Mattie P. Stephens, and all others similarly situated v. Hsbc Mortgage Services, Inc.

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

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