                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 16-1214


BRANDON CARTER; ERICA CARTER,

                Plaintiffs – Appellants,

          v.

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; CWABS, INC.
ASSET-BACKED CERTIFICATES TRUST 2005-14; THE BANK OF NEW
YORK TRUST COMPANY, N.A., solely in its capacity as Trustee
for  the   CWABS,  Inc.   Asset-Backed  Certificates  Trust
2005-14,

                Defendants – Appellees,

          and

CWABS, INC.,

                Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
Senior District Judge. (5:14-cv-00395-H)


Submitted:   February 17, 2017             Decided:   February 23, 2017


Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Benjamin D. Busch, THE LAW OFFICE OF BENJAMIN D. BUSCH, PLLC,
Durham, North Carolina, for Appellants. Nathan J. Taylor, Wm.
Grayson Lambert,   MCGUIREWOODS   LLP,   Charlotte,   North   Carolina,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Brandon       and    Erica       Carter         (collectively,       “the    Carters”)

appeal the district court’s order granting the motion to dismiss

filed by CWABS, Inc. Asset Certificates Trust, Series 2005-14

(the “Trust”). 1           On appeal, the Carters argue that the district

court erred by: (1) considering the issue of ratification, which

the    Carters       assert       the       Trust       did    not   sufficiently         raise;

(2) determining            that    a     claim          for    fraud      was    time-barred;

(3) dismissing their claim to quiet title and for declaratory

judgment; and (4) determining that a claim for recoupment may

not be brought affirmatively.                  We affirm.

       “We review de novo the grant of a motion to dismiss . . .

[and] accept as true the well-pled allegations of the complaint

and    construe       the     facts         and        reasonable      inferences     derived

therefrom       in    the     light         most       favorable     to    the   plaintiff.”

Harbourt v. PPE Casino Resorts Md., LLC, 820 F.3d 655, 658 (4th

Cir.       2016).     “A     plaintiff        must       allege      sufficient     facts     to

establish      the    elements         of    his       claim   and     advance     that    claim

across       the     line     from          conceivable         to     plausible.”          Id.

(alterations and internal quotation marks omitted).




       1
       Although there were three other defendants involved in the
action below, the Carters have abandoned claims against all
Defendants with the exception of the Trust.



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       Three of the Carters’ arguments need not detain us long.

With       regard   to   ratification, 2     we   conclude   that   the   Trust

sufficiently raised that affirmative defense in its motion to

dismiss, see LSREF2 Baron, L.L.C. v. Tauch, 751 F.3d 394, 398

(5th Cir. 2014) (discussing level of specificity required), and,

therefore, that the district court did not err in considering

it, see Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.

2007) (providing circumstances under which defense may be raised

in motion to dismiss).            We also conclude that the district court

correctly determined that plaintiffs may not bring affirmative

actions for recoupment.             See Bull v. United States, 295 U.S.

247, 262 (1935) (“[R]ecoupment is in the nature of a defense

arising out of some feature of the transaction upon which the

plaintiff’s         action   is    grounded.”);     RL   REGI   N.C.,     LLC v.

Lighthouse Cove, LLC, 748 S.E.2d 723, 728 (N.C. Ct. App. 2013)

(noting defensive nature of recoupment), rev’d on other grounds,

762 S.E.2d 188 (N.C. 2014).                To the extent that the Carters

raise on appeal a claim for recoupment in conjunction with a

declaratory action, they did not present that claim below but

instead attempted to allege a stand-alone cause of action for



       2
       Ratification occurs when an individual affirms a prior act
to which he or she would not have been otherwise bound, with
full knowledge of all material facts. Leiber v. Arboretum Joint
Venture, LLC, 702 S.E.2d 805, 812 (N.C. Ct. App. 2010).



                                         4
recoupment.      Nor did they present to the district court the new

argument in support of their quiet title claim.                    Thus, those

claims are not properly before us.                 Pornomo v. United States,

814 F.3d 681, 686 (4th Cir. 2016) (providing standard).

      Finally, we conclude that the Carters failed to adequately

plead a cause of action for fraud. 3              Under North Carolina law, 4 a

party alleging fraud must establish five elements: “(1) False

representation or concealment of a material fact, (2) reasonably

calculated     to     deceive,      (3)    made    with   intent   to   deceive,

(4) which does in fact deceive, (5) resulting in damage to the

injured party.” 5       Forbis, 649 S.E.2d at 387 (internal quotation

marks omitted).

      The complaint failed to allege that either of the Carters

was   actually      deceived   by    the   purportedly     fraudulent   deed   of

      3Although the district court found that the statute of
limitations barred the Carters’ fraud claim, “we may affirm a
judgment for any reason appearing on the record.”     Weidman v.
Exxon Mobil Corp., 776 F.3d 214, 220 (4th Cir. 2015) (alteration
and internal quotation marks omitted).
      4   It is undisputed that North Carolina law applies.
      5Although the Carters argue on appeal that they need only
establish the elements for a claim of forgery, see State v.
Welch, 145 S.E.2d 902, 905 (N.C. 1966) (setting forth thee
elements for forgery claim), where plaintiffs advance a claim of
fraud by forgery, as the Carters did here, they must satisfy the
five elements required to establish a claim of fraud.        See
Forbis v. Neal, 649 S.E.2d 382, 387-88 (N.C. 2007); Henson v.
Green Tree Servicing LLC, 676 S.E.2d 615, 619 (N.C. Ct. App.
2009); Piles v. Allstate Ins. Co., 653 S.E.2d 181, 186 (N.C. Ct.
App. 2007).



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trust executed in their names.                        To the contrary, the Carters

knew that they did not sign the mortgage note or deed of trust,

and they admitted that they paid the mortgage and lived in the

home.      Moreover,         there   is     no       plausible      allegation         that       the

alleged fraud harmed the Carters.                     Although they argue that harm

resulted from the difference in value between the fixed-rate

note for which they applied and the adjustable-rate note they

received, the Carters have not alleged that they actually would

have received a fixed-rate mortgage.                         Furthermore, the mortgage

note clearly expressed that the mortgage contained an adjustable

interest rate, and the Carters were under an obligation to read

the   terms    of      the   contract,      Raper       v.    Oliver      House,       LLC,       637

S.E.2d     551,      555     (N.C.    Ct.        App.    2006),         and     had     a    clear

opportunity       to    rescind      the    mortgage         for    any       reason,       see    15

U.S.C.   § 1635        (2012)   (providing            time    during      which       rescission

must occur).           Thus, the district court did not err in denying

relief on the fraud claim.

      Accordingly, we affirm the district court’s judgment.                                       We

dispense      with      oral    argument          because         the    facts        and    legal

contentions       are      adequately      presented         in    the    materials         before

this court and argument would not aid the decisional process.



                                                                                        AFFIRMED



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