     Case: 10-11192     Document: 00511552785         Page: 1     Date Filed: 07/27/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           July 27, 2011
                                     No. 10-11192
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

VAL-COM ACQUISITIONS TRUST; SOPHA VONGKHAM,

                                                  Plaintiffs – Appellants
v.

CHASE HOME FINANCE, L.L.C.; JP MORGAN CHASE BANK, N.A.,

                                                  Defendants – Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:10-CV-1075-L


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Val-Com Acquisitions Trust acquired real property located at 6067 Fox
Point Trail in Dallas, Texas, from Sopha Vongkham through a general warranty
deed dated February 23, 2010. The property is subject to certain liens from two
loans Vongkham entered into in 2005. According to the complaint, defendant JP
Morgan Chase Bank claims to hold the note and deed of trust to the property
and defendant Chase Home Finance claims to be the current mortgage servicer
of the underlying loan.

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-11192         Document: 00511552785       Page: 2     Date Filed: 07/27/2011



                                       No. 10-11192

       Val-Com and Vongkham brought suit against the defendants, with
Val-Com acting as authorized agent or attorney-in-fact of Vongkham with
respect to the property. They alleged a variety of claims, all of which the district
court dismissed under Federal Rule of Civil Procedure 12(b)(6). The plaintiffs
appeal only the dismissal of their Declaratory Judgment Act claims. They seek
declarations of whether JP Morgan Chase is the owner and/or holder of the note
and deed of trust, whether Chase Home Finance is the mortgage servicer, and
whether the defendants are entitled to enforce the note and deed of trust by
means of a non-judicial foreclosure sale.
       The Declaratory Judgment Act authorizes the federal courts to “declare
the rights and other legal relations of any interested party seeking such
declaration.”1 Such a declaration may issue only to resolve an actual controversy
between the parties.2 An actual controversy is a dispute that is “definite and
concrete, touching the legal relations of parties having adverse legal interests.”3
The controversy “‘must be such that it can presently be litigated and decided and
not hypothetical, conjectural, conditional or based upon the possibility of a
factual situation that may never develop.’”4 The plaintiffs have the burden of
establishing the existence of an actual controversy under the Act.5
       Here, the plaintiffs have failed to carry that burden. The plaintiffs’ first
amended complaint does not allege—even on information and belief—that JP

       1
           28 U.S.C. § 2201(a).
       2
         United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000) (quoting Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227, 239–40 (1937)).
       3
        MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (citation and internal
quotation marks omitted).
       4
        Rowan Cos. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989) (quoting Brown & Root, Inc. v.
Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967))
       5
       See Vantage Trailers, Inc. v. Beall Corp., 565 F.3d 745, 748 (5th Cir. 2009); Young v.
Vannerson, 612 F. Supp. 2d 829, 840 (S.D. Tex. 2009).

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   Case: 10-11192   Document: 00511552785      Page: 3   Date Filed: 07/27/2011



                                  No. 10-11192

Morgan Chase is not the owner and/or holder of the note and deed of trust, that
Chase Home Finance is not the mortgage servicer, or that the defendants have
no right to enforce the note and deed of trust by administering a non-judicial
foreclosure sale. While there could be a dispute between the parties, absent any
allegation that defendants lack the interests they claim in the property, that
dispute has not ripened into an actual controversy. Any such dispute is, at this
point, hypothetical or conjectural. As a result, the district court was correct to
dismiss the plaintiffs’ request for a declaratory judgment.
      AFFIRMED.




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