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U.S. Bank National Association v. Bonney

Court of Appeals of Texas, Fifth District, Dallas

December 13, 2013

U.S. BANK NATIONAL ASSOCIATION, TRUSTEE, Appellant
v.
BONNEY, PAULA A., Appellee

On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-04176

Before Justices Moseley, Lang, and Brown

MEMORANDUM OPINION

DOUGLAS S. LANG JUSTICE

US Bank National Association, Trustee ("USBNA") appeals from a default judgment rendered by the trial court in favor of Paula A. Bonney ("Bonney"). USBNA raises two issues: (1) whether it was amenable to service through the Secretary of State and whether such service was accomplished in accordance with the applicable statutory requirements, and (2) whether the default judgment extinguishing a deed of trust should be set aside given the facts admitted by the default.

Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. The background of the case is well known to the parties. Therefore, we do not recite it here in detail. For the reasons set forth below, we reverse the default judgment and remand this case to the trial court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 16, 2012, Bonney filed suit against USBNA, alleging several claims including a number of specific statutory violations. In her petition, Bonney states, inter alia, [USBNA's] agent for service of process is not located within the state of Texas. The records of the Texas Secretary of State indicate that U.S. Bank has directed that service of process by [sic] directed to its agent in Minnesota. Accordingly, service should be on the Secretary of State Citation Unit, who should then transmit the Citation and Petition to the agent for service of process:

Elizabeth Becker
350 N. Robert St.
St. Paul, MN 55101

Bonney did not allege any statute or procedural rule to support this method of service.

A citation was issued and served upon the Texas Secretary of State. The Secretary of State sent correspondence that included a copy of the citation and original petition by certified mail, return receipt requested, to the Minnesota address provided in Bonney's petition. The record includes a certificate from the Secretary of State indicating both that it forwarded process to the Minnesota address and the process was returned to the Secretary of State's office on May 2, 2012, bearing the notation "No Such Number."

Then, on May 31, 2012, Bonney filed a Certificate of Last Known Address and a Motion for Default Judgment, alleging that service was made on the Secretary of State on April 23, 2012 and that the return of service had been on file in the trial court for at least 10 days. Bonney further alleged in the motion that the answer date in this suit was May 14, 2012 and USBNA had not filed an answer or any other responsive pleading in this case. In support of her motion, Bonney submitted as a "supplemental exhibit" a certified copy of a document titled "Amendment to Agent Appointment" provided by the Secretary of State, stating the registered agent for "U.S. Bank Trust National Association" was located at the Minnesota address Bonney had identified in her petition.

The court granted the motion and rendered a final default judgment dated June 23, 2012. USBNA did not file any postjudgment motions, but filed a Notice ...


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