                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.



                                   2
Unpublished opinions are not binding precedent in this circuit.




                                  3
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,

                                               4
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

                                              5
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

                                             6
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

                                                7
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.



                                                8
                                                  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

                                                        9
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

                                               10
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

                                             11
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.



                                              12
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.



                                               13
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

                                                14
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

                                           15
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

                                                   16
“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

                                                       17
535, 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




                                       18
