United States District Court, S.D. Texas, Houston Division
U.S. Bank National Association, as Successor Trustee to Bank of America, National Association, as Successor by Merger to LaSalle Bank National Association as Trustee for the Registered Holders of Salomon Brothers Mortgage Securities VII, Inc., Mortgage Pass-Through Certificates, Series 1997-HUD2, Plaintiff,
Earl E. Ross Jr. and Cheryl L. Ross, Defendants.
MEMORANDUM OPINION & ORDER
H. Miller United States District Judge
before the court is plaintiff U.S. Bank National Association,
as Successor Trustee to Bank of America, National
Association, as Successor by Merger to LaSalle Bank National
Association as Trustee for the Registered Holders of Salomon
Brothers Mortgage Securities VII, Inc., Mortgage Pass-through
Certificates, Series 1997-HUD2's (“U.S.
Bank”) motion for default judgment (Dkt. 14) against
defendants Earl E. Ross Jr. and Cheryl L. Ross. Dkt. 14.
Having considered the complaint, motion, record evidence, and
applicable law, the court is of the opinion that the motion
should be DENIED and the case should be DISMISSED WITHOUT
August 28, 2015, U.S. Bank filed a complaint against Earl E.
Ross Jr. and Cheryl L. Ross seeking to foreclose on the
property located at 21426 Highland Knolls Drive, Katy, Texas,
77450 (the “Property”). Dkt. 1. On September 3,
2015, Earl E. Ross Jr. was served with process, and the
deadline for him to answer or appear in this action was
September 24, 2015. Dkt. 5. On December 7, 2015, Cheryl L.
Ross was served with process, and the deadline for her to
answer or appear was December 28, 2015. Dkt. 8. Neither
defendant has answered or appeared in this case. On January
26, 2017, U.S. Bank filed a motion for default judgment
seeking declaratory judgment to foreclose on the Property.
Federal Rule of Civil Procedure 55(a), “[w]hen a party
against whom judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party's default.” Fed.R.Civ.P. 55(a). However, a
default judgment is a “drastic remedy, not favored by
the Federal Rules[, ] and resorted to by courts only in
extreme situations.” Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th
Cir. 1989). Further, by such failure to plead or defend,
“[t]he defendant . . . [only] admits the
plaintiff's well-pleaded allegations of fact.”
Jackson v. FIE Corp., 302 F.3d 515, 524 (5th Cir.
2002) (quoting Nishimatsu Constr. Co., Ltd. v. Hous.
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
threshold matter, the court finds that U.S. Bank has failed
to plead a valid cause of action. “Federal Rule of
Civil Procedure 8(a)(2) requires only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99 (1957)). In the complaint, U.S. Bank pleads
“judicial foreclosure” as its cause of action.
Dkt. 1 at 5. However, judicial foreclosure is a remedy rather
than a cause of action. See In re Erickson, 566
Fed.Appx. 281, 284 (5th Cir. 2014) (unpublished) (holding
that the lender “had a right to pursue judicial
foreclosure as a remedy”). To be entitled to relief,
U.S. Bank could have pled a cause of action such as breach of
contract or breach of promissory note. See, e.g.,
Bazan v. JPMorgan Chase Bank, 7:13-CV-433, 2014 WL
12531349, at *1 (S.D. Tex. June 19, 2014) (Alvarez, J.)
(holding that a lender was entitled to judicial foreclosure
after the lender established the borrower's breach of
even if U.S. Bank pled a valid cause of action, a lender is
entitled to judicial foreclosure only if the lender
affirmatively demonstrates that the borrower is in default.
See Huston v. U.S. Bank Nat'l Ass'n, 988
F.Supp.2d 732, 740 (S.D. Tex. 2013) (Miller, J.),
aff'd, 583 Fed.Appx. 306 (5th Cir. 2014).
Specifically, there are four requirements a lender must meet
in order to show it is entitled to an order of judicial
foreclosure. Id. The plaintiff must show
“that: (1) a debt exists; (2) the debt is secured by a
lien created under Art. 16, § 50(a)(6) of the Texas
Constitution; (3) [defendants] are in default under the note
and security instrument; and (4) [defendants] received notice
of default and acceleration.” Id.; see,
e.g., Wheeler v. U.S. Bank Nat'l Ass'n,
CV H-14-0874, 2016 WL 554846, at *7 (S.D. Tex. Feb. 10, 2016)
(Lake, J.); Boren v. U.S. Nat'l Bank Ass'n,
CIV.A. H-13-2160, 2014 WL 5486100, at *3 (S.D. Tex. Oct. 29,
2014) (Miller, J.), aff'd, 807 F.3d 99 (5th Cir.
2015). In the instant case, U.S. Bank has alleged the first
and third elements in its complaint, but has not met the
second or fourth requirements. Dkt. 1 at 4-6. The court
cannot grant a default judgment when the plaintiff has not
pled a valid cause of action. See Fed. R. Civ. P.
8(a). Accordingly, U.S. Bank's motion for default
judgment is DENIED.
reasons stated herein, U.S. Bank has not raised a viable
claim for which the court can grant U.S. Bank judicial
foreclosure. Therefore, U.S. Bank's motion for default
judgment (Dkt. 14) is DENIED and ...