UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1894

MATTIE P. STEPHENS, and all others similarly situated,

Plaintiff – Appellant,

v.

HSBC MORTGAGE SERVICES, INC.; MORTGAGE ELECTRONIC 

REGISTRATION SYSTEMS, INC., as mortgagee and nominee of 

lender,

Defendants – Appellees.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Richard M. Gergel, District Judge. 

(3:13-cv-00691-RMG)

Submitted: March 28, 2014 Decided: April 8, 2014

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Richard A. Harpootlian, Christopher P. Kenney, RICHARD A. 

HARPOOTLIAN, PA, Columbia, South Carolina; Tobias G. Ward, Jr., 

TOBIAS G. WARD, JR. PA, Columbia, South Carolina, for Appellant. 

B. Rush Smith III, Thad H. Westbrook, A. Mattison Bogan, Carmen 

Harper Thomas, NELSON MULLINS RILEY & SCARBOROUGH LLP, Columbia, 

South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Appellant Mattie Stephens appeals the district court's 

dismissal of her motion for declaratory judgment.1 She contends 

that the district court erred by finding that her claim was not

ripe for adjudication and abused its discretion by failing to 

show good cause for its refusal to consider her motion on the 

merits. For the reasons that follow, we affirm.

I.

Stephens is a South Carolina homeowner who is currently 

delinquent on her mortgage payments. Appellee HSBC Mortgage

Services, Inc. is the assignee of the lender’s rights to 

Stephens’s mortgage contract, and Appellee Mortgage Electronic 

Registration Systems, Inc. holds a security interest as 

mortgagee and nominee for the lender.

Stephens alleges that due to financial distress, she has 

made only partial mortgage payments for approximately two years. 

She seeks a declaration that her mortgage contract is void ab 

initio because it includes an improper waiver of the 

appraisement rights granted by South Carolina Code § 29-3-680 to 

 1 Stephens also appeals the district court’s denial of her 

motion to certify state law questions to the Supreme Court of 

South Carolina and moves us to certify those questions. 

Stephens’s appeal and motion were previously denied in our order 

of September 27, 2013. 
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homeowners whose mortgages have been foreclosed and against whom 

a deficiency judgment has been sought. She also seeks to enjoin 

Appellees from foreclosing on her property or seeking a 

deficiency judgment pursuant to the allegedly void mortgage 

contract. Finally, Stephens seeks to represent a class of 

similarly situated South Carolina homeowners whose mortgage 

contracts include the allegedly improper waiver. Stephens does 

not contend that either Appellee has threatened or initiated

foreclosure proceedings.

Stephens filed this action for declaratory and injunctive 

relief in South Carolina state court on January 25, 2013. On 

March 14, 2013, Appellees removed the case to the District of 

South Carolina. Appellees moved to dismiss Stephens's action 

for lack of subject-matter jurisdiction on March 21, 2013. The 

district court granted Appellees' motion to dismiss on June 24, 

2013. Stephens timely appealed.

II.

“We review de novo the issue of whether a district court 

possessed jurisdiction in a declaratory judgment proceeding.” 

Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 

581, 591 (4th Cir. 2004). “If a plaintiff has asserted 

sufficient facts to create declaratory judgment jurisdiction, we 
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review for abuse of discretion a district court's decision to 

exercise its jurisdiction.” Id.

III.

The district court held that Stephens’s cause of action was 

not ripe, and therefore not justiciable, because it is uncertain 

whether her right to appraisement will ever be asserted or 

challenged. The court found that because Stephens's ability to 

exercise her right was subject to multiple unpredictable future

contingencies, a declaration would not be useful and the lack of 

a declaration would not impose any significant hardship on the 

parties.

Article III, § 2 of the United States Constitution limits 

our jurisdiction to cases and controversies. A claim satisfies 

the case or controversy requirement “if the ‘conflicting 

contentions of the parties...present a real, substantial 

controversy between parties having adverse legal interests, a 

dispute definite and concrete, not hypothetical or abstract.’”

Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006) (quoting 

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 

(1979)) (alteration in original). “Because [t]he doctrine of 

ripeness prevents judicial consideration of issues until a 

controversy is presented in clean-cut and concrete 

form...problems such as the inadequacy of the record...or 
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ambiguity in the record...will make a case unfit for 

adjudication on the merits.” Ostergren v. Cuccinelli, 615 F.3d 

263, 288 (4th Cir. 2010) (alteration in original) (internal 

quotation marks and citations omitted). A court should rule on 

the merits of a declaratory judgment action only “when 

declaratory relief ‘will serve a useful purpose in clarifying 

and settling the legal relations in issue,’ and ‘will terminate 

and afford relief from the uncertainty, insecurity, and 

controversy giving rise to the proceeding.’” Volvo Constr. 

Equip., 386 F.3d at 594. (quoting Aetna Cas. & Sur. Co. v. 

Quarles, 92 F.2d 321, 325 (4th Cir. 1937)).

Stephens contends that her declaratory judgment action is

ripe because all of the relevant facts are before the court, she

has already been injured by the formation of the illegal clause 

in the contract, the parties have taken adverse positions on the 

enforceability of the contract, and the Appellees have a present 

right to foreclose on Stephens’s property.2

 Appellees argue that 

Stephens’s claim is not ripe because she has no right to the 

relief she seeks unless a series of contingent events occur.

 2 Stephens also contends that the existence of 500 or more 

similarly situated homeowners is a factor that helps her claim 

to satisfy the ripeness standard. However, it is not clear why 

this would have any bearing on the existence of a controversy 

between Stephens and the Appellees.
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Stephens’s arguments are unavailing. We have previously 

held that a challenge to a lender’s ability to foreclose on a 

mortgage contract is not ripe when there has been “no attempt to 

foreclose.” Horvath v. Bank of N.Y., 641 F.3d 617, 622 n.2 (4th 

Cir. 2011). The claim before us and the claim in Horvath are in 

identical postures. In Horvath, as in this action, the 

plaintiff challenged the enforceability of a mortgage contract 

on which the parties had taken adverse positions and for which 

there were sufficient facts in the record to allow the court to 

make a decision as a matter of law. Moreover, the defendants 

had a present right to enforce the mortgage contract at issue 

because the plaintiff was in default. The plaintiff “sought a 

declaratory judgment stating that [the defendant] cannot 

foreclose on the note, even though [the plaintiff] is in default 

and even though the current noteholder has made no attempt to 

foreclose.” Id. at 622 n.2. We held that the “claim [was]

unripe for adjudication. Insofar as no foreclosure has even 

been threatened, [the plaintiff] cannot yet show a 

‘controversy...presented in [a] clean-cut and concrete form.’” 

Id. (quoting Ostergren, 615 F.3d at 288).

Stephens cannot overcome the fact that no foreclosure has 

been threatened or initiated by the Appellees in this case. 

Like the plaintiff in Horvath, Stephens seeks an advisory 

declaration that the Appellees cannot foreclose on the mortgage 
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contract even though she is in default and the Appellees have 

made no attempt to foreclose. Because the claim presented by 

Stephens is no more clean-cut or concrete than that presented in

Horvath, there is no sufficiently ripe controversy to permit the 

exercise of declaratory judgment jurisdiction.3

IV.

For the reasons stated above, the district court’s

dismissal of Stephens’s action for declaratory relief is 

AFFIRMED.

 3 Because the district court properly found that it lacked

jurisdiction, we need not consider whether it abused its 

discretion by choosing not to consider Stephens’s claim on the 

merits.