UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 OstolazaDiaz 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 

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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. 

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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). 

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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 

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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 

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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