IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11010

Summary Calendar

VAL-COM ACQUISITIONS TRUST,

Plaintiff – Appellant

v.

CITIMORTGAGE, INCORPORATED,

Defendant – Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CV-470

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Plaintiff–Appellant Val-Com Acquisitions Trust (“Val-Com”) appeals the

district court’s order dismissing its claim for declaratory relief against

Defendant–Appellee CitiMortgage, Inc. and denying Val-Com’s motion for leave

to amend its complaint. For the following reasons, we affirm the judgment of the

district court.

United States Court of Appeals

Fifth Circuit

F I L E D

April 7, 2011

Lyle W. Cayce

Clerk

 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. 10-11010

I. BACKGROUND

In January 2010, Adam J. Stanley deeded his interest in a residential

property in Azle, Texas to Val-Com. Val-Com took the property subject to an

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existing Deed of Trust held by CitiMortgage, but did not assume the loan or

make any payments to CitiMortgage. On June 7, 2010, Val-Com and Stanley

filed an action in Texas state court alleging that CitiMortgage and its

predecessors in interest failed to provide required disclosures to Stanley and

failed to follow required procedures during the loan process, though the

complaint did not allege which disclosures were withheld or which procedures

were not followed. The plaintiffs claimed damages based on alleged violations

of the federal Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., and the

regulations promulgated thereunder;the Real Estate Settlement Procedures Act

(“RESPA”), 12 U.S.C. § 2601 et seq.; and a Texas statute regarding fraud in real

estate transactions, Tex. Bus. & Com. Code Ann. § 27.01. They also requested

declaratory and injunctive relief related to CitiMortgage’s intent to enforce its

security interest in the property through a non-judicial foreclosure sale.

CitiMortgage removed the case to the District Court for the Northern

District of Texas, and the district court ordered the parties to appear personally

for a settlement conference. When Stanley did not appear, the court dismissed

him from the case as a sanction. Val-Com then filed a motion for leave to amend

its complaint. The proposed amended complaint recast Val-Com as assignee of

Stanley’s rights and added a claim for negligent misrepresentation, but it

otherwise contained allegations identical to those in the original complaint.

The district court held a hearing on the motion, during which the court sua

sponte deemed CitiMortgage to have made a motion to dismiss the complaint for

 Val-Com is an entity that purports to assist homeowners facing foreclosure. 1

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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The

district court determined that the TILA claim and the negligent

misrepresentation claim in the proposed amended complaint were barred by the

statute of limitations, and that the complaint failed to allege sufficient facts to

state a claim under RESPA or a real estate fraud claim under Texas state law.

The court thus dismissed Val-Com’s complaint in its entirety. The court also

denied Val-Com’s motion for leave to amend its complaint, finding that

amendment would be futile because the proposed amended complaint would also

be subject to immediate dismissal under Rule 12(b)(6).

II. DISCUSSION

Val-Com first argues that the district court erred in dismissing its claim

for a declaratory judgment. In its complaint, Val-Com requested declarations

that CitiMortgage violated TILA and RESPA and that CitiMortgage could not

enforce its security interest in the property through a non-judicial foreclosure

sale due to alleged violations of TILA and RESPA. Although Val-Com protests

the dismissal of its claim for declaratory relief, it does not argue that the district

court erred in dismissing its claims for damages based on CitiMortgage’s alleged

violations of TILA and RESPA.

We review de novo the district court’s dismissal of a claim under Rule

12(b)(6). In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

“As a general rule, a district court may dismiss a complaint on its own for

failure to state a claim.” Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th

Cir. 2006). Val-Com does not dispute the fairness of the procedure the district

court employed or complain that it was deprived of notice of the court’s intention

or an opportunity to respond. See id. (“[D]istrict courts should not dismiss

claims sua sponte without prior notice and opportunity to respond.”).

Val-Com contends that it has a continuing claim for declaratory relief

under the Texas Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem.

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Code Ann. § 37.004, and cites Texas authority to support the continued vitality

of its declaratory judgment claim. We will assume without deciding that the

Texas act applies to an action removed to federal court, but see Utica Lloyd’s of

Tex. v. Mitchell, 138 F.3d 208, 210 (5th Cir. 1998), because applying either Texas

or federal law, the district court did not err in dismissing Val-Com’s claim for

declaratory relief.

Both Texas and federal law require the existence of a justiciable case or

controversy in order to grant declaratory relief. Bauer v. Texas, 341 F.3d 352,

357–58 (5th Cir. 2003); Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.

1995). In a declaratory judgment action, the parties litigate the underlying

claim, and the declaratory judgment is merely a form of relief that the court may

grant. See Collin Cnty., Tex. v. Homeowners Ass’n for Values Essential to

Neighborhoods, (HAVEN), 915 F.2d 167, 171 (5th Cir. 1990). In its complaint,

Val-Com sought a declaration that CitiMortgage, or its predecessors in interest,

had violated TILA and RESPA. After the district court dismissed the TILA and

RESPA claims for failure to state a claim under Rule 12(b)(6), there was no

underlying claim for the court to adjudicate and the court could not declare a

violation of TILA or RESPA. Val-Com also sought a declaration that

CitiMortgage could not proceed with a non-judicial foreclosure sale, but only

based on the alleged violations of TILA and RESPA. Val-Com alleged no other

facts contesting CitiMortgage’s authority to conduct a non-judicial foreclosure

sale. Once the district court had dismissed the underlying TILA and RESPA

claims, there were no claims for which the district court could grant declaratory

relief.

Val-Com also argues that the district court erred in denying its motion for

leave to amend its complaint. In denying Val-Com’s motion, the district court

reasoned that the amendment was futile because Val-Com’s proposed amended

complaint would be subject to immediate dismissal under Rule 12(b)(6).

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Notably, Val-Com does not argue that its proposed amended complaint cures any

of the deficiencies the district court found to exist in its original complaint. ValCom instead argues that it moved to amend well before the deadline for filing

amendments and that CitiMortgage would not be prejudiced by the amendment,

arguments which do not address the basis for the district court’s denial of the

motion. Val-Com’s failure to identify any error in the district court’s analysis is

as if Val-Com had not briefed the issue at all. See Brinkmann v. Dallas Cnty.

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). We therefore find that

Val-Com has abandoned the issue and affirm the district court’s denial of ValCom’s motion for leave to amend its complaint.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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