Case: 11-10187 Document: 00511599065 Page: 1 Date Filed: 09/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 12, 2011
No. 11-10187
Summary Calendar Lyle W. Cayce
Clerk
MATTHEW MISCZAK, ROBERT TIMPONE, and MICHELLE TIMPONE,
Plaintiffs-Appellants,
v.
CHASE HOME FINANCE, L.L.C.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-cv-739-Y
Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
Appellants Robert and Michelle Timpone executed a Note and Deed of
Trust with American Western Mortgage Company, and Appellant Matthew
Misczak has acquired the property subject to the security interest. The
appellants brought suit in state court against Appellee Chase Home Finance,
L.L.C. seeking damages, injunctive relief, and a declaratory judgment for
fraud, negligent misrepresentation, and violations of the Truth in Lending
Act and the Real Estate Settlement Procedures Act. After removal to federal
*
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 R. 47.5, the court has determined that this opinion should not be published and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: 11-10187 Document: 00511599065 Page: 2 Date Filed: 09/12/2011
No. 11-10187
court, the district court granted Appellee’s motion under Federal Rule of Civil
Procedure 12(b)(6).
Appellants confine their appeal to the district court’s dismissal of their
claims for declaratory relief. Consequently, the appellants waive all other
issues. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
A federal declaratory judgment action requires an actual controversy,
not one that is “hypothetical, conjectural, conditional, or based upon the
possibility of a factual situation that may never develop.” Rowan Cos., Inc. v.
Griffin, 876 F.2d 26, 28 (5th Cir. 1989). “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. Greentech, Inc., 549 U.S. 118, 127 (2007) (internal quotations omitted).
Appellants seek declaratory relief concerning Appellee’s ownership,
possession, and entitlement to enforce the Note. However, they have alleged
no facts that call into question Appellee’s status as assignee, current holder,
or servicer of the Note.1 Consequently, we agree with the district court that
the appellants have failed to allege an actual, present controversy.
The judgment of the district court is AFFIRMED.
1
Although our unpublished decisions are not precedent, we are persuaded by our prior reasoning on
nearly identical facts. See Val-Com Acquisitions Trust v. Chase Home Fin., L.L.C., 420 Fed. App’x 405, 406
(5th Cir. 2011) (per curiam) (unpublished).
2