UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WELLS FARGO BANK, NATIONAL 

ASSOCIATION, AS TRUSTEE FOR 

SOUNDVIEW HOME LOAN TRUST 2007-

OPT2, ASSET-BACKED CERTIFICATES,

SERIES 2007-OPT2,

Plaintiff,

v. No. 4:22-cv-0341-P

KERI LYNN LOVEDAY,

Defendant.

MEMORANDUM OPINION & ORDER

The Court is deciding a Motion for Default Judgment in this

foreclosure case. ECF No. 8. Having reviewed the Motion, docket entries, 

and applicable law, the Court grants the Motion for Default Judgment. 

FACTUAL BACKGROUND

Plaintiff seeks declaratory judgment that Plaintiff is the owner and 

holder of the Note, beneficiary of the Security Instrument, and 

mortgagee, as defined under Texas Property Code § 51.0001. ECF No. 1. 

Plaintiff seeks a judgment allowing foreclosure of Defendant’s interest 

in the real property which is the subject of this matter. Id. Plaintiff also 

seeks a judgment for its reasonable attorneys’ fees based on Texas Civil 

Practice and Remedies Code Chapter 38 and the terms of the loan 

documents. Id. Plaintiff requests the award of attorneys’ fees be made 

not as a money judgment against Defendant, but as a further obligation 

owed by Defendant under the Note and Security Instrument. Id.

On or about March 12, 1973, Jerome Glidewell and Maggie Glidewell 

executed a General Warranty Deed (“Vesting Deed”) conveying title of 

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the Property—2924 NW 24th Street, Fort Worth, Texas 761061—to 

Margaret R. Sampler (“Decedent”), 2 as her sole and separate property.

On or about April 23, 2007, Decedent executed a Texas Home Equity 

Note (Fixed Rate-First Lien) (the “Note”) in the principal amount of 

$50,000.00 at an annual interest rate of 10.1%, originally payable to 

Texas State Home Loans, Inc. (“TSHL”) as lender on a loan secured by 

the Property. 

Concurrently with the execution of the Note, Decedent and her 

then-husband, Adrian L. Sampler, executed a Texas Home Equity 

Security Instrument (First Lien) (“Security Instrument” and together 

with the Note, “Loan Agreement”) as grantors, granting TSHL, and its 

successors and assigns, a security interest in the Property. The Security 

Instrument was recorded in the official public records of Tarrant 

County, Texas, as Document No. D207150123.

TSHL transferred and assigned the Loan Agreement to Option One

Mortgage Corporation (“Option One”). The Assignment of the Deed of 

Trust was recorded in the official public records of Tarrant County, 

Texas, as Document No. D207358. 

Then, Sand Canyon Corporation f/k/a Option One transferred and 

assigned the Loan Agreement to Plaintiff. The Corporate Assignment of 

Deed of Trust was recorded in the official public records of Tarrant 

County, Texas, as Document No. D222038890.

Decedent passed away on December 10, 2013. In accordance with 

Texas Estates Code §§ 101.001(b) and 101.051, her heir, the Defendant, 

acquired all Decedent’s interest in the Property immediately upon her 

death, subject to the Loan Agreement debt owed to Plaintiff. 

1The Property is more particularly described as:

LOT 13 IN BLOCK 144, ROSEN HEIGHTS ADDITION, SECOND 

FILING, AN ADDITION TO THE CITY OF FORT WORTH, 

TARRANT COUNTY, TEXAS ACCORDING TO THE PLAT FILED IN 

BOOK 204, PAGE 75, PLAT RECORDS OF TARRANT COUNTY, 

TEXAS. 

2Defendant Keri Lynn Loveday is the daughter of Decedent.

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Under the terms of the Loan Agreement, payment of the principal 

and interest on the debt was required, as well as any applicable charges 

and fees due under the Note. The Loan Agreement further provides that 

should she fail to make payments on the Note as they became due and 

payable or fail to comply with any or all of the covenants and conditions 

of the Security Instrument, the lender may enforce the Security 

Instrument by selling the Property according to law and in accordance 

with the provisions set out in the Loan Agreement.

The Loan Agreement is currently due for payments beginning with

the July 1, 2021, installment and all subsequent monthly installments.

On February 3, 2022, a Notice of Default was sent via certified mail to 

the Decedent at the Property’s address, in accordance with the Loan 

Agreement and the Texas Property Code. The Notice of Default advised

Decedent that to cure the default, a payment for the entire total amount 

past due plus any amount due in the interim must be received on or 

March 10, 2022, and that failure to cure the default on or before the date 

specified would result in acceleration of the sums secured by the 

Security Instrument and the sale of the Property.

PROCEDURAL BACKGROUND

Plaintiff filed its Complaint on April 20, 2022, seeking a declaratory 

judgment to foreclose on real property that is secured by a lien. ECF No. 

1. Defendant was served on May 3, 2022, and proof of service was filed 

that same day. ECF No. 6. Her deadline to answer or respond was May 

24, 2022. On May 25, 2022, Plaintiff requested that the Clerk of Court 

enter a default due to Defendant’s failure to respond to the Complaint 

or otherwise appear; the Clerk entered default against Defendant the 

same day. See ECF Nos. 7, 9. Plaintiffs then filed the Motion for Default 

Judgment against Defendant now pending before the Court. ECF No. 8. 

Because Defendant Keri Lynn Loveday has not appeared and the 

requirements for granting default judgment have been met, the Court 

grants Plaintiff’s Motion for Default Judgment. Id.

LEGAL STANDARD

Federal Rule of Civil Procedure 55 sets forth the conditions under 

which default may be entered against a party, as well as the procedure 

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by which a party may seek the entry of default judgment. See FED. R.

CIV. P. 55. There are three stages to the entry of a default judgment. 

First, a default occurs “when a defendant has failed to plead or otherwise 

respond to the complaint within the time required by the Federal Rules.” 

N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996); see also 

FED. R. CIV. P. 55(a). Second, an entry of default may be entered “when 

the default is established by affidavit or otherwise.” N.Y. Life Ins. Co., 

84 F.3d at 141 (citing FED. R. CIV. P. 55(a)). Third, a plaintiff may then 

apply to the clerk or the Court for a default judgment after an entry of 

default is made. Id.3 

“Default judgments are a drastic remedy, not favored by the Federal 

Rules and resorted to by courts only in extreme situations.” Lewis v. 

Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (internal quotation marks 

omitted). Moreover, “a party is not entitled to a default judgment as a 

matter of right, even where the defendant is technically in default.” Id.

(quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (per curiam)). 

“There must be a sufficient basis in the pleadings for the judgment 

entered.” Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 

1206 (5th Cir. 1975). Only well-pleaded facts, not conclusions of law, are 

presumed to be true. Id. Default judgment “should not be granted on the 

claim, without more, that the defendant had failed to meet a procedural 

time requirement.” Mason & Hanger–Silas Mason Co., Inc. v. Metal 

Trades Council, 726 F.2d 166, 168 (5th Cir. 1984) (per curiam). 

In determining whether the entry of a default judgment is 

appropriate, courts have developed a three-part analysis. Ramsey v. 

Delray Cap. LLC, No. 3:14-CV-3910-B, 2016 WL 1701966, at *2 (N.D. 

Tex. Apr. 28, 2016). First, courts look to whether a default judgment is 

procedurally warranted. See Lindsey v. Prive Corp., 161 F.3d 886, 893 

(5th Cir. 1998). The Lindsey factors are relevant to this inquiry. 

Accordingly, the Court may consider whether: (1) material issues of fact 

exist; (2) there has been substantial prejudice; (3) the grounds for 

default are clearly established; (4) the default was caused by a good-faith 

3A default judgment may not be entered against an individual in military 

service until an attorney is appointed to represent the defendant. 50 U.S.C. § 521. That 

exception is inapplicable here.

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mistake or excusable neglect; (5) a default judgment would be unduly 

harsh; and (6) the court would think itself obliged to set aside the default 

on the defendant’s motion. Id. 

Second, courts analyze the substantive merits of the plaintiff’s claims 

and determine if there is a sufficient basis in the pleadings for the 

judgment. See Nishimatsu Constr. Co., 515 F.2d at 1206 (stating that 

“default is not treated as an absolute confession by the defendant of his 

liability and of the plaintiff’s right to recover”). To that end, the Court is 

to assume because of its default, defendant admits all well-pleaded facts, 

but does not admit those facts that are not well-pleaded or conclusions 

of law. Id. 

Third, courts determine what form of relief, if any, the plaintiff 

should receive. See Ins. Co. of the W. v. H & G Contractors, Inc., No. C10-390, 2011 WL 4738197, at *4 (S.D. Tex. Oct. 5, 2011) (“A defendant’s 

default concedes the truth of the allegations of the Complaint concerning 

the defendant’s liability, but not damages.”). When the “amount of 

damages can be determined with mathematical calculation by reference 

to the pleadings and supporting documents, a hearing is unnecessary.” 

Ramsey, 2016 WL 1701966, at *3 (citing James v. Frame, 6 F.3d 307, 

310 (5th Cir. 1993)).

ANALYSIS

Applying this three-part analysis, the Court concludes that a default 

judgment is procedurally warranted and supported by a sufficient 

factual basis in Plaintiffs’ Complaint. 

A. Default judgment is procedurally warranted. 

In applying the Lindsey factors to this dispute, the Court concludes 

that the entry of default judgment is procedurally proper. First, there

are no material facts in dispute as Defendant has not filed any 

responsive pleadings to date. See Nishimatsu Constr. Co., 515 F.2d at 

1206 (noting that “[t]he defendant, by his default, admits the plaintiff’s 

well pleaded allegations of fact”). Second, Defendant’s failure to respond 

effectively prejudices Plaintiffs as the legal process is at a standstill. 

Third, nothing before the Court suggests that Defendant’s failure to 

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respond resulted from a good-faith mistake or excusable neglect. Fourth, 

Plaintiff seeks only the relief to which it is entitled under the law, and 

the Court is aware of no applicable defenses. See Helena Chem. Co. v. 

Goodman, No. 5:10-CV-121, 2011 WL 1532200, at *1 (S.D. Miss., Apr. 

21, 2011) (noting that the district court, in deciding whether to grant a 

motion for a default judgment, should consider whether the defendant 

has a meritorious defense to the complaint). Finally, the Court has no 

facts before it that would provide a basis for setting aside a default if 

challenged by Defendant. These considerations warrant entering a 

default judgment in favor of Plaintiff. 

B. Plaintiff pleaded sufficient grounds for declaratory 

judgment, and Plaintiff seeks no monetary damages.

Plaintiff seeks declaratory judgment that it is the owner and holder 

of the Note, beneficiary of the Security Instrument, and mortgagee, as 

defined under Texas Property Code § 51.0001. Plaintiff also seeks a 

judgment allowing foreclosure of Defendant’s interest of the Property.

Texas law governs the Loan Agreement. See ECF No. 1-1 ¶ 11. To 

foreclose under a security instrument with a power of sale, the lender 

need only demonstrate that: (1) a debt exists; (2) the debt is secured by 

a lien created under Article XVI, § 50(a)(6) of the Texas Constitution; (3) 

the defendant is in default under the note and security instrument; and 

(4) the defendant received notice of default and acceleration. Huston v. 

U.S. Bank Nat’l Ass’n, 988 F. Supp. 2d 732, 740 (S.D. Tex. 2013), aff’d, 

583 Fed. Appx. 306 (5th Cir. 2014); Tex. Prop. Code § 51.002. 

Here, Plaintiff’s uncontested Complaint establishes that the 

Decedent (Defendant’s predecessor in interest) incurred a debt that has 

gone unpaid for several months. Plaintiff was granted a lien to secure 

the debt, which was created under Article XVI, § 50(a)(6) of the Texas 

Constitution. The Defendant, as successor, is in default for nonpayment 

under Texas Estates Code §§ 101.001(b), 101.051(b)(1). Plaintiff mailed

a notice of default and request to cure to the Property in accordance with 

the Loan Agreement and the Texas Property Code. See ECF No. 15.

Plaintiff has sufficiently pleaded that the Note was secured by the 

Property, that the Note is due and owing, and that it seeks to foreclose on the 

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Property under the Deed of Trust. Further, Plaintiff alleges that it has 

satisfied the necessary requirements of Texas Property Code § 51.002, which 

govern a foreclosure sale of real property under a deed of trust. Plaintiff 

sufficiently pleaded that it is the current legal owner and holder of the 

blank endorsed Note and the mortgagee of the Security Instrument as 

that term is defined in § 51.0001(4) of the Texas Property Code. Plaintiff 

does not seek damages in this declaratory judgment case. 

ORDER

Accordingly, Plaintiff’s Motion for Default Judgment is GRANTED.

Per Federal Rule of Civil Procedure 58, a Final Default Judgment will 

issue by separate document. 

SO ORDERED on this 13th day of June, 2022. 

Mark T. Pittman 

UNITED STATES DISTRICT JUDGE 

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