
of America Funding Corporation & Banc of America Funding
Corporation 2006-G Trust; SAMUEL I. WHITE; SENECA TRUSTEES,
LLC,
Defendants – Appellees,
and
CAMERON TITLE, LLC; DOES 1-50, being parties to be named
later,
Defendants.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:10-cv-00058-JPB)
Submitted: June 20, 2013 Decided: July 31, 2013
Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael M. Brownlee, BROWNSTONE, P.A., Winter Park, Florida, for
Appellant. Joseph S. Dowdy, NELSON MULLINS RILEY & SCARBOROUGH
LLP, Raleigh, North Carolina; Jeremy C. Hodges, NELSON MULLINS
RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for Appellees
Wells Fargo Bank, N.A., Mortgage Electronic Registration
Systems, Inc., US Bank National Association, and Bank of
America; Debra Lee Hovatter, SPILMAN THOMAS & BATTLE PLLC,
Morgantown, West Virginia, for Appellee First Independent
Mortgage Company; Ancil G. Ramey, STEPTOE & JOHNSON, LLP,
Huntington, West Virginia, for Appellee George W.R. Glass;
Chris R. Arthur, SAMUEL I. WHITE PC, Charleston, West Virginia,
for Appellees Samuel I. White and Seneca Trustees, LLC.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dianna Wittenberg appeals the dismissal of her claims and
the grant of summary judgment against her in a lawsuit arising
out of the issuance and securitization of, and threatened
foreclosure on, her mortgage. Wittenberg unsuccessfully alleged
numerous counts against various defendants. For the reasons
that follow, we affirm.
I.
A.
According to Wittenberg’s First Amended Complaint, in 2005,
Wittenberg met a mortgage loan broker employed by First
Independent Mortgage Company (“First Independent”) named Andy
Swanson. Swanson told Wittenberg that he could obtain
refinancing for her home loan with beneficial terms. Wittenberg
agreed to refinance her loan, and Swanson filled out her loan
application. Wittenberg alleges that in doing so, he misstated
her monthly income, despite her protestations.
In February 2006, Wittenberg attempted to close on the
loan. However, after signing some of the proffered documents,
she walked away from the closing because the closing costs were
greater than Swanson had represented. Swanson rescheduled the
closing, and again, Wittenberg walked away because the documents
showed different closing costs. A third time, on March 21,
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2006, after partially signing a number of loan documents,
Wittenberg declined to finalize the closing. At the end of each
failed closing, Wittenberg was informed that the papers she had
signed would be shredded.
Finally, on March 27, 2006, Wittenberg closed on her loan
at the office of attorney George Glass (“Glass”). According to
Wittenberg, she signed, initialed, and dated each page of the
loan documents, including a promissory note of $416,000 and a
deed of trust. The loan terms did not require Wittenberg to pay
an amount for escrow from property taxes and insurance, as she
was to pay for those herself. Wittenberg did not receive copies
of the loan documents that day. Glass said he would mail copies
of them to her, but never did. Wittenberg did not receive
copies of the documents until she went to Glass’s office in June
2006 to retrieve them. According to Wittenberg, the documents
she obtained did not accurately reflect the loan terms to which
she had agreed.
A year later, Wells Fargo Bank N.A. (“Wells Fargo”), the
servicer of Wittenberg’s loan, began to send her letters
threatening to add tax and insurance escrows to her monthly
payments. Wittenberg contacted Wells Fargo to address this
issue, but Wells Fargo did not respond. When Wittenberg went to
the county tax office to pay her property tax, she learned that
Wells Fargo had already paid the tax. When Wittenberg tried to
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make her usual mortgage payment, Wells Fargo refused to accept
it unless she included an additional amount for escrow for
taxes.
In December 2008, Wittenberg and a Wells Fargo specialist
named Leann Miller (“Miller”) reached an agreement to avoid
default whereby Wells Fargo would accept Wittenberg’s monthly
payments without escrow until Wells Fargo could investigate the
escrow issue and return the loan to non-escrow status. Miller
also encouraged Wittenberg to modify her loan to obtain a fixed
rate. As part of the modification, Miller offered Wittenberg a
“payment moratorium” for six months, and represented that Wells
Fargo would extend the loan term, reduce the interest rate, and
reduce Wittenberg’s monthly payments. In reliance on Miller’s
representations, Wittenberg submitted the required documents for
the modification and stopped making monthly payments.
On February 11, 2009, Wells Fargo offered Wittenberg a loan
modification, which reduced her interest rate and provided that
her missed payments would be repaid over the life of the loan.
Wittenberg declined this proposed modification, because it would
have increased her monthly payment.
Wells Fargo refused to accept subsequent monthly payments
from Wittenberg, claiming that she was three months in arrears.
Wittenberg contacted Wells Fargo, but Wells Fargo would not
explain why the monthly payment had increased. Wittenberg
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discussed the issue with Miller, who informed Wittenberg that
Wells Fargo was participating in the Home Affordable
Modification Program (“HAMP”) but did not answer any questions
about the program. Miller directed Wittenberg to resubmit her
documentation to the Wells Fargo Loss Mitigation Department,
which she did.
In May 2009, Wittenberg received a second modification
offer from Wells Fargo, proposing to lower her monthly payments.
However, Wittenberg believed that her monthly payments under the
HAMP would have been lower than Wells Fargo’s proposed payments.
Wells Fargo informed her that she was ineligible for a HAMP
modification.
On June 9 and 10, 2009, Wittenberg sent Wells Fargo letters
requesting documents and information concerning the origination,
securitization, assignment, and servicing of her loan. In
response, on August 3, 2009, Wells Fargo provided Wittenberg
with information about her loan, presenting the note signed by
Wittenberg on March 21, 2006 as evidence of her underlying
obligation and stating that the loan had originated on that
date. Wells Fargo also presented a deed of trust purportedly
dated March 27, 2006 and signed by Wittenberg. However, the
deed of trust was devoid of Wittenberg’s initials on the middle
13 pages, and it appeared that her initials had been forged on
the initial page and that the date of the document had been
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altered. Wells Fargo has never produced a March 27, 2006 note,
despite Wittenberg’s repeated requests.
At some point during this sequence of events, Mortgage
Electronic Registration Systems, Inc. (“MERS”), the nominee for
the lender, assigned the March 27, 2006 deed of trust to U.S.
Bank, as Trustee for Banc of America Funding Corporation 2006-G.
Wittenberg alleges that she did not approve this assignment.
On June 20, 2009, Samuel I. White, P.C. (“White”), the
servicer of the debt, sent Wittenberg a letter on behalf of
Wells Fargo seeking to collect the principal balance of her
loan. Wittenberg sent a letter in response disputing the debt.
In August 2009, White recorded a Corporate Assignment of
Deed of Trust purporting to assign Wittenberg’s Deed of Trust to
U.S. Bank National Association (“US Bank”), as Trustee for Banc
of America Funding Corporation 2006-G. White also recorded a
Substitution of Trustee and a Corrected Substitution of trustee,
which purported to remove the original Trustee--Scully & Glass
or H. Charles Carl, III--and appoint Seneca Trustees, Inc.
(“Seneca”) as Trustee.
On several occasions, Seneca scheduled foreclosure sales.
Each time, Seneca notified Wittenberg that she could reinstate
her loan by paying a certain amount prior to the sale. None of
the sales ultimately took place, however.
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B.
On June 8, 2010, Wittenberg filed suit against, inter
alios, Glass, First Independent; Wells Fargo; MERS; US Bank;
Bank of America, National Association, the parent corporation of
Banc of America Funding Corporation & Banc of America Funding
Corporation 2006-G Trust (“Bank of America”); White; and Seneca.
Glass moved to dismiss the counts against him, in which
Wittenberg alleged that he breached his fiduciary duty and
committed negligence in his roles as closing attorney and
trustee. The district court granted Glass’s motion to dismiss.
Subsequently, on February 4, 2011, Wittenberg filed her
First Amended Complaint, again alleging a number of counts, but
excluding Glass as a defendant. She alleged, inter alia,
negligence, for failure to exercise reasonable care in issuing
her a loan and failing to preserve her original note and loan
documents; breach of fiduciary duty; fraud; fraudulent,
deceptive, or misleading representations in violation of the
West Virginia Consumer Credit and Protection Act (“WVCCPA”), W.
Va. Code § 46A-1-101, et seq.; violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.;
and civil conspiracy.
A number of the defendants moved to dismiss this complaint
for failure to state a claim upon which relief could be granted,
and the district court dismissed the majority of Wittenberg’s
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claims with prejudice. Following this decision, claims remained
against Wells Fargo for (1) breach of contract and the implied
duty of good faith and fair dealing; and (2) violation of the
unfair or deceptive trade practices provisions of the WVCCPA.
On February 10, 2012, the court granted summary judgment to
Wells Fargo on those claims. Wittenberg does not appeal that
decision.
Neither White nor Seneca moved for dismissal, but on
November 7, 2011, they and Wittenberg filed cross motions for
summary judgment on her claims against them. On February 10,
2012, the court granted summary judgment to White and Seneca.
On March 12, 2012, Wittenberg filed a notice of appeal. On
October 12, 2012, she filed a motion to hold the case in
abeyance until the district court ruled on a motion for relief
from judgment under Federal Rule of Civil Procedure 60(b), which
she filed with the district court on November 7, 2012. The
district court denied her motion as untimely. She now appeals
that order as well.
In sum, the following issues remain: (1) whether the
district court erred in dismissing Wittenberg’s breach of
fiduciary duty and negligence claims; (2) whether the district
court erred in dismissing Wittenberg’s WVCCPA claim; (3) whether
the district court erred in granting summary judgment to Seneca
and White on Wittenberg’s fiduciary duty, fraud, WVCCPA, and
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FDCPA claims; (4) whether the district court erred in dismissing
Wittenberg’s claims based on alleged joint venture liability;
and (5) whether the district court abused its discretion in
denying Wittenberg’s motion for relief from judgment. We
discuss each in turn.
II.
A. Dismissal of Breach of Fiduciary Duty and Negligence Claims
On appeal, Wittenberg first argues that it was error to
dismiss her claims for breach of fiduciary duty (against Glass)
and negligence (against Glass, First Independent, Wells Fargo,
MERS, and US Bank) “simply because [she] did not specifically
allege that the March 21 Note was different from the March 27
note.” Appellant’s Br. at 17. Wittenberg’s argument rests on
an erroneous apprehension of the pleading standard under Federal
Rule of Civil Procedure 8. “[T]he pleading standard Rule 8
announces does not require detailed factual allegations, but it
demands more than an unadorned, the-defendant-unlawfully-harmed-
me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal quotation marks omitted). The district
court correctly surmised that Wittenberg’s claims based on the
alleged difference between the two notes are little more than
“naked assertions devoid of further factual enhancements.” Id.(citation and internal quotation marks omitted). Moreover, even
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after the court provided Wittenberg with a second opportunity--
in the form of additional briefing--to explain how she was
injured by the preservation and use of the allegedly incorrect
note, she failed to do so. Even now, on appeal, Wittenberg
fails to detail what terms differed between the March 21 and
March 27 notes.
B. Dismissal of WVCCPA Claim
Wittenberg next argues that the district court erred in
dismissing her WVCCPA claim against Wells Fargo on the grounds
that letters written by Wells Fargo or on its behalf claiming
delinquency were fraudulent, deceptive, or misleading.
Wittenberg failed to allege that her loan was not delinquent. 1
We agree with the district court that “[i]f, according to her
own allegations, [Wittenberg] was delinquent, then the
1
In her appellate brief, Wittenberg references a statement
from the errata sheet she created following her deposition in
which she asserts that the March 27 note created a ten-year
adjustable rate mortgage (“ARM”), and that the March 21 note
contained a more onerous, five-year ARM. However, she made no
mention of this alleged discrepancy in her pleadings, upon which
the district court’s dismissal decision was based, despite being
allowed more than one opportunity to do so. Moreover, her
actual deposition testimony does not indicate such a fact, and a
hardship letter she sent to Wells Fargo in 2009 indicates that
she agreed to a five-year ARM. J.A. 439-40.
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foreclosure notices could not have been fraudulent, deceptive,
or misleading as a matter of law.” J.A. 155. 2
C. Summary Judgment on Fiduciary Duty, Fraud, WVCCPA, and FDCPA
Claims
Wittenberg also appeals the district court’s grant of
summary judgment in favor of Seneca on her fiduciary duty and
fraud claims and White on her WVCCPA, FDCPA, and fraud claims.
Wittenberg’s claims stem from her allegation that Seneca and
White defrauded her by acting upon the invalid March 21, 2006
note.
1. Claims Against Seneca
With respect to her fiduciary duty claim, Wittenberg argues
that “because while . . . a trustee does not have to ensure the
validity of the debt, it must make sure that it has the
authority to act on the debt.” Appellant’s Br. at 22.
Wittenberg’s argument is based on a misapprehension of the
duties of a trustee under West Virginia law, which “does not
2
The district court also held that, “to the extent
[Wittenberg] argues that any claim of delinquency was
fraudulent, deceptive, or misleading because she only became
delinquent in reliance upon representations made by Wells Fargo
during a potential loan modification, her claim is preempted [by
the National Bank Act, 12 U.S.C. § 1 et seq. and the regulations
promulgated thereunder].” J.A. 155-56. Because Wittenberg does
not press the argument regarding delinquency resulting from
reliance on such representations in her opening brief, we do not
address the question of preemption.
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require the trustee to review account records to ascertain the
actual amount due prior to foreclosing . . . .” Lucas v.
Fairbanks Capital Corp., 618 S.E.2d 488, 497 (2005). Indeed,
“nothing in the language of W. Va. Code § 38-1-3 . . .
suggest[s] that a trustee has a duty to consider objections to
the foreclosure sale.” Id. Wittenberg defaulted on her loan,
and the Deed of Trust provides for the invocation of the power
of sale. Wells Fargo alerted Seneca of the default, and Seneca
simply scheduled a foreclosure sale as demanded. Under these
facts, which Wittenberg does not dispute, the district court
correctly held that she could not prevail against Seneca in an
action for breach of fiduciary duty.
As for fraud, Wittenberg argued below that Seneca defrauded
her by misrepresenting that it had the authority to foreclose on
her property. However, as Seneca has not actually foreclosed on
her property, the district court correctly determined that
Wittenberg had failed to present a genuine issue of material
fact as to whether the alleged misrepresentations caused her
damages sufficient for a finding of fraud.
2. Claims Against White
Wittenberg claimed she was defrauded by White, which, she
alleged, created fraudulent Substitution of Trustee documents.
She alleged that these documents contained false statements
regarding the owner of her note and the beneficial owner of the
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Deed of Trust. Her arguments on appeal with respect to this
claim are underdeveloped at best, but to the extent that she
challenges the district court’s reasoning as to her fraud claim
against White, we find that the district court was correct in
rejecting her argument based on her “general theory that the
securitization of her loan was unlawful,” J.A. 596, which, as
discussed below, is without merit, see infra Part II.D.
Wittenberg also challenges the district court’s grant of
summary judgment to White on her WVCCPA and FDCPA claims.
However, the extent of her argument on this front in her opening
brief is that “Samuel White [sic] actions are arguably more
culpable [than Seneca’s], as it prepared the Substitution of
Trustee form, as well as the Corrected Substitution of Trustee
forms. This is sufficient for liability under the WVCCPA and
FDCPA.” Appellant’s Br. at 24. This conclusory statement does
not provide much in the way of an argument for this court to
address on appeal. Cf. United States v. Bowles, 602 F.3d 581,
583 n.1 (4th Cir. 2010) (noting that arguments not raised in an
opening brief are waived). In any event, we have reviewed the
district court’s reasoning and conclusions as to Wittenberg’s
WVCCPA and FDCPA claims against White and find no error.
D. Dismissal of Claims Based on Alleged Joint Venture Liability
Finally, Wittenberg appeals the district court’s dismissal
of various claims based on joint venture liability. Wittenberg
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correctly states that under West Virginia law, joint venturers
are “jointly and severally liable for each other’s misdeeds,”
and that courts must determine whether a plaintiff has properly
pled (1) the elements of a joint venture, and (2) that a
wrongful act was committed within the scope of the joint
venture. Appellant’s Br. at 28-29. Wittenberg argues that the
district court employed the wrong test by examining not whether
a joint venture existed, but whether the alleged joint
venturers’ “alleged participation in a plan to securitize
[Wittenberg’s] note is unlawful.” J.A. 144. However, this is
simply a more specific statement of the latter of the two
requirements Wittenberg herself lays out; we find no error in
the court’s mode of analysis.
Wittenberg also argues that, although securitization per se
is not unlawful, she alleged specific unlawful acts, including
the sale of her loan before her closing date. However, these
allegations were not included in her First Amended Complaint
below, and we will not countenance them on appeal. The acts
Wittenberg did allege in her complaint that related to the
securitization of her loan simply were not illegal. See J.A.
144-45 (“[T]he plaintiff has failed to cite a single case, and
this Court’s independent research was unable to discover one,
which stands for the proposition that securitization is
unlawful.”). Indeed, Wittenberg herself acknowledges that
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“securitization of a loan, in and of itself, is lawful.”
Appellant’s Br. at 29. She maintains, however, that a
“conspiracy” to issue her loan and securitize it, which resulted
in threatened foreclosure proceedings, is distinct and unlawful.
She makes no credible distinction between these concededly
lawful acts and those she asserts were illegal. To the extent
her First Amended Complaint alleges illegal actions by the
Appellees related to the alleged joint venture, these
allegations were mere “naked assertions devoid of further
factual enhancements.” Iqbal, 556 U.S. at 678 (citation and
internal quotation marks omitted).
E. Denial of Motion for Relief from Judgment
Wittenberg also appeals the district court’s denial of her
Rule 60(b) motion for relief from judgment. A Rule 60(b) motion
“must be made within a reasonable time--and . . . no more than a
year after the entry of judgment or order . . . .” Fed. R. Civ.
P. 60(c)(1). The first two of the three orders Wittenberg
contests were entered more than one year before she filed her
motion. The summary judgment order was entered approximately
nine months before her motion. The district court ruled that
the motion was time-barred as to all three orders.
We have upheld denials of Rule 60(b) motions as untimely
on several occasions entailing delays significantly shorter than
nine months. See McLawhorn v. John W. Daniel & Co., 924 F.2d
17535, 538 (4th Cir. 1991) (collecting cases). Moreover, we find
no valid reason for the delay. Wittenberg’s motion was based
upon an opinion issued by another court on February 9, 2012--the
day before the district court entered its final order in this
case. She presents no compelling explanation for why it took
her more than nine months from the issuance of that opinion to
file her motion. We therefore hold that the district court did
not abuse its discretion in denying her motion for relief from
judgment.
III.
Accordingly, we affirm the district court’s decisions. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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