     Case: 19-50503      Document: 00515369433         Page: 1    Date Filed: 04/02/2020




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

                                    No. 19-50503                                FILED
                                  Summary Calendar                           April 2, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
BENNY DANESHJOU,

              Plaintiff - Appellant

v.

JPMORGAN CHASE BANK, N.A.,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:18-CV-688


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Benny Daneshjou appeals the district court’s dismissal of his claims for
quiet title and anticipatory breach of contract and his request for declaratory
relief. Daneshjou challenges, among other things, the district court’s ruling on
the authenticity of a loan note that the district court relied on to dismiss his
claims. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 19-50503
              FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff Benny Daneshjou (“Daneshjou”) and his wife, Sally Daneshjou,
refinanced their home in April 2003 through a loan from Washington Mutual.
Only Sally Daneshjou signed the note. On September 25, 2008, Washington
Mutual was placed into receivership, and the Federal Deposit Insurance
Corporation (“FDIC”) was appointed as the receiver.       That same day, the
defendant, JPMorgan Chase Bank, N.A., (“Chase”) purchased substantially all
of Washington Mutual’s assets and liabilities. Since then, Chase has claimed
to service the mortgage for the loan from Washington Mutual, and the
Daneshjous allegedly made payments on that loan until summer 2017.
      In January 2017, Daneshjou deferred his property taxes. Chase paid
them, then sought payment from Daneshjou. Chase threatened to accelerate
Daneshjou’s loan in December 2017, but Daneshjou claims Chase failed to
credit his payments to his loan. In July 2018, Chase accelerated the loan and
gave Daneshjou notice of foreclosure.
      Before a foreclosure sale could occur, Daneshjou filed for a temporary
restraining order, which the state court granted. Chase then removed the case
from the state court in Travis County, Texas, to the United States District
Court for the Western District of Texas, then filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). Daneshjou amended his complaint,
asserting claims for quiet title and anticipatory breach of contract and seeking
declaratory relief. Chase filed another Rule 12(b)(6) motion to dismiss and
attached the deed of trust and the note related to the property. Before ruling
on the motion to dismiss, the district court allowed Chase an opportunity to
authenticate the note. Chase did so by submitting a declaration.
      The district court relied in part on the note when dismissing Daneshjou’s
claims. The basis for Daneshjou’s quiet-title claim was that the deed of trust
secured payment of a note “signed by Borrower” and defined that term as both
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                                  No. 19-50503
Sally and Benny Daneshjou, but only Sally actually signed the note Chase
produced. According to Daneshjou, a valid note therefore does not exist, and
the deed of trust is unenforceable. Similarly, Daneshjou alleged under his
anticipatory-breach-of-contract claim that the deed of trust authorizes the
power of sale for default of a nonexistent note, not the note signed only by Sally.
The district court found that the note signed only by Sally was the note secured
by the deed of trust and rejected both of Daneshjou’s theories. Because the
district court dismissed both substantive claims, it also dismissed Daneshjou’s
request for declaratory relief. Daneshjou timely appealed.


                                 DISCUSSION
        We review a dismissal for failure to state a claim upon which relief can
be granted de novo, “accepting all well-pleaded facts as true and viewing those
facts in the light most favorable to the plaintiffs.” Wolcott v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011). We review a district court’s admission of evidence for
an abuse of discretion. Nester v. Textron, Inc., 888 F.3d 151, 160 (5th Cir.
2018).
        We start with Chase’s argument that the case is moot. Chase argues
whether it abandoned its acceleration of Daneshjou’s loan amount is moot
because “[t]here are no allegations that Chase is currently attempting to
foreclose.” The operative complaint, though, alleges Chase sent Daneshjou a
notice of foreclosure threatening to sell Daneshjou’s property on August 7,
2018.     The state court enjoined Chase from foreclosing on Daneshjou’s
property. We see no mootness.
        Daneshjou argues that the district court erred in dismissing his request
for declaratory relief and in considering the note because Chase failed to make
a proper authentication. Daneshjou’s argument for declaratory relief depends
on the success of his evidentiary challenge, so we first consider the evidentiary
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                                   No. 19-50503
challenge. Daneshjou contends that Chase’s purported authentication of the
note failed because the declaration Chase submitted from its employee Alicia
Hernandez failed to lay an adequate foundation to support that the attached
note was a correct copy as it exists today. Specifically, Daneshjou argues that
the note is a legally operative instrument, not a business record as the
declaration suggests; that the declaration does not indicate that Hernandez or
Chase ever saw or made a copy of the original note; and that the note bears no
FDIC endorsement.
      A court may consider “[d]ocuments that a defendant attaches to a motion
to dismiss . . . if they are referred to in the plaintiff’s complaint and are central
to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004). The district court found that both the deed of trust and the note
were referred to in the amended complaint and were central to Daneshjou’s
claims. Because Daneshjou objected to the note, however, the district court
first sought to determine the authenticity of the note before considering it.
      To authenticate “an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” FED. R. EVID. 901(a). “This Court does not require conclusive
proof of authenticity before allowing the admission of disputed evidence.”
Nester, 888 F.3d at 160. “Rather, Rule 901(a) merely requires some evidence
which is sufficient to support a finding that the evidence in question is what
its proponent claims it to be.” Id. (footnote omitted). One acceptable means of
authentication is with a declaration, but it “must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” FED. R.
CIV. P. 56(c)(4).
      Hernandez’s declaration states that the note attached to the motion to
dismiss was “a true and correct copy of the note as it exists today” in Chase’s
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                                  No. 19-50503
business records. Her personal knowledge of that fact was said to be based on
her review of the loan records.       This declaration authenticates the note.
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 254 (5th Cir. 2013).
The note is indeed a legally operative instrument, but it also is a business
record because Chase is in the business of servicing loans. Further, the district
court found that Daneshjou’s amended complaint alleged facts identical to
features in the note produced by Chase, e.g., “it documents a loan from
Washington Mutual to Sally Daneshjou dated April 25, 2003, to refinance a
property located at 2300 Portofino Ridge in Austin, Texas.” The district court
also found that Chase’s produced note matched the deed of trust:            “both
documents refer to a Washington Mutual loan identified by a unique number
ending in 4569; in the amount of $2,439,000.00; dated April 25, 2003; for a
property located at 2300 Portofino Ridge in Austin, Texas[; and both]
instruments indicate that the debt will be paid by May 1, 2033.” Additionally,
the lack of an endorsement on the note by the FDIC to Chase is irrelevant to
the authenticity of the note and to Chase’s power to foreclose. Id. at 255. The
district court did not abuse its discretion in considering the note.
      Because the district court properly considered the note produced by
Chase, it could rely on the note when dismissing Daneshjou’s claims for quiet
title and anticipatory breach of contract. Because Daneshjou failed to state
any other claim for relief, his remaining claim under the Federal Declaratory
Judgment Act does not support an independent private right of action. Harris
Cnty. Texas v. MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015). Declaratory
relief also was properly dismissed.
      AFFIRMED.




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