                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2152


THE CAPER CORPORATION,

                Plaintiff - Appellant,

          v.

WELLS FARGO BANK, N.A., as successor by merger to Wachovia
Bank, N.A.,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12−cv−00357−D)


Submitted:   March 21, 2014                  Decided:    July 17, 2014


Before KING and    THACKER,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


S. Leigh Rodenbough, IV, James C. Adams, II, Benjamin R. Norman,
BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP, Greensboro,
North Carolina, for Appellant. William L. Esser IV, Matthew H.
Mall, PARKER POE ADAMS & BERNSTEIN LLP, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            This case arises from an interest rate swap agreement

and   accompanying     loan   contract         between    Appellant     The    Caper

Corporation (“Appellant”) and Appellee Wells Fargo (“Appellee”),

as successor in interest to Wachovia Bank, N.A.                       The district

court dismissed all ten of Appellant’s causes of action, which

sound in both contract and tort, for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6).                    For the reasons

that follow, we affirm.

                                         I.

                                      A. 1

            Appellant    is   a    real       estate    development    corporation

organized under Florida law and headquartered in North Carolina.

Beginning in the early 1980s, Appellant financed many of its

commercial    and   residential     development         projects    through    loans

obtained     from     Appellee     and        its      predecessors-in-interest.

Consistent with this relationship, on April 8, 2005, Appellee

loaned    Appellant   $3.8    million     (the      “Original   Loan”)    so    that

Appellant     could     purchase     an       office     building     located     in

      1
       The facts set forth in this section are derived from the
complaint, the “documents incorporated into the complaint by
reference,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007), and the documents “attached to the motion
to dismiss” that are “integral to the complaint and authentic,”
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009).



                                          2
Wilmington,        North     Carolina     (the    “Property”).         The    seven-year

loan agreement, which was secured by a deed of trust to the

Property, included a one-year variable interest rate followed by

a   six-year        fixed     interest    rate.        Appellant      used        the    loan

disbursement to purchase the Property and, effective July 1,

2005, leased it to a commercial tenant for a term of seven

years.

                 Several     months   after       executing    the    Original          Loan,

Appellant         decided     to   seek   refinancing         in   order     to    develop

certain portions of the Property for the tenant’s use.                             Appellee

responded to Appellant’s inquiry with a term sheet (the “Term

Sheet”) offering a $10.3 million (later reduced by agreement to

$4.3 million), ten-year refinanced loan with a variable interest

rate       set    at   the    one-month       London    Interbank       Offered          Rate

(“LIBOR”) plus 1.75% (later reduced by agreement to LIBOR plus

1.70%).          The proposed refinanced loan, according to the Term

Sheet, would include a 0.25% fee and “[o]ther costs as required

including         appraisal        fee,    environmental           assessment,          title

insurance and legal fees (if applicable).”                     J.A. 23. 2         The Term

Sheet further provided that Appellant could obtain a fixed rate




       2
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                              3
through   a    separate     interest       rate    swap   agreement,     which   was

“available upon request.”          Id. at 13.

              As described by the district court, an interest rate

swap agreement

              is   a  standalone    interest  rate   hedging
              instrument whereby two parties pay each
              other interest based on a notional principal
              amount   (i.e.,    an    agreed   hypothetical
              principal amount).    The first party pays a
              fixed interest rate to the second party,
              while the second party pays a variable
              interest rate to the first party. If the
              first party is a borrower with a variable
              interest rate loan, where the loan interest
              rate and swap interest rate are the same,
              and the notional principal amount is equal
              to the loan principal, the loan holder
              effectively pays only a fixed interest rate.
              Incoming payments under the interest      rate
              swap offset any interest due under the loan,
              leaving a net payment at the fixed interest
              rate.

The Caper Corp. v. Wells Fargo Bank, N.A., No. 7:12-CV-357-D,

2013 WL 4504450, at *1 n.1 (E.D.N.C. Aug. 22, 2013) (internal

citations      omitted).        Notably,       the    Term    Sheet    stated    that

Appellee would extend any swap agreement at “a market-derived

rate.”    J.A. 22.         Appellee orally advised Appellant that the

proposed refinanced loan, on the other hand, was being offered

at “market rates.”        Id.

              Intent   on       securing       a     fixed-rate   loan     or     its

equivalent,      Appellant’s      president,         Walter   Pancoe    (“Pancoe”),

contacted Appellee about the swap option mentioned in the Term


                                           4
Sheet.      Following      a   brief    telephone       conversation,        Appellee’s

agent,    Matt   Boss    (“Boss”),       sent      Pancoe    a   letter     (the     “Swap

Letter”) proposing an interest rate swap as a way “to hedge

against     future      interest        rate       increases      on      [Appellant’s]

[anticipated] floating rate loan.”                  J.A. 116.     In explaining the

proposed    swap,    the       Swap    Letter      described,     inter      alia,     the

possibility of “termination fees” if the “swap transaction is

unwound before its stated maturity,” id., and identified some of

the risks involved in executing a swap agreement before closing

on the proposed refinanced loan:

            Caper can even use a swap to lock in a fixed
            rate in advance of its loan closing. Please
            be aware, however, that any swap is a
            separate contract and would be an ongoing
            obligation whether or not the loan takes
            place.    The    risk   of   the    swap  being
            unnecessary     (because   the     loan   never
            materializes or for other reasons) should be
            carefully     considered   by    Caper   before
            entering into a swap to lock in a rate.

Id. at 117 (emphasis supplied); see also id. at 120.                         The letter

went on to disclaim any advisory role on the part of Appellee,

repeatedly stating that Appellant “must make its own evaluation

of the proposed transaction . . . and the risks involved.”                            Id.

at 120.

            Thereafter, on November 21, 2005, Appellant elected to

enter     into   a   ten-year         swap       agreement   with        Appellee    (the

“Original    Swap    Agreement”)        prior      to   closing     on    the   proposed


                                             5
refinanced loan.          As is typical in such contracts, the Original

Swap Agreement was governed by an International Swap Dealers

Association       Master      Agreement      and     Schedule     (collectively,      the

“Master Agreement”), which set forth the general terms governing

the     transaction,          and    a     more      particularized      Confirmation

containing the specific financial terms.                         The swap itself was

based on a notional amount of $4.3 million, pursuant to which

Appellant would make payments at a fixed 6.91% interest rate and

Appellee would make payments at a variable interest rate of the

one-month LIBOR plus 1.70%.                By its plain language, the Original

Swap       Agreement    was    set    to    expire    on   January    15,     2016   (the

“Termination Date”), and one party would be required to pay the

other a variable, market-based termination fee in the event of

an    early    termination. 3         The    Original      Swap    Agreement    further

provided that the parties were obliged to make all “payments

that become due” under the Agreement “whether or not” the terms

of     the    ultimate     loan      differed      from    the    Agreement    or    “the

Termination Date . . . occur[ed] . . . after the maturity date

of any loan.”          J.A. 77.


       3
       The precise amount of the termination fee, and the party
responsible therefor, depended upon the relative positions of
the fixed rate in the Original Swap Agreement and the market
fixed rate for a swap with the same maturity date and structure
remaining under the Agreement at the time of the early
termination.



                                              6
           At some point after the execution of the Original Swap

Agreement, Appellee decided to align the term of the proposed

refinanced loan with the term of the Property’s existing lease,

shortening its offered loan term from ten to six years.                          Pancoe

complained    to       Appellee    that,    as     a    consequence         of    this

modification, the terms of the proposed refinanced loan and the

Original Swap Agreement no longer matched, i.e., the parties’

obligations   under      the   Original     Swap   Agreement        would    outlast

their obligations under the proposed refinanced loan by almost

four years.       In response, Appellee’s agent, Randall C. Tomsic

(“Tomsic”),       allegedly       assured     Pancoe,         “if   [Appellant’s]

obligations   under      the   [proposed    refinanced         loan]   ended,      its

obligations under the [Original Swap Agreement] would end at the

same time without any additional payment obligations.”                      J.A. 17.

Mollified by this representation, Appellant entered into a six-

year refinanced loan agreement with Appellee (the “Refinanced

Loan”) on January 23, 2006, in the principal amount of $4.3

million,   with    a   variable    interest      rate   set    at   the   one-month

LIBOR plus 1.70%. 4         The Refinanced Loan was set to mature on

March 15, 2012.


     4
       Notably, the executed loan documents contain no mention of
the parties’ alleged oral agreement as to the simultaneous
termination, without an accompanying fee, of the of the Original
Swap Agreement and the Refinanced Loan.     Rather, the relevant
promissory note provides, “[a]ll swap agreements . . . between
(Continued)
                                        7
            Subsequently, on February 2, 2006, the parties agreed

to amend the terms of the Original Swap Agreement so that the

monthly payments for the Refinanced Loan and the Original Swap

Agreement would fall on the same dates.                     At this time, the

complaint alleges, Appellee “refus[ed] to amend the [Original

Swap   Agreement]     to    shorten      its   term”   to   match    that    of    the

Refinanced Loan “because shortening the term of the Original

Swap   would       have    resulted       in   a     loss   to    [Appellee]        of

approximately       $14,000.”         J.A.     18.      Indeed,      the    amended

Confirmation ultimately executed by the parties in June 2006

(“Amended Swap Agreement” or “Amendment”) -- which reset the

monthly payment dates for the swap, as the parties agreed --

neither shortened the term of the Original Swap Agreement nor

included any language waiving the early termination fee.                     To the

contrary, the Amendment actually extended the Termination Date

of   the   Original       Swap    Agreement     from   January      15,    2016,    to

February 10, 2016, and added an “Additional Termination Event”

pursuant to which the swap would “terminate and be replaced by

an obligation of one party to make a [termination fee] payment

to   the   other   party”    if    the   Agreement     became    unsecured     after



[Appellant] and [Appellee] . . . are                    independent agreements
governed by [their] written provisions .                . ., which will remain
in full force and effect, unaffected                   by any repayment [or]
prepayment” of the Refinanced Loan. J.A.               127.



                                          8
March 15, 2012.         Id. at 49.            The Amendment also incorporated

“[a]ll     provisions”    of     the        Master     Agreement         that     were    not

“expressly modified” in the Amendment itself.                       Id.

            For   the    next        four     years,        Appellant      made     monthly

payments to Appellee as required by the Refinanced Loan and the

Amended    Swap   Agreement.          In     April     2011,    the       tenant    of    the

Property    decided     that    it    would      not    renew      the    lease    when    it

expired in June 2012.          As a result, Appellant asked Appellee for

an extension of the Refinanced Loan or, in the alternative, for

a   new   short-term     loan.         Appellant        also    requested         that    the

Amended Swap Agreement be terminated when the Refinanced Loan

matured “without any additional payment obligation,” as Appellee

had allegedly promised.          J.A. 19.            In a series of discussions,

Appellee initially “reconfirmed” Appellant’s understanding as to

the contemporaneous termination of the Amended Swap Agreement

and the Refinanced Loan, id., but later advised that it intended

to hold Appellant to the terms of the agreement as written.                                On

April 11, 2012, after much back-and-forth, Appellee agreed to

extend the term of the Refinanced Loan from March 15, 2012, to

September 30, 2012, and the parties executed a loan modification

to that effect.

            Prior to the new maturity date of the Refinanced Loan,

Appellant    entered     into    a    contract         to   sell    the    Property       and

requested a “payoff from [Appellee] for the Refinanced Loan in

                                             9
anticipation      of   a    closing.”              J.A.    21.        Appellee    informed

Appellant that it was invoking its contractual right to withhold

the   deed   of   trust     to     the    Property        pending     repayment     of   the

Refinanced Loan, termination of the Amended Swap Agreement, and

satisfaction      of   any       termination         fee.        On    June   28,       2012,

Appellant closed on the sale of the Property and repaid the

Refinanced Loan in full, triggering Appellee’s contractual right

to terminate the swap at a cost to Appellant of $568,337 (the

“Termination      Fee”).           That       same     day,      Appellant       paid    the

Termination Fee and executed a Confirmation of Termination, to

which it appended language noting that it acted “under duress[]

and with full reservation of rights to contest its liability for

the Termination Fee.”            Id. at 139.              Appellee then released the

deed of trust on the Property.

                                              B.

             Appellant filed a complaint against Appellee in the

Superior     Court     of    New    Hanover          County,     North    Carolina,       on

November 26, 2012.           Appellee removed the case to the Eastern

District of North Carolina on December 27, 2012, invoking the

court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332.

Subsequently, on January 30, 2013, Appellee moved to dismiss

Appellant’s complaint in its entirety for failure to state a

claim   under     Federal    Rule        of   Civil       Procedure     12(b)(6).        The



                                              10
district court granted Appellee’s motion on August 22, 2013.

Appellant timely filed a notice of appeal.

                                                II.

              We    review        de    novo     the      district           court’s      grant    of

Appellee’s         motion        to     dismiss        pursuant          to      Rule     12(b)(6).

Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 776 (4th Cir.

2013).        To survive such a motion, the complaint must contain

facts    sufficient         “to        raise     a     right       to     relief         above    the

speculative        level”        and        “state    a   claim         to       relief    that     is

plausible on its face.”                     Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 570 (2007).                  Although we must view the facts alleged

in the complaint “in the light most favorable to the plaintiff,”

Nemet    Chevrolet,       Ltd.         v.    Consumeraffairs.com,                Inc.,    591     F.3d

250,    255    (4th      Cir.     2009),        we    will     not       accept      “unwarranted

inferences,        unreasonable             conclusions,       .     .       .    arguments,”      or

“allegations that offer only naked assertions devoid of further

factual enhancement.”                 U.S. ex rel. Oberg v. Penn. Higher Educ.

Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (internal

quotation marks omitted).

                                                III.

              Appellant’s complaint sets forth ten causes of action:

(1)     fraud       as      to        the      termination           fee;         (2)     negligent

misrepresentation as to the termination fee; (3) duress as to

the termination fee; (4) fraudulent overcharges; (5) negligent

                                                 11
misrepresentation as to the overcharges; (6) breach of fiduciary

duty; (7) constructive fraud; (8) unfair and deceptive trade

practices     in       violation       of    N.C.       Gen.          Stat.     §    75-1.1;     (9)

rescission        or     reformation         of       the        swap    agreement        due    to

commercial frustration of purpose and mutual mistake; and (10)

rescission        or     reformation         of       the        swap    agreement        due    to

unsuitability.            We   hold      that         the       district      court     correctly

granted Appellee’s motion to dismiss all ten counts.

                                                 A.

             As a federal court sitting in diversity, we must apply

the substantive law of the forum state, including its choice of

law rules.        Kenney v. Indep. Order of Foresters, 744 F.3d 901,

905 (4th Cir. 2014).             The proper choice-of-law analysis in North

Carolina     varies      depending          on    how       a    claim     is       characterized.

Choice of law in contracts cases is governed by the rule of lex

loci contractus, see Tanglewood Land Co. v. Byrd, 261 S.E.2d

655,   656   (N.C.       1980),    and       choice         of    law    in     torts    cases    is

governed     by    the    rule    of     lex      loci          delicti,      see     Boudreau    v.

Baughman, 368 S.E.2d 849, 854 (N.C. 1988).                                Further, where the

contracting       parties      have    agreed         “that       a     given       jurisdiction’s

substantive law shall govern the interpretation of the contract,

such a contractual provision will be given effect.”                                     Byrd, 261

S.E.2d at 656.



                                                 12
              The complaint sets forth ten causes of action, eight

tort claims (Counts One – Eight) and two contract claims (Counts

Nine – Ten).      The relevant contracts contain a New York choice

of law provision, and the parties agree that the law of New York

applies to Counts Nine and Ten.                 See J.A. 73 (“[T]his Agreement

will be governed by and construed in accordance with the law of

the state of New York[.]”).            The parties disagree, however, as

to the law to be applied to the tort claims set forth in Counts

One – Eight.           Appellee favors New York law, while Appellant

prefers   that    of    North   Carolina.             Nevertheless,    the       parties

concede that the approach to interpreting the tort claims is the

same under either legal regime.                 In the interest of simplicity,

and because it will not affect the outcome of this appeal, we

will analyze the tort claims under the law of North Carolina.

See Okmyansky v. Herbalife Int’l of Am., Inc., 415 F.3d 154, 158

(1st   Cir.    2005)     (“[W]hen    the    resolution      of   a    choice-of-law

determination     would     not     alter       the   disposition     of     a    legal

question, a reviewing court need not decide which body of law

controls.”).




                                           13
                                         B.

                                         1.

                       Counts One and Two:
     Fraud and Negligent Misrepresentation (Termination Fee)

           In    Counts   One    and   Two      of    its   complaint,   Appellant

alleges that Appellee fraudulently or negligently misrepresented

that Appellant’s obligations under the Original and Amended Swap

Agreements      (collectively,     the        “Swap    Agreement”)    would     end,

without   any      financial      penalty        to     Appellant,       upon   the

satisfaction     or    termination       of     the    Refinanced    Loan.      The

district court held that Appellant did not state a claim for

fraud or misrepresentation because its “reliance on such oral

misrepresentations was not reasonable or justifiable in light of

the written contract.”          The Caper Corp. v. Wells Fargo Bank,

N.A., No. 7:12-CV-357-D, 2013 WL 4504450, at *7 (E.D.N.C. Aug.

22, 2013).   We agree.

             To state a claim for actual fraud, the plaintiff must

allege facts plausibly showing that (1) the defendant made a

false representation of a material fact; (2) the defendant made

the representation with the intent to deceive the plaintiff; (3)

the plaintiff relied on the representation and its reliance was

reasonable; and (4) the plaintiff suffered damages because of

its reliance.         See Forbis v. Neal, 649 S.E.2d 382, 387 (N.C.

2007).    Pursuant to Federal Rule of Civil Procedure 9(b), the


                                         14
plaintiff must plead with particularity “the time, place, and

contents of the false representations, as well as the identity

of the person making the misrepresentation and what he obtained

thereby.”          McCauley v. Home Loan Inv. Bank, F.S.B., 710 F.3d

551, 559 (4th Cir. 2013) (internal quotation marks omitted).                           To

state   a     claim    for     negligent    misrepresentation,         the    plaintiff

must allege facts plausibly showing that it “‘[1] justifiably

relie[d]      [2]     to   [its]    detriment    [3]    on    information     prepared

without reasonable care [4] by one who owed the relying party a

duty of care.’”            Dallaire v. Bank of America, N.A., --- S.E.2d -

---, 2014 WL 2612658, at *5 (N.C. 2014) (quoting Raritan River

Steel Co. v. Cherry, Bekaert & Holland, 67 S.E.2d 609, 612 (N.C.

App. 1988)).

              The “question of justifiable reliance [for negligent

misrepresentation            claims]   is   analogous    to    that    of    reasonable

reliance      in    fraud     actions.”      Marcus    Bros.    Textiles,      Inc.    v.

Price Waterhouse, LLP, 513 S.E.2d 320, 327 (N.C. 1999) (internal

quotation marks omitted); see also Helms v. Holland, 478 S.E.2d

513,    517    (N.C.       1996)   (“Justifiable      reliance    is   an    essential

element of both fraud and negligent misrepresentation.”).                             For

both    claims,        the     recipient    of   a     representation        must     use

reasonable care to ascertain the truth of that representation in

order to reasonably rely on the same.                  See Fox v. S. Appliances,

Inc., 141 S.E.2d 522, 526 (N.C. 1965).                       A plaintiff, in other

                                            15
words, “cannot establish justified reliance . . . if [it] fails

to   make   reasonable   inquiry    regarding    the   alleged    statement.”

Dallaire, 2014 WL 2612658, at *5.          Where a plaintiff “could have

discovered the truth [about the misrepresentation] upon inquiry,

the complaint must allege that [the plaintiff] was denied the

opportunity to investigate or . . . could not have learned the

true   facts   by   exercise   of   reasonable   diligence”      in   order   to

survive a motion to dismiss.           Pinney v. State Farm Mut. Ins.

Co., 552 S.E.2d 186, 192 (N.C. App. 2001) (emphasis supplied)

(internal quotation marks omitted); see also Oberlin Capital,

L.P. v. Slavin, 554 S.E.2d 840, 846–47 (N.C. App. 2001); Hudson–

Cole Dev. Corp. v. Beemer, 511 S.E.2d 309, 313 (N.C. App. 1999).

            As a corollary of this broader principle, “[a] person

who executes a written instrument is ordinarily charged with

knowledge of its contents and may not base an action for fraud

on ignorance of the legal effect of its provisions.”                     Int’l

Harvester Credit Corp. v. Bowman, 316 S.E.2d 619, 621 (N.C. App.

1984) (internal citations omitted).         A party who signs a written

contract

            is under a duty to ascertain its contents,
            and in the absence of a showing that he was
            wilfully   misled  or  misinformed   by  the
            defendant as to these contents, or that they
            were kept from him in fraudulent opposition
            to his request, he is held to have signed
            with full knowledge and assent as to what is
            therein contained.


                                      16
Harris v. Bingham, 97 S.E.2d 453, 454 (N.C. 1957); see also

Davis v. Davis, 124 S.E.2d 130, 133 (N.C. 1962) (“One who signs

a written contract . . . is bound thereby unless the failure to

read       is   justified    by   some    special    circumstance.”).          In   the

absence of some further misconduct on the part of the defendant,

then, a plaintiff who relies upon a misrepresentation that is

directly contradicted by a subsequent written agreement cannot

establish justifiable reliance sufficient to support a claim of

fraud or negligent misrepresentation as a matter of law.                            See

Isley v. Brown, 117 S.E.2d 821, 823–24 (N.C. 1961); Cobb v.

Penn.      Life   Ins.   Co.,     715    S.E.2d    541,   549   (N.C.   App.   2011);

Sullivan v. Mebane Packaging Group, Inc., 581 S.E.2d 452, 459

(N.C. App. 2003); Bowman, 316 S.E.2d at 621. 5

                Here, Appellant seeks relief for fraud and negligent

misrepresentation on the grounds that it detrimentally relied on

Tomsic’s        assurances    that,     “if    [Appellant’s]    obligations     under

the [proposed refinanced loan] ended, its obligations under the

       5
        Notably, the general rule charging “[a] person who
executes a written instrument . . . with knowledge of its
contents” and foreclosing a related action for fraud “do[es] not
apply   to   situations   in  which    the  person   making  the
misrepresentations stands in a fiduciary relationship to the
signing party.” Bowman, 316 S.E.2d at 621 (citing Vail v. Vail,
63 S.E.2d 202, 206 (N.C. 1951)).     Although Appellant seeks to
take advantage of this exception, we conclude, for the reasons
explained in greater detail below, that Appellant has failed to
establish the existence of a fiduciary relationship with
Appellee. Consequently, we will not address this exception.



                                              17
[Original Swap Agreement] would end at the same time without any

additional    payment     obligations.”              J.A.    17.      The    complaint

alleges   that    Tomsic      made    this    representation         at     some    point

between   November      21,    2005,     when       the   parties     executed           the

Original Swap Agreement, and January 23, 2006, when the parties

executed the Refinanced Loan.             Critically, as reflected in both

the complaint and the accompanying contracts, Appellant executed

the Amended Swap Agreement after this alleged misrepresentation

took place, despite the fact that Appellee “refus[ed] to amend

the [Original Swap Agreement] to shorten its term and address

Appellant’s concerns.”         J.A. 19.

           The Amendment, by its plain terms, provided that the

Swap Agreement would not terminate until February 10, 2016, well

after the maturation date of the Refinanced Loan, and set forth

a monthly payment schedule through that date.                       The “Additional

Termination    Event”     included      in    the    Amendment       further       stated

that, if the Agreement became unsecured after March 15, 2012 --

the   scheduled    closing      date    of    the    Refinanced       Loan     --    “all

obligations    under    this     [Amendment]        w[ould]       terminate        and    be

replaced by an obligation of one party to make a payment to the

other   party”    under    the       provisions      of     the    Master    Agreement

covering termination fees.             Id. at 49 (emphasis supplied); see

also id. (“Such payment will be due . . . by the party obligated

to pay that amount under [the Master Agreement].”).                          Appellant

                                         18
also acknowledged,           inter       alia,       “that      the    payments     due       by    it

under this [Amendment] shall be due . . . whether or not . . .

the term of any Financing is shorter or longer than the Term of

this [Amendment], or any other terms of any Financing differ

from the terms of this [Amendment].”                          Id. at 47.

             The   final       clause         of        the    Amendment       reads,         “[a]ll

provisions     contained       in        or   incorporated            by    reference     in       the

Master      Agreement        will        govern         this     [Amendment]        except         as

expressly modified herein.”                   J.A. 49 (emphasis supplied).                     Those

“govern[ing]” terms include a merger clause, which states that

the   Master    Agreement          and    any      Confirmations            “constitute[]          the

entire      agreement    and        understanding              of     the    parties      .    .     .

supersed[ing]      all   oral        communication             and     prior    writings        with

respect     thereto,”        and    a     clause        prohibiting         oral    amendments,

which specifies that “[n]o amendment, modification or waiver . .

. will be effective unless in writing . . . and executed by each

of    the   parties     or    confirmed            by    an     exchange       of   telexes        or

electronic messages on an electronic messaging system.”                                   Id. at

64.    Finally, in addition to setting forth a detailed process

for calculating termination fees, the Master Agreement states,

             [Appellant] . . . understands that the terms
             under   which   any   Transaction   may   be
             terminated early are set forth in this
             Agreement (including any Confirmation of
             such Transaction), and any early termination
             of a Transaction other than pursuant to the
             provisions of this Agreement (including any

                                                19
              such Confirmation) is subject to mutual
              agreement   of  the   parties  confirmed   in
              writing, the terms of which may require one
              party to pay an early termination fee to the
              other party based upon market conditions
              prevailing at the time of early termination.

Id. at 75 (emphasis supplied); see also id. at 77.

              As    the    foregoing      provisions            exemplify,      Appellee’s

alleged oral misrepresentation -- that the Swap Agreement and

the Refinanced Loan would contemporaneously terminate without an

early    termination        fee    –-    is        directly      contradicted        by    the

unambiguous written terms of both the Amendment and the Master

Agreement.         Appellant admits to receiving the Amendment, which

was sent by facsimile, from Appellee.                           See J.A. 18 (alleging

that Appellee “sent [the Amendment]” to Appellant on June 6,

2006); see also id. at 46-53, 86-92 (executed copies of the

Amendment attached to the complaint and the motion to dismiss,

respectively).            The   Amendment       required        Appellant     to    “confirm

that    the   foregoing         correctly       sets       forth   the   terms       of    our

agreement     by     executing     a     copy      .   .    .   and   returning       it    to

[Appellee].”         Id. at 50.          Pancoe “[a]ccepted and [c]onfirmed”

the Amendment with his signature, the authenticity of which is

unchallenged.        Id.

              The     complaint         does        not      allege      that       Appellee

misrepresented the character or terms of the Amendment itself or

otherwise      interfered         with     Pancoe’s          ability     to        read    and


                                              20
understand    the    same. 6      Indeed,     the        full     extent   of   the

misrepresentation alleged in the complaint is Appellee’s pre-

Amendment oral promise to permit the early termination of the

Original Swap Agreement without an attendant termination fee --

the   complaint     does   not   charge     Appellee       with    providing    any

assurances as to whether this alleged agreement survived the

parties’ execution of the Amendment.            Appellant thus could have

immediately    ascertained       the    truth       of     its     post-Amendment

liability for a termination fee by simply reviewing the plain

language of the Amendment and the Master Agreement, which it had

a duty to read.     See Davis, 124 S.E.2d at 133.

           The reasonableness of a party’s reliance “is generally

a question for the jury, except in instances in which ‘the facts

are so clear as to permit only one conclusion.’”                   Dallaire, 2014

WL 2612658, at *5 (quoting Marcus Bros., 513 S.E.2d at 327).                    In


      6
       Although Appellant alleges that Appellee “deceptively”
inserted the Additional Termination Event into the Amendment
without its “prior agreement,” it neither disputes Pancoe’s
execution of the contract as written nor provides any sort of
factual elaboration as to how this alleged “decepti[on]” was
achieved. J.A. 18. This allegation is thus nothing more than a
“‘naked assertion[] devoid of further factual enhancement,’” and
we will not credit it. U.S. ex rel. Oberg v. Penn. Higher Educ.
Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009) (“[B]are assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule 12(b)(6)
purposes.”).



                                       21
this   case,     even        accepting      as      true        that     Appellee      orally

misrepresented Appellant’s obligation to pay a termination fee,

Appellant still cannot establish that it justifiably relied on

that misrepresentation as a matter of law.                               In terms of the

relevant    pleading        requirements,          because      Appellant         “could   have

discovered      the     truth        [about        the     misrepresentation]              upon

inquiry,” it was required to –- and did not -- allege that “[it]

was denied the opportunity to investigate or . . . could not

have   learned        the     true     facts        by     exercise          of    reasonable

diligence.”     Pinney, 52 S.E.2d at 192 (internal quotation marks

omitted).       With        respect    to     the    claims’          substantive      merit,

Appellant’s     reliance       on    Appellee’s          oral    misrepresentation          was

not reasonable or justifiable as a matter of law because the

misrepresentation           was      directly        contradicted             by     numerous

provisions     of     the      subsequently-executed                  Amendment      and    the

governing Master Agreement.              See Bowman, 316 S.E.2d at 621.                      On

both fronts, we conclude that Counts One and Two of Appellant’s

complaint      fail     to     state     claims          for         fraud    or    negligent

misrepresentation           under    Fed.     R.    Civ.        P.    12(b)(6)      and    were

properly dismissed.

                                            2.

                                  Count Three: Duress

             In Count Three of its complaint, Appellant alleges a

claim of economic duress resulting from Appellee’s refusal to

                                            22
release the deed of trust to the Property until Appellant paid

the termination fee.       Pursuant to the Master Agreement, Appellee

was   entitled    to     hold    any    collateral        supporting        the    Swap

Agreement     “[u]ntil    such     time      as   all     such      obligations       of

[Appellant]      are     completely       satisfied       notwithstanding            any

repayment, acceleration, satisfaction, discharge or release of

any . . . loan or other financing.”                     J.A. 77.          The deed of

trust, too, allowed Appellee to hold the deed until Appellant

paid all obligations due under the Swap Agreement.                         See id. at

104-105    (granting     Appellee      the   Property         “in   fee    simple”    to

“secure payment and performance of obligations under” the Swap

Agreement     until    “all      [o]bligations          are     timely      paid     and

performed”).     Inasmuch as “[a] threat to do what one has a legal

right to do cannot constitute duress,” Bell Bakeries, Inc. v.

Jefferson Std. Life Ins. Co., 96 S.E.2d 408, 416 (N.C. 1957)

(internal     quotation    marks       omitted),    we         conclude     that     the

district court properly dismissed Count Three for failing to

state a claim under Fed. R. Civ. P. 12(b)(6).

                                        3.

                         Counts Four and Five:
          Fraud and Negligent Misrepresentation (Overcharges)

             In Counts Four and Five of its complaint, Appellant

alleges that Appellee fraudulently or negligently misrepresented

that Appellant would receive a “market rate” as the fixed rate


                                        23
under the Swap Agreement.               In actuality, Appellant alleges, the

6.91%   fixed       interest    rate     was      approximately        32    basis   points

(.32%) above the interdealer broker market rate, resulting in

“overcharges” of at least $97,666.                    J.A. 24.     The district court

dismissed      both     of     these    claims,        concluding       that     Appellant

“fail[ed]      to    plausibly     allege       that    [Appellee]          misrepresented

that it offered [Appellant] the interdealer broker market rate.”

Caper Corp., 2013 WL 4504450, at *10.                   Again, we agree.

             The      complaint        provides         scant     support        for     the

conclusion that Appellant was entitled to the interdealer broker

market rate, which Appellant itself admits is “a closed market[]

open to only the largest commercial and investment banks.”                              J.A.

23.       Appellant          relies     primarily        on      the    following        two

allegations: (1) Appellee “represented the interest rate swap

would be extended to [Appellant] at ‘a market-derived rate’” in

the   Term     Sheet;    and     (2)    “Boss        similarly    advised       Pancoe    in

telephone      conversations          that     the    Refinanced       Loan    was     being

offered   to    Caper    at     market       rates.”      Id.     at    22.      Appellant

contends that these two statements, taken together, caused it to

believe that Appellee was offering the Swap Agreement at “market

rates,” i.e., the “interdealer broker market rate” with “no mark

up” for Appellee.            Id. at 23.       This understanding was bolstered,

Appellant claims, by the fact that the Term Sheet disclosed the



                                             24
fees Appellee would collect for the proposed refinanced loan but

did not disclose any fees for the proposed swap agreement.                               Id.

              The    relevant        allegations         in     the   complaint,       as    set

forth    above,      consist        primarily       of     a    few   vague    and     undated

averments of Appellee’s purported misrepresentations, which are,

in turn, couched in terms of both “market rate” and “market-

derived rate.”             J.A. 22 (emphasis supplied).                    Critically, the

complaint is completely devoid of any allegation that Appellee

ever explicitly offered Appellant the interdealer broker market

rate or even intimated that the interdealer broker market rate

was,    in   fact,    the       “market     rate”     or       “market-derived       rate”     to

which it referred.               See, e.g., Caper Corp., 2013 WL 4504450, at

*10 (observing that “[t]he phrase ‘market-derived rate’ implies

something other than a market rate.”).                            The complaint further

contains      no     allegation       that       Appellant        sought      any     sort   of

clarification         as       to   the     meaning        of    “market      rate”     before

allegedly relying to its detriment on its own definition.                                    See

Dallaire,     2014        WL    2612658,    at   *5      (“A    party   cannot      establish

justified reliance on an alleged misrepresentation if the party

fails    to        make        reasonable     inquiry           regarding     the      alleged

statement.”).         Indeed, as described by the district court, the

complaint          “state[s]         nothing        more         than      conjecture          on

[Appellant’s] part that [Appellee’s] offer of a ‘market rate’ or



                                              25
‘market-derived         rate’      meant      the     ‘interdealer         broker       market

rate.’”       Caper Corp., 2013 WL 4504450, at *10.

               Even     viewing        the     adequately           pleaded       facts    in

Appellant’s favor and giving it the benefit of all reasonable

inferences, we must conclude Appellant has failed to plausibly

allege     that       Appellee     offered      the    fixed        rate    of    the     Swap

Agreement        at    the   interdealer           broker        market    rate    or     that

Appellant justifiably relied on such a representation.                              We thus

agree with the district court that Appellant has failed to state

a claim for fraud or negligent misrepresentation under Fed. R.

Civ.     P.      12(b)(6)         with       respect        to     Appellee’s       alleged

“overcharges.”

                                              4.

                        Counts Six and Seven:
           Breach of Fiduciary Duty and Constructive Fraud

               In Counts Six and Seven of its complaint, Appellant

alleges that Appellee breached its fiduciary duty to Appellant

and committed constructive fraud.                    Both of these claims require

the existence of an antecedent fiduciary relationship between

Appellant and Appellee.                See Green v. Freeman, 749 S.E.2d 262,

268 (N.C. 2013) (“‘For a breach of fiduciary duty to exist,

there     must    first      be    a     fiduciary      relationship          between     the

parties.’” (quoting Dalton v. Camp, 548 S.E.2d 704, 707 (N.C.

2001)));       Forbis, 649 S.E.2d at 388 (“A claim of constructive


                                              26
fraud      .    .     .      .    arises   where          a    confidential          or     fiduciary

relationship exists.” (internal quotation marks omitted)).                                             We

conclude, as did the district court, that Appellant has failed

to    allege         facts       sufficient    to        state      a   plausible        claim    of    a

fiduciary relationship with Appellee.

                As a general rule, “[a] fiduciary relationship . . .

aris[es] when ‘there has been a special confidence reposed in

one who in equity and good conscience is bound to act in good

faith and with due regard to the interests of the one reposing

confidence.’”              Dallaire, 2014 WL 2612658, at *3 (quoting Green,

749     S.E.2d         at        268).        Such       relationships             are    ordinarily

“characterized               by     ‘confidence          reposed        on    one        side[]       and

resulting domination and influence on the other,’” which results

in “a heightened level of trust and the duty of the fiduciary to

act   in       the    best        interests    of    the       other     party.”          Id.    at    *3

(quoting Dalton, 548 S.E.2d at 708).                                Ordinary borrower-lender

or    debtor-creditor              relationships,             in    contrast,      are    marked       by

arm’s    length           transactions        and    do       not    typically       give    rise      to

fiduciary duties.                  See id. at *4 (“[B]orrowers and lenders are

generally bound only by the terms of their contract and the

Uniform Commercial Code.” (citation omitted)).                                  Nevertheless, it

remains        at     least       “theoretically”             possible       for    “a    particular

bank-customer transaction to ‘give rise to a fiduciary relation



                                                    27
given the proper circumstances.’”                Id. (quoting Branch Banking &

Trust Co v. Thompson, 418 S.E.2d 694, 699                (N.C. App. 1992)).

                Appellant, in short, does not allege in its complaint

any facts that would show Appellee had the “amount of control

and domination required to form a fiduciary relationship outside

that of the normal relationships recognized by law.”                            S.N.R.

Mgmt. Corp. v. Danube Part. 141, LLC, 659 S.E.2d 442, 451                        (N.C.

App.    2008)     (internal     quotation       marks   omitted).        Appellant’s

longstanding business relationship with Appellee, particularly

Appellee’s role in “author[ing] the terms and details of many of

[Appellant’s] financial transactions,” J.A. 12, is indicative of

nothing more than a typical lender-borrower or debtor-creditor

relationship.          See     Thompson,    418    S.E.2d    at    699   (The    “mere

existence of a debtor-creditor relationship . . . [does] not

create      a   fiduciary      relationship.”      (internal       quotation     marks

omitted)).         Similarly,     Appellee’s      “superior       knowledge     of   the

terms and risks and pricing” of interest rate swap agreements,

J.A. 36, does not give rise to a concomitant duty for Appellee

to    put   the   interests     of   Appellant,     a   corporation      with    equal

bargaining position dealing at arm’s length, ahead of its own.

See S. Atl. Ltd. P’ship of Tenn. L.P. v. Riese, 284 F.3d 518,

533    (4th     Cir.   2002)   (“[E]ven    when    parties    to    an   arms-length

transaction have reposed confidence in each other, no fiduciary

duty arises unless one party thoroughly dominates the other.”

                                           28
(citing Tin Originals, Inc. v. Colonial Tin Works, Inc., 391

S.E.2d 831, 833 (N.C. App. 1990))).

           The        remaining     allegations        in    the     complaint       with

respect    to     Appellant’s        relationship          with    Appellee     consist

primarily of conclusory recitations of the elements of a breach

of fiduciary duty claim and are entitled to no weight.                                 See

Caper Corp., 2013 WL 4504450, at *8.                   Consequently, we conclude

that the district court properly dismissed Appellant’s breach of

fiduciary duty and constructive fraud claims pursuant to Fed. R.

Civ. P. 12(b)(6).

                                            5.

          Count Eight: Unfair and Deceptive Trade Practices

           In     Count     Eight    of   its     complaint,       Appellant    alleges

that Appellee engaged in acts or practices prohibited by North

Carolina’s       Unfair     and      Deceptive       Trade        Practices     statute

(“UDTPA”),       N.C.    Gen.   Stat.     §      75–1.1.      Appellant       does    not

identify any specific violations of the UDTPA within this count,

but   instead      incorporates       generally        all    of    the   complaint’s

preceding allegations.              On this count, too, we conclude that

Appellant has failed to allege facts sufficient to state a claim

under Fed. R. Civ. P. 12(b)(6).

            To     state    a     claim     for    unfair     or    deceptive        trade

practices,      the     plaintiff    must     allege    facts      plausibly    showing

that “‘(1) [the] defendant committed an unfair or deceptive act

                                            29
or practice, (2) the action in question was in or affecting

commerce,   and       (3)     the   act   proximately       caused    injury    to    the

plaintiff.’”         Bumpers v. Comm’y Bank of N. Virginia, 747 S.E.2d

220, 226 (N.C. 2013) (quoting Dalton, 548 S.E.2d at 711).                              If

the claim arises from the defendant’s alleged misrepresentation,

the plaintiff must also plausibly allege that it “reasonabl[y]

reli[ed]” on that misrepresentation.                 Id.     An act is “deceptive”

if   it   has    a    tendency      or    capacity    to    deceive    a    reasonable

businessperson, see RD & J Props. v. Lauralea–Dilton Enters.,

LLC, 600 S.E.2d 492, 501 (N.C. App. 2004), and “unfair” if it is

“immoral, unethical, oppressive, unscrupulous, or substantially

injurious to consumers” such that it “amounts to an inequitable

assertion of . . . power or position,”                      Carcano v. JBSS, LLC,

684 S.E.2d 41, 50 (N.C. App. 2009) (internal quotation marks

omitted).       Whether actions are deceptive or unfair within the

meaning of the UDTPA is a question of law.                     Dalton, 548 S.E.2d

at 711.

            On       appeal,        Appellant      takes     the     position        that

“everything alleged [in the complaint] constitutes an unfair and

deceptive       trade    practice.”          Appellant’s      Br.     49.      We     are

unconvinced.            The     allegedly        unlawful     acts    or    practices

identified in the complaint are either factually unsubstantiated

or well within Appellee’s contractual rights –- none “have the

capacity to deceive a reasonable businessperson,” RD & J Props.,

                                            30
600 S.E.2d at 501, or otherwise qualify as unfair or deceptive

under the UDTPA.            In any event, as we have already discussed,

the    complaint        fails    to    establish      reasonable       reliance      on

Appellee’s        alleged    misrepresentations        as     a     matter   of    law,

precluding Appellant from seeking relief under N.C. Gen. Stat.

§ 75–1.1.         See Bumpers, 747 S.E.2d at 226-27.                   We therefore

affirm the district court’s dismissal of this count.

                                          6.

            Counts Nine and Ten: Rescission or Reformation

             In Counts Nine and Ten of its complaint, which are

governed     by    New    York   law, 7   Appellant         seeks    reformation     or

rescission of the Swap Agreement on the grounds of commercial

frustration        of    purpose,     mutual    mistake,      and     unsuitability.

Although there is some debate as to whether Appellant preserved

its right to pursue these claims by executing the Confirmation

of    Termination       “under   duress[]      and   with    full    reservation     of

rights to contest its liability for the Termination Fee,”                          J.A.

139, we will simply assume, without deciding, that Appellant’s

rights have been preserved.



       7
       As we have explained, the substantive law governing these
claims is dictated by the New York choice of law provision in
the Swap Agreement.     See J.A. 73 (“[T]his Agreement will be
governed by and construed in accordance with the law of the
state of New York[.]”).



                                          31
                                                 a.

                                 Frustration of Purpose

               Appellant contends that it is entitled to rescission

or    reformation         of    the    Swap          Agreement    because         the    artificial

depreciation of LIBOR, coupled with the ensuing worldwide credit

crisis that began in October 2008, “dramatically increased the

interest    rate         risk    of    [Appellant]          as    opposed         to    hedging    or

limiting it,” frustrating the purpose of the Swap Agreement.

J.A. 38.       We conclude that Appellant has failed to allege facts

sufficient          to    establish             entitlement        to       the        remedies    of

rescission and reformation.

               The frustration of purpose doctrine is traditionally

employed       as    an        affirmative            defense    to     a    contract         claim,

operating to discharge a party from its outstanding contractual

obligations due to a supervening frustration.                                 See Restatement

(Second) of Contracts § 265.                         The defense is applicable where an

unanticipated            “‘change          in    circumstances          makes          one   party’s

performance [under a contract] virtually worthless to the other,

frustrating         his        purpose          in     making    the    contract.’”               PPF

Safeguard, LLC v. BCR Safeguard Holding, LLC, 924 N.Y.S.2d 391,

394    (N.Y.    App.       Div.       2011)          (quoting    Restatement           (Second)    of

Contracts § 265 cmt. a).                    “[T]he frustrated purpose must be so

completely      the       basis       of    the       contract    that,      as    both      parties

understood, without it, the transaction would have made little

                                                      32
sense.”     Crown It Servs., Inc. v. Koval–Olsen, 782 N.Y.S.2d 708,

711 (N.Y. App. Div. 2004).                 The doctrine is a “narrow one,” id.,

and   its   utility      is    “limited        to    instances    where      a    virtually

cataclysmic,      wholly       unforeseeable         event    renders       the   contract

valueless to one party,” United States v. Gen. MacArthur Senior

Village, Inc., 508 F.2d 377, 381 (2d Cir. 1974).

            We    note    at     the       outset    that    it   is   far    from    clear

whether the frustration of purpose doctrine, which ordinarily

operates    as    an    excuse       for    nonperformance,       is   an    appropriate

vehicle for the claim at issue here, i.e., an affirmative cause

of action seeking rescission or reformation of a fully-performed

contract.        We    need    not     dwell    on    this   question,       however,    as

Appellant’s claim -– whether or not appropriately framed –- is

substantively meritless.               As detailed in the complaint and the

accompanying      contracts,         the     Swap    Agreement     was      not    rendered

“virtually worthless” by the depreciated LIBOR.                          PPF Safeguard,

LLC, 924 N.Y.S.2d at 394.                  Pursuant to the plain terms of the

Swap Agreement, Appellant made payments at a fixed interest rate

throughout the entire term of the Refinanced Loan.                                Appellant

was thus protected from the uncertainty of a variable interest

rate and,     indeed,      paid      precisely       “the    amount    of    interest    it

agreed to and expected to pay under the Swap Agreement.”                              Caper

Corp., 2013 WL 4504450, at *12.                       To the extent the ultimate

Termination Fee was higher than Appellant may have hoped for or

                                               33
expected,       “[i]t   is     not     enough”    for    the    purposes    of     the

frustration of purpose doctrine “that the transaction has become

less profitable for the affected party or even that he will

sustain a loss.”           Rockland Dev. Assoc. v. Richlou Auto Body,

Inc., 570 N.Y.S.2d 343, 344 (N.Y. App. Div. 2004).

            We agree with the district court that the purpose of

the Swap Agreement was not frustrated.                    Appellant’s claim for

relief    based    on   the    frustration       of   purpose   doctrine,     to    the

extent it even states a viable claim, thus fails as a matter of

law.

                                          b.

                                    Mutual Mistake

            With respect to Appellant’s mutual mistake claim, a

mutual mistake may be a ground for reforming or rescinding a

contract where “the parties have reached an oral agreement and,

unknown    to    either,      the    signed   writing    does   not   express      that

agreement.”       Chimart Assocs. v. Paul, 489 N.E.2d 231, 234 (N.Y.

1986).    “The mutual mistake must exist at the time the contract

is entered and must be substantial.”                  Gould v. Bd. of Educ. of

Sewanhaka       Cent.   High    Sch.    Dist.,    616   N.E.2d   142,   146      (N.Y.

1993).     More specifically, “[t]he mistake must be ‘so material

that . . . it goes to the foundation of the agreement.’”                      Simkin

v. Blank, 968 N.E.2d 459, 462 (N.Y. 2012) (quoting Da Silva v.

Musso, 428 N.E.2d 382, 387 (N.Y. 1981)).                   Court-ordered relief

                                          34
should not be granted on the basis of a mutual mistake except in

“exceptional       situations.”        Id.      (internal        quotation     marks

omitted).

            Here, Appellant alleges that the parties were mutually

mistaken as to whether LIBOR was “a rational and fundamentally

sound choice for [the] floating [interest] rate” to be used in

the Swap Agreement.        J.A. 38.         The alleged importance of this

understanding to the Swap Agreement, however, is belied by the

contract itself, which makes clear that the parties entered into

the Agreement in order to receive the difference between the

floating and fixed interest rates.               See Simkin, 968 N.E.2d at

462 (“The mistake must . . . go[] to the foundation of the

agreement.’”       (emphasis    supplied)       (internal        quotation     marks

omitted)).     The Swap Agreement makes no mention of whether the

parties    believed     LIBOR   to    be    a   fundamentally       sound     market

indicator, much less whether such an understanding was the basis

for the parties’ selection of a LIBOR-derived variable interest

rate.      To the contrary, as the district court noted, “[t]he

complaint shows that the parties chose the one-month LIBOR rate

not for its virtue as a fundamentally sound market indicator,

but   in   order   to   match   the   terms     of    the   [Refinanced      Loan].”

Caper Corp., 2013 WL 4504450, at *11.

            Inasmuch     as     Appellant’s          allegedly     “foundational”

concern as to the reliability of LIBOR is completely absent from

                                       35
any of the relevant contracts or supporting documentation, this

case does not present one of those “‘exceptional situations’”

warranting reformation or rescission on the basis of a mutual

mistake.       Simkin,    968     N.E.2d      at   462   (quoting    Da   Silva,   428

N.E.2d at 387).       This claim, consequently, fails as a matter of

law.

                                             c.

                                   Unsuitability

              Finally, Appellant sets forth a claim for rescission

or reformation based on “unsuitability” as “a variation on its

breach of fiduciary duty claim.”                   Appellant’s Br. 55.       We need

not resolve the parties’ dispute as to whether this claim exists

under   New    York   law    –-    it    necessarily      fails     for   lack    of   a

fiduciary      relationship.            We    therefore    affirm     the    district

court’s dismissal of this claim.

                                             IV.

              For   the     foregoing        reasons,     the   judgment     of    the

district court is

                                                                            AFFIRMED.




                                             36
