                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1567


PATRICIA OSTOLAZA-DIAZ; JOSE LUIS DIAZ-GOYES, a/k/a Jose L.
Ostolaza,

                 Plaintiffs - Appellants,

           v.

COUNTRYWIDE BANK, N.A.; COUNTRYWIDE HOME LOANS; ALLIED HOME
MORTGAGE CAPITAL CORPORATION; ANTHONY FALCONE; SAMUEL I.
WHITE, P.C., Trustee,

                 Defendants – Appellees,

           and

COLONIAL TITLE COMPANY; KIM TAESONG,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:08-cv-00078-CMH-JFA)


Argued:   October 29, 2009                   Decided:   January 12, 2010


Before NIEMEYER and DUNCAN, Circuit Judges, and Benson E. LEGG,
United States District Judge for the District of Maryland,
sitting by designation.


Affirmed by unpublished opinion. Judge Legg wrote the opinion,
in which Judge Niemeyer and Judge Duncan joined.
ARGUED: Martin Carroll Conway, PESNER KAWAMOTO CONWAY, PLC,
McLean, Virginia, for Appellants.   William Paul Childress, III,
HUNTON & WILLIAMS, LLP, Richmond, Virginia; Cameron Scott
Matheson, LECLAIR RYAN, PC, Richmond, Virginia, for Appellees.
ON BRIEF: Harry M. Johnson, III, HUNTON & WILLIAMS, LLP,
Richmond, Virginia, for Appellees Countrywide Bank, N.A., and
Countrywide Home Loans; Paul D. Anders, Tara L. Elgie, LECLAIR
RYAN, PC, Richmond, Virginia, for Appellees Allied Home Mortgage
Capital Corporation and Anthony Falcone.


Unpublished opinions are not binding precedent in this circuit.




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LEGG, District Judge:

       Patricia Ostolaza-Diaz and Jose Luis Diaz-Goyes appeal the

district court’s dismissal of certain claims arising out of the

refinancing of their home.                 Specifically, they challenge the

dismissal of their state-law claims for fraud and intentional

infliction    of    emotional     distress.           Because    we    find   that    Ms.

Ostolaza-Diaz and Mr. Diaz-Goyes did not reasonably rely upon

Defendants’    allegedly      false    representations,           we    conclude     that

they cannot establish a prima facie case for fraud.                         We likewise

find   no   merit   in    their    claim        for   intentional       infliction     of

emotional     distress.       Thus,        we    affirm    the     district     court’s

dismissal of the case.



                                           I.

       We   view    the   facts       in    the       light     most    favorable      to

plaintiffs, the non-prevailing party below.                      Patricia Ostolaza-

Diaz and Jose Luis Diaz-Goyes (“Appellants”) are home owners in

Fairfax County, Virginia.             Prior to the events giving rise to

this case, their home was secured by two mortgage loans and a

home equity line of credit provided by Bank of America.                               In

March of 2006, Defendant Anthony Falcone — an employee of Allied

Home    Mortgage    Capital       Corporation         —   placed       an   unsolicited

telephone call to Appellants and represented himself as a Bank

of America loan officer.              During that call, Falcone informed

                                            3
Appellants that he could refinance their mortgages with Bank of

America using a new loan product that would allow them to reduce

their monthly payments, saving them thousands of dollars over

the life of the loan.

     In   reliance      on      Falcone's        representations,             Appellants

completed and submitted a loan application.                      They thought that

Falcone was a representative of Bank of America.                            In reality,

Falcone      was    representing         Countrywide           Home     Loans,        Inc.

Appellants also thought that the refinancing would reduce their

monthly   mortgage     payment.      In       reality,    as    Falcone       knew,   the

refinancing    would    leave     them    with       greatly     increased      monthly

payments that they could not afford. 1

     At   closing,     Appellants    were       presented       with    all     relevant

documents,     including     the    Truth       in     Lending        Act     disclosure

statement.     These documents stated the actual amounts Appellants

would be obligated to pay under their new loan.                             Nonetheless,

Appellants executed the loan documents.                  Because Appellants were

unable to afford their mortgage payments, Countrywide eventually

initiated a foreclosure action against them.

     Appellants originally brought suit in the Circuit Court for

Fairfax   County,    Virginia      stating      claims    for:        (i)    common   law

     1
        Under the terms of the Countrywide loan product,
Appellants first monthly mortgage payment was $2,699.17.      The
subsequent payments were $4,028.67 per month.         Appellants’
previous mortgage payments had been $2320.00 per month.

                                          4
fraud, (ii) intentional infliction of emotional distress, (iii)

violation of the Truth in Lending Act, and (iv) violation of the

Real Estate Settlement Procedures Act.          Defendants removed the

case to the Eastern District of Virginia, where the district

court dismissed each of the claims.          Appellants now appeal the

dismissal of their state-law fraud and intentional infliction of

emotional distress claims.



                                    II.

     Appellants’ complaint includes claims for both actual and

constructive fraud. 2     To establish fraud under Virginia law, a

plaintiff must demonstrate: (i) a false representation, (ii) of

a material fact, (iii) made intentionally and knowingly, (iv)

with an intent to mislead, and (v) reliance by the misled party,

(vi) which results in damage to the misled party.              See Van

Deusen    v.   Snead,   247   Va.   324   (1994).   Failure   to   plead

reasonable reliance is fatal to a common law fraud claim.            See

Metrocall of Del. v. Cont’l Cellular Corp., 246 Va. 365, 374

(1993).




     2
       “Constructive fraud differs from actual fraud in that the
misrepresentation of material fact is not made with the intent
to mislead, but is made innocently or negligently although
resulting in damage to the one relying on it.”       ITT Hartford
Group v. Va. Fin. Assocs,. Inc., 258 Va. 193, 204 (1999).

                                     5
       In this case, Appellants are, as a matter of law, unable to

show that they reasonably relied upon Falcone’s – or any other

Defendant’s – representations.                    At closing, they were presented

with documents that unambiguously spelled out the terms of the

loan and contradicted Falcone’s oral statements. In Virginia, an

individual “may not reasonably rely upon an oral statement when

he   has    in   his    possession      a     contrary      statement        in    writing.”

Foremost Guaranty Corp. v. Meritor Savings Bank, 910 F.2d 118,

126 (4th Cir. 1990); see also, Calhoun v. Exxon Corp., 1995 WL

473981, at * 3 (4th Cir. Aug. 11, 1995) (same).                          Stated another

way, “Plaintiffs cannot be heard to complain when they failed to

read the relevant documents.”                  Johnson v. Washington, 559 F.3d

238, 245 (4th Cir. 2009).

       Because Appellants were presented with multiple documents,

including a Truth in Lending Act disclosure statement, that laid

out the true terms of their loan, they cannot now contend that

they    reasonably      relied        upon    any       false    oral    representation.

Accordingly,      the    District       Court       did    not   err    when      dismissing

Appellants’ fraud claims.



                                             III.

       In   addition     to    contesting         the     dismissal     of   their     fraud

claims,     Appellants        argue    that       the     district      court      erred   in

dismissing their claim for intentional infliction of emotional

                                              6
distress.      In    Virginia,       a    plaintiff         bringing     a    claim    for

intentional infliction of emotional distress must allege facts

showing that: (i) the wrongdoer’s conduct was intentional or

reckless, (ii) the conduct was outrageous and intolerable, (iii)

the alleged wrongful conduct and emotional distress are causally

connected,    and   (iv)   the   distress         is    severe.        See    Ogunde    v.

Prison   Health     Servs.,   274    Va.       55,    65    (2007).      In    order   to

satisfy the second element, the alleged improper conduct must be

“so outrageous in character, and so extreme in degree, as to be

regarded as atrocious, and utterly intolerable in a civilized

community.”    Russo v. White, 241 Va. 23, 26 (1991).

      Here, while Falcone’s actions were clearly improper, they

fail to satisfy the “outrageousness” requirement.                        Assuming that

Appellants are correct in their allegation that Falcone made

“intentional      and   material         false       representations”         and     that

Countrywide    “gave    [them]   a       loan    they      could   not   afford,”      the

actions still do not rise to the level of actionable conduct.

See, e.g., Harris v. Kreutzer, 271 Va. 188, 204 (2006) (holding

that allegations that a defendant “verbally abused [plaintiff],

raised his voice to her, stated she was ‘putting on a show,’ and

accused her of being a faker and malingerer” did not equate to

the type of outrageous behavior necessary to sustain a claim of

intentional infliction of emotional distress).                      As a result, the



                                           7
District Court did not err when dismissing Appellants’ claim for

intentional infliction of emotional distress.



                                  IV.

     In sum, we conclude that the district court erred neither

in dismissing Appellants’ fraud claims nor in dismissing their

claim   for   intentional   infliction   of   emotional   distress.   We

therefore affirm the judgment of the district court.

                                                                AFFIRMED




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