JPMorgan Chase Bank, Successor by Merger to Chase Home Finance LLC v. Tejas Asset Holdings, LLC

Opinion

(,)

REVERSE and REMAND; Opinion Filed September 10, 2012.

In The (Court of Apprats 1EiftI EliMrict af iJras at Dallas No. 05-11-00962-CV

JPMORGAN CHASE BANK, N.A., Appellant

V.

TEJAS ASSET HOLDINGS, L.L.C., Appellee

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-04897-2010

MEMORANDUM OPINION Before Justices Morris, Moseley, and Myers Opinion By Justice Moseley

In this restricted appeal, JPMorgan Chase Bank, N.A. ("Chase"), seeks to overturn a default

judgment declaring a deed of trust lien extinguished and ofno force and effect. Chase contends there

is error apparent on the face of the record because the record does not contain an executed return of

service and plaintiff's original petition fails to state a valid cause of action to quiet title. The

background of the case is well known to the parties; thus, we do not recite it here in detail. Because

all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a),

47.4. Because the face of the record shows a failure to comply strictly with the rules for service and

return of citation, we reverse the trial court's judgment and remand for further proceedings.

According to its petition, Tej as Asset Holdings, L.L.C. purchased the property at issue in a foreclosure sale conducted to collect unpaid homeowner-association assessments. Tejas later sued

Chase Home Finance L.L.C.' seeking a declaration that the deed of trust lien held by Chase was

unenforceable because, as Tejas alleged on information and belief, Chase did not have possession

of the original promissory note secured by the deed of trust. Tejas also asserted a claim to quiet title

in the event Chase was unable to verify the validity of the deed of trust. Tejas sought to serve Chase

by certified mail through its registered agent for service. Chase did not appear in the case and the

trial court rendered a default judgment. Chase did not file any postjudgment motions, but filed a

notice of restricted appeal within six months of the default judgment. See TEX. R. APP. P. 30.

The only issue in this restricted appeal is whether there is reversible error apparent on the

face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (listing

elements ofrestricted appeal). "For well over a century, this court has required that strict compliance

with the rules for service of citation affirmatively appear on the record in order for a default

judgment to withstand direct attack." Ins. Co. of State ofPa. v. Lejeune, 297 S.W.3d 254, 255 (Tex.

2009) (per curiam) (quoting Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per

curiam)). Failure to comply with these rules constitutes error on the face of the record. Id. There

are no presumptions in favor of valid issuance, service, and return of citation in the face of an attack

on a default judgment by restricted appeal. Primate Constr., 884 S.W.2d at 152.

Tejas's motion for default judgment recites that the citation and proof of service were

returned to the court and were on file at least ten days before the judgment. This statement is not

supported by the record. Neither the citation nor the proof of service is contained in the clerk's

record. The certified mail return receipt (green card) is the only document regarding service in the

record. But the green card alone is not proof of service as required by rule 107. See TEX. R. Civ.

Chase asserts on appeal that it is the successor by merger to Chase Home Finance L.L.C. P. 107, 50 TEX. B. J. 854 (1987, amended 2011) (listing information required in return of service).

Furthermore, when service is by certified mail, the return of service "must also contain the return

receipt with the addressee's signature." Id. (emphasis added).

The citation and return of service must be on file more than ten days before a default

judgment is rendered. TEX. R. Qv. P. 107, 53 TEX. B. J. 595 (1990, amended 2011). The face of

the record does not affirmatively show a proper return of service was on file with the clerk at least

ten days before the default judgment. Therefore, the default judgment cannot stand. See Primate

Constr., 884 S.W.2d at 153 ("Proper service not being affirmatively shown, there is error on the face

of the record, and the court of appeals erred in holding otherwise."). We sustain Chase's first issue

and need not address its second issue. See TEX. R. APP. P. 47.1.

We reverse the trial court's judgment and reman ase f' f,urther proceedings.

JI 0`f LE STICE

110962F.P05 Tourt of Apptats iffift4 Bistrirt ufTrxas at Dallas JUDGMENT JPMORGAN CHASE BANK, N.A., Appeal from the 429th Judicial District Appellant Court of Collin County, Texas. (Tr.Ct.No. 429-04897-2010). No. 05-11-00962-CV V. Opinion delivered by Justice Moseley, Justices Morris and Myers participating. TEJAS ASSET HOLDINGS, L.L.C., Appellee

In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings. It is ORDERED that appellant JPMorgan Chase Bank, N.A. recover its costs of this appeal from appellee Tejas Asset Holdings, L.L.C.

Judgment entered September 10, 2012.

MOSELEY STICE Record Retention Form — Civil Cases

APPELLATE CASE NO.: 05-11-00962-CV

STYLE: JPMorgan Chase Bank, N.A.

VS: Tejas Asset Holdings, L.L.C.

COUNTY: Collin

CASE DISPOSITION & DATE: Reversed and Remanded; 9-10-12

DESCRIPTION/SUBJECT OF THE CASE: Restricted appeal from default judgment declaring deed of trust lien void.

RECOMMENDATIONS: [ X ] DESTROY [ ] RETAIN (see retention list below)

[] Appeal concerning election questions (all),

[] Appeal concernin andmark legal opinions,

[] Appeal th fçmation on the area's history or concerning important public fi inent information above, i.e., person's name, or event, etc.

SIGNED:

DATE: S SERIES NO.: