Wells Fargo Vendor Financial Services, LLC v. Lone Star Land Works, LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
WELLS FARGO VENDOR
FINANCIAL SERVICES, LLC
Plaintiff.
V.
LONE STAR LAND WORKS, LLC, et
al.,
Defendants.
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CIVIL ACTION NO. 3:26-cv-00027
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
On December 23, 2025, Plaintiff Wells Fargo Vendor Financial Services LLC
filed suit in state court against Defendants Lone Star Land Works, LLC and
Brandon Marques. Wells Fargo alleges that Defendants defaulted under the terms
and conditions of a loan agreement and guaranty. Defendants timely removed the
case to federal court.
This case has been referred to me for all pre-trial purposes. There are five
pending motions : (1) Wells Fargo’s Motion to Dismiss Defendants’ Counterclaim
(Dkt. 18); (2) Wells Fargo’s Motion to Enforce Jury Waiver and Strike Defendants’
Request for Jury Trial (Dkt. 19); (3) Defendants’ Motion for Leave to File Amended
Counterclaim 	(Dkt. 	22); 1 	(4) 	Wells 	Fargo’s 	Motion 	to 	Dismiss 	Defendants’
Amended Counterclaim (Dkt. 27); and (5) Wells Fargo’s Renewed Application for
Writ of Sequestration (Dkt. 29). I will address each motion below.
1 Defendants title this pleading: “Motion for Leave to File Amended Petition.” Because
Defendants request leave to file an amended counterclaim, I will refer to the motion as
“Motion for Leave to File Amended Counterclaim.”
United States District Court
Southern District of Texas
ENTERED
June 08, 2026
Nathan Ochsner, Clerk
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WELLS F ARGO ’S MOTION TO D ISMISS D EFENDANTS ’ COUNTERCLAIM
(DKT . 18)2 AND D EFENDANTS ’ M OTION FOR L EAVE TO F ILE A MENDED
COUNTERCLAIM (DKT . 22)3
On March 6, 2026, Defendants filed a counterclaim seeking a declaratory
judgment. See Dkt. 12. On March 30, 2026, Wells Fargo filed a motion to dismiss
the counterclaim for failure to state a claim. See Dkt. 18. To date, Wells Fargo has
not responded to the counterclaim. On April 7, 2026, Defendants filed a Motion
for Leave to File Amended Counterclaim (Dkt. 22), and Defendants filed the
amended counterclaim (Dkt. 23) itself.
Federal Rule of Civil Procedure 15(a)(1)(B) permits “a party” to “amend its
pleading once as a matter of course” so long as “the pleading is one to which a
responsive pleading is required” and the amendment is made within “21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b) . . . , whichever is earlier.” The amended counterclaim was filed on April 7,
2026. That is within 21 days of March 30, 2026—the date Wells Fargo filed its
motion to dismiss under Rule 12(b)(6). Simply put, Defendants filed the amended
counterclaim in accordance with Rule 15(a)(1)(B)’s time limitations. Because
Defendants did not require leave to file their amended counterclaim, the Motion
for Leave to File Amended Counterclaim is unnecessary. Defendants’ amended
counterclaim (Dkt. 23) is now the live pleading. Accordingly, I recommend that
Wells Fargo’s Motion to Dismiss Defendants’ Counterclaim (Dkt. 18) be denied as
moot.
2 A motion to dismiss is a dispositive pretrial matter for which a magistrate judge may
only issue a recommendation. See 28 U.S.C. § 636(b)(1)(A); Davidson v. Georgia-Pac.,
L.L.C., 819 F.3d 758, 763 (5th Cir. 2016).
3 A motion for leave to amend is a nondispositive pretrial matter properly decided by a
magistrate judge. See Talbert v. Am. Risk Ins. Co., 405 F. App’x. 848, 851 (5th Cir. 2010).
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WELLS F ARGO ’S MOTION TO D ISMISS D EFENDANTS ’
A MENDED COUNTERCLAIM (DKT . 27)
I now turn to Wells Fargo’s Motion to Dismiss Defendants’ Amended
Counterclaim. In their amended counterclaim, Defendants seek a declaratory
judgment in their favor as to one or all of the following 11 issues:
[1]. 	Whether the venue provision of the Note and/or Guarantee
violate the territorial restrictions of Iowa law.
[2]. 	Whether the notice of the venue provision is “conspicuous” as
that term is known in Iowa law.
[3]. 	Whether 	the 	waiver 	of 	a 	jury 	trial 	was 	required 	to 	be
conspicuously displayed in the documents, under Iowa law.
[4]. 	Whether the waiver of a jury trial was conspicuously displayed.
[5]. 	Whether the transaction violates Iowa’s consumer protection
laws, including unscionability [sic] or prohibited deceptive practices.
[6]. 	What is the value of the equipment.
[7]. 	Whether Plaintiff can recover both the full amount of the note
and simultaneously repossess the equipment.
[8]. 	Whether 	Notice 	was 	required 	to 	be 	provided 	to 	Brandon
Marques prior to suit.
[9]. 	Whether Notice was provided to Brandon Marques prior to suit.
[10]. 	What 	amount 	of 	attorneys[’] 	fees 	were 	reasonably 	and
necessarily expended to defend this suit.
[11]. 	Any other issue that arises during the pendency of this suit, that
requires the Court to determine a legal or factual issue.
Dkt. 23 at 3–4.
“Since its inception, the Declaratory Judgment Act has been understood to
confer on federal courts unique and substantial discretion in deciding whether to
declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995);
see also Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 601 (5th
Cir. 1983) (“[T]he Declaratory Judgment Act gives the court a choice, not a
command.” (quotation omitted)). “On its face, the [Declaratory Judgment Act]
provides that a court ‘may declare the rights and other legal relations of any
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interested party seeking such declaration.’” Wilton, 515 U.S. at 286 (quoting 28
U.S.C. § 2201(a) (emphasis added)). “The Declaratory Judgment Act does not
create an independent cause of action; it only provides a form of relief.” Carson v.
Fed. Nat’l Mortg. Ass’n, 5:11-ca-925, 2012 WL 13029757, at *2 (W.D. Tex. Jan. 26,
2012).
“A determination of whether to grant declaratory relief is within the district
court’s discretion.” Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 824 F.3d
507, 523 (5th Cir. 2016). District courts may decline “to exercise their discretion to
decide 	declaratory 	judgment 	actions 	where 	deciding 	that 	action 	would 	be
redundant in light of the affirmative causes of action before the Court.” Amerisure
Ins. Co. v. Thermacor Process, Inc., 4:20-cv-01089, 2021 WL 1056435, at *7 (N.D.
Tex. Mar. 19, 2021) (collecting cases). Stated differently, “[w]hen the request for a
declaratory judgment adds nothing to an existing suit, and is merely duplicative of
the substantive claims already at issue, the request for a declaratory judgment need
not be entertained.” Carson, 2012 WL 13029757, at *2.
In its “broad discretion to grant (or decline to grant) declaratory judgment,”
a court may consider a variety of factors. Wilton, 515 U.S. at 281 (quotation
omitted). “The two principal criteria guiding” whether to render a declaratory
judgment “are (1) when the judgment will serve a useful purpose in clarifying and
settling the legal relations in issue, and (2) when it will terminate and afford relief
from 	the 	uncertainty, 	insecurity, 	and 	controversy 	giving 	rise 	to 	the
proceeding.” Concise Oil & Gas P’ship v. La. Intrastate Gas Corp., 986 F.2d 1463,
1471 (5th Cir. 1993) (quotation omitted). “When requests for declaratory relief seek
resolution of issues that will be resolved as part of the causes of action asserted,
dismissal is appropriate.” Lone Star 24 HR ER Facility, LLC v. Blue Cross & Blue
Shield of Tex., 785 F. Supp. 3d 215, 220 (W.D. Tex. 2025).
The 	declarations 	Defendants 	seek 	are 	thinly 	disguised 	reasons 	why
Defendants do not think that Wells Fargo should prevail. Most of the 11 issues that
Defendants claim are ripe for declaratory relief are subsumed by the resolution of
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Wells 	Fargo’s 	affirmative 	claims 	in 	this 	lawsuit. 	Consequently, 	Defendants’
“declaratory judgment counterclaim should be dismissed as redundant because
resolution of [Wells Fargo]’s claim, along with [Defendants’] affirmative defenses,
will 	necessarily 	resolve 	all 	issues 	raised 	by 	the 	declaratory 	judgment
counterclaim.” Meridian Sec. Ins. Co. v. Morris, No. 5:22-cv-151, 2023 WL
5313905, at *4 (E.D. Tex. Aug. 1, 2023).4
For these reasons, I recommend that Wells Fargo’s Motion to Dismiss
Defendants’ Amended Counterclaim (Dkt. 27) be granted.
WELLS F ARGO ’S MOTION TO E NFORCE JURY WAIVER AND S TRIKE
D EFENDANTS ’ R EQUEST FOR JURY TRIAL (DKT . 19)5
When Defendants removed this case to federal court, they filed a Notice of
Jury Demand, seeking “the equitable and constitutionally guaranteed right to a
jury trial.” Dkt. 2. Wells Fargo moves to strike Defendants’ jury demand, arguing
that Defendants contractually waived the right to a jury trial. See Dkt. 19.
The Master Loan and Security Agreement between Lone Star and Wells
Fargo contains a mutual waiver of jury trial:
20. JURY TRIAL WAIVER; APPLICABLE LAW, VENUE. ALL
PARTIES WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, 	SUIT, 	OR 	PROCEEDING 	ARISING 	OUT 	OF, 	IN
CONNECTION WITH OR RELATING TO ANY EQUIPMENT, THIS
MASTER AGREEMENT, ANY LOAN, ANY OTHER DOCUMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY . . . .
4 Although Defendants seek a declaratory judgment for a few issues unrelated to Wells
Fargo’s claims for affirmative relief, those topics are inappropriate for declaratory relief.
For example, Defendants seek declarations concerning whether the waiver of a jury trial
was conspicuously displayed. This is a question of law for the court to decide before trial
commences. Defendants also seek a declaration on attorneys’ fees. Dkt. 23 at 4. There is
no reason for such a declaration because attorneys’ fees are not awarded to the prevailing
party in a case brought under the Declaratory Judgment Act. See Mercantile Nat. Bank
at Dall. v. Bradford Tr. Co., 850 F.2d 215, 218 (5th Cir. 1988). Finally, Defendants’
request for a declaration on “[a]ny other issue that arises during the pendency of this suit,
that requires the Court to determine a legal or factual issue” is overly broad and wholly
inappropriate. Dkt. 23 at 4.
5 A motion to strike a jury demand is a non-dispositive pre-trial matter on which a
magistrate judge can rule. See Harmon v. Shell Oil Co., No. 3:20-cv-00021, 2023 WL
2474503, at *1 n.1 (S.D. Tex. Mar. 13, 2023).
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Dkt. 1-3 at 19. Similarly, the Continuing Guaranty executed by Marques also
provides a mutual jury waiver:
This Guaranty shall be governed by the laws of the State of Iowa. YOU
AND WE, BY OUR ACCEPTANCE OF THIS GUARANTY, WAIVE
EACH OF OUR RESPECTIVE RIGHTS TO TRIAL BY JURY.
Dkt. 1-3 at 25.
The Seventh Amendment of the United States Constitution grants parties
the right to a jury trial in a civil matter. U.S. CONST. amend. VII. Even so, the
United States Supreme Court “has long recognized that parties can waive their jury
right.” Pizza Hut L.L.C. v. Pandya, 79 F.4th 535, 540 & n.5 (5th Cir. 2023) (citing
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848–49 (1986)).
Once the party seeking to enforce the jury waiver has shown that a facially valid
contract exists, the burden shifts to the party objecting to the enforcement of the
waiver to show why it is entitled to a jury. See Pandya, 79 F.4th at 541. “An express
waiver requires only that the party waiving such right do so voluntarily and
knowingly 	based 	on 	the 	facts 	of 	the 	case.” 	Id. 	(quotation 	omitted) 	“[I]n
determining whether, under the totality of the circumstances, a contractual jury
waiver is knowing and voluntary[,]” the Fifth Circuit has identified four non-
exhaustive factors to consider: “(1) whether both parties had an opportunity to
negotiate the terms of the agreement, (2) whether the provision waiving jury trial
was conspicuous, (3) the relative bargaining power of the parties, and (4) the
business acumen or professional experience of the party opposing the waiver.” Id.
at 544 (quotation omitted).
Application of these four factors does not support voiding the jury waiver
provisions at issue. First, the record before me is silent as to whether both parties
had an opportunity to negotiate the terms of the loan agreement and guaranty.
Second, the jury waiver in both the loan agreement and guaranty is conspicuous;
it is capitalized and located near the signature lines. Wells Fargo “did not place the
waiver in the middle of a paragraph of inconsequential terms that are easily
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skippable.” Id. at 545. Third, although Wells Fargo is an institution, there is no
evidence 	suggesting 	that 	Defendants 	had 	“the 	kind 	of 	extreme 	bargaining
disadvantage or gross disparity in bargaining position that occurs only in certain
exceptional situations.” Id. (quotation omitted). Fourth, in terms of Defendants’
business acumen, Marques, the President of Lone Star, presented an affidavit in
which 	he 	describes 	himself 	as 	a 	businessman 	who 	regularly 	enters 	loan
transactions. See Dkt. 21-1. This undercuts any claim that Marques—and Lone
Star—did not know what they were doing when they entered agreements expressly
waiving their right to a jury trial. In sum, not one of the four factors weighs in
Defendants’ favor.
Because I find that Defendants have failed to meet their burden to show that
they did not knowingly and voluntarily waive their right to a jury trial, I conclude
that the jury waiver is valid. I strike Defendants’ jury demand.
WELLS F ARGO ’S RENEWED A PPLICATION FOR
WRIT OF S EQUESTRATION (DKT . 29)6
Wells 	Fargo 	also 	seeks 	a 	writ 	of 	sequestration, 	which 	would 	require
Defendants to deliver the 2023 Bobcat Model T770 New Compact Track Loader
that was offered as collateral in exchange for a $96,302.39 loan payment.
“Sequestration . . . is the modern counterpart of an ancient civil law device
to resolve conflicting claims to property.” Mitchell v. W. T. Grant Co., 416 U.S. 600,
605 (1974). It “is an extraordinary pre-judgment writ whereby property in dispute
. . . may be seized and held” by designated law enforcement officers “until it is sold,
replevied or turned over as ordered by the court.” Baragas v. Coupland State
Bank, No. 03-01-00098-CV, 2001 WL 1509972, at *1 n.3 (Tex. App.—Austin Nov.
29, 2001, no pet.). Federal Rule of Civil Procedure 64 provides for “sequestration”
when that “remedy is available . . . under the law of the state where the court is
6 Because a writ of sequestration “functionally seeks an injunction,” it is considered a
dispositive 	pretrial 	matter 	for 	which 	a 	magistrate 	judge 	may 	issue 	only 	a
recommendation. Mercedes-Benz Vehicle Tr. v. Kyoung Lim Jung, No. 3:26-cv-403,
2026 WL 1459191, at *1 (N.D. Tex. Apr. 29, 2026).
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located.” Texas law allows for writs of sequestration on personal property when “a
reasonable conclusion may be drawn that there is immediate danger that the
defendant or the party in possession of the property will conceal, dispose of, ill-
treat, waste, or destroy the property or remove it from the county during the suit.”
Tex. Civ. Prac. & Rem. Code § 62.001(1). An application for a writ of sequestration
must be made under oath and must set forth “(1) the specific facts stating the
nature of the plaintiff’s claim; (2) the amount in controversy, if any; and (3) the
facts justifying issuance of the writ.” Id. at § 62.022. The burden is on Wells Fargo,
as the party seeking a writ of sequestration, to establish both the facts alleged and
the grounds for the writ’s issuance. See Rexford v. Holliday, 807 S.W.2d 356, 358
(Tex. App.—Houston [1st Dist.] 1991, no writ).
Here, Wells Fargo has failed to offer evidence that allows me to draw “a
reasonable conclusion” that Defendants “will conceal, dispose of, ill-treat, waste,
or destroy” the Track Loader “or remove it from the county during the suit.” Tex.
Civ. Prac. & Rem. Code § 62.001(1). In support of its request for a writ of
sequestration, Wells Fargo presents the affidavit of Ryan Forret, a Senior Loan
Workout Specialist at Wells Fargo Bank, N.A. See Dkt. 29-1. Forret’s affidavit is full
of unremarkable statements that the Track Loader is “a depreciable asset that can
be destroyed, damaged, or transported out of the jurisdiction of this Court” and it
is “within the power of [Defendants] to conceal, waste, encumber, convert, convey,
or remove” the Track Loader from this court’s jurisdiction. Id. at 5. This conclusory
language is applicable to any personal property and does not support the entry of
writ of sequestration. The only evidence as to the condition of the Track Loader is
an affidavit from Marques, which states that the Track Loader is “well maintained,
and in the possession of Lone Star. It is kept under cover and is not exposed to the
elements.” Dkt. 30-1 at 1.
Without any evidence that there is an immediate danger that Defendants
will conceal, dispose of, ill-treat, waste, or destroy the Track Loader, I recommend
that Wells Fargo’s request for a writ of sequestration be denied. See Ferrari Fin.
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Servs., Inc. v. Mills, No. 1:24-cv-1009, 2025 WL 1174630, at *3 (W.D. Tex. Feb. 4,
2025) (recommending denial of writ of sequestration because movant “failed to
proffer any facts or argument from which this Court could reasonably infer an
‘immediate danger’ that Mills will ‘conceal, dispose of, ill-treat, waste, or destroy
the property or remove it from the county’ during the pendency of this case)
(quoting Tex. Civ. Prac. & Rem. Code § 62.001(1)); Insight Invs., LLC v. Icon
Constr., Inc., No. 4:18-cv-00531, 2020 WL 5172472, at *4 (E.D. Tex. Aug. 12, 2020)
(recommending denial of an application for a writ of sequestration where “Plaintiff
has not demonstrated an imminent danger to the [property] as required under
Section 62.001”).
CONCLUSION
For the reasons discussed above, I deny Defendants’ Motion for Leave to File
Amended Counterclaim (Dkt. 22) as moot and grant Wells Fargo’s Motion to
Enforce Jury Waiver and Strike Defendants’ Request for Jury Trial (Dkt. 19). I
recommend that Wells Fargo’s Motion to Dismiss Defendants’ Counterclaim
(Dkt. 18) be denied as moot, that Wells Fargo’s Motion to Dismiss Defendants’
Amended Counterclaim (Dkt. 27) be granted, and that Wells Fargo’s Renewed
Application for Writ of Sequestration (Dkt. 29) be denied.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of June 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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