Micheaux

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

US BANK NATIONAL §

ASSOCIATION, for asset backed §

funding corporation asset backed §

certificates 2006 HE1, §

§

Plaintiff, §

§

V. § No. 3:23-cv-2692-S-BN

§

FALISSA MICHEAUX, SCHNIKA §

MCKISSIC, individually and as §

legal guardian for E.T., NATALIE §

VERSEY, TANOSHA BISHOP, §

MONTOYA TARGTON, TERRY §

TARGTON, JR., and TARIQ §

TARGTON, §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff U.S. Bank Trust Company National Association, for asset backed

funding corporation asset backed certificates 2006 HE1, (“U.S. Bank”) filed a Motion

for Summary Judgment and Motion for Default Judgment. See Dkt. No. 61. U.S. Bank

seeks summary judgment against Defendants Tanosha Bishop and Falissa Micheaux.

See id. And it seeks default judgment against Defendants Schnika McKissic,

individually and as legal guardian for E.T.; Natalie Verser; Montoya Targton; Terry

Targton, Jr.; and Tariq Targton (collectively, “Defaulting Defendants”). See id.

This case has been referred to the undersigned United States magistrate judge

for pretrial management under 28 U.S.C. § 636(b) and an order of reference from

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United States District Judge Karen Gren Scholer. See Dkt. No. 4.

For the following reasons, the Court should dismiss this case without prejudice

for lack of subject-matter jurisdiction.

But if, within the 14-day objection period, U.S. Bank provides evidence as to

the citizenship of each party, the Court should deny U.S. Bank’s motion [Dkt. No. 61].

Background

This case concerns a mortgage and foreclosure. U.S. Bank alleges that

Decedents Samuel and Cynthia Woodley executed a Loan Agreement, consisting of a

Note and Security Interest, in the property 3976 Avocado Drive, Dallas, Texas 75241

(the “Property”). See Dkt. No. 1 at 3, 5. U.S. Bank states that the note went into

default, U.S. Bank accelerated the maturity of the debt, and the default was not

cured. See id. at 6-7.

U.S. Bank brings this suit for declaratory judgment, enforcement of statutory

probate lien, and non-judicial foreclosure against Decedents’ alleged heirs – Falissa

Micheaux; Schnika McKissic, individually and as legal guardian for E.T.; Natalie

Versey; Tanosha Bishop; Montoya Targton; Terry Targton, Jr.; and Tariq Targton.

See id. at 1-3, 7-9. Defendants Tanosha Bishop and Falissa Micheaux filed Answers.

See Dkt. Nos. 12 & 14.

Defendants Schnika McKissic, Natalie Versey, and Montoya Targton were

served on December 14, 2023, see Dkt. No. 8, 11, 13, and Defendant Terry Targton,

Jr. was served on December 19, 2023. See Dkt. No. 10. Defendant Tariq Targton was

served by publication on October 1, 2024. See Dkt. No. 40. To date, the Defaulting

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Defendants have failed to answer or otherwise appear in this case. See Dkt. No. 62 at

16-17.

The Clerk of the Court made entry of default as to the Defaulting Defendants

– other than Tariq Targton – on April 11, 2024. See Dkt. No. 25. The Clerk made

entry of default as to Tariq Targton on July 7, 2025. See Dkt. No. 60.

On April 19, 2024, U.S. Bank moved for partial default judgments against all

Defaulting Defendants other than Tariq Targton. See Dkt. No. 28. After entering its

findings, conclusions, and recommendation on the motion, see Dkt. No. 44, the

undersigned withdrew its report, see Dkt. No. 46. In light of Fifth Circuit case law,

the undersigned determined that it could not grant default judgment against some of

the Defendants while two other Defendants – Bishop and Micheaux – were contesting

the foreclosure judgment. See id. U.S. Bank then withdrew its motion for partial

default judgment. See Dkt. No. 47.

On August 8, 2025, U.S. Bank moved for a default judgment against the

Defaulting Defendants and summary judgment against Bishop and Micheaux. See

Dkt. No. 61.

U.S. Bank filed a Notice of No Response by Defendants on December 18, 2025.

See Dkt. No. 64. Bishop and Micheaux still have not responded to the motion.

Legal Standards

I. Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A factual “issue is

material if its resolution could affect the outcome of the action.” Weeks Marine, Inc.

v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). And “[a] factual dispute

is ‘genuine,’ if the evidence is such that a reasonable [trier of fact] could return a

verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).

If the moving party seeks summary judgment as to his opponent’s claims or

defenses, “[t]he moving party bears the initial burden of identifying those portions of

the pleadings and discovery in the record that it believes demonstrate the absence of

a genuine issue of material fact, but is not required to negate elements of the

nonmoving party’s case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625

(5th Cir. 1998). “A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by: (A) citing to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials; or (B) showing that the

materials cited do not establish the absence or presence of a genuine dispute, or that

an adverse party cannot produce admissible evidence to support the fact.” FED. R.

CIV. P. 56(c)(1). “Summary judgment must be granted against a party who fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which it will bear the burden of proof at trial. If the moving party

fails to meet this initial burden, the motion must be denied, regardless of the

nonmovant’s response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511

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(5th Cir. 2014) (internal quotation marks and footnote omitted).

“Once the moving party meets this burden, the nonmoving party must set

forth” – and submit evidence of – “specific facts showing a genuine issue for trial and

not rest upon the allegations or denials contained in its pleadings.” Lynch Props., 140

F.3d at 625; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc);

accord Pioneer Expl., 767 F.3d at 511 (“[T]he nonmovant cannot rely on the

allegations in the pleadings alone” but rather “must go beyond the pleadings and

designate specific facts showing that there is a genuine issue for trial.” (internal

quotation marks and footnotes omitted)).

The Court is required to consider all evidence and view all facts and draw all

reasonable inferences in the light most favorable to the nonmoving party and resolve

all disputed factual controversies in favor of the nonmoving party – but only if the

summary judgment evidence shows that an actual controversy exists. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Pioneer Expl., 767 F.3d at 511;

Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch Props.,

140 F.3d at 625.

“The evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in [her] favor. While the court must disregard evidence favorable to

the moving party that the jury is not required to believe, it gives credence to evidence

supporting the moving party that is uncontradicted and unimpeached if that evidence

comes from disinterested witnesses.” Porter v. Houma Terrebonne Hous. Auth. Bd. of

Comm’rs, 810 F.3d 940, 942-43 (5th Cir. 2015) (internal quotation marks and

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footnotes omitted).

And “[u]nsubstantiated assertions, improbable inferences, and unsupported

speculation are not sufficient to defeat a motion for summary judgment,” Brown v.

City of Hous., 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of

evidence” meet the nonmovant’s burden, Little, 37 F.3d at 1075; accord Pioneer Expl.,

767 F.3d at 511 (“Conclusional allegations and denials, speculation, improbable

inferences, unsubstantiated assertions, and legalistic argumentation do not

adequately substitute for specific facts showing a genuine issue for trial.” (internal

quotation marks and footnote omitted)); Hassen v. Ruston La. Hosp. Co., L.L.C., 932

F.3d 353, 355 (5th Cir. 2019) (A court must “view the evidence and draw all justifiable

inferences in favor of the nonmovant. Even so, barebones, conclusory, or otherwise-

unsupported assertions won’t cut it; the nonmovant ‘must go beyond the pleadings

and come forward with specific facts indicating a genuine issue for trial.’” (footnotes

omitted)).

So, “when the moving party has carried its burden under Rule 56(c), its

opponent must do more than simply show that there is some metaphysical doubt as

to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation

marks omitted). Rather, the non-moving party must “set forth specific facts showing

the existence of a ‘genuine’ issue concerning every essential component of its case.”

Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

“If a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact as required by Rule 56(c), the court may: (1)

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give an opportunity to properly support or address the fact; (2) consider the fact

undisputed for purposes of the motion; (3) grant summary judgment if the motion and

supporting materials – including the facts considered undisputed – show that the

movant is entitled to it; or (4) issue any other appropriate order.” FED. R. CIV. P. 56(e).

And “[o]nly disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary judgment.” Pioneer

Expl., 767 F.3d at 511 (internal quotation marks and footnote omitted). “[T]he mere

existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Scott, 550 U.S. at 380 (internal quotation

marks and emphasis omitted). And, “[w]hen opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for purposes of

ruling on a motion for summary judgment.” Id.

“After the nonmovant has been given an opportunity to raise a genuine factual

issue, if no reasonable juror could find for the nonmovant, summary judgment will be

granted.” DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir. 2005) (footnote and

internal quotation marks omitted). “Where the record taken as a whole could not lead

a rational trier of fact to find for the nonmoving party, there is no genuine issue for

trial.” Scott, 550 U.S. at 380 (internal quotation marks omitted).

The Court will not assume “in the absence of any proof ... that the nonmoving

party could or would prove the necessary facts” and will grant summary judgment “in

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any case where critical evidence is so weak or tenuous on an essential fact that it

could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075.

“Rule 56 does not impose upon the district court a duty to sift through the record in

search of evidence to support a party’s opposition to summary judgment,” and “[a]

failure on the part of the nonmoving party to offer proof concerning an essential

element of its case necessarily renders all other facts immaterial and mandates a

finding that no genuine issue of fact exists.” Adams v. Travelers Indem. Co. of Conn.,

465 F.3d 156, 164 (5th Cir. 2006) (internal quotation marks omitted).

But, if “the movant bears the burden of proof on an issue, either because he is

the plaintiff or as a defendant he is asserting an affirmative defense,” for example,

that movant “must establish beyond peradventure all of the essential elements of the

claim or defense to warrant judgment in [its] favor.” Fontenot v. Upjohn Co.,780 F.2d

1190, 1194 (5th Cir. 1986).

Accordingly, the moving party must demonstrate that there are no genuine

and material fact disputes and that the party is entitled to summary judgment as a

matter of law. See, e.g., Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir.

2003). That is, “[w]hen the party moving for summary judgment also bears the burden

of proving the claim, he must establish that there is no genuine dispute of material

fact as to every element of its claim, so that the evidence is so overwhelming that he

is entitled to judgment in his favor.” Turner v. Criswell, No. 4:19-cv-226-ALM-CAN,

2020 WL 1901086, at *3 (E.D. Tex. Jan. 6, 2020) (cleaned up), rec, adopted, 2020 WL

613963 (E.D. Tex. Feb. 10, 2020).

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“If the moving party fails to meet this initial burden, the motion must be

denied, regardless of the nonmovant’s response.” Evanston Ins. Co. v. Lapolla Indus.,

Inc., 93 F. Supp. 3d 606, 611 (S.D. Tex.) (cleaned up; quoting Meecorp Cap. Markets

LLC v. Tex-Wave Indus. LP, 265 F. App’x 155, 158 (5th Cir. 2008) (per curiam)

(quoting Little, 37 F.3d at 1075, aff’d, 634 F. App’x 439 (5th Cir. 2015) (per curiam).

And, on a plaintiff’s motion seeking summary judgment in its favor on its own

claims, the Court will “draw all reasonable inferences in favor of the non-moving

party” – that is, in favor of the defendant. Chaplin v. NationsCredit Corp., 307 F.3d

368, 372 (5th Cir. 2002).

And, so, this “beyond peradventure” standard imposes a “heavy” burden. Cont’l

Cas. Co. v. St. Paul Fire & Marine Ins. Co., No. 3:04-cv-1866-D, 2007 WL 2403656, at

*10 (N.D. Tex. Aug. 23, 2007); accord Wilson v. Dall. Indep. Sch. Dist., No. 3:18-cv-

34-G-BN, 2020 WL 825819, at *7 (N.D. Tex. Jan. 17, 2020) (“[B]eyond peradventure”

means “beyond doubt.” (cleaned up)), rec. adopted, 2020 WL 821034 (N.D. Tex. Feb.

18, 2020).

But, on a plaintiff’s motion on its own claim, “summary judgment is

appropriate where the evidence would require a directed verdict.” Hernandez v.

Trendy Collections, LLC, No. 3:17-cv-2049-BN, 2018 WL 4103723, at *13 (N.D. Tex.

Aug. 29, 2018) (cleaned up).

That is, a plaintiff may prevail on its claim on its own motion where, drawing

all inferences in the defendant’s favor and viewing the summary judgment in the light

most favorable to the defendant, the evidence is “so overwhelmingly in favor of [the

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plaintiff] that no reasonable jury could [arrive] at a verdict other than that [the

plaintiff] proved” every essential element of its claim against the defendant. Mid-

Continent Cas. Co. v. Eland Energy, Inc., 795 F. Supp. 2d 493, 550 (N.D. Tex. 2011),

aff’d, 709 F.3d 515 (5th Cir. 2013).

II. Default Judgment

Federal Rule of Civil Procedure 55(b)(2) governs applications to the Court for

default judgment. See FED. R. CIV. P. 55(b)(2). A plaintiff seeking a default judgment

must establish: (1) that the defendant has been served with the summons and

complaint and that default was entered for its failure to appear; (2) that the defendant

is neither a minor nor an incompetent person; (3) that the defendant is not in military

service or not otherwise subject to the Soldiers and Sailors Relief Act of 1940; and (4)

that, if the defendant has appeared in the action, the defendant was provided with

notice of the application for default judgment at least three days prior to the hearing.

See Arch Ins. Co. v. WM Masters & Assocs., Inc., No. 3:12-cv-2092-M, 2013 WL

145502, at *2-*3 (N.D. Tex. Jan. 14, 2013). The plaintiff must also make a prima facie

showing there is “jurisdiction both over the subject matter and the parties.” Sys. Pipe

& Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324 (5th Cir. 2001).

In the Fifth Circuit, three steps are required to obtain a default judgment: (1)

default by the defendant; (2) entry of default by the Clerk's office; and (3) entry of a

default judgment by the district court. See New York Life Ins. Co. v. Brown, 84 F.3d

137, 141 (5th Cir. 1996). A default occurs when a defendant has failed to plead or

otherwise respond to the complaint within the time required by the Federal Rules of

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Civil Procedure. See id. The Clerk will enter default when default is established by

an affidavit or otherwise. See id. After the Clerk's entry of default, a plaintiff may

apply to the district court for a judgment based on such default. See id.

The Fifth Circuit favors resolving cases on their merits and generally disfavors

default judgments. See Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936

(5th Cir. 1999); see also Sun Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874

F.2d 274, 276 (5th Cir. 1989) (“Default judgments are a drastic remedy, not favored

by the federal rules and resorted to by the courts only in extreme situations.”). But

this policy is “counterbalanced by considerations of social goals, justice, and

expediency, a weighing process [that] lies largely within the domain of the trial

judge's discretion.” Rogers, 167 F.3d at 936 (quoting Pelican Prod. Corp. v. Marino,

893 F.2d 1143, 1146 (10th Cir. 1990) (internal quotations omitted)); see also Merrill

Lynch Mortg. Corp. v. Narayan, 908 F.2d 246, 253 (7th Cir. 1990) (noting that default

judgments allow courts to manage their dockets “efficiently and effectively”).

Before entering a default judgment, a court should consider any relevant

factors. Those factors may include “(1) whether material issues of fact are at issue;

(2) whether there has been substantial prejudice; (3) whether grounds for default are

clearly established; (4) whether default was caused by good faith mistake or excusable

neglect; (5) harshness of default judgment; and (6) whether the court would feel

obligated to set aside a default on the defendant's motion.” Arch, 2013 WL 145502, at

*3 (citing Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998)). The Court should

also consider whether the defendant has a meritorious defense to the complaint. See

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id.

An entry of default “does not establish the amount of damages. After a default

judgment, the plaintiff's well-pleaded factual allegations are taken as true, except

regarding damages.” United States of Am. for Use of M-Co Constr., Inc. v. Shipco Gen.,

Inc., 814 F.2d 1011, 1014 (5th Cir. 1987) (cleaned up); cf. Jackson v. FIE Corp., 302

F.3d 515, 524-31 (5th Cir. 2002) (holding that jurisdictional allegations and findings

supporting a default judgment are not entitled to preclusive effect in the personal-

jurisdiction context of Federal Rule of Civil Procedure 60(b)(4)). A court may enter

default judgment against a party and determine damages without the benefit of an

evidentiary hearing “where the amount claimed is a liquidated sum or one capable of

mathematical calculation.” Leedo Cabinetry v. James Sales & Distrib., Inc., 157 F.3d

410, 414 (5th Cir. 1998) (cleaned up).

Analysis

I. The Court should dismiss for lack of subject-matter jurisdiction.

The Court must begin with its subject-matter jurisdiction – its “power to say

what the law is.” United States v. Willis, 76 F.4th 467, 479 (5th Cir. 2023); see also

Louisiana v. U.S. Dep't of Energy, 90 F.4th 461, 466 (5th Cir. 2024) (“Jurisdiction is

always first.” (citation omitted)).

And, because “‘[f]ederal courts are courts of limited jurisdiction,’ possessing

‘only that power authorized by Constitution and statute,’” Gunn v. Minton, 568 U.S.

251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994)), “subject-matter delineations must be policed by the courts on their own

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initiative even at the highest level,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,

583-84 (1999) (citations omitted).

U.S. Bank filed this lawsuit in federal court based on diversity jurisdiction

under 28 U.S.C. § 1332. See Dkt. No. 1.

The United States Court of Appeals for the Fifth Circuit recently explained

that, in a diversity case under Section 1332,

• “[a]t the pleading stage, the party invoking the federal court's jurisdiction must

allege the citizenship of each” party;

• “[a]t the summary judgment stage,” the party invoking the federal court's

jurisdiction “must provide evidence sufficient to support a jury finding of the

citizenship of” each party; and,

• “at trial,” the party invoking the federal court's jurisdiction “must prove the

citizenship of each” party.

Megalomedia Inc. v. Phila. Indem. Ins. Co., 115 F.4th 657, 659 (5th Cir.

2024) (published order); accord J.A. Masters Invs. v. Beltramini, 117 F.4th 321, 323

(5th Cir. 2024) (published order); MidCap Media Fin., L.L.C. v. Pathway Data, Inc.,

929 F.3d 310, 315 n.* (5th Cir. 2019).

U.S. Bank alleges that is a national association and trustee of a trust. See Dkt.

No. 1 at 3. When determining the citizenship of the real parties in interest for

purposes of diversity jurisdiction, the citizenship of the trustee controls, not the

citizenship of the beneficiaries of the trust. See Bank of New York Mellon Tr. Co.,

Nat’l Ass’n v. Meachum, No. 3:18-cv-2630-S-BN, 2019 WL 1015244, at *1 (N.D. Tex.

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Feb. 4, 2019), rec. adopted, 2019 WL 1014653 (N.D. Tex. Mar. 4, 2019).

U.S. Bank alleges that it is a national banking association that is chartered

and has its main office in Ohio, making it a citizen of Ohio for diversity purposes. See

Dkt. No. 1 at 3-4; Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 318 (2006) (holding

that a national bank is a citizen of the state in which its main office is located).

And U.S. Bank alleges that that Schnika McKissic, individually and as legal

guardian for E.T, and Falissa Micheaux are citizens of Michigan and that Natalie

Versey, Montoya Targton, Terry Targton, Jr., and Tariq Targton are citizens of Texas.

See Dkt. No. 1 at 4.

Such allegations could carry U.S. Bank’s burden at the pleadings stage, but not

at the summary judgment stage.

The undersigned recognizes that U.S. Bank moves for both summary and

default judgment and that the Court takes the well-pleaded allegations as true on a

motion for default judgment. See United States of Am. for Use of M-Co Constr., Inc.,

814 F.2d at 1014.

But U.S. Bank has moved this litigation to the “summary judgment stage” of

this lawsuit by moving for summary judgment. And, at the summary judgment stage,

without evidence to support a jury finding of jurisdiction, the Court must dismiss the

case in its entirety without prejudice. Cf. Labrew v. A&K Truckline, Inc., 768 F. Supp.

3d 770, 776 (N.D. Tex. 2025) (finding that, because plaintiff provided evidence

“sufficient to support a reasonable jury finding” of diversity jurisdiction, “the [c]ourt

has subject matter jurisdiction in this case sufficient to support the entry of this

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summary and default judgment Order”).

And, so, U.S. Bank must do more than properly allege the citizenships of the

parties and the amount in controversy.

U.S. Bank has submitted declarations stating the place of residence and usual

place of abode of each Defendant. See Dkt. No. 63-1 at 53. But a natural person is

considered a citizen of the state where he or she is domiciled, that is, where the person

has a fixed residence with the intent to remain there indefinitely. See Freeman v.

Northwest Acceptance Corp., 754 F.2d 553, 555-56 (5th Cir. 1985). “For diversity

purposes, citizenship means domicile; mere residence in [a] [s]tate is not

sufficient.” Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 799

(5th Cir. 2007) (citation and quotation marks omitted). “Domicile requires residence

in [a] state and an intent to remain in the state.” Id. at 798 (citation omitted).

And U.S. Bank has submitted no evidence to support a jury finding that its

main office is in Ohio. The only evidence in the record of U.S. Bank’s citizenship is

the Loan Assignment, which shows that U.S. Bank’s address is in Florida. See Dkt.

No. 63-1 at 28.

As to the amount in controversy, “[i]n actions seeking declaratory or injunctive

relief, it is well established that the amount in controversy is measured by the value

of the object of the litigation. Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 341 (5th

Cir. 2013). Here, the “object” of the litigation is the Property.

U.S. Bank alleges that the Dallas County Central Appraisal District values the

Property at $149,020.00, which is well above the $75,000 threshold jurisdictional

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requirement. But it provides no evidence of this valuation.

So, considering the recent Fifth Circuit authority cited above, absent such

evidence at this stage – to satisfy the Court that there is subject-matter jurisdiction

to allow it to rule on U.S. Bank’s motion – the Court cannot enter summary or default

judgment but must dismiss this lawsuit without prejudice for lack of subject-matter

jurisdiction. See FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it

lacks subject-matter jurisdiction, the court must dismiss the action.”); see

also MidCap, 929 F.3d at 315 n* (“Citizenship issues, like every factual issue

necessary to support subject matter jurisdiction, must be supported in the same way

as any other matter on which the plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at the successive stages of the litigation.”

(cleaned up)).

Still, the 14-day period to file objections to these findings, conclusions, and

recommendation, as further explained below, allows U.S. Bank an opportunity to

submit evidence to establish that each plaintiff's citizenship is diverse from each

defendant's citizenship and thus carry its burden to show, at this stage of the

litigation, that the Court possesses subject-matter jurisdiction under 28 U.S.C. §

1332.

And, if U.S. Bank provides such evidence, the Court should rule on the merits

of the motion [Dkt. No. 61] as explained below.

II. But, if U.S. Bank supplies evidence of diversity jurisdiction, the Court

should deny summary judgment on U.S. Bank’s non-judicial

foreclosure claim against Bishop and Micheaux.

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A. The Court cannot grant the motion for summary judgment based on the lack

of response alone.

In its Notice of No Response by Defendants to Plaintiff’s Motion for Summary

Judgment and Motion for Default Judgment, U.S. Bank states that “the Court may

consider Plaintiff’s Motions as unopposed. Accordingly, Plaintiff respectfully requests

the Court grant Plaintiff’s Motions and grant Plaintiff its requested relief.” Dkt. No.

64 at 2.

Fifth Circuit authority does not support this suggested approach.

When a non-moving party files a response to a motion for summary judgment

and fails to include an argument about a claim, defense, or theory that the motion

seeks to have the Court dismiss with prejudice, the Court may determine that the

nonmoving party has abandoned the unaddressed claim, defense, or

theory. See Harris v. City of Schertz, 27 F.4th 1120, 1123 (5th Cir. 2022); Vela v. City

of Houston, 276 F.3d 659, 678-79 (5th Cir. 2001); Hargrave v. Fibreboard Corp., 710

F.2d 1154, 1163-64 (5th Cir. 1983); accord Maynard v. PayPal, Inc., No. 3:18-cv-259-

D, 2019 WL 3552432, at *3 (N.D. Tex. Aug. 5, 2019) (“A party may abandon its claim

when it fails to pursue the claim beyond the complaint. See, e.g., Black v. N. Panola

Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006); Vela at 678-79; Hargrave, 710 F.2d

at 1163-64.”).

In the published decisions in this line of Fifth Circuit cases supporting a

district court's authority for finding claims or theories abandoned, the nonmoving

party filed a response to the motion for summary judgment. See Harris, 27 F.4th at

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1122-23; Vela, 276 F.3d at 678-79; Scales v. Slater, 181 F.3d 703, 708 n.5 (5th Cir.

1999); Vaughner v. Pulito, 804 F.2d 873, 878 n.2 (5th Cir. 1986); Batterton v. Tex.

Gen. Land Off., 783 F.2d 1220, 1224-25 (5th Cir. 1986); Hargrave, 710 F.2d at 1163-

64.

But, when a nonmoving party does not file any response to a motion for

summary judgment, the “failure to respond does not permit the court to enter a

‘default’ summary judgment.” Boyd v. Fam. Dollar Stores of Texas, LLC, No. 3:22-cv-

1368-D, 2023 WL 4141052, at *1 (N.D. Tex. June 22, 2023).

As the United States Court of Appeals for the Fifth Circuit has explained,

[a] motion for summary judgment cannot be granted simply because

there is no opposition, even if failure to oppose violated a local

rule. John v. La. (Bd. of Trustees for State Colleges & Universities), 757

F.2d 698, 709 (5th Cir. 1985). The movant has the burden of

establishing the absence of a genuine issue of material fact and, unless

he has done so, the court may not grant the motion, regardless of

whether any response was filed. Id. at 708. Therefore, if the district

judge's decision was to grant summary judgment solely because of a

default, such decision constituted reversible error.

Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279

(5th Cir. 1985); accord Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 & n.3 (5th

Cir. 1995) (explaining that the district “court granted Appellee's motion for summary

judgment on alternative grounds,” including, “[f]irst, in accordance with the local

rule, the court granted the motion as unopposed,” and that “[w]e have previously

disapproved of granting summary judgment on this basis” but that, “because the

district court addressed the merits of the motion as an alternative holding, we need

not reverse”).

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The rationale underlying these two lines of authority appears to be that the

nonmovant must – at least by affirmatively filing a response – take some action to be

considered to have abandoned a claim, theory, or defense. And, by dismissing claims

under Federal Rule of Civil Procedure 56 based on only a nonmovant's lack of action

at all (that is, not filing a response), a district court would be improperly dismissing

with prejudice without the findings or factual support required under either Rule

56 or Federal Rule of Civil Procedure 41(b) for such a dismissal. See Hibernia, 776

F.2d at 1279; John, 757 F.2d at 707-10.

And, even if these two lines of authority cannot be reconciled with this bright-

line distinction, “[t]he rule in this circuit is that where two previous holdings or lines

of precedent conflict the earlier opinion controls and is the binding precedent in this

circuit (absent an intervening holding to the contrary by the Supreme Court or this

court en banc).” Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir.

2006); accord United States v. Sanchez-Pena, 336 F.3d 431, 444 n.62 (5th Cir.

2003) (“When faced with conflicting panel opinions, the earlier controls our decision.”

(cleaned up)). This suggests that the published decisions cited and relied on in John,

757 F.2d at 707-10, which appear to predate any decisions setting forth the

abandonment doctrine, would – at least where a nonmovant has not filed any

response to a motion for summary judgment – control.

Under these governing authorities, even if the Court does not dismiss this case

without prejudice for lack of subject-matter jurisdiction, the Court cannot grant U.S.

Bank’s motion for summary judgment [Dkt. No. 61] solely because Bishop and

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Micheaux failed to file a response in opposition to the motion.

But, under Rule 56 and the governing law,

“[a] summary judgment nonmovant who does not respond to the

motion is relegated to her unsworn pleadings, which do not constitute

summary judgment evidence,” Bookman v. Shubzda, 945 F. Supp. 999,

1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v.

Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). Moreover,

[i]f a party fails ... to properly address another party's assertion

of fact as required by Rule 56(c), the court may ... (2) consider

the fact undisputed for purposes of the motion [and] (3) grant

summary judgment if the motion and supporting materials –

including the facts considered undisputed – show that the

movant is – entitled to it[.]

FED. R. CIV. P. 56(e)(2), (3).

Boyd, 2023 WL 4141052, at *1.

Here, Micheaux’s answer is unverified. See Dkt. No. 14. Bishop’s answer

consists of a sworn affidavit with her own signature. See Dkt. No. 12. But it states

only:

I, TANOSHA BISHOP, of FORNEY, in KAUFMAN, Texas, MAKE

OATH AND SAY THAT:

1. I DO NOT AGREE WITH ANY FORECLOSURE JUDGMENT.

2. I do NOT have sufficient knowledge to admit or deny the

allegations for the corresponding paragraph in the complaint.

Id. at 1.

Because Micheaux’s answer is not verified, Micheaux has presented no

summary judgment evidence. And because Bishop’s answer contains no factual

assertions, Bishop has also presented no summary judgment evidence. Cf. Lewis v.

United States, No. 3:16-cv-2477, 2018 WL 2164508, at *3 (N.D. Tex. Apr. 30, 2018)

(“The verified complaint and sworn interrogatory answers of a pro se litigant can be

-20-

considered as summary judgment evidence to the extent that such pleadings comport

with the requirements of Rule 56(e). See King v. Dogan, 31 F.3d 344, 346 (5th Cir.

1994).”).

And, for that reason, the Court is allowed to accept U.S. Bank’s facts, if

supported by evidence, as undisputed. See Estate of Newton ex rel. Newton v.

Grandstaff, No. 3:10-cv-809-L, 2012 WL 3013929, at *2 (N.D. Tex. July 20, 2012).

And “[a] court may grant an unopposed summary judgment motion if the

undisputed facts show that the movant is entitled to judgment as a matter of

law.” Bryan v. Cano, No. 22-50035, 2022 WL 16756388, at *4 (5th Cir. Nov. 8,

2022) (cleaned up); accord Bustos v. Martini Club Inc., 599 F.3d 458, 468-69 (5th Cir.

2010) (although “a district court may not grant a motion for summary judgment

merely because it is unopposed,” “[t]he defendants submitted competent summary

judgment evidence showing that there were no genuine issues of fact for trial,” and

the plaintiff “did not respond to the motion for summary judgment in the district

court and therefore failed to carry his burden of showing that material factual issues

existed” and so “cannot now assert that the district court's reliance on defendants'

uncontested evidence was improper” (cleaned up)); Williams v. Sake Hibachi Sushi

& Bar, Inc., No. 3:18-cv-517-D, 2020 WL 3317096, at *6 (N.D. Tex. June 18, 2020) (“As

stated above, although the court is not permitted to enter a ‘default’ summary

judgment, the court is allowed to accept the evidence adduced by plaintiffs as

undisputed and may grant summary judgment if the motion and supporting

materials show plaintiffs are entitled to it.”).

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B. The Court should deny summary judgment on U.S. Bank’s non-judicial

foreclosure claim.

If U.S. Bank submits evidence of jurisdiction, the Court should deny summary

judgment because U.S. Bank has not submitted evidence that Bishop and Micheaux

are heirs of Decedents.

1. U.S. Bank has standing to proceed with foreclosure as the proper

party to enforce the remedies afforded to the lender.

If U.S. Bank submits evidence of diversity jurisdiction, the Court should find

that U.S. Bank is the proper party to enforce the remedies afforded to the lender

under the terms of the Loan Agreement.

Under the Texas Property Code, a party has standing to

initiate a nonjudicial foreclosure sale if the party is a

mortgagee. See TEX. PROP. CODE §§ 51.002, 51.0025. A

mortgagee includes the grantee, beneficiary, owner, or

holder of a security instrument, such as a deed of trust, or

“if the security interest has been assigned of record, the last

person to whom the security interest has been assigned of

record.” Id. § 51.0001(4), (6).

Even if a party does not have a recorded interest in a

security instrument, the party may still have standing to

foreclose if the party is the holder or owner of a note

secured by the instrument. This rule derives from the

common law maxim, now codified in Texas, that “the

mortgage follows the note.” See TEX. BUS. & COM. CODE §

9.203(g) (“The attachment of a security interest in a right

to payment or performance secured by a security interest

or other lien on personal or real property is also attachment

of a security interest in the security interest, mortgage, or

other lien.”); Campbell v. Mortg. Elec. Registration Sys.,

Inc., No. 03–11–00429–CV, 2012 WL 1839357, at *4 (Tex.

App.––Austin May 18, 2012, pet. denied) (mem. op.).

EverBank, N.A. v. Seedergy Ventures, Inc., 499 S.W.3d 534, 538 (Tex. App. – Houston

-22-

[14th Dist.] 2016, no pet.); TEX. PROP. CODE §§ 51.002, 51.0025.

U.S. Bank qualifies as a “mortgagee” under Chapter 51 of the Texas Property

Code. See TEX. PROP. CODE § 51.0025; Dkt. No. 62 at 12-14. There is no dispute that

it was the last assigned entity of record of the Deed of Trust. See id. at 14. And U.S.

Bank can properly bring this claim.

2. But U.S Bank has not shown beyond peradventure that it is entitled

to non-judicial foreclosure.

U.S. Bank asserts a cause of action of “non-judicial foreclosure.” Dkt. No. 1 at

8. It seeks to enforce its lien through non-judicial foreclosure under Section 51.002 of

the Texas Property Code. Dkt. No. 1 at 8. And it seeks a declaration from this court

that it “is authorized to enforce its statutory probate lien against the Property

through foreclosure.” Dkt. No. 62 at 12.

“In Texas, to foreclose under a security instrument with a power of sale, the

lender is required to show that: (1) a debt exists; (2) the debt is secured by a lien

created under Texas law; (3) the borrower is in default under the note and security

instrument; and (4) the borrower has been properly served with notice of default and

acceleration.” See Singleton v. U. S. Bank Nat'l Ass'n, No. 4:15-cv-100-A, 2016 WL

1611378, at *7 (N.D. Tex. Apr. 20, 2016) (cleaned up).

First, there is no dispute that a debt exists. Under the terms of the Loan

Agreement, Decedents promised to repay the original principal sum of $56,000 plus

interest. See Dkt. No. 62 at 15; Dkt. No. 63-1 at 5-10.

Second, the debt is secured by a lien on the Property because Decedents

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executed a Texas Home Equity Security Instrument (“Deed of Trust” or “Security

Instrument”), which was recorded in the Official Public Records of Dallas County as

Document No. 200600396374. See Dkt. No. 1 at 5; Dkt. No. 62 at 7, 15. U.S. Bank

provided a copy of the Security Instrument reflecting the same. See Dkt. No. 63-1 at

11-26.

Third, there is no dispute that there is a default on the loan. U.S. Bank

submitted a copy of the notice of default showing that all payments under the Loan

Agreement, including and after the one due on November 1, 2022, are owed. See Dkt.

No. 62 at 8; Dkt. No. 63-1 at 31-37.

Fourth, the summary judgment evidence shows that U.S. Bank sent notice of

default and of loan acceleration via certified mail to the Property address. See Dkt.

No. 1 at 7; Dkt. No. 63-1 at 31-50.

“Under Texas law, a lender may not foreclose on a debt without providing both

a notice of intent to accelerate and a notice of acceleration.” Colbert v. Wells Fargo

Bank, N.A., 850 F. App'x 870, 875 (5th Cir. 2021) (citing Ogden v. Gibraltar Sav.

Ass'n, 640 S.W.2d 232, 234 (Tex. 1982)). “After the requisite notice of intent is

provided, notice of acceleration may take the form of the filing of an expedited

application for foreclosure.” Alcala v. Deutsche Bank Nat'l Tr. Co. for Long Beach

Mortg. Loan Tr. 2006-5, 684 F. App'x 436, 438 (5th Cir. 2017).

“Service of notice is complete when the notice is sent via certified mail.”

Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013).

U.S. Bank “need not prove [Defendants] actually received the notices [because]

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… the [Loan Agreement] designated the Property's address as the ‘notice address,’

and under the latter, notice to one debtor, including Decedent, constituted notice to

all debtors.” U.S. Bank Trust Nat’l Assoc. v. Chae, No. 3:22-cv-2740-S-BK, 2023 WL

8531803, at *3 n.5 (N.D. Tex. Nov. 3, 2023); see Dkt. No. 63-1 at 7.

And, so, U.S. Bank has met the elements for non-judicial foreclosure.

But, while some courts have found that non-judicial foreclosure is not a viable

claim, “a majority of courts … appear to cut in favor of reading a breach of contract

claim into a judicial foreclosure claim, where only the latter is pleaded.” Ocwen Loan

Servicing, LLC v. Kingman Holdings, LLC, No. 3:18-cv-1197-S, 2019 WL 3802167, at

*5 (N.D. Tex. May 31, 2019). While U.S. Bank does not plead a breach of contract

claim in its complaint, it refers to the Loan Agreement as a “mortgage contract.” See

Dkt. No. 1 at 5. And it states this suit arises, in part, out of a “material breach” of

that mortgage contract. See Dkt. No. 1 at 8.

And, so, the Court should treat the request for non-judicial foreclosure as

containing a breach of contract claim, and the undersigned analyzes it under that

framework as well.

In Texas, the essential elements of a breach of contract claim are: “(1) the

existence of a valid contract; (2) performance or tendered performance by the plaintiff;

(3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff

as a result of the breach.” Smith Int'l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th

Cir. 2007). “A breach occurs when a party fails to perform a duty required by the

contract.” Id.

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Here, there is no dispute that the Loan Agreement is a valid contract nor that

U.S. Bank fulfilled its requirements under its terms and the Texas Property Code.

U.S. Bank is the owner of the Loan Agreement. Under the original terms, Decedents

promised to pay monthly payments of the original principal sum of $56,000.00

bearing an interest rate of 11.499%. See Dkt. No. 63-1 at 6. Mortgage Electronic

Registration Systems, Inc., the original security interest holder, transferred and

assigned the agreement to U.S. Bank. See Dkt. No. 62 at 7; Dkt. No. 63-1 at 27-30.

Decedents failed to make monthly payments after November 1, 2022 and did

not timely cure the default. See Dkt. No. 62 at 8; Dkt. No. 63-1 at 31-37.

U.S. Bank has shown quantifiable damages by including the unpaid amount

that caused the default under the Loan Agreement, which remained uncured and

caused the loan maturity to accelerate. See id.; cf. U.S. Bank Nat'l Ass'n as Tr. for

Citigroup Mortg. Loan Tr., Inc. 2006-NC2, Asset Backed Pass Through Certificates

Series 2006-NC2 v. Borunda, No. EP-15-cv-109-PRM, 2016 WL 11578522, at *4 (W.D.

Tex. Apr. 18, 2016) (finding the plaintiff had not shown damages with a reasonable

degree of certainty necessary for breach of contract when they did not include any

records of the defendants’ payment history or records showing there was a specific

and certain balance owing on the loan).

But U.S. Bank has provided only allegations, and no evidence, that Bishop or

Micheaux – or any of the named Defendants – are heirs of the Decedents and, so,

inherited the Decedents’ debts, including the one under the Loan Agreement. U.S.

Bank’s complaint is not verified, and U.S. Bank seeks to use its own assertions of fact

-26-

to prove its claim. And, so, although Bishop and Micheaux have not responded to the

motion, U.S. Bank’s allegations of heirship cannot carry its burden of proof. Cf.

Golden Spread Cooperative, Inc. v. Emerson Process Mgmt. Power & Water Solutions,

Inc., 360 F. Supp. 3d 494, 505 n.7 (N.D. Tex. 2019) (allowing allegations to be used as

summary judgment evidence “only where a verified pleading meets Rule 56(e)'s

stringent summary judgment affidavit requirements” or “where a defendant seeks to

use a complaint's allegations against the plaintiff” (citing Isquith ex rel. Isquith v.

Middle S. Utilities, Inc., 847 F.2d 186 (5th Cir. 1988)).

And the Court cannot hold Bishop and Micheaux in breach of the Loan

Agreement where U.S. Bank has not proved that they inherited the obligations of the

agreement. Cf. U.S. Bank Trust Co., Nat’l Ass’n, as Tr. to US Bank Nat’l Ass’n v.

Godeaux, No. 1:24-cv-519-MAC-CLS, 2025 WL 3482174, at *5 (E.D. Tex. Sept. 22,

2025) (finding breach of loan agreement by defendants where Court could accept as

true that defendants were “the heir[s]-at-law of Decedent, meaning [they] acquired

Decedent’s interest and debt in the Property”); Wilmington Savings Fund Soc’y, FSB

v. King-Johnson, No. 3:23-cv-237-BN, 2024 WL 4031829, at *7 (finding “[d]efendants

breached the contract” where plaintiff provided evidence that defendants – deceased

borrower’s heirs – “did not pay their monthly payments, resulting in default”).

The undersigned notes that U.S. Bank “requests the Court take judicial notice

of all of the filings, claims, pleadings and orders in the federal court civil and

bankruptcy filings referenced above as they are all public record.” Dkt. No. 62 at 9.

And it “also requests the Court take judicial notice of the public documents recorded

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in the public records.” Id. But U.S. Bank points to no specific public records of which

the Court may take judicial notice, and that were not already attached as exhibits to

the motion or complaint, that could provide evidence of heirship.

And, so, U.S. Bank has not proved beyond peradventure that Bishop and

Micheaux breached the mortgage contract. And – if U.S. Bank provides evidence of

diversity jurisdiction – the Court should deny summary judgment on its non-judicial

foreclosure claim against Bishop and Micheaux.

C. U.S. Bank is not entitled to a declaration that U.S. Bank has, or is authorized

to enforce, a statutory probate lien against the Property.

U.S. Bank asks the Court to issue a declaratory judgment that U.S. Bank has

and may enforce a statutory probate lien against the Property. See TEX. EST. CODE §§

101.001(b), 101.051(b)(1); see also Chae, 2023 WL 8531803, at *3.

Under the relevant sections of the Texas Estates Code, a decedent’s estate and

its debts immediately pass to the decedent’s heirs at law. See TEX. EST. CODE §§

101.001(b), 101.051(b)(1). One who holds an unpaid claim against a decedent’s estate

may seek to enforce a statutory probate lien against the property in the hands of,

among other individuals, the decedent’s heirs. See Chae, 2023 WL 8531803, at *3.

As discussed in previous sections, U.S. Bank has shown that there was a debt,

secured by the lien, on the Property. See Dkt. No. 63-1 at 5-26.

And U.S. Bank alleges that Decedents died intestate, no probate was opened

for them, and, so, Bishop and Micheaux are heirs who acquired Decedents’ interest

in the Property subject to the debt owed by U.S. Bank. See Dkt. No. 1 at 2-3. But, as

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explained above, U.S. Bank does not provide evidence to support these allegations.

And, so, the Court should not issue a declaratory judgment that U.S. Bank has

or may enforce a statutory probate lien against the Property. Cf. Deutsche Bank Nat’l

Trust Co. v. Mandujano, No. SA-23-cv-01098-JKP, 2026 WL 49604, at *8 (W.D. Tex.

Jan. 5, 2026) (awarding declaratory judgment that plaintiff had statutory probate

lien where “summary judgment and procedural history of the case establish

[defendant] is an heir[-]at-law of [decedent], the original mortgagee, [] [defendant]

received an interest in the Property upon [decedent’s] death, … [and] defendant did

not cure the default”).

If U.S. Bank provides evidence of diversity jurisdiction, the Court should deny

summary judgment on its non-judicial foreclosure claim and deny declaratory relief.

III. If U.S. Bank supplies evidence of diverse citizenship and the Court

denies summary judgment against Bishop and Micheaux, the Court

should deny default judgment against the Defaulting Defendants.

U.S. Bank moves for default judgment against the remaining Defaulting

Defendants, asserting the same claims as it asserts against Bishop and Micheaux –

that is, U.S. Bank, in its motion for default judgment, asks the Court to issue

declaratory relief and authorize U.S. Bank to initiate non-judicial foreclosure

proceedings on the Property. See Dkt. No. 61.

The undersigned finds that, evaluating the merits of the default judgment

motion separately, U.S. Bank would be entitled to its requested relief against the

Defaulting Defendants. But, as explained above, if the Court dismisses this case

without prejudice, it cannot enter default judgment, even if subject-matter

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jurisdiction has been properly alleged in the complaint.

And, even with evidence of subject matter jurisdiction, granting default

judgment against the Defaulting Defendants while denying summary judgment

against Bishop and Micheaux with regard to the same Property would lead to

inconsistent results.

And, so – if U.S. Bank provides evidence of diversity jurisdiction and the Court

denies summary judgment – the Court should also deny default judgment.

A. U.S. Bank has alleged subject matter jurisdiction and personal jurisdiction.

“In evaluating the merits of a motion for default judgment, the Court treats

the well-pleaded facts in the movant’s complaint as true.” GuideOne Ins. Co. v. House

of Yahweh, 828 F. Supp. 2d 859, 861 (N.D. Tex. 2011) (citing Nishimatsu v. Const.

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

Although it has not submitted evidence of citizenship, U.S. Bank has alleged

that there is jurisdiction over the parties. As explained above, U.S. Bank has alleged

that this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) because there is

diversity of citizenship and the amount in controversy exceeds $75,000, exclusive of

interest and attorneys’ fees.

And, so, for purposes of default judgment, diversity jurisdiction exists on the

pleadings.

A judgment “without personal jurisdiction is void,” and a “district court has the

duty to ensure it has the power to enter a valid default judgment.” Sys. Pipe & Supply,

242 F.3d at 324.

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“[T]he Texas long-arm statute extends to the limits of federal due process.”

Bulkley & Associates, L.L.C. v. Dep't of Indus. Relations, Div. of Occupational Safety

& Health of the State of California, 1 F.4th 346, 351 (5th Cir. 2021). Federal due

process requires that “the suit aris[es] out of or relate[s] to the defendant[s’] contacts

with” Texas. Daimler AG v. Bauman, 571 U.S. 117, 127 (2014).

The lawsuit concerns real property located in the Northern District of Texas.

See Dkt. No. 1 at 3.

And, so, this Court has personal jurisdiction over the Defaulting Defendants.

B. The procedural requirements for default judgment have been met.

U.S. Bank has satisfied the prerequisites for entry of default judgment against

the Defaulting Defendants.

On December 14, 2023, U.S. Bank served Schnika McKissic, individually and

as legal guardian for E.T.; Natalie Versey; and Montoya Targton. See Dkt. No. 8, 11,

13. It served Terry Targton, Jr. on December 19, 2023. See Dkt. No. 10. And it served

Tariq Targon by publication, with leave of the Court, on October 1, 2024. See Dkt.

Nos. 38 & 40.

The Clerk has entered default against the Defaulting Defendants. See Dkt. No.

25, 60.

U.S. Bank attached Exhibit B to its motion to support the allegations that the

Defaulting Defendants are not minors or incompetent persons. See Dkt. No. 63-1 at

54.

Exhibit B also supports the allegations that the Defaulting Defendants were

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not in active military service. See Dkt. No. 28-1 at 51-69. It includes an affidavit and

military status reports for each Defaulting Defendant under the Servicemembers

Civil Relief Act and establishes that they are not in active duty status. See id; GS

Holistics v. OMS Inv., LLC, No. 3:23-cv-1024-L, 2024 WL 3092445, at *2 (N.D. Tex.

June 21, 2024) (citing 50 U.S.C. § 3931(b)(4)) (“[T]he Servicemembers Civil Relief Act

(“SCRA”) requires a plaintiff seeking entry of a default judgment to file an affidavit

‘stating whether or not the defendant is in military service and showing necessary

facts to support the affidavit.’ The SCRA's affidavit requirement ‘may be satisfied by

a statement, declaration, verification, or certificate, in writing, subscribed and

certified or declared to be true under penalty of perjury.’”).

There is no evidence before the Court that a “good faith mistake or excusable

neglect” caused any of Defaulting Defendants to default. See Ocwen Loan Servicing,

LLC v. Kingman Holdings, LLC, No. 3:18-cv-1197-S, 2018 WL 7150247, at *3 (N.D.

Tex. Dec. 14, 2018).

And, so, U.S. Bank meets the procedural requirements for entry of default

judgment against the Defaulting Defendants.

C. U.S. Bank’s pleading supports default judgment.

1. U.S. Bank has standing to initiate non-judicial foreclosure and

meets the elements required for non-judicial foreclosure.

U.S. Bank seeks to enforce its lien through non-judicial foreclosure under

Section 51.002 of the Texas Property Code. Dkt. No. 1 at 8.

As explained above, U.S. Bank has standing to initiate a non-judicial

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foreclosure against the Property and has met the elements for non-judicial

foreclosure, including as to the Defaulting Defendants.

But, again, the undersigned will also analyze the request for non-judicial

foreclosure as a breach of contract claim against the Defaulting Defendants.

As discussed above, U.S. Bank is the owner of the Loan Agreement and, under

the original terms, Decedents promised to pay monthly payments of the original

principal sum of $56,000.00 bearing an interest rate of 11.499%. See Dkt. No. 1-1 at

2. Mortgage Electronic Registration Systems, Inc. transferred and assigned the

agreement to U.S. Bank. See Dkt. No. 1 at 6. U.S. Bank alleges all conditions have

been performed to enforce its security interest against the Property. See id. at 7.

Decedents failed to make monthly payments after November 1, 2022, and the default

was not timely cured. Id. And U.S. Bank has shown quantifiable damages of the

unpaid amount. See Dkt. No. 1-1 at 35-40.

And, although it did not provide evidence of heirship, for purposes of default

judgment, the Court may accept as true U.S. Bank’s allegation that Schnika

McKissic, individually and as the legal guardian of E.T., is the daughter-in-law of the

Decedents; Natalie Versey and Montoya Targton are the granddaughters of the

Decedents; Terry Targton, Jr. and Tariq Targon are the grandsons of the Decedents;

and, so, all the Defaulting Defendants are heirs of the Decedents and “acquired all of

their interest in the Property immediately upon their deaths – subject to the Loan

Agreement debt owed to [U.S. Bank].” See Dkt. No. 1 at 2-3, 6.

Taking the allegations in the complaint to be true, U.S. Bank has satisfied the

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elements of a breach of contract claim in showing (1) a valid contract existed in the

form of a Loan Agreement; (2) that U.S. Bank fully performed under the Loan

Agreement; (3) Defaulting Defendants failed to perform in paying under the Loan

Agreement; and (4) U.S. Bank sustained damages for the unpaid payments as a result

of the breach.

And, so, U.S. Bank pleaded adequately pleaded a breach of contract claim

against the Defaulting Defendants.

2. U.S. Bank is entitled to a declaration that U.S. Bank has a statutory

probate lien against the Property.

The undersigned concludes that U.S. Bank has adequately pleaded that it has

a statutory probate lien against the Property. See TEX. EST. CODE §§ 101.001(b),

101.051(b)(1); see also Chae, 2023 WL 8531803, at *3.

U.S. Bank adequately alleges that Decedents died intestate, no probate was

opened for them, and therefore, Defendant Schnika McKissic, individually and as

legal guardian for E.T., as Decedents’ daughter in law, and Defendants Natalie

Versey, Montoya Targton, and Terry Targton, Jr., as Samuel Woodley’s

grandchildren, are heirs who acquired Decedents’ interest in the Property subject to

the debt owed by U.S. Bank. See Dkt. No. 1 at 2-3, 6.

As discussed in previous sections, U.S. Bank has shown that there was a debt,

secured by the lien, on the Property. See Dkt. No. 1 at 5. And U.S Bank has alleged

that the Defaulting Defendants are Decedent’s heirs. And, so, the Court should grant

U.S. Bank’s request for a declaration of its statutory probate lien.

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3. U.S. Bank is entitled to its reasonable attorneys’ fees from the

Defaulting Defendants.

U.S. Bank requests attorneys’ fees in its complaint, see Dkt. No. 1 at 9, and

motion for default judgment, see Dkt. No. 62 at 17. If U.S. Bank’s motion were

granted, U.S. Bank would be entitled reasonable attorneys’ fees in accordance with

the Loan Agreement and Section 38.001 of the Texas Civil Practice and Remedies

Code.

Texas law applies to an award of attorneys’ fees in diversity cases such as this

one. See Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002). Under Texas law,

attorneys' fees may be recovered pursuant to mortgage contracts. See Richardson v.

Wells Fargo Bank, Nat. Ass'n, 740 F.3d 1035, 1040 (5th Cir. 2014); Santry v. Ocwen

Loan Servicing LLC, No. 3:23-cv-649-K-BN, 2024 WL 4229990, at *9 (N.D. Tex. Sept.

3, 2024).

Here, the Loan Agreement states that, “[i]f the Note Holder has required me

to pay immediately in full as described above, the Note Holder will have the right to

be paid back by me for all of its costs and expenses in enforcing this Note[.]... Those

expenses include, for example, reasonable attorneys' fees.” Dkt. No. 1-1 at 3.

Because it is permitted in the relevant loan documents, U.S. Bank is entitled

to its reasonable attorneys’ fees for pursuing its non-judicial foreclosure claim under

the Loan Agreement. See Santry, 2024 WL 4229990, at *9.

D. But granting default judgment against Defaulting Defendants at this time

would lead to inconsistent results.

As explained in its Order Withdrawing Findings, Conclusions, and

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Recommendation of the United States Magistrate Judge [Dkt. No. 46], the Fifth

Circuit has cautioned against inconsistent judgments.

Specifically, the Fifth Circuit has provided that, “[w]hen a case involves

multiple defendants, courts may not grant default judgments against one defendant

if doing so would conflict with the position taken by another defendant.” Escalante v.

Lidge, 34 F.4th 486, 495 (5th Cir. 2022) (cleaned up). “This rule is based on the

principle that ‘a final decree on the merits against the defaulting defendant[s] alone,

pending the continuance of the cause, would be incongruous[.]’” Deutsche Bank Nat'l

Tr. Co. v. Lares, No. EP-17-cv-237-PRM, 2017 WL 10575169, at *1 (W.D. Tex. Dec.

21, 2017) (quoting Frow v. De La Vega, 82 U.S. 552, 554 (1872)).

Here, U.S. Bank’s claims against Bishop, Micheaux, and the Defaulting

Defendants involve the same Property. Declaring that U.S. Bank has a statutory

probate lien on the Property and allowing it to foreclose on the Property in a default

judgment against some defendants while declining to award the same relief at this

time against Bishop and Micheaux would be “incongruous.” Id. (“[W]here Plaintiff

seeks a declaratory judgment granting it the right to foreclose upon a piece of

property under dispute … [g]ranting default judgment against the defaulting

Defendants while the matter is still being litigated by Defendant Cynthia Lares

raises the prospect of multiple conflicting judgments regarding the same property.”).

If U.S. Bank had provided summary judgment evidence of heirship that would

warrant granting summary judgment on all of its claims against Bishop and

Micheaux, then a default judgment against the Defaulting Defendants would not lead

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to inconsistent results. And the Court could, and should, grant default judgment in

such a case. But that is not the case here.

And, so – if U.S. Bank provides evidence of diversity jurisdiction and the Court

denies summary judgment – the Court should decline to grant default judgment

against the Defaulting Defendants at this time. And it should not award attorneys’

fees to U.S. Bank.

But if U.S. Bank fails to provide evidence of diversity jurisdiction, the Court

should dismiss this lawsuit without prejudice and decline to rule on the summary

judgment and default judgment motion.

Conclusion

The Court should dismiss this lawsuit without prejudice for lack of subject

matter jurisdiction.

But if, within the time to file objections, Plaintiff U.S. Bank Trust Company

National Association provides evidence to support its jurisdictional allegations, the

Court should deny U.S. Bank’s Motion for Summary Judgment and Motion for

Default Judgment [Dkt. No. 61].

A copy of these findings, conclusions, and recommendation shall be served on

all parties in the manner provided by law. Any party who objects to any part of these

findings, conclusions, and recommendation must file specific written objections

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and

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specify the place in the magistrate judge’s findings, conclusions, and recommendation

where the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure

to file specific written objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge that are accepted or

adopted by the district court, except upon grounds of plain error. See Douglass v.

United Servs. Auto. Assn, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: January 19, 2026

pels

DAVIDL.HORAN ———<“—i—C

UNITED STATES MAGISTRATE JUDGE

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