Appellate Judges

Get Ready for the Next Judicial Assault On the People By the Texas Federal Judiciary

Brantley Starr conflicts with Senior Judge Gray Miller in his reasoning for allowing attorney fees, citing § 38.001(8) which Miller rejected.

Get Ready for the Next Judicial Assault On the People By the Texas Federal Judiciary

The judiciary is trying to set cases in 2021 which can be deemed ‘precedential’ in allowing foreclosure mills and their attorneys to apply for fees in foreclosure cases, against the American Rule.

If fees were allowed, it would have been applied to every case after the financial crisis in 2008 when there was an avalanche of wrongful foreclosures.  It never happened because it is unlawful.

In the case below it is even more heinous because Starr is allowing fees in a case where the homeowner didn’t show up to defend himself, allowing Starr to grant fees uncontested. That’s unconstitutional as well as unlawful.

JUN 6, 2021

Civil Action No. 3:20-CV-00745-X

04-05-2021

WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATED AS OF APRIL 1, 2004 ASSET BACKED SECURITIES CORPORATION HOME EQUITY LOAN TRUST 2004-HE2 ASSET BACKED PASS-THROUGH CERITIFCATES, SERIES 2004-HE2, Plaintiff, v. GEORGE E. DIXON, Defendant.

BRANTLEY STARR – UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER

The plaintiff, Wells Fargo, filed this action on March 30, 2020, seeking a judgment from this Court allowing foreclosure against the Defendant, George E. Dixon, concerning property at 153 Meadowcreek Road, Coppell, Texas, 75019.

Dixon was served on April 22, 2020. On May 15, 2020, Wells Fargo requested that the Clerk enter default against Dixon, which occurred on May 18, 2020. Wells Fargo filed an amended motion for default judgment on January 13, 2021. [Doc. No. 11]. After careful consideration, and as explained below, the Court GRANTS the amended motion for default judgment.

I. Legal Standard

Federal Rule of Civil Procedure 55(b)(2) provides that, in proceedings not involving a certain sum:

the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared.

If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing.

The court may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence;

or

(D) investigate any other matter.

A default requires the Court to accept as true a plaintiff’s well-pled allegations in a complaint.1

In determining whether to enter a default judgment, the Court conducts a two-part analysis. First, the Court examines whether a default judgment is appropriate under the circumstances.2 Relevant factors (called the Lindsey factors) include:

(1) whether disputes of material fact exist;

(2) whether there has been substantial prejudice;

(3) whether grounds for default are clearly established;

(4) whether the default was caused by a good faith mistake or excusable neglect;

(5) the harshness of a default judgment;

and

(6) whether the court would be obliged to grant a motion from the defendant to set the default judgment aside.3

Second, the Court assesses the merits of the plaintiff’s claims and whether there is a sufficient basis in the pleadings.4

1 See, e.g., Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 499 (5th Cir. 2015) (a complaint is well pled when “all elements of [a] cause of action are present by implication”); In re Dierschke, 975 F.2d 181, 185 (5th Cir. 1992) (“It is universally understood that a default operates as a deemed admission of liability.”).

2 Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).

3 Id.

4 Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).

II. Factual Background

In December 2003, Dixon executed a $432,000 note, creating a purchase-money lien on his residence, 153 Meadowcreek Road, Coppell, Texas 75019. The note’s terms required Dixon to pay principal and interest when due. Those terms also provided that should Dixon fail to make payments—or fail to comply with any covenants and conditions of the note—that Wells Fargo may foreclose on the property.

Dixon failed to make payments on the note when due. As a result, Wells Fargo provided notice of default and its intent to accelerate to Dixon. Dixon did not cure the default, and the unpaid principal and interest are now due.

Wells Fargo filed suit on March 30, 2020. Dixon was served on April 22, 2020. His answer or response was due twenty-one days later, on May 13, 2020. But to date, Dixon has neither answered nor responded to Wells Fargo’s complaint. Wells Fargo moved for default judgment on May 15, 2020, which this Court denied without prejudice due to pleading defects. On January 13, 2021, Wells Fargo filed its amended motion for default judgment.

III. Analysis

Typically, the Court should not award damages without first holding a hearing. But where, as here, the Court can determine the amount of damages with certainty, a hearing is not necessary.

Because Wells Fargo seeks a judgment allowing foreclosure on Dixon’s property, not monetary damages against Dixon, no hearing is necessary.

United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979).

James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).

Regarding the Lindsey factors, the Court finds that:

(1) there exist no disputes of material fact because Dixon did not file a responsive pleading;

(2) there has not been substantial prejudice;

(3) Dixon’s failure to respond or participate in this litigation establishes the grounds for default;

(4) there is no reason to believe Dixon’s failure to respond was caused by a good-faith mistake of excusable neglect, as he was served nearly one year ago;

(5) the default judgment would not be unduly harsh, because it would merely allow the remedy prescribed by the note;

and

(6) the pleadings, Dixon’s failure to respond, and the consequential failure to plead a meritorious defense indicate that this Court would not be obliged to grant a motion from Dixon to set aside the default judgment.

The Court therefore concludes that a default judgment is appropriate under the circumstances.

Next, the Court must consider the sufficiency of the allegations in Wells Fargo’s complaint.

Under Texas law, to foreclose under a security instrument with a power of sale, 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) plaintiffs are in default under the note and security instrument;

and

(4) plaintiffs received notice of default and acceleration.”

Frank v. OneWest Bank, FSB, 2014 WL 12564092, at *9 (E.D. Tex. Aug. 15, 2014) (cleaned up).

Here, Dixon executed a $432,000 note secured by real property located at 153 Meadowcreek Road. This is sufficient to show that a debt exists.

Dixon signed the lien, a Texas Home Equity Security Instrument, and filed it in the Official Public Records of Dallas County, Texas, creating a purchase-money lien on 153 Meadowcreek Road. The debt is therefore secured by a lien created under Texas Law.

Dixon failed to make payments as required and failed to comply with the covenants and conditions of the note. Accordingly, he is in default. Wells Fargo provided Dixon with the notice of default and intent to accelerate.

Therefore, Wells Fargo provided Dixon with notice as required by Texas law.

Because the complaint sufficiently alleges the elements required to foreclose under a security instrument with a power of sale and the Lindsey factors favor granting the motion for default judgment, the Court GRANTS the amended motion for default judgment.

IV. Attorney’s Fees

Wells Fargo also seeks attorney’s fees pursuant to Texas Civil Practice and Remedies Code § 38.001 and the terms of the note. Section 38.001 provides that

“[a] person may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract.”

Because the note Dixon entered is a written contract, the Court finds that Wells Fargo is entitled to reasonable attorney’s fees .

The Court ORDERS Wells Fargo to file a motion for attorney’s fees within 14 days that includes evidence supporting the amount of reasonable fees.

Tex. Civ. Prac. & Rem. Code § 38.001(8). ——–

V. Conclusion

For the foregoing reasons, the Court GRANTS Wells Fargo’s motion for default judgment.

IT IS SO ORDERED this 5th day of April 2021.

/s/_________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE

Civil Action No. 3:20-CV-00745-X

04-13-2021

MOTION FOR ATTORNEYS’ FEES

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES

COMES NOW Plaintiff Wells Fargo Bank, N.A., as Trustee for the Pooling and Servicing Agreement Dated as of April 1, 2004 Asset Backed Securities Corporation Home Equity Loan Trust 2004-HE2 Asset Backed Pass-Through Certificates, Series 2004-HE2 (“Wells Fargo” or Plaintiff”) and files this its Motion for Attorneys’ Fees, and respectfully shows as follows:

1. On October 10, 2019, Plaintiff filed its Original Complaint (“Complaint”) seeking a declaration from this Court allowing it to enforce its lien against the Property through foreclosure that the Defendant George E. Dixon (“Dixon”) divested all of his right, title and interest in the Property after foreclosure. (ECF No. 1.)

2. In the Memorandum Opinion and Order, the Court ordered that Wells Fargo shall recover from the Defendants costs of court and attorneys’ fees at an amount to be determined by later motion and order. (ECF Document No. 32.) Plaintiff now presents this its Motion for Attorneys’ Fees.

3. Plaintiff incurred $4,228.80 in reasonable and necessary attorneys’ fees in filing and prosecuting this suit to enforce its interest in certain real property as a result of Defendants’ default of under the Note and Deed of Trust agreement between the parties. See Exhibit A, Declaration of Philip W. Danaher.

A true and correct copy of the detailed billing statements of attorneys’ fees is attached hereto as Exhibit B. Accordingly, in this Motion, Plaintiff requests an award of attorneys’ fees in the amount of $4,228.80, that it has incurred in enforcing its interest in the subject property as a result of Defendants’ default of under the Note and Deed of Trust agreement between the parties

WHEREFORE, PREMISES CONSIDERED, Plaintiff Wells Fargo respectfully requests that the Court award it its attorneys’ fees in the total amount of $4,228.80, to be recovered from Defendant George E. Dixon (“Defendant”) as a further obligation owed by Defendants under the Note and Security Instrument. Plaintiff also prays for all relief, whether at law or in equity to which it is justly entitled.

Respectfully submitted,

By: /s/ Philip W. Danaher
MARK D. CRONENWETT
Texas Bar No. 00787303 mcronenwett@mwzmlaw.com
PHILIP W. DANAHER
Texas Bar No. 24078395 pdanaher@mwzmlaw.com

MACKIE WOLF ZIENTZ & MANN, P. C.
14160 North Dallas Parkway, Suite 900
Dallas, TX 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was sent on April 13, 2021, upon the following as indicated:

VIA CERTIFIED MAIL # 9314 7699 0430 0081 3167 07
George E. Dixon
153 Meadowcreek Road
Coppell, Texas 75019
Defaulting Defendant

/s/ Philip W. Danaher
PHILIP W. DANAHER

Civil Action No. 3:20-CV-00745-X

04-13-2021

EXHIBIT A, RE MOTION FOR ATTORNEYS’ FEES

DECLARATION OF PHILIP W. DANAHER

Pursuant to 28 U.S.C. Section 1746, I declare under penalty of perjury that the following statements are true and correct:

1. “My name is Philip W. Danaher. I am over the age of 21 years and am fully competent to make this Declaration. All statements of fact made herein are true, correct, and within my personal knowledge.

2. I am an attorney for Plaintiff Wells Fargo Bank, N.A., as Trustee for the Pooling and Servicing Agreement Dated as of April 1, 2004 Asset Backed Securities Corporation Home Equity Loan Trust 2004-HE2 Asset Backed Pass-Through Certificates, Series 2004-HE2 (“Wells Fargo” or Plaintiff’).

3. Defendant filed its Original Complaint against Defendant George E. Dixon (“Dixon”) on October 10, 2019. [ECF No. l].

4. I am an attorney licensed to practice in the State of Texas and am a member of the bar of the United States District Court for the Eastern District of Texas. I am currently a senior attorney at the law firm of Mackie Wolf Zientz & Mann, P.C. (MWZM), with offices located in Dallas, Texas and Houston, Texas. I am in good standing with respect to the State Bar of Texas.

A true and correct copy of my resume is attached hereto as Exhibit A-1.

5. MWZM was retained by Plaintiff to defend it against the claims brought by Dixon in his Original Petition to enforce Defendant’s interest in certain real property as a result of a default under a loan. The legal professionals of MWZM with whom I worked in providing these services are at all relevant times attorneys licensed by the State of Texas, in good standing and experienced in the areas of business, real estate, and commercial litigation practice.

Without waiving the attorney-client privilege, the subject matter of the counsel and representation provided to Plaintiff by MWZM legal professionals included, but was not limited to: review and analysis of the loan documents at issue; review and analysis of the history of this matter; preparation and filing of the original answer and counterclaim; completing service; drafting motions for default judgment; conducting legal research; drafting responses to defendants’ motions; multiple conferences with Defendant’s mortgage servicer regarding all of these items and this matter generally.

These activities are set forth in chronological order by name and date
on the invoices included with the motion as Exhibit B. The hours set forth for each activity were actually expended on the topics stated.

6. The reasonable incurred attorneys’ fees are $4,228.80 in defending Plaintiff and prosecuting Defendant’s claims to enforce its interest in certain real property as a result of the default of under the loan agreement between the parties.

The hourly rate charged is $215.00 per hour for attorneys and $95.00 per hour for paralegals and legal assistants.

7. I have become familiar with the legal services necessary to handle claims based on and the reasonable charges for such legal services in the United States District Court for the Northern District of Texas and within the State of Texas.

8. In considering reasonable attorneys’ fees in this case, I have considered the time and labor involved; the difficulty of the issues presented; the experience, reputation, and ability of the attorneys involved in pursuing the claims; the skills requisite to properly conduct the case; customary charges of the Bar and awards in similar cases; and the amount in controversy.

9. Based upon my knowledge and experience with similar litigation in the state and federal courts in Texas over the last ten years, and applying the facts and factors set out above, it is my opinion that the hourly rate of up to $215.00 per hour for attorneys and $95.00 per hour for paralegals and legal assistants are reasonable and customary, and the sum of $4,228.80 is reasonable attorneys’ fees for representing Plaintiff with regard to its enforcement of its interest in certain real property as a result of a default of under the loan agreement.

10. If any party files post-judgment motion, a reasonable fee for Plaintiff would be $2,500.00. If this case is appealed to the court of appeals, a reasonable fee for the Defendant would be an additional $15,000.00.

If this case is appealed to the United States Supreme Court, a reasonable fee for the Defendant would be an additional $2,500.00.”

FURTHER DECLARANT SAYETH NAUGHT.

Signed this April 9, 2021

Fifth Circuit’s Latest Unlawful Act in Remanding for Attorney Fees in Casalicchio v. BOKF

BOKF relies, principally, on a deed-of-trust provision purporting to allow it to “charge Casalicchio fees for services performed in connection with [his] default, . . . including . . . attorney’s fees .”

Foreclosure Mill BDF Law Group Celebrate the Corrupt Texas Supreme Court Decisions in 2020 and 2021

In an enormous victory for lenders and servicers, on January 29, 2021, the Texas Supreme Court confirmed it is completely a corrupt judiciary.

As Foreclosure Mill Mackie Wolf Zientz Mann Reignites Old Eviction Suit, the Anders Family Speaks Out.

Let me first start by saying this is the only home either of my sons has ever known. I brought both of them from the hospital to this house. – Lesli Anders, Homeowner.

U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:20-cv-00745-X

Wells Fargo Bank NA v. Dixon
Assigned to: Judge Brantley Starr
Cause: 28:1332 Diversity-Breach of Contract
Date Filed: 03/30/2020
Date Terminated: 04/05/2021
Jury Demand: None
Nature of Suit: 290 Real Property: All Other Real Property
Jurisdiction: Diversity

 

Date Filed # Docket Text
03/30/2020 1 COMPLAINT against George E Dixon filed by Wells Fargo Bank NA (Filing fee $400; Receipt number 0539-10736024) Plaintiff will submit summons(es) for issuance. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information – Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Cover Sheet) (Cronenwett, Mark) Modified docket text on 3/30/2020 (oyh). (Entered: 03/30/2020)
03/30/2020 2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Wells Fargo Bank, N.A., As Trustee For The Pooling And Servicing Agreement Dated As Of April 1, 2004 Asset Backed Securities Corporation Home Equity Loan Trust 2004-He2 Asset Backed Pass-Through Certi. (Cronenwett, Mark) (Entered: 03/30/2020)
03/30/2020 3 New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Toliver). Clerk to provide copy to plaintiff if not received electronically. (oyh) (Entered: 03/30/2020)
03/31/2020 4 Request for Clerk to issue Summons as to George Dixon filed by Wells Fargo Bank NA. (Cronenwett, Mark) (Entered: 03/31/2020)
03/31/2020 5 Summons Issued as to George E Dixon. (ykp) (Entered: 03/31/2020)
04/29/2020 6 SUMMONS Returned Executed as to George E Dixon; served on 4/22/2020. (Danaher, Philip) (Entered: 04/29/2020)
05/15/2020 7 Request for Clerk to issue Clerk’s Entry of Default filed by Wells Fargo Bank NA. (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Danaher, Philip) (Entered: 05/15/2020)
05/15/2020 8 MOTION for Default Judgment against George E Dixon filed by Wells Fargo Bank NA (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Danaher, Philip) (Entered: 05/15/2020)
05/18/2020 9 Clerk’s ENTRY OF DEFAULT as to George E Dixon. (mla) (Entered: 05/18/2020)
01/12/2021 10 MEMORANDUM OPINION AND ORDER denying without prejudice 8 Motion for Default Judgment. Wells Fargo may refile the motion within 14 days of the entry of this order, curing the defects in its pleadings. (Ordered by Judge Brantley Starr on 1/12/2021) (hml) (Entered: 01/12/2021)
01/13/2021 11 Amended MOTION for Default Judgment against George E Dixon filed by Wells Fargo Bank NA (Attachments: # 1 Exhibit(s)) (Danaher, Philip) (Entered: 01/13/2021)
04/05/2021 12 MEMORANDUM OPINION AND ORDER granting 11 Amended Motion for Default Judgment. The Court ORDERS Wells Fargo to file a motion for attorney’s fees within 14 days that includes evidence supporting the amount of reasonable fees. (Ordered by Judge Brantley Starr on 4/5/2021) (twd) (Entered: 04/05/2021)
04/13/2021 13 MOTION for Attorney Fees filed by Wells Fargo Bank NA (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Danaher, Philip) (Entered: 04/13/2021)
Get Ready for the Next Judicial Assault On the People By the Texas Federal Judiciary
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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