Case: 10-11127 Document: 00511503163 Page: 1 Date Filed: 06/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2011
No. 10-11127
consolidated with 10-11134 and 10-11139 Lyle W. Cayce
Summary Calendar Clerk
VAL-COM ACQUISITIONS TRUST,
Plaintiff - Appellant
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Defendant - Appellee
VAL-COM ACQUISITIONS TRUST; ANDREW L. LUCAS; VICKI M.
LUCAS,
Plaintiffs - Appellants
v.
WACHOVIA BANK, NATIONAL ASSOCIATION,
Defendant - Appellee
VAL-COM ACQUISITIONS TRUST,
Plaintiff - Appellant
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Defendant - Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC Nos. 4:10-CV-447-A, 4:10-CV-449-A 4:10-CV-582-A
Case: 10-11127 Document: 00511503163 Page: 2 Date Filed: 06/08/2011
No. 10-11127
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
This case involves three district court cases consolidated on appeal.
Relevant to Case No. 10-11127, Robert LaPenna purchased a home in 2005,
financing the purchase through a note and deed of trust payable to BSM
Financial, L.P. d/b/a Banksource Mortgage. After the mortgage went into
default, LaPenna transferred title to the home to Val-Com Acquisitions (“Val-
Com”). In 2010, both sued Defendant Wells Fargo Bank, National Association
(“ Wells Fargo”) 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 Wells
Fargo removed to a federal district court, they filed an amended complaint.
Relevant to Case No. 10-11134, the Lucases purchased a home in 2006,
financing the purchase through a note and deed of trust in favor of Wachovia
Bank, National Association (“Wachovia”). After the mortgage went into default,
the Lucases transferred title to the home to Val-Com. All three sued Wachovia
in 2010 for the same types of violations that LaPenna and Val-Com asserted
against Wells Fargo.
Relevant to Case No. 10-11139, Candice Canales purchased a home,
financing the purchase through a note and deed of trust in favor of Superior
Lending Corporation. After the mortgage went into default, Canales transferred
title to the home to Val-Com. Both sued Wells Fargo in 2010 for the same types
of violations asserted in the other two cases.
*
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. 10-11127
The respective defendants moved to dismiss and then, at the district
court’s direction, for summary judgment. LaPenna and Canales were removed
from their respective cases for reasons unrelated to the matters at issue here,
leaving only Val-Com as the plaintiff in two of the cases and Val-Com and the
Lucases as plaintiffs in the remaining case. The remaining plaintiffs responded
to the summary judgment motions. The district court granted summary
judgment on all remaining claims.
The only matter briefed before this court is the propriety of the summary
judgment as to Val-Com’s claims for declaratory relief regarding Wells Fargo’s
status relative to the properties in question and Val-Com and the Lucases’
similar claims as to Wachovia, as well as whether the respective banks should
have to give certain documents to Val-Com (and the Lucases) under the TILA
and RESPA. 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.”).
The district court found that the underlying TILA and RESPA claims were
barred by limitations. Appellants offer no arguments or briefing to suggest that
a declaratory judgment can be used to avoid and evade the statute of limitations
on the substantive claim. Accordingly, we consider this issue waived. See id; see
also In re Texas Mortgage Services Corp., 761 F.2d 1068, 1073 (5th Cir. 1985).
With respect to the remaining declarations sought, 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 ‘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). Here, Wells Fargo and Wachovia offered proof of
their relationship to the properties and transactions in question. In response,
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No. 10-11127
Val-Com (and, in the one case, the Lucases) simply attached unauthenticated
unclear documents that do not refute Wells Fargo and Wachovia’s status. They
offered no competent summary judgment proof that Wells Fargo and Wachovia
are not who they say they are nor do they offer any argument in this court to
support such a conclusion. Accordingly, the district court did not err in granting
summary judgment.
AFFIRMED.
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