United States District Court, N.D. Texas, Dallas Division
U.S. Bank NA, Plaintiff,
Berneice A. Raasch Defendant.
FINDINGS, RECOMMENDATIONS, AND CONCLUSIONS OF THE
UNITED STATES MAGISTRATE JUDGE
Harris Toliver United States Magistrate Judge
to the District Judge's Order of Referral, Doc. 11, the
Court now considers Plaintiff's Motion for Default
Judgment. Doc. 9. The requisites for default judgment
having been satisfied in this case, it is recommended that
the motion be GRANTED.
initiated this declaratory judgment action against Defendant
in December 2018, seeking to foreclose on real property due
to Defendant's default on the loan agreement she executed
in connection with the purchase of her residence (the
“Property”). Doc. 1 at 3-4. Plaintiff avers that
it served Defendant with the requisite notices of default and
intent to accelerate, but the default was not cured so the
maturity of the debt was accelerated. Doc. 1 at 3.
Accordingly, Plaintiff now brings this suit to obtain an
order for foreclosure. Doc. 1 at 4. Despite being served with
the summons and complaint via substitute service, Defendant
failed to answer or otherwise respond to this suit. Doc. 6.
Consequently, the Clerk entered a default against Defendant
at Plaintiff's request. Doc. 8; Doc. 10. Plaintiff now
seeks a default judgment against Defendant. Doc. 9.
conditions under which default may be entered against a
party, as well as the procedure to seek the entry of default
judgment, are found in Rule 55 of the Federal Rules of Civil
Procedure. The entry of default judgment is the culmination
of three events: (1) default, which occurs when a defendant
has failed to plead or otherwise respond to the complaint
within the time required by Rule 12 of the Federal Rules of
Civil Procedure; (2) entry of default by the clerk of court
when such default is established by affidavit or otherwise;
and (3) application by plaintiff for a default judgment after
the entry of default. Fed.R.Civ.P. 55(a); New York Life
Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996).
alone, however, a defendant's default does not entitle a
plaintiff to a default judgment. Lewis v. Lynn, 236
F.3d 766, 767 (5th Cir. 2001) (per curiam); Nishimatsu
Constr. Co. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975). The decision to grant a default judgment is
one soundly within the district court's discretion.
Lewis, 236 F.3d at 767. “[D]efault judgments
are a drastic remedy, not favored by the Federal Rules and
resorted to by courts only in extreme situations.”
Id. (quoting Sun Bank of Ocala v. Pelican
Homestead & Sav. Assoc., 874 F.2d 274, 276 (5th Cir.
1989)). There must be a sufficient basis in the pleadings for
a court to enter judgment by default. Nishimatsu Constr.
Co., 515 F.2d at 1206. In defaulting, defendants, by
virtue of having a default entered against them, are deemed
to have admitted the well-pleaded allegations of the
complaint and are precluded from contesting the established
facts. Id. (citations omitted).
Argument and Analysis
requests the Court to enter a default judgment against
Defendant, permitting foreclosure on the Property at issue.
Doc. 9 at 2-3. Additionally, Plaintiff requests reasonable
and necessary attorneys' fees, with the award not made as
a money judgment against Defendant, but as a further
obligation owed by Defendant under the governing note and
deed of trust. Doc. 9 at 4. Plaintiff has submitted a
comprehensive proposed order. Doc. 9-2 at 1-4.
on the record in this action, the Court determines that
Defendant is in default and that Plaintiff is entitled to a
default judgment, declaratory relief, foreclosure of the
Property, and attorneys' fees and costs. In short, the
well-pleaded allegations of Plaintiff's complaint
establish that Defendant executed a deed of trust and a Note
in the principal amount of $50, 000.00, in July 2000. Doc. 1
at 2-3. Defendant subsequently failed to make the requisite
monthly payments and defaulted on the loan. Doc. 1 at 4.
Plaintiff, as current holder of the note and deed of trust,
advised Defendant of the default and notified her that the
loan may be accelerated, but she failed to cure the default.
Doc. 1 at 4-5. Plaintiff thereafter accelerated the balance
of the note. Doc. 1 at 4.
consideration of those facts, Plaintiff has presented the
Court a sufficient basis on which to grant a default judgment
against Defendant on its claim for foreclosure.
Nishimatsu Constr. Co., 515 F.2d at 1206.
Additionally, Plaintiff alleges that it is entitled to
reasonable attorneys' fees pursuant to Texas state law
and the terms of Defendant's loan documents. Doc. 1 at
4-5. Taking this well-pleaded allegation as true, Plaintiff
is also entitled to default judgment on this claim.
foregoing reasons, it is recommended that Plaintiff s
Motion for Default Judgment, Doc. 9, be
GRANTED, and that upon acceptance of this
recommendation, the Court enter ...