Martinez v. Wells Fargo Bank, N.A.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARIANA MARTINEZ, 	§
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Plaintiff/Counter Defendant,
V. 	Civil Action No. H-25-4948
WELLS FARGO BANK, N.A.,
Defendant/Counter Claimant.
ORDER
Pending before the Court are Wells Fargo Bank, N.A.'s Motion for Summary
Judgment and Brief in Support (Document No. 20), and Wells Fargo Bank, N.A.'s
Motion Default Judgment Against Dorotea Martinez (Document No. 19). Having
considered the motions, submissions, and applicable law, the Court determines that
both motions should be granted.
I. BACKGROUND
This case arises out of a mortgage dispute. In January 2007, Plaintiff Mariana
Martinez ("Plaintiff') took out a loan for $83,000 from Wachovia Bank secured by
her home at 11010 Melba Lane, Houston, Texas 77041. On March 20, 2010,
Wachovia Bank merged with Defendant Wells Fargo Bank, N.A. ("Wells Fargo")
and Wells Fargo obtained the loan. Sometime in early 2015, Plaintiff began missing
payments on the loan. Plaintiff alleges that she immediately contacted Wells Fargo
1
United States District Court
Southern District of Texas
ENTERED
July 21, 2026
Nathan Ochsner, Clerk
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in an attempt to resolve the past due payments. Plaintiff further alleges that, a few
months after she defaulted on the loan, she attempted to make a lump sum payment
which Wells Fargo refused to accept. Lastly, Plaintiff alleges that Wells Fargo
continued to refuse any mortgage relief to Plaintiff. On June 30, 2025, Defendant
obtained an Order to Proceed with Notice of Foreclosure in the 164th District Court
of Harris County, Texas. 1
Based on the foregoing, on August 27, 2025, Plaintiff filed suit in the 61st
District Court of Harris County, Texas, seeking to stay the foreclosure sale and
asserting claims against Wells Fargo for violations of the Texas Debt Collection Act
and fraud. 2 On October 16, 2025, Wells Fargo removed the matter to this Court
pursuant to diversity jurisdiction. 3 Also on October 16, 2025, Wells Fargo answered,
bringing a third-party complaint against Plaintiffs husband, Doroteo Marti~ez
("Third-Party Defendant"), and a counterclaim against Plaintif£ 4 On June 3, 2026,
Wells Fargo moved for 	default judgment against Third-Party Defendant and
1 See Notice of Removal, Document No. 1, Exhibit D at 27 (Plaintiff's Complaint).
2 See Plaintiff's Complaint, supra note 1 at 7-10.
3 See Notice of Removal, Document No. 1 at 1.
4 See Wells Fargo Bank, NA. 's Original Answer, Counterclaim, and Third-Party
Complaint, Document No. 4 at 10.
2
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summary judgment as to its counterclaim and Plaintiffs claims. 5 On June 24, 2026,
Plaintiff responded in opposition to Wells Fargo's summary judgment motion. 6 On
July 2, 2026, the Court entered default as to Third-Party Defendant pursuant to a
motion hearing held on June 25, 2026. 7
II. STANDARD OF REVIEW
Summary judgment is proper when "there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(a). The Court must view the evidence in a light most favorable to the
nonmovant. Coleman v. Haus. Jndep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
Initially, the movant bears the burden of presenting the basis for the motion and the
elements of the causes of action upon which the nonmovant will be unable to
establish a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The burden then shifts to the nonmovant to come forward with specific
facts showing there is a genuine dispute for trial. 	See Fed. R. Civ. 	P. 	56(c);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "A
5 See 	Wells 	Fargo 	Bank, 	NA. 's 	Motion 	Default Judgment Against Dorotea
Martinez, Document No. 19 at 1; Wells Fargo Bank, NA. 's Motion/or Summary Judgment
and Brief in Support, Document No. 20 at 1.
6 See Plaintiff's Response to Defendant's Motion for Summary Judgment and Brief
in Support, Document No. 24 at 1.
1 See Order Entering Default, Document No. 28 at 1.
3
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dispute about a material fact is 'genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus.,
Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation omitted).
But the nonmoving party's bare allegations, standing alone, are insufficient to
create a material dispute of fact and defeat a motion for summary judgment. If a
reasonable jury could not return a verdict for the nonmoving party, then summary
judgment is appropriate. Liberty Lobby, Inc., 477 U.S. at 248. The nonmovant's
burden cannot be satisfied by "conclusory allegations, unsubstantiated assertions, or
'only a scintilla of evidence.'" Turner v. Baylor Richardson Med. Ctr., 476 F .3 d 3·3 7,
343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)). Uncorroborated self-serving testimony cannot prevent summary judgment,
especially 	if the 	overwhelming 	documentary 	evidence 	supports 	the 	opposite
scenario. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004). Furthermore, it
is not the function of the Court to search the record on the nonmovant' s behalf for
evidence which may raise a fact issue. Topalian v. Ehrman, 954 F.2d 1125, 1137
n.30 (5th Cir. 	1992). Therefore, "[a]lthough we consider the evidence and all
reasonable inferences to be drawn therefrom in the light most favorable to the
nonmovant, the nonmoving party may not rest on the mere allegations or denials of
its pleadings but must respond by setting forth specific facts indicating a genuine
issue for trial." Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000).
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III. LAW & ANALYSIS
The Court will consider the pending motions beginning with Wells Fargo's
Motion for Summary Judgment (Document No. 20), followed by Wells Fargo's
Motion for Default Judgment with respect to Third-Party Defendant (Document No.
19).
A. 	Wells Fargo's Motion/or Summary Judgment
Wells Fargo moves for summary judgment "seeking judgment in favor of
Wells Fargo and against Plaintiff/Counter-Defendant[.]" 8 In response, Plaintiff
contends that she "has pled facts sufficient to show that the claims asserted have a
genuine issue of material fact. " 9 Despite Plaintiff's response, the Court notes that
Plaintiff provides no summary judgment evidence attached to her response and rests
solely on the allegations contained in her Complaint. Nonetheless, the Court will
consider, in tum, Wells Fargo's pending summary judgment as it relates to Plaintiff's
claims and Wells Fargo's counterclaim.
8 Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in Support,
Document No. 20 at 1. Considering the Court's previous Order entering default against
Third-Party Defendant, the Court will consider Wells Fargo's pending summary judgment
as it relates to Plaintiff only.
9 Plaintiff's Response to Defendant's Motion for Summary Judgment and Brief in
Support, Document No. 24 at 8.
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1. 	Plaintiff's Claims Against Wells Fargo
Plaintiff brings the current action seeking a stay of foreclosure and recovery
for violations of the Texas Debt Collection Act ("TDCA") and fraud. 10 Wells Fargo
moves for summary judgment as to Plaintiffs TDCA claim, contending that it did
not violate the TDCA, that Plaintiffs TDCA claim is time-barred, and that Plaintiff
alleges no injuries under the TDCA. 11 Furthermore, Wells Fargo moves for summary
judgment as to Plaintiffs fraud claim, contending that the claim is not sufficiently
pled, that the evidence disproves the claim, that the claim is time-barred, and that
the economic loss rule defeats the claim. 12 In response, Plaintiff contends, in relevant
part, that the TDCA claim is not time-barred because "every statement sent since
has misrepresented the amount sought to be collected" and that the fraud claim is
sufficiently pled. 13 The Court will consider, in turn,_ Wells Fargo's motion as it
relates to Plaintiffs TDCA and fraud claims.
10 See Plaintiff's Complaint, supra note 1 at 7-10.
11 Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in Support,
Document No. 20 at 16-22.
12 Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in Support,
Document No. 20 at 11-15
13 Plaintiff's Response to Defendant's Motion for Summary Judgment and Brief in
Support, Document No. 24 at 8, 9.
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i. TDCA Claim
TDCA claims are subject to a two-year statute of limitations. See Clark v.
Deutsche Bank Nat'! Tr. Co., 719 F. App'x 341, 343 (5th Cir. 2018). Here, Plaintiff
contends that Wells Fargo violated the TDCA by "failing to provide Plaintiff with
any written response or reasons for its failure or refusal to provide Plaintiff with any
mortgage relief ... and ... failure or refusal to ever provide Plaintiff with any Notice
of Default[.]" 14 The 	Court notes that Wells Fargo 	communications regarding
mortgage relief occurred beginning in February of 2020 and concluded in March of
2022. 15 As such, the Court finds that the statute of limitations for any TDCA claim
based on these communications ran in March of 2024. Based on the foregoing, and
considering that Plaintiff filed this matter on August 27, 2025, the Court finds that
Plaintiffs TDCA claim is time-barred, and thus, that Wells Fargo's motion for
14 Plaintiff's Complaint, supra note 1 at 7.
15 Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in Support,
Document No. 20, Exhibit A at 9-10 (Declaration of Rick Penno ).
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summary judgment as to this claim should be granted. 16 The Court now turns to
Plaintiffs fraud claim.
ii. Fraud Claim
Wells Fargo contends, in relevant part, that summary judgment should be
granted with 	respect 	to 	Plaintiffs 	fraud 	claim 	because 	"[f]raud 	requires 	an
affirmative representation, and Plaintiff never identifies one." 17 In response, Plaintiff
contends, in relevant part, that "Plaintiff relied to her detriment on the statements
made by the Defendant's agents or employees that there was nothing they could do
for them[.]" 18
To succeed on a Texas fraud claim, a Plaintiff must plead: "(1) a material
misrepresentation; (2) that is 	false; 	(3) made with knowledge 	of its falsity or
16 To the extent Plaintiff brings a TDCA claim contending that Wells Fargo refused
"to ever provide Plaintiff with any Notice of Default and Opportunity to Cure" the Court
notes the clear summary judgment evidence in this matter shows that Wells Fargo did send
a notice of default on December 9, 2024, well before this matter was filed. See Plaintiff's
Complaint, supra note 1 at 7; Declaration ofRickPenno, supra note 15 at 10. To the extent
that Plaintiff contends that more recent statements constitute further alleged violations of
the TDCA for which the statute of limitations has not run, the Court notes the clear
language of Plaintiffs Complaint alleging only that Wells Fargo violated the TDCA by
failing to provide Plaintiff with mortgage relief or a notice of default. See Plaintiff's
Complaint, supra note 1 at 7. Considering the Court's finding that the statute of limitations
has run with respect to Plaintiffs TDCA claim, the Court declines to consider Wells
Fargo's remaining arguments for summary judgment on Plaintiffs TDCA claim.
17 Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in Support,
Document No. 20 at 12.
18 Plaintiff's Response to Defendant's Motion for Summary Judgment and Brief in
Support, Document No. 24 at 4.
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recklessness as to its truth; (4) made with the intention that it should be acted upon
by another party; (5) relied upon by the other party, and ( 6) causing injury." Flaherty
& Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200,212 (5th Cir.
2009).
Here, the Court has reviewed Plaintiffs Complaint, in detail, and notes that
while Plaintiff does plead several communications with Wells Fargo, Plaintiff fails
to plead any affirmative statement made by Wells Fargo, let alone one that was
false. 19 Furthermore, the Court finds that Plaintiff has filed to provide any summary
judgment evidence, outside 	of the Complaint itself, to support her conclusory
allegations of fraud. Based on the foregoing, and the clear guidance of the Fifth
Circuit that a fraud claim requires the pleading of a misrepresentation, the Court
finds that Plaintiff has failed to produce sufficient summary judgment evidence to •
show a genuine issue of material fact as to her fraud claim. As such, the Court finds
that Wells Fargo's motion should be granted with respect to Plaintiffs fraud claim. 20
19 See Plaintiff's Complaint, supra note 1 at 3 ("Plaintiff made numerous phone calls
and inquiries to Defendant ... but Defendant failed or refused to prov1de Plaintiff with any
workout[.]). To the extent that Plaintiff contends that Wells Fargo's alleged failure to do
certain things constitutes a misrepresentation, the Court rejects this argument and finds that
the failure to perform a specific act is not a misrepresentation.
20 The Court notes that, even if Plaintiff pleads a sufficient misrepresentation for the
purposes 	of fraud, 	Plaintiff has 	provided 	no 	evidence 	to 	show 	that 	such 	alleged
misrepresentation was made with the intention that it be acted upon. Considering the
Court's finding that Plaintiff fails to provide sufficient evidence to show a genuine issue
9
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The Court will now consider Wells Fargo's motion as it relates to its counterclaim
against Plaintiff.
2. 	Wells Fargo's Counterclaim
Wells Fargo moves for summary judgment as to its judicial foreclosure
counterclaim, contending that "[t]he summary-judgment record establishes Wells
Fargo's entitlement to judicial foreclosure." 21 The Court notes that Plaintiffs
summary judgment response does not address Wells Fargo's motion as it relates to
its counterclaim. Pursuant to Local Rule 7.4, failure to respond is taken as a
representation of no opposition. S.D. Tex. Local R. 7.4. Regardless, the Court will
consider the merits of Wells Fargo's counterclaim.
The Court generally "may order judicial foreclosure upon proof 'establishing
the debt and fixing the lien."' Maldonado v. CitiMortgage, Inc., 676 Fed. App'x 282,
284 (5th Cir. 2017) (citation omitted). Wells Fargo contends that "Mr. Martinez
executed the Note 	... 	[t]he debt is 	secured by 	a lien" and that "default is
undisputed. " 22 Plaintiff offers no rebuttal. The Court has reviewed the summary
of material fact as to a misrepresentation, the Court declines to consider Wells Fargo's
remaining arguments related to summary judgment on Plaintiffs fraud claim.
21 Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in Support,
Document No. 20 at 22.
22 Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in Support,
Document No. 20 at 22-23.
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judgment evidence offered by Wells Fargo in this matter and finds that Wells Fargo
has provided sufficient evidence providing proof that a debt was established and a
lien was fixed. Furthermore, per Plaintiffs own admission, an uncured default exists
on the loan. 23 Based on the foregoing, and the clear guidance of the Fifth Circuit
about when the Court may order judicial foreclosure, the Court finds that Wells
Fargo's motion should be granted with respect to its counterclaim, and thus, judicial
foreclosure ordered. The Court will now consider Wells Fargo's pending motion for
default judgment against Third-Party Defendant.
B. 	Wells Fargo's Motion for Default Judgment
Wells Fargo moves for default judgment on its judicial foreclosure claim
against Third-Party Defendant Doroteo Martinez. Third-Party Defendant has not
appeared in this matter either by the date required under the Federal Rules of Civil
Procedure or the date of this Order. The Court notes that default was entered as to
Third-Party Defendant per the Court's July 2, 2026, Order. 24 The aforementioned
Order followed the Court's default judgment hearing in open court in which Third-.
Party Defendant did not appear. 25 Considering the Court's finding that Wells Fargo's
23 See Plaintiff's Complaint, supra note 1 at 4-6.
24 See Order Entering Default, Document No. 28 at 1.
25 See Minute Entry for Default Judgment Hearing, Document No. 25 at 1.
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motion for summary judgment should be granted, the Court finds that Wells Fargo's
default judgment motion 	should be 	granted 	as 	to 	Third-Party 	Defendant 	in
accordance with the Court's prior Order entering default. Lastly, the Court will
consider Wells Fargo's request for attorneys' fees.
C. Attorneys' Fees
The Court notes Wells Fargo's request for attorneys' fees contained in its
answer and motion for summary judgment. 26 Plaintiff offers no rebuttal to Wells
Fargo's attorneys' fees request, failing to rebut the reasonableness of either the hours
spent or hourly rate. Pursuant to Local Rule 7.4, failure to respond is taken as a
representation of no opposition. S.D. Tex. Local R. 	7.4. Wells Fargo requests
$35,908.08 in attorneys' fees and costs. The Court notes that these fees arise out of
the note itself and are 	included in, not in addition to, the payoff amount. 27
Nonetheless, the Court will consider the reasonableness of Wells Fargo's attorneys'
fees request.
In the Fifth Circuit, the "lodestar" method is used to determine statutorily
authorized attorney fees. Forbush v. J.C. Penney Co., 98 F.3d 817,821 (5th Cir.
26 See Wells Fargo Bank, NA. 's Original Answer, Counterclaim, and Third-Party
Complaint, Document No. 4 at 	14; 	Wells Fargo Bank, 	NA. 's Motion for Summary
Judgment and Brief in Support, Document No. 20 at 10.
27 See Wells Fargo Bank, NA. 's Motion for Summary Judgment and Brief in
Support, Document No. 20, Exhibit Eat 3, 5 (Declaration of Helen 0. Turner).
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1996). Under the lodestar method, the Court determines the reasonable hourly rate
for the movant's attorney and the reasonable number of hours expended on the
litigation by the movant' s attorney. Id. The lodestar is calculated by multiplying the
reasonable hourly rate by the reasonable number of hours. Id. Once the lodestar is
initially determined, the Court may adjust the lodestar up or down to make the award
of attorney fees reasonable. Watkins v. Fordice, 7 F.3d 453,457 (5th Cir. 1993). The
movant bears the burden of establishing the rate charged and reasonableness of the
hours expended. Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996).
Once the lodestar analysis is complete, the Court may increase or decrease the award
based on the factors provided in Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714,
717-19 (5th Cir. 1974). Saizanv. Delta Concrete Prods. Co., 448 F.3d 795,800 (5th
Cir. 2006) (per curiam). 28
28 The Johnson factors are: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4)
the preclusion of other employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; ( 10) the "undesirability" of the case;
(11) the nature and length of the professional relationship with the client; and (12) awards
in similar cases. Johnson, 488 F.2d at 717-19.
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Here, Wells Fargo provides detailed billing records and the declaration of
attorney Helen 0. Tumer("Tumer Declaration"). 29 The Turner Declaration indicates
that Attorney Turner billed 56.6 hours at an hourly rate of $432. 30 The Turner
Declaration further indicates that Attorney David L. Foster billed 18.4 hours at an
hourly rate of $571 and that Attorney Robert T. Mowrey billed 3 .2 hours at an hourly
rate of$651. 31 Lastly, the King declaration indicates that combined paralegals billed
8.8 hours at hourly rates between $158 and $256. 32 The Court will consider, in tum,
the reasonableness of the hourly rate and hours spent.
The Turner Declaration contends, in relevant part, that "[t]he hourly rates
charged to Wells Fargo for the services performed are reasonable for the work
performed in connection with this matter[.]" 33 Plaintiff offers no rebuttal. The Court
has considered the reasonableness of the hourly rates charged in this matter and finds
that, based on the foregoing, the hourly rates charged were reasonable. The Court
will now consider the reasonableness of the total hours spent on this matter.
29 Declaration of Helen 0. Turner, supra Note 27 at 2; Wells Fargo Bank, N.A. 's
Motion for Summary Judgment and Brief in Support, Document No. 20, Exhibit E-1
(Billing Records).
30 Declaration of Helen 0. Turner, supra Note 27 at 5.
31 Declaration of Helen 0. Turner, supra Note 27 at _6, 8.
32 Declaration of Helen 0. Turner, supra Note 27 at 6, 10.
33 Declaration of Helen 0. Turner, supra Note 27 at 4.
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The Turner Declaration contends, in relevant part, that "all the legal services
that Troutman performed were necessary to properly defend this lawsuit on behalf
of Wells Fargo and protect its interest in the Property and/or rights under the Security
Instrument." 34 Plaintiff offers no rebuttal. In considering the reasonableness of the
hours spent on this matter, the Court notes that not only did Wells Fargo successfully
defend the claims brought against it, but it also succeeded on a counterclaim and·
third-party claim. Based on the foregoing, the Court finds that the hours spent on
this matter were reasonable. Considering the Court's finding that the hours spent and
hourly rates were reasonable in this matter, the Court finds that, based on the
foregoing and the clear guidance of the Fifth Circuit on evaluating attorneys' fees,
Wells Fargo's request for $35,908.08 in attorneys' fees is reasonable. 35
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that.Wells Fargo Bank, N.A.'s Motion for Summary Judgment and
Brief in Support (Document No. 20) is GRANTED. The Court further
34 Declaration of Helen 0. Turner, supra Note 27 at 4.
35 The Court notes that Wells Fargo has included $417.30 in charges within its
attorneys' 	fees 	calculation. See Declaration of Jamie King, Document No. 	31 	at 5.
Considering this, the Court declines to award any costs in addition to the aforementioned
attorneys' fees number. For the sake of clarity, the Court further notes that the $35,908.08
in attorneys' fees is included in the $167,557.49 payoff amount requested by Wells Fargo.
Furthermore, the 	attorneys' 	fees 	are to be recoverable "on an 	in rem 	only basis."
Declaration ofJamie King, Document No. 31 at 2.
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ORDERS that Wells Fargo Bank, N.A.'s Motion Default Judgment Against
Doroteo Martinez (Document No. 19) is GRANTED. The Court further
ORDERS that Wells Fargo Bank, N.A.'s relief requested in its counterclaim
and third-party claim for judicial foreclosure is GRANTED. The Court further
ORDERS that Plaintiffs claims against Defendant Wells Fargo Bank, N.A.
are hereby DISMISSED. 36
SIGNED at Houston, Texas, on this~ day of July, 2026.
DAIDHITTNER
United States District Judge
36 The Court will issue a separate final judgment declaring all points of relief and
disposing of all remaining ministerial matters in this case.
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