     Case: 10-11005 Document: 00511499788 Page: 1 Date Filed: 06/06/2011




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

                                                 FILED
                                                                             June 6, 2011

                                     No. 10-11005                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



VAL-COM ACQUISITIONS TRUST; MYRON VAN HAREN; MIA VAN
HAREN,
                               Plaintiffs - Appellants

v.

DEUTCHE BANK TRUST COMPANY AMERICAS; SAXON MORTGAGE
SERVICES, INC.,

                                                   Defendants - Appellees




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:10-CV-424-A


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Myron and Mia Van Haren purchased a home in 2002, financing the
purchase through a note and deed of trust payable to Americas MoneyLine, Inc.
After the mortgage went into default, the Harens transferred title to the home
to Val-Com Acquisitions. In 2010, all three sued Defendants Deutsche Bank
Trust Company Americas ("Deutsch Bank") and Saxon Mortgage Services, Inc.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-11005 Document: 00511499788 Page: 2 Date Filed: 06/06/2011



                                  No. 10-11005

("Saxon") alleging violations of the Truth-In-Lending Act ("TILA") and the Real
Estate Settlement Procedures Act ("RESPA") as well as state-law claims for
fraud, negligent misrepresentation, and declaratory judgment. After Deutsche
Bank removed to a federal district court with Saxon's consent, they filed an
amended complaint, changing the basis of their declaratory relief from the
relevant Texas statute to the federal statute.
       Deutsche Bank and Saxon moved to dismiss. After an oral hearing, the
district court granted their motion under Federal Rule of Civil Procedure
12(b)(6). The only matter briefed before this court is the propriety of the
dismissal of Appellants' claims for declaratory relief regarding Appellees' status
relative to the property in question. Thus, we conclude that any appeal of the
other matters dismissed has been waived. Mullins v. TestAmerica, Inc., 564 F.3d
386, 417 (5th Cir. 2009) ("[W]e deem this issue waived due to inadequate
briefing.").

       In their amended complaint, Appellants stated: "Defendant Deutsche
Bank claims to be the holder of the Note, and the person entitled to enforce the
Note. . . . Defendant Deutsche Bank claims to be the holder of the Deed of Trust,
and the person entitled to enforce the Deed of Trust [and] Defendant Saxon
claims to be the current mortgage servicer of the Note." They alleged no facts
whatsoever casting doubt on Deutsche Bank's status as assignee of the relevant
documents or Saxon's status as mortgage servicer. They simply asked for "a
determination and declaration of whether Defendant Deutsche Bank is the
owner and/or holder of the Note and Deed of Trust" and similar declarations
regarding whether Saxon is the mortgage servicer and entitled to enforce and
bring a foreclosure action on the relevant documents.

      A federal declaratory judgment action requires an actual case or
controversy, not a mere hypothetical issue. Pub. Serv. Comm'n, v. Wycoff Co.,
344 U.S. 237, 242 (1952). "Our decisions have required that the dispute be

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                                       No. 10-11005

'definite and concrete, touching the legal relations of parties having adverse legal
interests'; and that it be 'real and substantial' . . . ." MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 127 (2007) (internal citations omitted). The
district court concluded that Appellants did not allege an actual, current case or
controversy on these points, and we agree. While there could be a dispute
between the parties here, absent an allegation — even on information and belief
— that Deutsche Bank and Saxon are not who they say they are, there is
nothing for the district court to adjudicate.1 Accordingly, the district court
properly dismissed this case.


              AFFIRMED.




       1
        Lozano y. Ocwen Federal Bank, 489 F.3d 636, 639 (5th Cir. 2007), is inapposite.
That case involved a declaratory judgment to set aside a foreclosure deed that the plaintiffs
contended was entered improperly because they had previously paid the note. Id. at 638.
Here, the portions of the complaint on which the appeal is based do no more than ask whether
Appellees are the proper parties to pursue foreclosure, etc.; they fail to allege any facts in
controversy.

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