PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT Page 1 of 6

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PHH MORTGAGE CORPORATION, §

§

§

Plaintiff, §

§

v. § Civil Action No. 3:22-cv-00664

§

DONAVAN MILLER, §

§

Defendant. §

MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT 

DONAVAN MILLER AND BRIEF IN SUPPORT THEREOF

PHH Mortgage Corporation (“PHH” and “Plaintiff”) files this, its Motion for Default 

Judgment against Defendant and Brief in Support thereof, and respectfully shows as follows:

I. BACKGROUND

1. Plaintiff is PHH. Defendant is Donavan Miller (“Defendant”). 

2. Plaintiff filed its Original Complaint (“Complaint”) against Defendant on March 

22, 2022. (ECF Document No. 1.)

3. Defendant Donavan Miller was served via personal service on March 29, 2022, by 

personally delivering a copy of the summons and Plaintiff’s Original Complaint to Patricia J. 

Miller, his mother, an individual of suitable age who resides at Defendant’s residence at 121 Jenny 

Kay Lane Irving, Texas 75060. [ECF Docket No. 5]. His answer or other response to the Original 

Complaint was due on April 19, 2022. FED. R. CIV. P. 12(a)(1)(A)(i)

4. Defendant has not answered or otherwise appeared in this action.

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5. The court clerk may enter default against a party who has not filed a responsive 

pleading or otherwise defended a suit. FED. R. CIV. P. 55(A); N.Y. Life Ins. Co. v. Brown, 84 F.3d 

137, 141 (5th Cir. 1996).

6. Plaintiff has requested that the Clerk of this Court enter default against Defendant 

because he did not file a responsive pleading within 21 days after service of the Original 

Complaint. See FED. R. CIV. P. 12(a)(1)(A)(i). Defendant has not otherwise attempted to defend 

himself against the Original Complaint. See FED. R. CIV. P. 55.

7. Defendant is not on active-duty military status. See Exhibit A-1.

8. Plaintiff is entitled to an entry of default as to Defendant because he did not answer 

or otherwise defend the Original Complaint. 

9. Plaintiff now asks the Court to render default judgment against Defendant.

II. LEGAL STANDARD

10. Federal Rule of Civil Procedure 55 governs the entry of default and default 

judgment. The entry of a default judgment is a three-step process: (1) default; (2) the entry of 

default; and (3) the entry of a default judgment. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 

(5th Cir. 1996); Jefferson v. La. Dep’t of Pub. Safety & Corr., 401 F. App’x 927, 929 (5th Cir. 

2010). The entry of a default judgment is not an abuse of discretion when a party fails to answer a 

complaint. See Bonanza Int’l, Inc. v. Corceller, 480 F.2d 613, 614 (5th Cir.), cert. denied, 414 U.S. 

1073 (1973).

III. ARGUMENT AND AUTHORITIES

11. The Court should render a default judgment against Defendant because he did not 

file a responsive pleading or otherwise defend the claims against him. Such default constitutes an 

admission by Defendant on all allegations in the Original Complaint. The facts asserted in the 

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Original Complaint are well-pleaded, and there are no unresolved issues of material fact. By failing 

to answer the Original Complaint, Defendant has admitted the well-pleaded factual allegations 

therein and is “barred from contesting on appeal the facts thus established. Nishimatsu Const. Co., 

Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Thus, Plaintiff is entitled to a 

default judgment on liability and damages. 

12. With regard to the issues of damages, ordinarily, a court should not award damages 

without first conducting a hearing. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th 

Cir.1979). However, when the amount of damages can be determined with certainty by reference 

to the pleadings and supporting documents, a hearing is unnecessary. James v. Frame, 6 F.3d 307, 

310 (5th Cir.1993). Federal Rule of Civil Procedure 54(c) provides that a default judgment must 

not differ from or exceed what is demanded in the pleadings. See FED. R. CIV. P. 54(c); see also

Meaux Surface Prot., Inc., v. Fogleman, 607 F.3d 161, 172 (5th Cir.2010). 

13. Plaintiff does not seek monetary damages against Defendant, but instead seeks 

declaratory judgment that Plaintiff as the owner and holder of the Note, and beneficiary of the

Security Instrument, it has standing and is authorized under the Security Instrument to enforce the 

power of sale contained in the Security Instrument through a non-judicial foreclosure of the real 

property which is subject of this matter, 121 Jenny Kay Lane, Irving, Texas 75060, and more 

particularly described as:

LOT 5, BLOCK A, OF SOUTH SENTER HILLS, AN ADDITION 

TO THE CITY OF IRVING, DALLAS COUNTY, TEXAS, 

ACCORDING TO THE PLAT THEREOF IN VOLUME 34, PAGE 

119, OF THE MAP RECORDS OF DALLAS COUNTY, TEXAS. 

(the “Property”).

Therefore, no hearing is necessary to establish of Plaintiff’s damages. 

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14. In Texas, to foreclose under a security instrument with a power of sale, the party is 

required to show only that: (1) a debt exists; (2) the debt is secured by a lien created under Texas 

law; (3) the borrower is in default; and (4) the borrower has been properly served with notice of 

default and acceleration. Singleton v. United States Bank N.A., No. 4:15-CV-100-A, 2016 U.S. 

Dist. LEXIS 53019, * 20 (N.D. Tex. Apr. 20, 2016); citing Huston v. U.S. Bank Nat'l Ass'n, 988 

F. Supp. 2d 732, 740 (S.D. Tex. 2013), aff'd, 583 F. App’x. 306 (5th Cir. 2014).

15. The Complaint alleges that on or about March 23, 2006, Patricia Ann Miller 

(“Decedent”) executed a Promissory Note (“Note”), in the principal amount of $90,578.00, and 

originally payable to Alethes, LLC (“Alethes”) as lender on a loan secured by the Property. [See

ECF Docket No. 1 at ¶ 14].

16. Concurrently with the execution of the Note, Decedent (“Borrower”) executed a 

Deed of Trust, (“Security Instrument” and together with the Note, “Loan Agreement”), as grantors, 

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

Instrument was recorded in the official public records of Dallas County, Texas, as Document No. 

200600173752. [See ECF Docket No. 1 at ¶ 15].

17. Borrower passed away. Upon information and belief, no probate was ever opened 

for her. In accordance with the Texas Estates Code §§ 101.001(b) and 101.051, her heirs acquired 

all of her interest in the Property immediately upon her death, subject to the Loan Agreement debt 

owed to Plaintiff. Upon information and belief, Decedent was single at the time of her death. 

Defendant Donavan Miller is the only son and descendant of Decedent. Accordingly, pursuant to 

Section 201.001 (b) of the Texas Estates Code, Defendant Donavan Miller is considered the only 

heir of Decedent. [See ECF Docket No. 1 at ¶ 20].

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18. Defendant failed to abide by the terms of the Loan Agreement and make required 

payments under the same. [See ECF Docket No. 1 at ¶ 23]. A notice of default and intent to 

accelerate was provided in accordance with section 51.002(d) of the Texas Property Code, but the 

default was not cured. (Id.) As a result, the maturity of the debt was accelerated on March 22, 

2022, by the filing of the instant lawsuit. [See ECF Docket No. 1 at ¶ 24]. Therefore, the Original 

Complaint conclusively establishes each of the necessary elements of Plaintiff’s foreclosure claim. 

19. Plaintiff requested reasonable and necessary attorney’s fees against Defendant 

based on Texas Civil Practice and Remedies Code Chapters 37 and 38 and pursuant to the terms 

of the loan documents executed by Borrower. Plaintiff is entitled to attorney’s fees under Chapter 

37 because it seeks a declaratory judgment concerning its authority to enforce the power of sale in 

the Security Instrument through foreclosure of the Property. Plaintiff is further entitled attorney’s 

fees under Chapter 38 because this is, in part, a suit for a claim listed in Texas Civil Practice and 

Remedies Code § 38.001—more specifically, breach of contract. The amount of such fees to be 

determined by subsequent motion practice. Plaintiff requests that the award of attorney’s fees be 

made not as a money judgment against Defendant, but as a further obligation owed by Borrower 

under the subject Note and Deed of Trust.

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that this 

Court enter a default judgment against Defendant Donavan Miller on all claims asserted against 

them in Plaintiff’s Original Complaint, and award Plaintiff with a declaratory judgment as follows:

a. Judgment declaring that Plaintiff is the owner and holder of the Note; 

b. Judgment against Defendant that there is default under the obligations on the 

Loan Agreement;

c. Judgment against Defendant declaring that the following are secured by the

Security Instrument on the Property: (a) the outstanding balance of the Note; (b) 

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prejudgment interest; (c) post-judgment interest from the date of judgment until 

paid; and (d) costs of court;

d. Judgment against Defendant declaring that Plaintiff’s statutory probate lien against 

the Property shall be enforced by a non-judicial foreclosure and that through the 

foreclosure sale the Defendant is divested, and the purchaser at foreclosure sale is 

vested, of all of Decedent’s right, title, and interest to the Property;

e. Judgment against Defendant for reasonable attorneys’ fees as a further obligation 

owed under the Note and Security Instrument;

f. Any other relief to which the Court deems Plaintiff is entitled.

Respectfully submitted, 

By: /s/ Vivian N. Lopez

MARK D. CRONENWETT

Texas Bar No. 00787303

mcronenwett@mwzmlaw.com

VIVIAN N. LOPEZ

State Bar No. PR20818

vlopez@mwzmlaw.com

MACKIE WOLF ZIENTZ & MANN, P.C.

14160 North Dallas Parkway, Suite 900

Dallas, Texas 75254

Telephone: 214-635-2650

Facsimile: 214-635-2686

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

The undersigned certifies that on April 21, 2022, a copy of the above and foregoing 

document was served on the following Defendant in the manner described below:

Via CMRRR#9314 7699 0430 0094 5819 70

and U.S. Mail: 

Donavan Miller

121 Jenny Kay Lane

Irving, Texas 75060

/s/ Vivian N. Lopez 

VIVIAN N. LOPEZ

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